The Supreme Court has decided to hear the case of King v. Burwell
to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states.
If I were willing to bet on such things, I would wager that the Court will decide in favor of the plaintiffs, to the effect that people who are currently getting subsidies for health insurance purchased on federal exchanges will lose them. I’ll explain why in a moment.
If you want to understand why subsidies matter, see Austin and other economists here, or Adrianna. The plaintiff’s petition is here. If you want to understand the legal argument in King (and the related Halbig case), read Nicholas or Tim Jost (for coverage sympathetic to the government); and Jonathan Adler or Michael Cannon (for coverage sympathetic to the plaintiffs). There is a technical legal argument about the statutory meaning of the ACA on which Nicholas and many others face off against Adler, Cannon, and the plaintiffs. I can just barely follow this dispute and I can’t tell you who is right.
Nevertheless, it seems clear to me what’s likely to happen. Justices Alito, Kennedy, Scalia, and Thomas argued in the earlier National Federation of Independent Business v. Sebelius case that the ACA was “invalid in its entirety”. Nicholas gives reasons to believe that these justices are likely to vote for the plaintiffs. So if any of Justices Breyer, Ginsburg, Kagan, and Sotomayor are persuaded by the King plaintiffs, then the plaintiffs win. If not it comes down to Chief Justice Roberts.
So how will Roberts vote? Perhaps he will be persuaded by the plaintiff’s’ argument about the meaning of the statute. Roberts is also Republican and a movement conservative. It’s likely that he agrees with his party and movement that the ACA is a harmful law. Moreover, the King decision presents an extraordinary partisan opportunity for conservatives. Victory would validate their unrelenting resistance to the ACA and seriously demoralize progressives. After all, without the ACA, what would progressives have to show for the Obama presidency?
This argument is, I think, flawed. Roberts may or may not be a partisan. How would I know? But if he was willing to kill the ACA for partisan reasons, why did he pass up his shot in Sebelius?
More importantly, asking whether Roberts will vote to kill the ACA frames the question in the wrong way, because finding for the plaintiffs in King does not kill the ACA. The states that have already established exchanges would keep them and their subsidies. In the states that have not established exchanges, a Court decision for the plaintiffs would throw the responsibility of establishing health care exchanges back on those states. If they want the subsidies for their citizens they still have the option of establishing an exchange. Some may do this, because their citizens will be harmed by the loss of insurance and their health care systems will be stressed by increased numbers of uninsured patients. However, it’s also likely that at least some of those states will not establish exchanges, so that millions may lose their subsidies and their insurance.
But if that happens it won’t be because the ACA is dead. It will be because the federal exchange was killed and the states declined their options.
The constitutional outcome of a victory for the King plaintiffs would be a radically decentralized federalism. It would mean that increasing access to health care through the ACA would require political validation at the state as well as the federal level. This outcome would be consistent with the constitutional philosophy that Roberts and many other conservatives espouse. For this reason, if no other, I expect Roberts to vote for the King plaintiffs.
I hope to write more about how health care progressives should respond to the Supreme Court decision that I anticipate and the implied new order of radical federalism. But briefly: even if it loses in King, the ACA has won in at least 14 states. That’s neither small nor hollow.
So progressives should not panic. They should study the right wing resistance to the ACA and how it sustained a long fight. But if the King plaintiffs win, what progressives need to understand is that if we want better health care in Mississippi, we need to win political fights in Mississippi.