Cara L. Gallagher, Weekend Contributor
How many articles, journals, blog posts, podcasts, and Tweets does it take to understand King v. Burwell? The short answer: Several. One can easily find himself in their own “death spiral” of content, to use the parlance of the media and Justices recently, and still end up in the same place – confused, but maybe hungry for more.
I was hungry for more and followed the analyses closely, but even I got a bit lost in the weeds of the case. It’s been over a week since oral arguments were delivered in King v. Burwell, which took a second stab at the Affordable Care Act in the Supreme Court. By Thursday of last week, at least five friends and students asked me “What the heck is this case really about?” I forwarded links to articles and podcasts that delivered simple, straightforward explanations, and recommended writers to follow on Twitter. But I know some of those well-intentioned folks will never open that link, listen to the podcast, or even open the email. What to do?…
I used to write a segment called “5-cent and 10-cent rundowns” where I dissected critical Supreme Court cases into digestible, short write-ups that one could read to accomplish two goals: 1) gain an understanding of the case; 2) be able to explain the case to someone else if/when the subject came up. These rundowns are for the curious, the hardcore, or those who just want to bookmark this page to come back to in June, when a decision is likely to come down and there is a revival in interest for this case.
5-cent rundown: Can the federal government, via the Internal Revenue Service, give people assistance (tax credits) to purchase insurance through the Federal “exchange” even though the original language in the 2010 Affordable Care Act said the credits are only for those purchasing insurance on exchanges “established by the state”? This case centers on whether or not the Justices will read the law literally or take a broad interpretation of the ACA. These two dubious ways of interpreting the ACA are in essence what divides the Court. Textualists, like Scalia and Alito, are likely to follow the literal letter of the law, whereas Breyer, Sotomayor, and Ginsburg will interpret the letters, the sentence, and the broader context. Either way, this case is certain to be of consequence to the 11 million people getting their insurance through Obamacare.
10-cent rundown: If you’re a living, breathing citizen of the U.S. you have to have healthcare. That fact was established in the controversial 2010 ACA legislation. A separate, major SCOTUS case ruled this was law was constitutional. King isn’t going to impact folks who are fortunate enough to get healthcare through their employer. The core audience in this case are the 30+ million Americans who had no health insurance before Obamacare: Grad students, nannies, consultants, small-business owners, and millions of others.
Since health insurance was mandated, the ACA was written so that everyone would be able to go and get their own insurance in an open market called an “exchange.” The states could set up these exchanges or they could opt out. If your state said “Pass,” you could still go to the federal exchange and pick a provider at a price you could afford. Unless you live in one of the 16 states with its own exchange, you’re forced to get your insurance on the federal exchange. Since the federal government isn’t in the business of handing out cash, the Obama administration has the IRS provide the financial help in the form of tax credits to ease the financial burden of paying for insurance.
Dave King, a 64-year old man, and three other people from Virginia, represent the petitioners in this case. Virginia is one of the 34 states that doesn’t offer an exchange forcing residents into the federal exchange. Burwell is Sylvia Mathews Burwell, the Secretary of the Health and Human Services Department. Solicitor General Donald Verrilli is the attorney representing the government.
If you’re shocked an average-Joe like Mr. King took his case all the way to the Supreme Court, don’t be. Wealthy interest groups, think tanks, and public policy institutes scout petitioners for cases like this that, they think, are prime Supreme Court bait. In King’s case, the Competitive Enterprise Institute is supporting him and his legal team. Michael Carvin is King’s attorney and a Supreme Court advocate who argued the last Affordable Care Act case before the justices in 2012. King and the CEI want to convince four Justices, and either Kennedy or Chief Justice John Roberts, that the IRS and the Obama administration are violating the law by giving Americans in the 34 states without exchanges tax benefits therein dealing a fatal blow to spirit of the ACA.
The government’s argument asserts that King is isolating the words “established by the state” and taking them out of context. Further, it would be counterintuitive to create a piece of major legislation with four words that can internally dismantle the law. The Justices were reminded that many people can only afford to pay for mandatory insurance through the tax credits they get from the IRS. If the 11 million who’ve registered for Obamacare stop paying for their insurance because they no longer have financial support, the infrastructure of the ACA is crippled. As the ACA relies on a system in which millions of healthy people pay to offset the costs for those that are not, such a cataclysm would result in the interminable death spin for Obamacare.
