I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.
Thirty amicus briefs have been filed in support of the government’s position in King v. Burwell. Tim Jost, a leading academic champion (after the late Jonathan Gruber’s self-inflicted defenestration, the leading champion) of the ACA, summarizes them here. This may be a bit of overkill (the justices generally don’t like to be bullied or harangued), but we’ll see.
Numerous briefs come from hospital associations, doctors’ groups, and of course America’s Health Insurance Plans. By helping the ACA over the hurdle, AHIP signed its corporate members’ death warrant in exchange for the individual mandate, risk corridors, and a few other placebos. AHIP had the railroad cars to the camps neatly lined up; now, some plaintiffs are messing—after NFIB, a second time—with the tracks: how dare they.
I haven’t had much time to parse the government’s reply brief in King v. Burwell. A few quick reactions:
They Know They Lose. Start of the brief (“Statement”):
The Affordable Care Act was enacted to provide “Quality, Affordable Health Care for All Americans.” Tit. I, 124 Stat. 130 (emphasis added).
An all emphasis, without more (and Congress ensured that comprehensive reach …) signals that the rest is junk. (You’re trying to make a single word trump the entire instrument.)
In my last post, I wrote about the consequences if Obamacare loses in the Supreme Court in King v. Burwell. My basic point is that a Supreme Court decision holding that federal exchanges cannot receive subsidies will create an enormous fight between President Obama and the Republican Congress. Bill Levin, who recently wrote a post on the cert grant at this site, now has a post at Powerline addressing the same issue. I strongly recommend his post.
Bill is more optimistic than I am about the effects of such a Supreme Court decision. One of his main arguments is that the public understands that the Democrats are responsible for Obamacare and that any problems it has will be seen as the fault of the Democrats. Perhaps, but this would have to be true even though the five Republican justices decide that the subsidies are illegal over the votes of the four Democratic justices.
Ultimately, the biggest advantage that the Democrats have is that the media is on their side. They will portray the dispute as having been caused by the five Republican justices and will argue that the Republicans can easily fix the problem by simply returning to the status quo. It may be that the Republicans can prevail, but they will have to do so over the heads of the media.
Let’s say that the Supreme Court holds, in the King v. Burwell case involving federal exchanges, that such exchanges are not legally permitted to receive subsidies. This holding would create an enormous problem for Obamacare, since individuals in a large number of states would not be receiving subsidies. Clearly, a legislative change would be required. What then?
It has generally been assumed that this legislative change would be beneficial to opponents of Obamacare, as compared to the current situation. Under the current situation, once Republicans control both houses in January, they can pass modifications of Obamacare, but it is assumed that Obama will simply veto them. The default situation—the regmine without a new law—is the continuation of Obamacare, which Obama likes. But if the Supreme Court holds the subsidies for federal exchanges illegal, the default situation changes: no subsidies for federal exchanges. And therefore one might argue that the Republicans are better off in this situation.
Perhaps. But things are more complicated. The default situation, if the Supreme Court holds the subsidies illegal, is similar to (although distinct from) the default under spending bills. If Obama vetoes a spending bill, the government often closes down. While one might believe that this would pressure him into approving Republican measures, it often doesn’t. The press—who often behave, as Glenn Reynolds puts it, as Democratic operatives with bylines—will usually report the shutdown in a biased way and the Republicans will be forced to compromise. If this happens with federal exchange subsidies—a likely possibility, even though Obama is losing support in the press—then the Republicans may be in a more difficult position than many people appear to assume.
Part of the issue turns on what will happen to people who lose the subsidies. If they lose their health insurance, then the Republicans are likely to be blamed by the press. If the Republican Congress does not give Obama what he wants, then states may choose to adopt exchanges in order not to lose the subsidies. One issue favoring the Republicans is that the employer mandate will not apply to states with federal exchanges. In addition, the people who lose the subsidies are likely not to be covered by the individual mandate.
A flurry of activity surrounding the Affordable Care Act (described below) brings to mind a bitter-cold day in February 1948, when party leader Klement Gottwald stepped out onto a Prague balcony to announce the birth of Communist Czechoslovakia. A solicitous comrade (Clementis) placed his fur cap on Gottwald’s bare head. As Milan Kundera describes it in The Book of Laughter and Forgetting:
Every child knew the photograph from posters, schoolbooks, and museums.
Four years later Clementis was charged with treason and hanged. The propaganda section immediately airbrushed him out of history and, obviously, out of all the photographs as well. Ever since, Gottwald has stood on that balcony alone. Where Clementis once stood, there is only bare palace wall. All that remains of Clementis is the cap on Gottwald’s head.
What remains of Jonathan Gruber?
In a relatively brief, concise Order and Opinion, U.S. District Judge Ronald A. White (Eastern District, Oklahoma) has set aside a notorious IRS rule declaring that subsidies and mandates under the Affordable Care Act apply in states with federal as well as state-run health care “Exchanges.” The Order and Opinion in Pruitt v. Burwell agreed with the D.C. Circuit’s holding in Halbig v. Burwell, currently pending on en banc consideration, that the statutory language—an exchange “established by the State”—could not be read to include exchanges established by the federal government in and on behalf of the state. The District Court disagreed…