Affordable Care Act

  • February 25, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General In the United States Department of Justice, is a partner at Arnold & Porter LLP.

    *This post is part of the ACSblog King v. Burwell symposium.

    In King v. Burwell, the Petitioners challenge an IRS rule granting tax subsidies under the Affordable Care Act to low income families in states with federal insurance Exchanges so that those families can buy health insurance.  The Government’s brief to the Supreme Court predicted that without the subsidies, insurance markets in the states with federal Exchanges would descend into death spirals.  Petitioners’ reply brief countered that even if this prediction were true:

    [T]hese consequences are the result of the IRS Rule [allowing the subsidies], not the statute.  Had the IRS from the start made clear that subsidies were limited to state Exchanges, states would not have overwhelmingly refused to establish them.

    The irony of this claim is thick.  From the start, opponents of the ACA mounted a campaign against the Exchanges, going so far as to dispatch traveling road shows in 2011-12 to lobby state legislatures against establishing them.  Ultimately, 34 states did as urged and declined to set up their own Exchanges.  Nonetheless, Petitioners now blame the IRS rule for that result.

    The accusation is especially brazen because the opponents did not base these pitches on the IRS rule.  The American Legislative Exchange Council (ALEC), an influential right-wing group that focuses on state legislation and that commissioned its own anti-Exchange road show, adopted a resolution in October 2011 entreating states not to establish Exchanges.  Notably, the resolution assured the states that, “There is no penalty for a state in allowing the federal government to implement an Exchange.”  But the resolution mentioned neither the tax subsidies nor the IRS rule proposed two months earlier.  Likewise, the Heritage Foundation exhorted states to refuse to establish Exchanges, and it, too, did not base its argument on subsidies and the IRS rule.

  • February 24, 2015
    Guest Post

    by David StraussGerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. 

    *This post is part of the ACSblog King v. Burwell symposium.

    One narrative about King v. Burwell goes like this: diehard opponents of the Affordable Care Act pored over the law and found that, if you take the words of the statute at face value, the ACA will blow up. Those words might have been a mistake, but there they are, and the law is the law. The only escape (on this account) is a kind of plea for mercy: to say that the statute should be read in a way that saves it, even if the words are to the contrary. Some defenders of the ACA have drawn the lesson that a text-focused approach to statutes—the approach that is generally called “textualism” and is today associated with Justice Scalia—is a bad idea generally and that King v Burwell shows why that approach should be abandoned.

    Some of this story is right. The litigation is, in fact, the work of diehard opponents of the statute who are trying to blow it up. There is not a shred of evidence that anyone involved in passing the law thought that it contained such a self-destruct mechanism. And there are some problems with Justice Scalia’s textualism. But there is no need to get into those problems in King v. Burwell. On the contrary: This is a chance for textualists to gloat.

    That’s because the core textualist claim is that the best guide to what Congress wanted to achieve is the words of the statute, not judges’ speculations about Congress’s intentions. King v. Burwell shows that the textualists are right: This time, at least, the words of the ACA tell you all you need to know about what Congress was trying to accomplish. And what the words tell you is that people trying to blow up Obamacare are simply wrong. 

  • February 23, 2015
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Family Professor of Law, Washington and Lee University School of Law.

    *This post is part of the ACSblog King v. Burwell symposium.

    It has become increasingly clear that a Supreme Court ruling for the plaintiffs in King v. Burwell would be a national disaster. A Supreme Court decision that premium tax credits are only available through state-operate exchanges would not only deprive millions of lower-and moderate-income Americans of health insurance, but would put at risk the individual insurance markets in 34 states, while health care providers in those states would lose billions of dollars in revenue. Thousands of Americans would die unnecessarily. It is unimaginable that Congress would have intended this result.

    Yet the plaintiffs, in their reply brief filed on February 18, contend that none of this matters. To their mind, the ACA only permits premium tax credits to be granted by exchanges “established by the State.” They argue, “it is irrelevant whether Congress subjectively intended to impose the condition [that premium tax credits be granted only by state-operated exchanges]; all that matters is that it objectively and reasonably did so.”  Indeed, as we near the end of this litigation and the plaintiffs’ imagined story that Congress intended to limit premium tax credits to state-operated exchanges has largely collapsed, they can only argue that the intent of Congress is irrelevant – all that matters is that the statute does not allow federally facilitated exchanges (FFEs) to grant premium tax credits.

    They can only reach this conclusion, however, by reading the four words they rely on in complete isolation, completely ignoring the rest of the statute. But the Supreme Court has said repeatedly that interpreting a statute requires reading the entire statute, not just isolated phrases. If the Supreme Court follows its own teachings, it must rule for the government.

    Jim Engstrand and I have recently published an article that looks beyond the plaintiffs’ four words to the entire ACA. We identify more than 50 other provisions of the ACA that become anomalous, if not absurd, if the words “established by the State” are read to exclude FFEs. 

  • February 23, 2015

    by Caroline Cox

    Staven Rattner discusses in The New York Times how the Affordable Care Act is working for tens of millions in the United States.

    At Talking Points Memo, Steve Peoples writes that governors throughout the country have no plan if the Supreme Court rules against the Affordable Care Act subsidies.

    Nicholas Stephanopoulos argues in the Los Angeles Times that the Supreme Court’s decision on an upcoming Arizona redistricting case could present trouble for other sensible redistricting reform efforts throughout the country.

    Richard Gonzales reports for NPR that immigration courts are now “bogged down in delays” and have no immediate solutions to the crisis.

    At The Root, Charles D. Ellison explains how Republicans could sabotage Loretta Lynch’s confirmation as the first African-American Attorney General.

  • February 20, 2015

    by Caroline Cox

    Mark Berman reports for The Washington Post that a Texas county has issued the state’s first marriage license to a same-sex couple. The Texas Supreme Court has issued a stay to halt other such marriages, and the Texas attorney general is arguing that the same-sex couple’s marriage is void, reports the Associated Press.

    Also in The Washington Post, George Sargent writes that a Supreme Court decision against the Affordable Care Act could cost the United States billions of dollars.

    At Talking Points Memo, Sahil Kapur examines the strategy of Affordable Care Act defenders to persuade Chief Justice John Roberts in King v. Burwell.

    Joel Cohen considers in Slate how to reform grand juries in the wake of the controversial Ferguson grand jury and public distrust of the grand jury system.

    At the blog for the Brennan Center for Justice, Michael Li discusses two Texas redistricting cases working their way through the courts.

    Gail Collins writes for The New York Times about Justice Ruth Bader Ginsburg’s growing popularity and refusal to retire.