I received a great question this week: “Who asked questions in the Court?” The Justices tend to save their words for challenging hypothetical tests to the attorney or side they’re most troubled by. Silence can be golden. If they’re not asking questions they’re likely, but not always, leaning towards the attorney speaking. [The only exception being the consistently silent Clarence Thomas.] The usual left-leaning justices (Kagan and Sotomayor) challenged King’s attorney while Scalia and Alito had several questions for Solicitor General, Donald Verrilli. [The Wall Street Journal had a simple, easy to read play-by-play here.]
The legal equivalent to Muhammad Ali and Joe Frazier met, again, in the SCOTUS during oral arguments for King. Michael Carvin, a seasoned Supreme Court advocate who represented the petitioners, challenged the constitutionality of the ACA in 2012 and the Florida recount in 2000, versus Donald Verrilli. Verrilli’s mild-mannered, methodical approach, juxtaposed with Carvin’s brazen defense of statutory text, make listening to the audio of the oral arguments worth it.
What’s next? A decision. Many say the justices already know how they’re going to rule by the time oral arguments happen but crafting the text of the decision – especially in close (5-4) cases – takes time. A decision is expected at the end of June, just before the end of the Supreme Court’s term.
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
Ah, Davidm:
“An individual should have the right not to be fined if he chooses not to turn to a medical doctor for their health care.”
**********************
Hard to tell what you’re driving at, but:
1. The ACA covers alternative medicine. You’re not restricted to MDs.
http://www.wmbfnews.com/story/20469152/obamacare-to-cover-acupuncture-alternative-medicine
2. If you mean folks can avoid health insurance costs by “going it alone” and then driving up the cost for the rest of us when they invariably present to the ER with maladies made magnitudes worse because they avoided early care, I think you’re daft.
3. If you mean an individual can turn to witch doctors, see 2 above.
Is it possible that the standing can be economic as a part of a larger class of taxpaying citizens of the State? One of the reasons that the individual States chose NOT to establish exchanges was the economic cost of expanded Medicaid that would be very damaging to the State and thereby to each taxpayer IN the State who would have to bear the costs of this expansion.
The expansion (illegally) of subsidies may have an economic harm to those taxpayers who will now have to bear some costs that they would not otherwise have to bear if the IRS had not interpreted the law other than as was written.
Perhaps a class action type of lawsuit based on economic harm to the entire class?
“What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.”
~ Judge Andre Davis (writing in concurrence in the Forth Circuit case)
As Judge Davis implies, there is none so blind as he who will not see.
BTW David King, the limo driver from Fredricksburg (VA) who is the lead plaintiff, is a Vietnam vet who is eligible for VA medical benefits. He neither wants nor needs the ACA. Why he has standing to challenge the law is beyond me? But standing is in the eye of the beholder, I suppose, to this rather reactionary SCOTUS.
Well, that was a pretty snotty and lazy non response from rafflaw.
The ACA has two sections 1311 and 1321
(a) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act
Section 1321 deals with Back Up Exchanges established by the Federal Government. If a State does not create an Exchange, a different section of the Act directs the federal government to establish and operate an Exchange (a section 1321 Exchange) in that particular State.
The premium assistance is only referred to those established by “The State” under section 1311.
The people who wrote this law were quite specific in making a difference in a section 1311 and 1321 exchange and that the only reference to premium assistance or tax subsidies in the law is referenced to the 1311 type exchanges,
If the people who wrote the law (note I don’t say Congress, since most of the law was written by others like Gruber and other consultants) wanted to use “THE STATE” to reference government in general, they should have done so. Instead they went to great lengths to separate out the different exchanges 1311 and 1321 and multiple references to the terms “established by the State under section 1311”.
Aridog,
I would suggest you look at various dictionary definitions of the word “state”. That would be a good starting point to answer your question.
rafflaw … no offense meant, but have you read my questions (cited twice now) about the meaning of the word “state” in any context used in common parlance in the USA? Would you care to answer them? I will listen.
I come here to read ideas and get questions answered, even those I haven’t asked yet. Most of the time I find everyone here pretty good at that, including you. Applying the KISS principle, what does the word “State” mean in common parlance in this country?
