High Court's Case on ACA Drastically Raises Stakes
Under the relevant legal standard, which courts have cited 13,000 times, the Supreme Court must defer to an agency’s reasonable interpretation of the law.
After trying time and again to unravel the Affordable Care Act by enacting legislation or winning the presidential election, opponents of the law are again turning to the courts. In just over a month, the Supreme Court will hear the claim that tax credits are available only for health plans sold through marketplaces run by states — not for plans sold through a marketplace run by the federal government on behalf of states.
As congressional staffers involved in drafting the law, we know that the legislative history, intent and text are clear that tax credits are available in all states. If the court blatantly disregards this evidence, the consequences would be immediate and far-reaching.
Before there was the Affordable Care Act, there were two bills: the Senate Finance Committee bill and the Senate Health, Education, Labor, and Pensions Committee bill. The Finance Committee bill required all states to set up exchanges, or marketplaces, to sellhealth plans and provided tax credits for plans sold through all exchanges. The HELP Committee bill left it up to each state to decide whether to set up an exchange, but in states that opted out, the federal government would run an exchange for them, and credits would be available for plans sold through all exchanges.
Despite differences in whether an exchange was run by the state or federal government, both bills provided credits to eligible individuals in all 50 states. These two bills were merged to form the Affordable Care Act. It would take an extraordinary leap of imagination to conclude that in the process of this merger, a fundamental feature — the availability of credits in all states — somehow changed.
Such a radical revision would surely have been debated. Senators who championed universal coverage would have strenuously objected. For example, Max Baucus — from the red state of Montana — never would have allowed tax credits for his constituents to be put at risk.
Yet the possibility that residents of some states might not be entitled to tax credits was never raised and never part of any version of the legislation. And tellingly, the estimates of the nonpartisan Congressional Budget Office consistently reflected the availability of credits in all states.
Opponents of the law argue that Congress and the budget office were certain that all states would set up their own exchanges. But then what would be the point of the federal exchange? Clearly, Congress contemplated that a federal backup would be needed, and provided for tax credits in that case. Creating a federal marketplace with no tax credits — and therefore no customers — would have been nonsensical.
But putting aside legislative history and intent, the merger of the two committee bills also added key text. If a state does not set up the “required Exchange,” the federal government must “establish and operate such Exchange within the State.” In other words, the federal exchange would take the place of a state exchange and be its functional equivalent in every way.
Even though this substitution is clear, a lawsuit coordinated by the Competitive Enterprise Institute — which receives substantial funding from conservative activists — is now before the Supreme Court. In their dissent in the last Supreme Court case on the Affordable Care Act, four Justices signaled their desire to strike down the law entirely, and now they have seized another opportunity to gut the law — taking up the case even before there was any split in the appellate courts.
The stakes are enormous. With this year’s successful open enrollment , the number of people receiving tax credits for plans sold through HealthCare.gov has already grown substantially.
But credit-eligible individuals aren’t the only ones who would be affected. Without tax credits, healthier people would be more likely to drop out of the market, so the insurance pool would become sicker and costlier. According to the Rand Corp., even those who don’t get tax credits would see a premium increase of 47 percent — leading to a “near death spiral” of the market.
All told, Rand estimates that more than 9 million people would lose health coverage because of an adverse Supreme Court decision. Many of these people are receiving lifesaving treatment they could not otherwise afford.
If opponents of the law are to be believed, Congress intended to threaten states that did not set up their own marketplaces with market death spirals — without clearly communicating this threat. But such a threat would amount to unreasonable coercion by the federal government. Believing that tax credits were available in all states, many states made the decision not to set up their own marketplaces. A ruling that punishes these states with higher costs and more dysfunctional markets than existed before the law clearly would not respect their rights and choices.
Under the relevant legal standard, which courts have cited 13,000 times, the Supreme Court must defer to an agency’s reasonable interpretation of the law. To restrict tax credits, the court would need to find that a tortured reading of the law — which would collapse the private market, render the federal exchange pointless and cause disruption for millions — is the only possible interpretation.
That is clearly not the case. Many Americans would perceive such a decision to be politically motivated since it would fly in the face of legislative history, intent and text — upending millions of lives in the process. That outcome would be tragic for patients — and for the Supreme Court.
Read more: http://www.politico.com/magazine/story/2015/02/high-courts-case-on-aca-drastically-raises-stakes-114884.html#ixzz3Qk7WghXB
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