Tuesday, June 9, 2015

More on ACA Under Fire: Will USSC Take Away 8 Millions Health Care

United States Supreme Court: The Marble Palace

Should be the American Standard


As we anxiously await the high court's ruling on ACA tax credit (health care subsidies) the King v. Burwell case, I wanted to provide more details how we go here, more of less in layman's terms. Here goes.  

Quick review of King v. Burwell basics:  To ensure that health insurance options were affordable for everyone, the ACA made it possible for low- and middle-income households to qualify for tax credits. The way the law was intended to work, anyone with low enough income could qualify for tax credits, whether they signed up through the federal exchange or one run by their state. In 2015, 87% (7.5 million) of the people who signed up for Obamacare on Healthcare.gov were eligible for tax credits. But about five years ago, some people 
pointed out a tiny flaw in the way the new law was written -- it says that tax-credit subsidies can only be used by consumers using an insurance marketplace that was “established by the state.”
In his lawsuit, King (name used for the 4 plaintiffs) argues that those four little words make it illegal to offer tax credits to anyone who is enrolled in Obamacare through Healthcare.gov -- the marketplace established not by states but by the federal government.
Who are the 4 plaintiffs in King vs. Burwell and why do they have standing before the high court?  In February 2015, The Wall Street Journal and Mother Jones investigated the four plaintiffs and reported this:
1.  Two of the plaintiffs were Vietnam War veterans, who would be eligible for free care.
2.  Another plaintiff provided the court with a motel address, which was used to calculate the cost of insurance, as well as the amount of subsidies; a different address might result in different amounts that may cause her not to have standing.
3.  The fourth plaintiff stated that she made $10,000 per year as a substitute teacher, an income low enough to be exempt from the individual mandate, although the Competitive Enterprise Institute suggested that she might have additional income from other work.
The investigations also suggested that some plaintiffs may lack standing because the cheapest available subsidized insurance was over 8% of their income, making them exempt from the individual mandate.
Related: More detailed outline of the components leading up to King v. Burwell here at Wikipedia – pretty good rundown overall, and here from Families, USA (also good site).
Original post from here: Health care, dating back to many presidents (even Teddy Roosevelt in 1912) and long before Mr. Obama came into office with the ACA in mind have believed and said and advocated for health care across the nation that says in one simple message: “… health care is a right, not a privilege.” 

Most Americans, I believe, feel that same way … yet, the GOP will chime in with their view: “Yeah, but only for those who can afford it.” That’s the rub even more so today and the GOP fights tooth and nail to repeal, overturn, defund, trash, or otherwise get rid of the ACA (which they have labeled “Obama-care” and which the President is proud of that label and so am I) anyway possible.

Now once again the ACA is before the Supreme Court in King v. Burwell which will decide in essence the fate of the ACA based on 4-words – some say a drafting grammatical error in the law. Those 4 words in the law under fire are in this rundown from Health Affairs.org:

Those 4 words in the law state simply … [whether] “established by the state” will render low-income residents of states that have not created their own insurance exchanges but participate in federal exchanges are ineligible for federal tax credits.

That is pretty easy to understand, one presumes – but this 5-4 court is famous or infamous depending on your view for going against the common-sense grain as it were.

If case indeed turns out to be the law, then millions of middle-class families will be unable to afford coverage, plus residents of the affected states (some 34 or so to date) that already rely on federal exchanges will pay billions to the IRS for the benefit of those living elsewhere, premiums in those exchanges will rise as enrollments of healthy individuals drop, and the ACA will be unable to achieve its undisputed core purpose of health insurance for all Americans coverage at decent rates for everyone who needs coverage.

Most of the Justices already knew where they stood, which forced plaintiff’s counsel Michael Carvin – who spoke first – to hear answers from the bench more often than he was asked actual questions.  

The Court’s willingness to listen more increased by the time Solicitor General Donald Verrilli took the podium on behalf of the government. He proved himself to be an organized and articulate presenter. The only jurists not revealing their positions were Justice Kennedy, who challenged both lawyers on several points. Chief Justice Roberts said little except to maintain order and decorum. Justice Thomas, who famously refrains from participating in oral argument, but usually votes with Justice Scalia maintained his track record.

Both lawyers and the Court seemed to understand the ACA much better now than when NFIB v. Sebelius was argued in 2012, before most provisions of the law had even taken effect.

Yet the potential effects of the current case on the health care system were not emphasized, including the key issue of whether federal exchanges denied tax subsidies would collapse from adverse selection. Instead, the arguments predictably focused on two related inquiries:

First: Can the four words at issue be reconciled with the rest of the ACA? 

Second: Should Congress be forced to clean up its own mess? 

These are both legitimate questions for our nation’s highest court, which is responsible for maintaining the basic framework of government set forth in the Constitution.

Most court watchers predict (with fingers crossed I presume) that the Justices will reach a final decision (hopefully not another 5-4 against) in the case by triangulating between their answers to each of those two inquires. Even a 5-4 to keep the law in tact would surprise many.

I would love to see a 9-0 to keep the law intact and simple mandate to congress to change those 4 words to clearly state the intent. For goodness sake this time call in a grammar and sentence structure PhD to give final blessing (my weak attempt at humor).  

Stay tuned. Thanks for stopping by. Enjoy the President’s remarks seen below. They are worthwhile – too bad the GOP sewed their ears shut. But, as Mr. Obama says and I like: “The critics ignore the reality.” Yes, they have. 

(Note: President is introduced at the 18:15 mark. His remarks follow at 20:00): 



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