Peter Hill, we don’t need a replacement. The federal government should not be involved in health care, and it certainly should not be forcing us to engage their favorite brand of health care. An individual should have the right not to be fined if he chooses not to turn to a medical doctor for their health care.
Davidm2575
Peter Hill, we don’t need a replacement. The federal government should not be involved in health care, and it certainly should not be forcing us to engage their favorite brand of health care. An individual should have the right not to be fined if he chooses not to turn to a medical doctor for their health care.
I am just going to go with ignorance is bliss with this crowd because apparently it isn’t going to affect them. If you make 10,000 or less you will have to pay a 100.00(this is an example if it’s 10,000.00) – which is a lot and any multiple for-with that you don’t pay and so on and I am not cutting and pasting this again as a Penalty if you don’t buy the Plan like 30,000,000 Americans can’t because their state is not freed up for Medicaid because the Neoliberal Statist State is holding the money back and micro managing the counting.
But you know all of this……..
Sorry for the spelling but it is hard to post on the phone
How exactly is the phrase of context? Speaking of intent it seems that the clear intent was to force states to set exchanges or subject their residents to a penalty by losing the credit. It was intended to be a heavy handed way to compel the states to comply. It failed because Obamacare is do unpopular that many governors were more than willing to take the hot instead of buying into a fatally flawed act. Now that this coercion failed they want to change the rules without going back to Congress to change the law. It is ludicrous on its face but that is no guarrantee that the ultra liberals won’t stand the law on its head and rewrite the law without sending it back to Congress where it rightfully belongs.
I would like to echo what Mike A. said. It is a stretch, even for this Court to take a phrase out of context of the entire document.
My PPACA reservation is this: Will my health care plan, which mets (and always has met 90% of them) all the ACA criteria, but at far less cost with very low deductibles and co-pays (my current co-pay invoice for 05 March 2015 is a whopping $16.39) … will this be classified circa 2018 (last revision date I think) as a “Cadillac Plan” because it is far superior to even the ACA “Gold” plans. If it is so classified, I will owe a 40% penalty (err…”excise” tax) based upon the premiums in total. I am not rich, so just how is this reasonable, let alone “affordable?”
Mike Appleton … vis a vis your “disputed text” position. Wold you please read my questions at 15 March at 11:22 PM and try to answer them? Is the “dispute” contrived or reflective of common parlance given the structure of the USA?
Repeated here for easy reference:
Simple questions: Is it common universally understood parlance in the US of A to refer to a “state” as the federal government…as in the word “state” used in the term “nation state?” When we say “state,” as a governing body, in the US of A are we referring to one of the 50 individual states comprising the USA, or the federal government?
Good discussion on a good post.
One issue I am curious about, and perhaps someone with tax experience can answer this for me.
If the government relies upon a tax credit to provide a means for the disadvantaged to offset their ACA exchange insurance premiums, what would happen if the individual has no earned or taxable income? I recognize that tax credits can offer a 1:1 offset against taxable income but if there is no income do they then receive a refund despite no income to offset? If this is not the case this could prove to be a terrible burden for those having no means to pay for mandatory insurance.
Darren Smith
They don’t care
1% of your yearly household income. (Only the amount of income above the tax filing threshold, about $10,000 for an individual, is used to calculate the penalty.) The maximum penalty is the national average premium for a bronze plan.
$95 per person for the year ($47.50 per child under 18). The maximum penalty per family using this method is $285.
Do you owe the fee for not having coverage in 2014? You may still be able to enroll in 2015 coverage if:
You didn’t know until after Open Enrollment ended on February 15, 2015 that the health care law required you and your household to have health coverage, or you didn’t understand how the requirement would impact you and your household
You owe the fee for not having coverage in 2014
You aren’t already enrolled in 2015 coverage through the Health Insurance Marketplace
If all of these apply to you, you can enroll in a 2015 plan between March 15 and April 30, 2015. Select the button below to apply for coverage with this Special Enrollment Period.
Get coverage
The fee in future years
If you don’t have coverage in 2016, you’ll pay the higher of these two amounts:
2.5% of your yearly household income
$695 per person ($347.50 per child under 18)
In future years, the fee is adjusted for inflation.
