(Yes, it’s been a while since I blogged here. I’ve been busy with my podcast “Consider This”. However, I just had to come out of blogging semi-retirement to comment on this.)
Being argued today at the high court is King v Burwell, a lawsuit against ObamaCare (also known in some circles as the Affordable Care Act). This is a set of questions and answers that I imagine many people have about this.
Q: What is this case all about?
A: The crux of the issue is a 4-word phrase inside the massive law; “established by the States”. The subsidies supplied by the IRS, according to the text of the law, were to only go to those who applied for insurance via exchanges “established by the States”. If they used the federal exchange (HealthCare.gov), that is not “established by the States” so the subsidies wouldn’t apply.
That’s according to the plain language of the law, and according to Jonathan Gruber, a major influence in the creation of the law.
What happened was that the IRS gave out subsidies to those without state exchanges anyway. The lawsuit is saying that the government broke the law in doing so.
Q: What case is the government making?
A: That the rest of the law, taken as a whole, makes it clear that withholding subsidies from those who didn’t get their insurance via exchanges “established by the States” was not the intent.
Q: Does it actually say in the law somewhere, specifically, that those people should get subsidies?
A: Not that I’ve read. In fact, those articles I’ve seen that have written in defense of the subsidies (like this article by Robert Schlesinger in USA Today) don’t cite any other text that would buttress that opinion. Rather, they argue about the results if the subsidies were overturned.
To me, that sounds like they’re arguing that a law should say what the implementers want it to say, regardless of what the law itself says. That’s a precedent I don’t think we want to create. For example, if a Republican President vetoes legislation, and a Democratic Congress overrides that veto, is the President free to implement the provisions of the law he or she likes and ignore others? I’d say No, and I think those arguing for the ObamaCare interpretation would agree with me if the parties today were reversed.
The IRS did issue a ruling saying that they would, in fact, give subsidies to those in states without exchanges, but as far as I’m aware, the IRS is not part of the legislative branch.