I have an op-ed at the New York Times this morning on how the harsh consequences of ruling against the government in King v. Burwell offer an important clue about the meaning of the statute. For a taste:
[A] ruling in the plaintiffs’ favor would make the fallback exchanges dysfunctional. Without tax credits, many healthy people would forgo insurance; left to cover a sicker population, insurers would raise their prices; as a result, enrollment on the fallback exchanges would decline (by an estimated 70 percent) and premiums would rise drastically.
The plaintiffs claim that Congress always meant the fallback exchanges to fail. The potential collapse of the state’s market for individual insurance, they argue, was just another (hidden) threat to get states to establish their own exchanges.
But that’s nonsense. If Congress had meant to punish uncooperative states, it didn’t have to saddle them with dysfunctional exchanges. It could have left them with no exchanges at all. Congress created a fallback because it wanted to enable everyone — even people in states that objected to health care reform — to secure affordable insurance. That’s the only way to make sense of the law as a whole.
If you’d like a longer explication of the argument in the government’s favor, you can check out my short counterpoint to a piece that Jonathan Adler and Michael Cannon wrote defending the challengers’ position.