Like Gruber said, the people are stupid
Like Lambs to the Slaughter
https://www.healthcare.gov/fees-exemptions/fee-for-not-being-covered/
Our state supreme court takes into account legislative intent when there are ambiguities in the statutes’ languages. In such a manner it would seem if the SCOTUS made a practice of adopting Congressional intent it would make the matter rather easier to decide in that as Mike Appleton wrote it is certainly outside the Congressional intent to have a phrase undermine the essential goals sought by the ACA as legislation.
In fact, here there are many bills before our legislature that are crafted with a legislative intent specified by the legislature that serves a purpose, among others, that if the state supreme court faces a challenge to the law, it can then have a defined guidance.
If the SCOTUS and Congress adopted this procedure it would make a good case for reductions in the type of controversy we are reading of presently.
Yet, since this is a case based upon a statutory framework, Congress can correct the matter through legislation. It should not be a political issue but it serves a purpose to provide an opportunity to some rather unsavory and unnecessary partisan bickering.
Republicans have voted to repeal ACA 53 times, at last count. Yet they have failed to come up with any replacement other than vague calls for tax credits and limits on malpractice awards. While ACA isn’t the public option people wanted, it’s an improvement over the old system which had been broken for years.
Very good synopsis of the arguments. My instinct tells me that context will prevail over literalism in this case for several reasons. First, the intent of the legislation was clearly to provide subsidies in the form of tax credits to all those who purchase through exchanges and who otherwise qualify. Second, the disputed text was likely an example of sloppy draftsmanship rather than a deliberate attempt to sabotage the legislation. Third, the construction advanced by the petitioners, if accepted by the Court, would produce a result that calls into question the constitutionality of the tax credit provision under the Fourteenth Amendment.
My sense remains that the petitioners will lose on a 6-3 vote, but I’m not putting money on it.
Really Mike Appleton? I beg to disagree. I think it’s like “You can Keep your Health Insurance too”
You saw what I sarcastically said up there and what was ignored as usual
and here is the new government untruth
http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/Questions-and-Answers-on-the-Individual-Shared-Responsibility-Provision
And, now, no one seems to be getting their refunds. I am posting a Fox link that is a CNN article copy (So it’s accurate) regarding the problems in the states.
NEW YORK (CNNMoney) — The IRS is delaying the refunds of tens of thousands of Affordable Care Act enrollees, said Nina Olson, the National Taxpayer Advocate.
The hold up, she says, is subsidy data from state health exchanges.
What’s more, Olson said the IRS told its telephone representatives not to tell callers the reason for the delay.
Affordable Care Act enrollees received subsidies based on their estimated income for 2014. Now that they know their actual income, the IRS has to make sure the initial subsidy amount was correct.
Some enrollees will have to pay back part of their subsidies or receive smaller refunds if they underestimated their incomes. Others may get larger refunds if they earned less than they anticipated.
The IRS needs to get the 1095-A forms, which includes the subsidy data, from the state exchanges to confirm the information taxpayers put on their return is correct.
http://fox6now.com/2015/03/03/irs-delaying-tax-refunds-of-thousands-enrolled-in-affordable-care-act-but-why/
My Friends who make Under 55 thousand a year and are raising a small grandson had a huge subsidy to pay and he works for Purina and is in a Union and she is Disabled and gets under 700 a month. So, what’s up with that? Why are they paying the tax man? They go to H&R Block Every Year.
I am not impressed sir. ;(
Obama is a liar. End of story.
Clearly anyone who posts the “Mirror, Mirror, on the Wall” study did not actually read the data. And the author of the article apparently failed to do so, as well. Because the UK fared abominably in the only measure that actually mattered: health. The UK scored very well on things like “ease of printing out lists of patients who need reminders”. Scores are weighted for things such as national databases, computerized lists, and government bureaucracy.
And who joined the US at the bottom of the list in this study? Canada, with its nationalized health care system! Whoops!
This has been pointed out before, but the same players just keep reposting the studies they know are shockingly flawed. How do they know? Because several people have pointed this fact out to them . . . repeatedly.
http://www.kevinmd.com/blog/2014/07/digging-deeper-commonwealth-fund-health-rankings.html
http://healthblog.ncpa.org/broken-mirror-on-the-wall-on-the-commonwealth-funds-increasingly-frustrating-comparison-of-international-health-systems/