Judiciary

Which States Will Be Hardest Hit if SCOTUS Guts Subsidies?

Wall Street Journal: “Florida, North Carolina and Texas would be among the states hardest hit if their health-insurance subsidies are struck down by the Supreme Court. Those states had the highest number of consumers who were eligible for tax credits when selecting a plan on the federal HealthCare.gov website, government data show.”

“Affordable Care Act enrollment figures released Tuesday give the most up-to-date snapshot of which states would bear the brunt of any loss of subsidies.”

“In Florida, about 1.6 million people who picked a plan on the federal site were eligible for financial assistance, according to the new report. In Texas, more than one million were eligible; in North Carolina, more than 550,000; and in Pennsylvania, more than 430,000.”

7.7 Million Will Qualify for Obamacare Subsidies

The Hill: “Nearly nine in 10 people who signed up for healthcare from the federal government this year qualify for subsidies, the Obama administration announced Tuesday.”

“A total of 7.7 million people would receive subsidies this year in the roughly three-dozen states using HealthCare.gov – a figure that has held steady since ObamaCare’s first year.”

“The Obama administration touted the figure Tuesday to show that the vast majority of people in states using the federal exchange rely on subsidies as the Supreme Court weighs a case that could eliminate them.”

“‘These numbers show just how important the tax credits are to millions of Americans and to the insurance markets in those states,’ said Health and Human Services Secretary Sylvia Mathews Burwell, pointing to states like Texas, Florida and North Carolina.”

A Growing Fear of a Massive Healthcare Meltdown

The Hill: “Republicans are under pressure to prove they can avert a massive healthcare meltdown if the party wins its latest ObamaCare battle in the Supreme Court this spring.”

“While top Republicans in the House and Senate said this week that they are nearing a consensus on their efforts to create a back-up plan for the subsidies, almost no details have been shared about the half-dozen plans unveiled in the last two weeks. Most of the proposals are drawing criticism from their fellow conservatives behind the scenes.”

“’It’s a couple lines in an op-ed. Who knows what it really means? In some of those, they may not know, frankly,’ said one conservative strategist and former Hill healthcare staffer.

“Creating even a temporary solution for ObamaCare subsidies is a huge dilemma for the GOP-controlled Congress. Some Republicans have even said, albeit quietly, that the party could be better off if the administration’s policy survives the Supreme Court challenge.”

“’Then we won’t be put into a really difficult spot and can move on. There is something really appealing about that,’ one GOP Senate aide said.”

What Would Ending Obamacare Subsidies Look Like?

New York Times Editorial Board: “If the Supreme Court rules that no federal tax credit subsidies can be provided to Americans buying insurance on federal health exchanges in 34 states, the economic effects could be devastating.”

“The Obama administration has said that it has no backup plan to cope with the loss of subsidies. The congressional Republicans who want to destroy Obamacare offer no meaningful plans to deal with the consequences.”

“Beyond economic damage, the lack of insurance almost always means that sick people get less care, with greater risk of death.”

“The political opponents of Obamacare seem to think this fight is about ideology. What they refuse to acknowledge is the human toll and the economic devastation that destroying the heart of health reform will bring about.”

Republicans Mull Over Obamcare-Lite

Jonathan Weisman: “As the Supreme Court deliberates over the law’s fate, the search for a replacement by Republican lawmakers is finally gaining momentum.”

“The prospects of legal victory have also raised practical and political fears that Republicans will take the blame for the health care crisis that would follow. A legislative scramble is underway.”

Aides to senior House Republicans said Thursday that committee chairmen were meeting now to decide whether a budget plan — due out the week of March 16 — will include parliamentary language, known as reconciliation instructions, that would allow much of a Republican health care plan to pass the filibuster-prone Senate with a simple majority.

Uwe Reinhardt: “But these plans essentially want to do away with the employer mandate, modify the individual mandate … and we could go into a death spiral in the individual insurance market because healthy people won’t buy it. The risk pool will keep getting sicker and sicker.”

Greg Sargent also expresses skepticism about a Republican alternative: “Both plans were devoid of specifics. And what’s more, during oral arguments, the idea (floated by Scalia) that Congress might provide such a contingency plan was basically laughed out of the Court. Understandably so: No one who watched the chaos around Homeland Security funding could possibly imagine Congress producing any such plan.”

Jonathan Weisman: “Republicans hope to keep health care a front-burner issue — and turn the 2016 election into a choice between Mr. Obama’s health care program and a detailed, conservative alternative.”

