There are three simple numbers Republicans in Congress need to keep their eyes on in the aftermath of the Supreme Court’s forthcoming decision in King v. Burwell, no matter what the outcome: 28, 60 and 67.
28: The number of GOP governors in states with a federal health insurance exchange where a combined total of 6.5 million subsidy-eligible residents are at risk of losing those subsidies and their insurance if the plaintiffs win in King. The Department of Health and Human Service will offer these governors a quick fix: Simply deem the federal exchanges an “exchange established by the state” for the purpose of receiving federal subsidies. Without a Republicans alternative for these 28 governors, HHS’ escape hatch is going to look very attractive.
60: The number of votes Republicans must rally to overcome a Democratic filibuster of legislation that might put the president in an awkward position — such as repealing the individual mandate in exchange for allowing the subsidies to continue to flow for an interim period.
67: The number of votes Republicans need in the Senate to overcome a presidential veto — an impossible number. Republicans would have to be content to make Democrats take a hard vote on a full “repeal and replace” bill, losing the battle, but hope that it would set them up to win the war by maintaining the Senate and taking the White House in 2017.
At some point between now and the beginning of July, 2015, the Supreme Court will decide King v. Burwell. If the Court sides with the plaintiffs and invalidates the Internal Revenue Service (IRS) rule permitting federally facilitated exchanges to grant premium tax credits, the effects will be dramatic. Premium tax credits and cost-sharing reduction payments in the federally facilitated exchanges would probably cease at the end of July.
At that point, approximately 8 million Federally Facilitated Marketplace (FFM) enrollees currently receiving subsidies would have to decide whether to continue to pay the premiums themselves. Without the subsidies, their premiums would increase 122 to 774 percent depending on the state, with a national average increase of 255 percent. Millions of individuals would likely be unable to afford these premium increases and would cease paying their premiums. Their coverage would probably end 30 days thereafter.
Is it better to follow the strict letter of the law or to adjust it where appropriate to produce a more equitable result? This is one of the oldest questions in legal thought, one that can be traced back at least to Aristotle — and on Wednesday the U.S. Supreme Court weighed in, 5-4, on the side of equity, with Justice Anthony Kennedy providing the deciding vote.
Ordinarily, a decision like this one, involving the interpretation of the Federal Tort Claims Act would be of interest only to practitioners who are specialists in statutory interpretation. But this isn’t an ordinary spring. In June, the Supreme Court will hand down its most important statutory interpretation case in a generation, essentially deciding whether the Affordable Care Act will survive or fall. The interpretation question before the court in that high profile case, King v. Burwell, bears a striking structural resemblance to the obscure one the court decided Wednesday. And, not for the first time, Kennedy is the justice whose intentions we can’t help trying to predict.
Sen. Ron Johnson (R-Wis.) unveiled legislation on Tuesday that would allow people to temporarily keep their ObamaCare plans if the Supreme Court guts the law’s subsidies.
Johnson’s bill is the latest Republican effort to put forward contingency plans for the possibility that the high court could strike down subsidies that help 7.5 million people afford health insurance.
Many Republicans, including Johnson, who is up for reelection next year, worry that without a plan, they will face intense political pressure to simply restore coverage under ObamaCare to the millions of people who would lose insurance in the case King v. Burwell. A ruling is expected in June.
April 15, 2015 Congress just passed a big bipartisan health care bill, overwhelmingly and on a tight timeline. Now, some Democrats might hope the Supreme Court didn’t notice.
Republicans and Democrats defied just about everyone’s expectations by passing a permanent “doc fix” after punting on the issue for more than a decade. Tuesday’s 98-2 vote in the Senate was the kind of thing that isn’t supposed to happen, especially on health care policy, in a gridlocked Congress.
“This bill represents what is possible when members of Congress work together in good faith to accomplish results for the American people, and I am hopeful this is the start of many more bipartisan solutions to come,” Senate Finance Chairman Orrin Hatch said in a statement.
Democrats praised the bill as well, though Kumbaya might not be what they are looking for at the moment—not while Republicans are trying to convince the Supreme Court to blow a massive hole in the Affordable Care Act by promising justices that Congress will be able to patch it up.
The high court is expected to rule this summer on a challenge to Obamacare’s insurance subsidies. A ruling against the Obama administration would unleash tremendous disruption on state insurance markets, and could drive some states’ individual markets to the brink of collapse—unless Republican governors or the Republican-controlled Congress steps in.
WASHINGTON, April 16 – Today the Competitive Enterprise Institute (CEI) released a report by finance expert Scot Vorse that shows many states knew as early as 2011 that they might not receive tax credits if they opted out of establishing a state-based health insurance exchange. Whether nonparticipating states had adequate knowledge that they were putting their Obamacare subsidies at risk is a critical question in CEI’s Supreme Court case, King v. Burwell.
Vorse obtained emails related to a January 2012 letter sent by seven states to the U.S. Department of Health and Human Services (HHS). While Obamacare supporters have dismissed this letter as a “spoof,” these state emails show the letter was a carefully crafted and coordinated effort by the states to get detailed information about the exchanges from HHS.
