This Week’s Health Policy News Roundup Curated by Jane M. Orient, M.D.
If the Affordable Care Act (ACA or ObamaCare) really means what it plainly says—that premiums for Exchange plans are only available on state-created Exchanges, would that “incentive” be too coercive, and thus violate federalism, asked Justice Kennedy during oral argument on King v. Burwell. If that would make ACA unconstitutional, then can the Court rewrite it so everybody can get subsidies?
And if resulting adverse selection and higher premiums would be a disastrous, chaotic, punitive result, asks Avik Roy, are the insurance markets of today, imposed by Obamacare, also disastrous, chaotic, and punitive? http://www.forbes.com/sites/theapothecary/2015/03/04/7-reasons-why-obamacare-federalism-wont-lead-anthony-kennedy-to-join-the-supreme-courts-left-in-king-v-burwell/
One problem with the federalism argument is that prior cases involving coercion of states by the federal government have involved programs where state governments would lose federal dollars if they did not comply with federal requirements. But here, there are no federal dollars going to state governments that can be used to “coerce” their behavior—the federal tax credits are payable to insurers on behalf of individuals. dailysignal.com/2015/03/04/supreme-court-heard-king-v-burwell-heres-justices-asked-commented
A ruling against the government would free more than 8 million low-to-middle-income Americans from the requirement to buy ObamaCare’s expensive, mandate-laden health insurance, writes Hadley Heath. Also, approximately 57 million workers would be freed from the specter of reduced hours and reduced take-home pay as a consequence of voiding the law’s mandate on employers. http://townhall.com/columnists/hadleyheath/2015/03/03/top-five-myths-about-king-v-burwell-n1965184/print
In the last ObamaCare case, NFIB v. Sebelius (2012), the Supreme Court said a statute is coercive only if it amounts to “a gun to the head” that “leaves the States with no real option but to acquiesce.” Here, we know that states had an option not to acquiesce in establishing health-care exchanges because they did not, as a matter of fact, acquiesce,” writes Scott Pruitt (WSJ Mar 4, 2015). Were states aware of the consequences of refusing to establish an exchange? Oklahoma, where Pruitt is attorney general, sued the Internal Revenue Service months before making its decision to decline to set up an exchange, arguing that the ObamaCare tax credits and subsidies could not be given in Oklahoma. http://www.wsj.com/articles/scott-pruitt-a-state-reply-to-justice-kennedy-1425513344
Congress also knew what the plain wording of the law meant, as shown in an August 2012 hearing, when IRS commissioner Douglas Shulman testified. http://www.forbes.com/sites/michaelcannon/2015/03/05/actually-justice-kennedy-irs-did-tell-congress-section-36b-contains-contradictory-language/
“This evidence further demonstrates the government’s arguments in King are post-hoc rationalizations for a rule promulgated without reasoned decision-making,” concludes Michael Cannon (Forbes, Mar 5, 2015)
The Court might have the authority to stay a ruling to allow time to avert disruptive consequences, suggests Avik Roy (Forbes, Mar 6, 2015). http://www.forbes.com/sites/theapothecary/2015/03/06/did-samuel-alito-throw-republicans-an-obamacare-lifeline-at-the-supreme-court/
Social Media
Republicans need to keep their eye on the ball and repeal Obamacare, writes @SenSasse at @NRO http://t.co/nsg3dMvBxO pic.twitter.com/BwkMHobFxs
— National Review (@NRO) March 6, 2015
Legislative history reveals Dems drafting Ocare specifically deleted language they now claim is the law #KingvBurwell http://t.co/dq9hiVyh4B
— Dean Clancy (@DeanClancy) March 11, 2015
VIDEO: @mfcannons weighs in on #KingvBurwell: http://t.co/AqdQxpiZaf pic.twitter.com/nD5wI8O2J8
— Cato Institute (@CatoInstitute) March 11, 2015