Obamacare Subsidies Case: It’s Not All Doom and Gloom

Margot Sanger-Katz: “The case before the Supreme Court this week will not wipe Obamacare off the books.”

“Unlike the case the court considered in 2012, which could have erased the Affordable Care Act entirely, this one concerns the application of only one provision of the law, and only to certain states. A ruling for the plaintiffs in the case, King v. Burwell, would carry huge consequences in many states, but 15 million of the people estimated to get insurance under the law would still get it, according to an Urban Institute estimate.”

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“The list of policy changes that would be untouched by any legal ruling is very long.”

“Even the law’s expansion of insurance coverage to the uninsured — the piece directly challenged by the lawsuit — will not completely evaporate.”

“Even in the worst case for Obamacare, with a win for the King plaintiffs followed by no congressional, regulatory or state policy action, the law would still reduce the number of uninsured Americans by about two-thirds of what it would accomplish unchallenged.”

Obamacare Subsidies Case: Reading the Tea Leaves

Adam Liptak: “The Supreme Court on Wednesday took up the Affordable Care Act in one of the most anticipated arguments of the term, and it seemed closely divided over the fate of President Obama’s signature legislative achievement.”

“In a pleasant surprise for the administration, however, Justice Anthony M. Kennedy, who was in dissent in 2012, made several comments indicating that his vote was in play.”

“He repeatedly asked whether Congress had the constitutional authority to make states choose between setting up their own insurance exchanges and letting their citizens lose tax subsidies to help them buy insurance.”

Charles Lane continues, elaborating on the standard of constitutional avoidance: “According to Kennedy, if the challengers are reading the law correctly, then they might lose the case. To compound the irony, the precedent for Kennedy’s apparent view would be the Supreme Court’s second main holding in the last Obamacare case: that the law’s Medicaid expansion unconstitutionally coerced states, and that they should therefore be allowed to opt out of it.”

“The Medicaid opt-out, could form the basis of their defeat this time.”

Jeffrey Toobin observes that Roberts’s one question – regarding how much leeway the executive branch should have in interpreting laws – “may turn out to be extremely important.”

“The question suggests a route out of the case for Roberts—and the potential for a victory for the Obama Administration. Roberts came of age as a young lawyer in the Reagan Administration, and there he developed a keen appreciation for the breadth of executive power under the Constitution.”

“To limit the Obama Administration in this case would be to threaten the power of all Presidents, which Roberts may be loath to do. But he could vote to uphold Obama’s action in this case with a reminder that a new election is fast approaching, and Obamacare is sure to be a major point of contention between the parties.”

“A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.”

White House Strategy For Obamacare Subsidies Case: Do Nothing

New York Times: “As the Supreme Court prepares to hear arguments on Wednesday on whether to invalidate a crucial part of the president’s health care law, Obama administration officials say they are doing nothing to prepare for what could be a catastrophic defeat.”

“Administration officials insist that any steps they could take to prepare for the potential crisis would be politically unworkable and ineffective, and that pursuing them would wrongly signal to the justices that reasonable solutions existed. The do-nothing strategy is meant to reinforce for the court what White House officials believe: that a loss in the health care case would be unavoidably disastrous for millions of people.”

“In the current health care case, legal experts said the White House was savvy in making clear that the situation was dire. They said the justices regularly considered the broader effect of their decisions and often took into account how the executive branch or Congress might respond to a ruling.”

“Jeffrey L. Fisher, a law professor at Stanford University, said the justices are likely to talk about the administration’s lack of contingency plans when they meet behind closed doors on Friday for their first conference after hearing arguments.”

Stakes are High in Supreme Court’s Obamacare Case

Sarah Kliff: “The Supreme Court case centers on one big question: does the federal government have the legal authority to help Healthcare.gov enrollees pay for health insurance coverage?”

“If the answer is no, the subsidies go away — and health insurance gets more expensive. A lot more expensive. Without the subsidies, the average Obamacare enrollee’s 2015 premiums would increase by 256 percent.”

“And that’s just for 2015 — premium spikes would likely be bigger in 2016, when insurers have a chance to set new rates.”

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Poll: Majority Want to Keep Obamacare Intact

The Hill: The majority of people in both parties say they would be opposed to a Supreme Court decision gutting a key provision of ObamaCare, according to a new poll.

Plaintiffs in the case, King v. Burwell, claim that people in 37 states are illegally receiving subsidies under ObamaCare. But 61 percent say they hope the subsidies are upheld, according to a national survey conducted by Hart Research Associates for the Service Employees International Union (SEIU).

