Or, as the prosecuting attorney might say in the closing argument for a criminal trial, the Congress that enacted what became the ACA — before it lost a temporary “supermajority” in the Senate favoring its passage — had “the means, and the opportunity” to authorize tax credits in federal exchanges in December 2009, if it wanted to. By March 2010, it had a different “motive” to continue not to do so, when it needed to pass a law by any means necessary that became the final text of the ACA.
A new poll by McLaughlin & Associates finds that Americans strongly support having Congress advance a conservative alternative in the context of King v. Burwell.
The poll asked (question #7),
“If the Supreme Court rules that the Obama administration has been illegally paying out Obamacare subsidies in 36 states, what do you think Congress should do in response?”
Likely voters replied as follows:
“Do nothing and let people in those 36 states lose their subsidies and perhaps their insurance”: 4 percent
“Negotiate fixes to Obamacare with the Obama White House in exchange for turning the subsidies back on”: 20 percent
“Turn the subsidies back on temporarily but don’t try to fix Obamacare”: 5 percent
“Propose to effectively repeal and replace Obamacare in those 36 states with a conservative alternative that aims to help people get coverage and reduce costs”: 26 percent
“Give the states a choice between Obamacare and switching to a conservative alternative that aims to help people get coverage and reduce costs”: 25 percent
“Something else”: 8 percent
“No opinion”: 13 percent
Support for having Congress propose a conservative alternative (either for the 36 states in question or for all states that choose to switch to such an alternative) was 64 percent among Republicans and 55 percent among independents, while the most popular answer among Democrats (34 percent, compared with only 10 percent among Republicans and 12 percent among independents) was that Congress should negotiate fixes to Obamacare.
Jonathan Gruber was, in the lower courts, the government’s principal expert. They relied on his “three-legged stool” metaphor to argue that (even though the law says they are only available through an “exchange established by the state”!) subsidies must be available through federal exchanges. Then he was caught on tape, not once but twice, expressly explaining states that don’t establish an exchange won’t get subsidies. Oops. After Gruber became even more famous for accidental candor – calling the American people stupid and worse – he went to Congress to apologize over and over again. He also claimed his caught-on-tape explanations of the subsidy provisions were mistaken, a claim now cited in multiple briefs before the Supreme Court. It’s just one more lie.
Monday, February 23
This event may be watched online.
On March 4, the Supreme Court will hear oral argument in King v. Burwell, the latest challenge to Obamacare. This case involves the insurance exchanges created by Obamacare and the IRS’s interpretation of a provision of the law that authorizes tax credits for health insurance purchased through an exchange “established by the state.” When 36 states chose not to establish their own exchanges, the federal government stepped in and created federally run exchanges in those states. The IRS then extended the tax credits for insurance purchased through the federally run exchanges – an interpretation that directly violates the plain language of the law. The Supreme Court has been asked to decide whether the IRS’s interpretation may stand.
What happens if the Supreme Court invalidates the IRS’s interpretation? Will it thwart Obamacare’s goal of expanding health insurance coverage or result in millions of Americans losing their tax credits? How should Congress and the states respond? Join us as our distinguished guests discuss these or other issues surrounding this legal challenge to Obamacare.
Friends and foes of King v. Burwell: Several more interesting legal and policy arguments » AEI EventFebruary 20, 2015
Monday, February 23, 2015 | 9:15 am – 11:30 am
AEI, Twelfth Floor
1150 Seventeenth Street, NW
Washington, DC 20036
The Supreme Court will hear oral arguments on March 4 in King v. Burwell, a lawsuit challenging the legality of an Internal Revenue Service (IRS) rule authorizing tax credit subsidies for insurance coverage in federal exchanges under the Affordable Care Act (ACA). After multiple legal briefs and court decisions on the primary issues in this and related cases, the main arguments are well known and well-rehearsed.
However, this AEI event will highlight several fresher takeaways from a number of recently filed amici briefs, outline the health policy options ahead, and address the likely consequences for the ACA of any possible decision overturning the IRS rule. We welcome you to join us for a preview of next month’s oral argument and a broader exploration of new, alternative health policy paths.
If you are unable to attend, we welcome you to watch the even live in this page. Full video will be posted within 24 hours.
Should the Supreme Court rule in King v. Burwell—a case challenging the Obama Administration’s implementation of the premium tax credit provisions of the Affordable Care Act (ACA)—that the statute restricts the payment of premium tax credits only to individuals obtaining coverage “through an Exchange established by [a] State,” its ruling would preclude the Treasury paying the tax credits to those obtaining coverage through the federally run exchange—or what the Obama Administration calls the Federally Facilitated Marketplace (FFM)—currently serving 34 states.
The ACA’s defenders have conjured a “parade of horribles” (to use a favorite phrase of the Justices) that they claim would result from such a decision. While there might be some individuals who are adversely affected by such a ruling, it is important to examine these claims more closely.
As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort to dismantle a critical feature of the ACA.