OBAMACARE: Was The Runner’s Knee Down?

NFL-REF-WATCH-BREAKING-BAD-bigger-300x211The play lasted only eight seconds out of 3,600 in the entire game. The distance traveled roughly 16 inches out of 3,600 across the field. Yet what occurred during those 8 seconds and 16 inches could make the difference between immeasurable joy or profound sadness. It all depends on how the referees view the play.

Of less substantial consequence in the minds of most Americans, starting tomorrow the Supreme Court will begin hearing arguments over 6 words of the Affordable Care Act – out of roughly 382,000: “through an exchange established by the State.” In November of last year when the Court determined (or at least four Justices did) to hear King v. Burwell I wrote, Does Legislative Negligence Trump Legislative Intent? I discuss there the background and ramifications of this case.

Here I am more interested in briefly sharing some thoughts on the relative influence of sociopolitical factors in SCOTUS’s review and consideration of this case. Whereas our historical view of the Court is one of great reverence and respect – the last bastion wherein ethics and morality trump politics – I think the image I chose for this post today more accurately reflects public opinion of that institution today – right or wrong.

I am not about to argue that politics has only recently become an unsightly element of the Court. Justices are appointed and approved by those who are elected, and they don’t get to the position of being considered by living out an apolitical professional career. From accusations against President Grant for court packing to FDR’s proposal to add members (conjectured to dilute a conservative bench) to more recent skirmishes over presidential nominees (e.g., Bork and Thomas) the Court has been steeped in political undertones for decades.

But what we are witnessing today is beyond just the politicization of appointees and the legacy influences of political ideologies. Like all things touched by our modern media the Court is engulfed by a sea of opinions and editorials in anticipation of a “wrong” decision – having not even heard one word of oral argument. How can the justices not hear the deafening crowd noise any less than the referees on the field looking under the video replay monitor. What influence, if any, will that carry on how they view King v. Burwell?

Regardless of how you hope the case is adjudicated you must see the irony in 8 million lives potentially being negatively impacted by 9 individuals out of 320 million based on the arbitrary interpretation of 6 words among 382,000.  Welcome to 21st century democracy in America.

Cheers,
  ~ Sparky

Does Legislative Negligence Trump Legislative Intent?

The Supreme Court today agreed to hear the King v. Burwell case, which – similar to Halbig v. Burwell, wherein the DC Circuit Court ruled against Burwell (i.e., the Affordable Care Act) in July – challenges the legality of tax subsidies used to offset the cost to individuals buying health insurance through federally administered exchanges. As the ACA was written subsidies were to be available through state run exchanges, but since most states opted out of creating and running their own exchanges more than two-thirds of everyone who signed up for health insurance did so through federal exchanges. Of those, approximately 85% – or 5 million people – received subsidies at an average value of approximately $3,200 per year.

Those folks stand to lose that benefit – and in many cases likely health insurance –if SCOTUS determines that the letter of the law should supersede legislative intent. Beyond that, given the actuarial models supporting expansion of individual health insurance under the ACA the prospective financial viability of that expansion would likely becomes untenable.

Congressional staffers had already been discussing ideas of how to work around the loss of tax subsidies – but that was before this Tuesday. The new sheriff in town won’t be very anxious to support legislative efforts that seek to save Obamacare in any fashion. What can be done through regulations? My guess is not much, so a ruling in favor of King would likely be the devastating blow detractors have been chasing since March of 2010.

From a retrospective standpoint this is just another serious distraction in a long line of legal and administrative obstacles that have become part and parcel of legislative implementation. It reflects the urgent and manipulative manner in which the Affordable Care Act was rammed through passage in March 2010 following a string of made-for-TV political events that played out beginning with the death of Senator Ted Kennedy in August 2009.

Ever since then Republicans have argued that a policy initiative of the breadth and scope of the Affordable Care Act necessarily should have been subject to broader bipartisan support, such as what would have been required through a normal reconciliation process of the two House and Senate bills. While at the same time Democrats have argued Republicans’ expressed concern has largely been a case of “protesting too much” and only really being concerned with stopping any legislative initiative of the President, regardless of its policy merits.

In any event, what SCOTUS will have to wrestle with is attempting to understand the contextual purpose of the health insurance subsidies and whether legislative intent is a sufficient enough consideration to disregard the stated restriction of those subsidies to only state run exchanges. As someone who has supported the ACA I don’t share this from the perspective of looking for any opportunity to blow it up. But I think it has to be taken into consideration by the Court that the law’s contorted framework and structure is a theoretical obstacle for accepting the legislative intent argument.

How can you accept legislative intent as a theoretically understood precept for a provision of an act that in several significant instances (i.e., CLASS, the employer mandate, renewal of noncompliant plans, special enrollment and hardship exemptions), has not been implemented as intended? Are the justices required to not consider legislative enactment and just look at the Act independently of the apparent disconnect? I’m not a lawyer, so maybe I am just thinking of this like a four year old – but then someone is going to have to explain to me what’s wrong with my logic.

Cheers and enjoy the weekend,
  ~ Sparky

Artower

Artower

Policy Prescriptions

Advocates for Evidence-Based Health Policy™

Health Affairs BlogHealth Affairs Blog

When 280 characters is just not enough

ChangingAging

with Dr. Bill Thomas