This has started to occur to Congress’ Tea Party-influenced Republicans, especially in the House, where Representatives run every two years.
Even from right-wingers who’ve tried to kill the ACA dozens of times in the last five years, you can almost hear some gears click into place and mumbled thoughts about millions of voters losing health insurance: “Uh, oh-oh.”
On the Senate side, a few GOP Senators reportedly have been brainstorming for months, but haven’t come up with an idea of helping millions of Americans – many of whom now have some protection from health calamities and exorbitant medical bills for the first time.
Secretary for Health and Human Services Sylvia Mathews Burwell, has said, “We know of no administrative actions that could – and therefore we have no plans that would – undo the massive damage to our health care system that would be caused by an adverse decision.”
“Oops.”
The issue in “King v. Burwell” – the most serious threat to the law since 2012 – focuses on four words in the 906-page document. The law says that tax credits will be available through exchanges "established by the state." As it was drafted, supporters assumed most states would create exchanges. After it was signed in March 2010, many states instead decided to rely on the federal government to operate them, as the law allows.
Four words v. intent.
In 2012, the Internal Revenue Service OK’d rules making subsidies available in all states. ACA opponents said exchanges must be offered by individual states, not the federal government.
The marketplaces – operating for two years – let Americans who don't get health benefits at work to shop online among plans that must all offer basic benefits and can’t turn away customers, even if they have preexisting conditions. Americans making less than four times the federal poverty level, or about $94,000 for a family of four, qualify for subsidies to offset the cost of their premiums.
The law's challengers argue that a strict reading of the statute makes subsidies available only in states that set up marketplaces, rather than having the federal government operate marketplaces for them.
Four words.
Without subsidies, of course, insurance costs would skyrocket.
During arguments this month, Justice Anthony Kennedy suggested the law may be vague enough to give the IRS deference for its regulation allowing tax credits in federal health exchanges. But he added that giving the IRS authority would be a "drastic step," because billions of dollars are at stake.
In Illinois – which left about $270 million in federal funding untouched in December when the legislature didn't even vote on a bill to create Illinois’ health insurance exchange – more than three-fourths of consumers who signed up for 2015 insurance as of Jan. 30 qualified for an average subsidy of $210 per month.
Clearly, ACA challengers care less about language than the law – and President Obama. After 60-some attempts to repeal the ACA in the last six years, Republicans once more seem to be intent on “Doing Nothing,” but many are starting to realize the unintended consequence of booting millions off health insurance.
Some governors, including a few Republicans, have conceded they don't want to let thousands of their constituents lose coverage.
"If the court rules, and we find half a million Ohioans without insurance, it's something we're going to have to deal with,” Ohio Gov. John Kasich said.
On March 4, the Supreme Court seemed divided, but comments like Kennedy’s gave the law’s defenders some hope. At least four justices appeared skeptical about the challenge that could create unmanageable insurance markets, rising premiums, and millions uninsured.
Conservative Justices such as Antonin Scalia seemed sympathetic to opponents of health coverage, but the four liberals, such as Ruth Bader Ginsburg, seemed to side with defenders’ assertion that the whole law must be considered.
Even the conservative Independent Women’s Voice organization recently released a poll saying it would be important to “do something to restore the subsidies” if Scalia and conservative Justices Clarence Thomas and Samuel Alito sway two others to kill it.
Perhaps swing votes by Kennedy or Chief Justice Roberts could note that Merriam-Webster’s dictionary’s definition of “state” is not only “a politically organized body of people usually occupying a definite territory; especially: one that is sovereign,” but also “ the operations or concerns of the government of a country.”
The federal government is a state, too.
And people matter as much as words.
[PICTURED: Rally outside the U.S. Supreme Court building. Photo from the National Education Association.]
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