I absolutely can’t comment on the legal aspects of this, nor would I want to. Nick is all over it, and I defer to him.
That said, Austin noted in a tweet yesterday:
— Austin Frakt (@afrakt) November 11, 2014
I want to expand on this a bit. First of all, let’s own that predicting how the Supreme Court will rule is totally just an opinion. I need only think back to the last time the Supreme Court weighed in on the ACA to remember how “sure” and then “wrong” people were then. So I freely admit that anything I say here is pure conjecture. That said, I think I am the most optimistic among TIE folks that SCOTUS will find for the government.
Why? The reasons lots of other people are throwing around, too. I don’t think that Chief Justice Roberts wants his legacy to be that of a partisan court, and this would lend a lot of weight to that description. I don’t think that he’ll want to mobilize liberals, and I think this kind of decision would do that. I think it’s possible (and many will disagree with me here) that such a ruling on a “word” could be snickered at by enough legal folk to give a justice pause. And, I do think that the potential human cost of such a decision could weigh heavily on a justice’s mind.
I’m not convinced SCOTUS will find for King.
But I’m even less convinced that this would be crippling for the ACA, as a whole. I think it will absolutely hurt the individual private insurance markets in the states with federal exchanges. I think millions of people will be immediately uninsured. I think this will hurt the private insurance companies in those states. I think it will hurt the hospitals in those states. I think it will hurt doctors, and medical device companies, and pharmaceutical companies, and many, many health care workers in those states. Many of these are the same arguments I used when SCOTUS gutted the Medicaid expansion in many states. The ACA trudged on.
I think those interests have a voice, though, and they’ll use it. They will push on governors and state legislators to come up with a fix.
Moreover, I think that the people being deprived of insurance by such a ruling are not the same people deprived by a lack of the Medicaid expansion. They are, by definition, wealthier. It’s likely they have more of a political voice, and many of them will shout. I think it’s likely many states (at least as many that expanded Medicaid) will create fixes or exchanges to get subsidies to these citizens.
Not all will. Still, I think the ACA will persist. As my colleague Josh Barro at the Upshot pointed out, what we’ll be left with in those states is somewhat akin to what New York had before the ACA was passed. It had community ratings and guaranteed issue, but no individual mandate, or subsidies. Given that most people will qualify for a hardship exemption from the mandate without subsidies, this is a pretty good represenation of insurance markets in some states after a pro-King SCOTUS ruling. Insurance was very, very expensive, and I’m not advocating for that kind of outcome, but it wasn’t the total death spiral many people predict.
I take a long view on health care reform. All of this has happened before and will happen again. Medicare was, at one time, the death of freedom. Go read this piece on what people thought when “traditional” Medicaid was first passed in 1965. Then remember that Arizona, the last state to accept Medicaid, finally did so in 1982.
Health care reform is a marathon, not a sprint. Anyone who thinks this is the last battle is kidding themselves. This law is four years old, and we’ve still got a lot to do to make the US health care system better. A SCOTUS ruling against the government will be a setback for the ACA. It will leave millions of people newly uninsured. It will have political, and policy consequences. But it won’t end the ACA, or the administration’s plans for health care reform.
And I don’t think it’s a slam dunk it will happen anyway. At least, that’s my two cents.