Opponents of Obamacare don’t want the government to help poor sick people, and they are going to court to stop it from trying. Even with a Republican-controlled Congress, repeal of the Affordable Care Act (ACA) is impossible with Obama in the White House, so haters of the law have mounted a clever legal attack. The case is called King v. Burwell, and it’s headed to the Supreme Court. If you care one bit about the mind-bending income disparity in the US, then you should pay attention to this case, which is about trying to make our feeble attempts to redistribute income even worse.
The King challenge is based on an arcane part of the law. Obamacare provides health insurance for the poor in part by providing financial subsidies. In the form of tax credits, these subsidies are for people with limited means to buy health insurance on the exchanges, which are run either by the state or by the federal government depending on whether the state has their own web site. The text of the law states that the subsidies are available for people on the State exchanges, and, in what may or may not have been an oversight, the law does not say that subsidies are available for people on the federal exchange. The case seeks to prevent the IRS from giving tax credits to millions of individuals on the federal exchanges.
Most of us thought that Obamacare was already ruled on by the high court, but the King case will provide the Supremes with another chance to undermine the administration’s attempt to get healthcare insurance to more people. Linda Greenhouse, a veteran court watcher, expressed despair that the unusual, we want a do-over nature of this case made it impossible for her to maintain her hope that the court was “not just a collection of politicians in robes.“
If successful, this attack would have huge consequences. It could cripple the law by undermining the goal of providing more Americans healthcare insurance, and might cause the failure of the most ambitious healthcare reform experiment in almost 50 years. The ACA is succeeding beyond liberals’ expectations and has proved most of the dire predictions of the right wing wrong. Many anti-Obamacare pols at this point are dead-ender Braveheart fans, but there are a handful of razor-sharp right-wingers leading the charge, like Michael Cannon (@mfcannon) who fights with impressive zeal. A firestorm of discussion of this case and the Halbig case that preceded it exploded online, but I worry most people are blissfully unaware.
I hope those of you playing at home will take an interest in the Supreme Court’s deliberations on King. When I first read about this case, I thought it silly, that clearly the wording of the law was an mistake that needed a simple fix. After some reading, I’m must admit that the challengers have a valid argument: that the law was written with State-only subsidies to encourage States to establish their own exchanges. They will argue that it was only after that incentive proved insufficient, that the IRS decided to provide subsidies to federal exchange participants. The administration will argue that preventing the federal subsidies will undermine the intent of the law to decrease the rolls of the uninsured. If King is successful, then health insurance will get significantly more expensive for people in states without state-run exchanges.
States that oppose Obamacare are strongly defending their freedom to avoid helping those in need. Many of the states that do not have their own exchanges also have not expanded Medicaid. If King wins the case, the disparity between the number of uninsured in friendly and unfriendly states will become even more dramatic. With the Republicans in control Congress, “fixing” the law will not happen any time soon. Obamacare will survive this challenge, but millions of Americans for whom the law was designed to help, will not get the help they need.
Post-script: interesting piece today in the New Yorker suggests that if King wins, there will be a backlash against the GOP for having gone a long way toward making healthcare unaffordable for some. A GOP argument that it was Obamacare’s fault will be tough to make when states with exchanges won’t have the same problems.