The U.S. Supreme Court (SCOTUS), which has a 5-4 conservative majority on most cases before it, has taken up a case that could effectively kill the Affordable Care Act (ACA), which has provided me and millions of other Americans with health insurance, in most of the country.
The case involves four words in the law regarding federal subsides that help people like me afford health insurance off of the ACA exchanges:
The Supreme Court, moving back into the abiding controversy over the Affordable Care Act, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states.
Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference.
By adding the case to its decision docket at this point, without waiting for further action in lower federal courts, as the Obama administration had asked, the Court ensured that it would rule on the case during the current Term. If it decides to limit the subsidies to the state-run “exchanges,” it is widely understood that that outcome would crash the ACA’s carefully balanced economic arrangements.
Since the health care exchanges have been in operation, nearly five million individuals have received federal subsidies to help them afford health insurance on an exchange run by the federal government. The average subsidy had been about $4,700 per person. The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act. In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.”
Should SCOTUS, using a narrow interpretation of the law, declare that those who receive health insurance off of the federal health care exchange, established by the ACA in states that don’t have their own health care exchanges, are ineligible for federal subsidies, this would render the ACA effectively dead in, at worst, the 37 states that have either a federal-run marketplace, a federal-supported marketplace, or a state-federal partnership marketplace, leaving millions of Americans in those states unable to afford health insurance and legally forced to repay any federal subsidies that they’ve received to pay for health insurance off of the ACA exchanges. More than likely, there are at least four justices (if I were to guess, it would be the four conservative associate justices, Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy) who would vote to strike down health insurance subsidies for those who receive health insurance off of the federal exchanges and effectively take away health insurance from millions of Americans, since it takes at least four justices deciding to hear a case for SCOTUS to hear that case and those were the four justices who sided against the ACA in a 2012 constitutional challenge to the law.
Should SCOTUS, using a broad interpretation of the law, declare that federal health care exchanges established by the ACA in states that do have their own health care exchanges are eligible for federal subsidies, this would preserve the ACA in all states and allow millions of Americans to keep their health insurance. More than likely, there are at least four justices (if I were to guess, it would be the four liberal associate justices, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer) who would vote to preserve health insurance subsidies for those who receive health insurance off of the federal health care exchange.
If I were to guess, the swing vote on whether or not to save the ACA would be…you guessed it, conservative Chief Justice John Roberts, who was the swing vote on the 2012 constitutional challenge to the ACA.