Even if the Supreme Court rules against the Obama administration, most people believe the subsidies should be available to all Americans. Some 71 percent of people said it shouldn’t matter whether states set up their own exchanges in order to qualify for the subsidies — which is the central question in King v. Burwell.

The new figures reveal a major governing challenge for Republicans, who have long supported the case but remain divided on a strategy to prevent millions of people from losing their coverage and blaming the GOP.

Obamacare’s Worst-Case Outcome

Ezra Klein provides a map of the worst-case outcome should the Supreme Court rule against Obamacare and eliminate health insurance subsidies purchased on federally run exchanges.

Obamacare map

“The result will be a replay of the Medicaid mess that emerged from the Supreme Court’s first Obamacare ruling.”

“In the end, some red states will end up building their own exchanges, just as some red states have accepted the Medicaid expansion. Some red states will hold out, at least for a few more years. America will develop a two-tier health-care system, in which blue states that participate in Obamacare are subsidized by red states that don’t.”

The Death of American Democracy

Matthew Yglesias: “America’s constitutional democracy is going to collapse.”

“Some day … there is going to be a collapse of the legal and political order and its replacement by something else.”

“The breakdown of American constitutional democracy is a contrarian view. But it’s nothing more than the view that rather than everyone being wrong about the state of American politics, maybe everyone is right. Maybe Bush and Obama are dangerously exceeding norms of executive authority. Maybe legislative compromise really has broken down in an alarming way. And maybe the reason these complaints persist across different administrations and congresses led by members of different parties is that American politics is breaking down.”

“Within a presidential system, gridlock leads to a constitutional trainwreck with no resolution. The United States’s recent government shutdowns and executive action on immigration are small examples of the kind of dynamic that’s led to coups and putsches abroad.”

“America’s escalating game of constitutional hardball isn’t caused by personal idiosyncratic failings of individual people. Obama has made his share of mistakes, but the fundamental causes of hardball politics are structural, not personal.”

“The idea that America’s constitutional system might be fundamentally flawed cuts deeply against the grain of our political culture. But the reality is that despite its durability, it has rarely functioned well by the standards of a modern democracy.”

GOP Fears Rise Over Obamacare Insurance Subsidies Case

The Hill: “Republican fears are mounting over a Supreme Court case that the party has long hailed as its best chance to undo ObamaCare.”

“The Supreme Court will hear arguments Wednesday on a GOP-backed case that threatens to erase healthcare subsidies for 8 million people. The vast stakes are raising alarm among Republicans, particularly in the Senate, who increasingly fear a backlash at the polls if their party can’t find a fix.”

“The party has begun to fret about the fallout from King v. Burwell, fearing the sudden loss of subsidies could put pressure on lawmakers and governors to restore them.”

“Republicans are under intense pressure to present a strategy before the court meets next week to discuss the case. Even as ObamaCare remains unpopular nationally, polls show the vast majority of Americans support the subsidies.”

L.A. Times: “Ultraconservative Sen. Ben Sasse (R-Neb.) laid out the consequences starkly this week in a Wall Street Journal op-ed. ‘Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real. What will happen next is predictable: A deluge of attacks on Republicans for supposedly having caused this.'”

Ezra Klein‘s response to a Republican Obamacare alternative: “This isn’t a plan. It’s the barest possible sketch of some nascent ideas that could, one day, be used as the basis for a plan.”

“The bigger problem is there is absolutely no way House Republicans will permit Senate Republicans to save Obamacare.”

“The idea that the Supreme Court will gut Obamacare and House Republicans will instantly vote to keep the subsidies flowing so long as states get a bit more flexibility to design their alternatives defies belief.”

An Obstacle for Obamacare Opponents?

Wall Street Journal: “Opponents of the health-care law face a potential challenge Wednesday in persuading the Supreme Court to strike down nationwide insurance subsidies: Doing so could put the law at odds with part of the court’s blockbuster health-care decision three years ago.”

“In 2012, the justices largely upheld the Affordable Care Act but ruled by a 7-2 vote that Congress couldn’t put excessive financial pressure on the states to implement a portion of the law that expanded Medicaid.”

“The pressure issue could be relevant in the latest case … States that support the health-care overhaul, along with some legal scholars, say the principle the court’s majority embraced three years ago undermines the case against the insurance subsidies. They argue the pressure on states to create their own insurance exchanges would be at least as strong as the pressure the states faced on Medicaid.”