“Notably, the states explicitly asked HHS to explain what authority it had to administer tax credits on federally established exchanges,” Vorse writes.
The letter was signed by insurance and health officials from Kentucky, Maine, New Mexico, North Dakota, Tennessee, Utah and Virginia. In addition, the emails indicate several other states supported the letter. Even though HHS never responded, five of the state signatories chose not to set up state-based insurance exchanges. Virginia’s signature is especially noteworthy, because it contradicts the Supreme Court amicus brief that Virginia later signed in support of the government’s position in King.
Early this summer the Supreme Court will render a decision on King v. Burwell, the case challenging the IRS workaround that allows ObamaCare subsidies to be paid through federal exchanges. Many on the right believe that if the justices rule against the administration, it would be the final stake in the heart of ObamaCare. Nothing could be further from the truth.
Millions of Americans would lose their federal subsidies and therefore be unable to pay for expensive ObamaCare coverage. In that case we can expect President Obama to declare immediately a crisis that can only be fixed by more government. As Rahm Emanuel, the president’s former chief of staff, once said, you never want a serious crisis to go to waste.
If the court rules against him, President Obama’s response will be diabolically simple and highly effective. He will ask Congress to pass a one-sentence bill allowing the subsidies to flow through federal exchanges. At the same time he will offer governors a contract to convert their federal exchanges into state exchanges with a simple stroke of a pen.
Earlier this year the U.S. Supreme Court heard arguments in King v. Burwell, a case critical to the future of the Affordable Care Act (ACA, or so-called Obamacare). Readers interested in the details of the case should find them elsewhere. Suffice it to say here that the case concerns whether individuals can receive tax credits for buying health insurance on exchanges established by the federal government, though the text of the ACA indicates such subsidies are provided for those buying coverage through an “exchange established by the State.”
The case has the potential to invalidate substantial subsidies now being provided by federal taxpayers to millions of Americans using federal exchanges in 37 different states. Given the uncertainty created by the pending case, legislators on both sides of the aisle are considering how to react to various possible scenarios arising from a court decision. The House and Senate each recently passed budget resolutions allowing budget targets to be revised in the event of subsequent legislation modifying the ACA. The Senate resolution specifies that such legislation must be deficit-neutral.
It’s spring in Washington, and time to resume one of the capital’s favorite sports. No, not baseball, but throwing mud at the Supreme Court. Pending cases include the legal status of same-sex marriage and whether the IRS can provide billions of dollars in Obamacare subsidies without explicit congressional authorization. Partisans have launched a preemptive bid to undermine the legitimacy of the forthcoming decisions by accusing the court of “activism” for involving itself at all.
These increasingly transparent attempts to discredit the court should be rejected.Every case involving plausible abuses of power requires judicial engagement — conscientious, impartial truth-seeking, grounded in evidence — rather than reflexive deference to the political branches.
Take the Obamacare case. At issue in King v. Burwell is a section of the Affordable Care Act concerning tax credits for buying health insurance from government-operated healthcare exchanges. Congress wanted states to set up their own exchanges, but it lacks constitutional authority to force them. So Congress opted for a stick-and-carrot approach, authorizing tax credits for insurance policies purchased “through an Exchange established by the State.” As a backup, the ACA directed federal bureaucrats to set up federally operated exchanges in states that declined to set up their own.
Heather Higgins: The thing that I do that spends actually most of my time and is not something that is terribly sexy for donors, but that I think is hugely important is work on Obamacare. That’s kind of how I backed into the political stuff. I had been very involved in 2009 in trying to help fund and orchestrate and message the entire battle against Obamacare because there was no infrastructure on the right that was really set up to do that. And then coming out of that had the epiphany that since Reid and Pelosi were not moving, maybe the way to do that was to go into the Massachusetts race for Ted Kennedy’s seat, that special election which was being run on the issues that had polled well in September, which were the national security issue and the economy, and instead redefine the race as being about healthcare and the 41st vote, which every political consultant I took that to thought that I was on drugs and that that was a waste of money. So we wound up being the only independent expenditure in Scott Brown’s first race to make it be about healthcare and the 41st vote. [Applause.] Thank you.
And then in the summer of 2010 I was appalled that nobody was talking about Obamacare so we created the Repeal Pledge which is actually the only pledge about Obamacare that still exists of the ones that were started then; and coming out of the 2010 election where we had used it, I looked for the group to join to think strategically about not working at cross purposes between what the Senate might do, the House might do, the court case from Florida that was then rising up to the Supreme Court, what outside grassroots group could do, and there was none. So I’ve started something called the Repeal Coalition which meets every 3 to 4 weeks in the Capitol. It has leadership staff from both the House and the Senate. It has a lot of staff from different Members and Senators. It has a lot of outside groups that are policy wonks to grassroots groups, and we talk about all the things we wish that would get done that don’t get done, and we talk about things that sound like good ideas and figure out if they’re dumb ideas and try and prevent dumb things happening. There is an overriding purpose to this which is remembering, of course, the long-term goal.