In King v. Burwell, the Supreme Court should rule for the government and against the plaintiffs for five reasons.
1) A decision for the plaintiffs would harm millions of Americans and cause unnecessary deaths. If the Supreme Court rules that federal tax credits cannot go to consumers in the 34 states with federal exchanges, 9.3 million to 9.6 million lower- and moderate-income working Americans will find health insurance unaffordable, and most will drop coverage. The number of uninsured Americans will rise by about 8.2 million. From empirical research, we know that lack of health insurance causes as many as 45,000 premature deaths of Americans each year. An amicus brief filed by deans of U.S. schools of public health estimates that “a loss of health insurance by an estimated 8.2 million persons can be expected to translate into over 9,800 deaths annually.”
Make no mistake, King v. Burwell is a matter of life and death.
2) That decision would disrupt insurance markets, hospitals, physicians and the economy. The loss of subsidies would directly and negatively damage the nation’s health care sector. For example, non-subsidized consumers in individual or “non-group” health insurance markets – in which exchanges exist – would experience massive disruption because individuals continuing to purchase after a negative decision would be older and sicker. From this “adverse selection,” premiums would increase from 35 percent to 47 percent, compelling more to drop coverage as an “insurance death spiral” captures these markets.
Hospitals in affected states would lose $6.3 billion in 2016, with more uninsured patients presenting for care, a double whammy because so many affected hospitals are in states refusing to expand their Medicaid programs under the Affordable Care Act. Some hospitals would close because of an adverse ruling.
3) That outcome would contradict Congressional intent in the Affordable Care Act. Between 2008 and 2010, I worked among a large army of Congressional staffers on writing and passing the Affordable Care Act. Every senator, representative and staffer involved in the passage intended that subsidies would go to all eligible citizens in all 50 states. No evidence suggests otherwise. Not a shred of evidence suggests that any member of Congress, Democrat or Republican, believed in 2010 that the law would prohibit subsidies in states with federal exchanges.
4) That judgment would violate Supreme Court doctrine. An American federalism principle called the Pennhurst doctrine, affirmed repeatedly by the Supreme Court, including by Justices John Roberts and Anthony Kennedy, is that states must have ample, clear warning of consequences of new laws that would impact them and that “does not include surprising states.” 22 state attorneys general insist their states had zero warning in the law or in subsequent federal action that failure to establish their own exchanges would ruin their individual insurance markets, and had many assurances to the contrary. For example, Nebraska Gov. Dave Heineman, rejecting state exchange establishment in 2012, stated, “there is no real operational difference between a federal exchange and a state exchange.”
[SEE: Congress Cartoons]
5) The plaintiffs’ legal argument has no merit. Another principle in interpreting laws, affirmed by all nine justices, is to examine the whole statute and its context. Justice Antonin Scalia expressed it best: “(1) interpretation always depends on context, (2) context always includes evident purpose, and (3) evident purpose always includes effectiveness.” The King complaint focuses not on a sentence or a clause, but on several words of one clause: “an Exchange established by the State.” A neighboring section says that if a state does not act, “the Secretary shall … establish and operate such Exchange within the State and the Secretary shall take such other actions as are necessary to implement such other requirements.”
The actual context should not surprise any justice, even the four who voted to overturn the entire health care law in 2012. They noted in their 2012 dissent, “Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges … with fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”
Case dismissed.
is a professor of practice at the Harvard TH Chan School of Public Health and the author of “Inside National Health Reform.” Between 2008 and 2010, he worked in the U.S. Senate on national health reform.