Some interesting material on King V. Burwell:
I set forth with a lot of energy with the goal of writing an informative post on the issue of King v. Burwell. I quickly realized this is basically a task for a really arcane lawyer. I found some interesting material and have decided to post some links, some brief descriptions, and some personal comments.
Basically, the whole topic and the post-ACA health care debate depresses me quite a bit.
Article on legal issues:
“In King v Burwell an easy answer to the ACA’s definition of an exchange” By Brookings Institute.
Article asks whether the use of the phrase “in an exchange established by a state” in the section on tax credits means that citizens of states that rely on the federal exchange cannot have the federal tax credit.
The author argues that plaintiffs need to come up with a reason why Congress intended that the federal exchange operate like the state exchange in all ways other than in availability of the federal tax credit.
Article outlining Amicus briefs filed in King Vs. Burwell:
Article summarizes over 30 Amicus briefs filed with the Supreme court on impact of King V. Burwell. These briefs tended to suggest that a finding for the plaintiff would place states without an exchange in an untenable position.
Articles on market impacts of a ruling for the plaintiffs:
“How King vs Burwelll Threatens the Health and Financial Stability of Consumers,” Families USA. February 9, 2015.
The Implications of a Supreme Court Finding for the Plaintiff in King Versus Burwell: 8.2 Million More Uninsured and 35% Higher Premiums
The Effect of Eliminating the Affordable Care’s Tax Credits in Federally Facilitated Marketplaces, The Rand Corporation, 2015.
· One study found 9.2 million people will lose subsidies for their insurance 8.2 million would become uninsured and premiums would increase by 35%
· Another study found a drop in enrollment of 9.9 million and an increase in unsubsidized premiums of 47%
Comments on these Issues:
Comment One: The Democrats held the pen when the ACA was written. The highly precise language limiting availability of tax credits to citizens of states that established an exchange did not appear by accident. What U.S. Senators or Senator’s aid created this wording? Did the Administration sign off on it?
The Democratic majority that existed after 2008 was a once in a generation situation. The Democrats who ran on health care reform never intended to create a system where people in many states did not have access to the new benefits. Why did the Democratic majority squander this opportunity? Was this outcome a consequence of corruption or just plain incompetence?
Comment two: The plaintiff’s argue that the language used in the ACA was intended to induce states to set up their own exchange. Supporters of the current interpretation of the ACA argue this intent was never sent to the states. See article below.
Are governors of states children who are incapable of reading the text of the law?
The plain language of the law is plain as day. It states the tax credits are only available in states that establish their own exchanges.
This was one of the most reviewed laws in history. Every government agency with a role in health care -- the CBO, the CRS, OMB, Treasury, and HHS -- had multiple offices reviewing this law. Every major law firm with a health care practice had a group reviewing the law. The reviews basically supported the consensus view that the ACA tax credit would be available in all states.
How is it possible that all of these reviews concluded that the law provided tax credits to all states when the plain text of the law clearly states otherwise?
Comment Three: The academic studies assert that 8-9 million people will lose insurance if plaintiffs prevail. While I believe the number of people losing insurance will be a large number this is a difficult claim for me to evaluate.
The individual mandate should still be in place for people who can still afford insurance. Individuals who find a silver plan unaffordable due to the loss of their tax credit will likely choose a bronze plan rather than drop insurance altogether. The loss of the individual tax credit could increase the number of people with bare-bone health plans. (From my perspective this is not a good outcome but is probably preferable than a total loss of insurance.)
The finding that 8-9 million people will lose insurance due to a ruling by the plaintiffs assumes that states do not establish exchanges in response to a ruling on behalf of the plaintiffs. I suspect that over time many states will adopt exchanges and that the number people who lose insurance will be smaller than anticipated. However, the transition process could be long and painful.
Comment Four: I believe that it would be very difficult for Congress to act and fix problems caused by a ruling in favor of the plaintiffs.
Key actors in the debate continue to argue that a ruling by the plaintiffs would be followed by repeal of the ACA and a new health care law. See the remarks of Senator Orrin Hatch below.
Representatives and Senators in states that established their own exchange would have little incentive to repeal the ACA because the law is working for their constituents.
The law also appears to be working in many states with a federal exchange. President Obama was able to win election in many of these states (Ohio, Maine, Florida, and Wisconsin) that now have Republican governors and state legislatures. Senators and Congressmen in these states, including Florida, Ohio, Maine and Wisconsin are faced with a difficult political choice.
Currently, there are 27 states with a federal exchange, 7 states with a federal/state partnership exchange and 16 states with a state exchange.
There seems to be little scope for compromise when one side wants repeal and the other side believes the law is working.
Comment Five: The federal government might be able to facilitate the establishment of state exchanges by simply selling or giving the existing federal exchange to each state. Could this be done without an act of Congress through an executive order? Alternatively, could a governor of the state act to convert an existing exchange without actions by the state legislature?
ADVERTISEMENT FOR MY REPORT ON THE 2014 ELECTION
Post Mortem on the 2014 Elections: Implications for 2016 and Beyond
The Democratic Party believes all they have to do is sharpen their message. My appraisal is a bit harsher.
· First, President Obama did not actively campaign in many states. President Obama’s vote totals far exceeded the vote totals of 2014 Democrats. It is likely that appearances by President Obama could have made a difference in several races.
· Second, the Democrats spent a lot of money on unwinnable races especially but not exclusively the Senate race in Kentucky and Georgia and the gubernatorial race in Texas. Republicans have successfully nationalized red-state elections. Democrats need to recognize this reality and reallocate resources towards states and districts where their efforts have proven successful in recent elections.
· Third, (and possibly most importantly) the Democrats are not committing enough money or political capital to competitive House contests. Many political analysts claim that most House Seats are safe. However, 26 House Districts taken by President Obama in 2012 now have Republican Congressman. Moreover, Governor Romney won 27 other House seats by less than five percentage points. Data presented below suggests that Democrats are not seriously campaigning in the Districts they need to retake the House.
· Fourth, several Democratic nominees picked by party leaders were ineffective on the campaign trail and unpopular with the base. The Democratic Party needs more intra-party competition and debate.