The House has declared a hiatus in attacking the Affordable Care Act (ACA) after voting against it at least 50 times since the U.S. Supreme Court ruled it mostly constitutional, but lawsuits about ACA are still wandering around lower courts. Two separate courts of appeals issued conflicting rulings about ACA yesterday.
By a 2-1 vote, a panel from the Washington, D.C. Circuit Court of Appeals ruled in Halbig v. Burwell that the exchanges, marketplaces where people can receive tax credits if they are allowed financial assistance, are valid only if an individual state operates the exchanges. Because 36 states did not create these exchanges, the federal government set up one for the states’ residents which provided subsidies to almost 5 million people who could not otherwise afford insurance. Because the law mention state exchanges, the two judges decided that tax credits for purchases a federal exchange did not meet the letter of the law.
The decision against ACA would not only remove subsidies from people who need financial assistance but also fail to cover all the people, a necessity for the ACA to function. Without this provision, employers would not be required to provide insurance. This is the first ruling against ACA since the cases started two years ago.
Within two hours of the D.C. court ruling, the 4th Circuit Court of Appeals released an opposite decision. Because of the ambiguity in the law’s wording, the court decided that the rule in authorizing subsidies is “a permissible exercise of the agency’s discretion,” according to the Chevron Doctrine from a 1984 Supreme Court ruling. Although the law refers to state exchanges, it also provides that if a state “elects” not to establish the “required Exchange,” the secretary of health and human services must “establish and operate such Exchange.” These sections both require states to establish exchanges and allow them not to do so. Congress gave the IRS the responsibility to resolve such contradictions.
This case had pretty much flown under the radar because a federal district court in January heard it and ridiculed conservatives for the ludicrous filing. The Obama Administration, however, had expected the negative ruling from the D.C. Circuit and was prepared to appeal the decision to the entire 11 judges in the court. The panel that overturned the lower court was composed of the two most far-right judges on the D.C. Circuit who displayed their hostility toward the law in the March 25, 2014 arguments.
Judge Raymond Randolph, appointed by Bush I, stated that the launch of the ACA was “an unmitigated disaster” and that its costs “have gone sky-high.” He cut off Judge Harry Edwards, the one dissenter, to quote an editorial from the conservative Investor’s Business Daily to support his argument that the ACA should be defunded. Health policy is not that publication’s strong suit: it had earlier argued that British physicist Stephen Hawking from the U.K. wouldn’t have a chance in the U.K. because that country’s National Health Service would declare the his life to be “worthless.”
Judge Thomas Griffith, a Bush II appointee, concurred with his colleague, Judge Janice Rogers Brown, that all labor, business, or Wall Street regulation is constitutionally suspect. He perceived the ACA as a “burdensome regulation” brought by the forces of “cowboy capitalism.”
With seven judges appointed by Democratic presidents, the entire D.C. Circuit is far more middle-of-the-road than the panel that made this decision against ACA. Although the court is typically reluctant to hear a panel decision, the loss of health insurance for millions of people might be important for the entire court to consider the ruling. The decision won’t go into effect as long as an appeal is pending.
If the case goes to the conservative Supreme Court, they may have difficulty striking ACA down on the basis of ambiguity because of the court’s long history in recognizing a law’s clear purpose over an error in proofreading or by one statement in isolation. Even the subtitle of the law reads “Affordable Coverage Choices for All Americans.”
If the entire D.C. Circuit hears the case and overturns the panel’s ruling in Halbeg, two district courts and two appellate courts will have all ruled in favor of the ACA, which means that the Supreme Court will not be required to take the case. The justices may decide to so anyway, but they wouldn’t have a reason.
A great irony in the GOP jubilation regarding the possibility that people will lose their subsidies is that it would raise taxes. Before the 2012 presidential election, 95% of all Republicans signed on to Grover Norquists’s “Taxpayer Protection Pledge” to oppose any tax rates for anyone.
In its 2012 ACA ruling, the Supreme Court called the subsidies “taxes.” The loss of subsidies equals an increase in taxes. Republican Kevin Drum wrote in Mother Jones, “Everyone who buys insurance through a federal exchange would lose the tax credits they’re currently entitled to, and losing tax credits is the same as a tax increase.” Denying Medicaid, states denied 5 million people something that didn’t exist, but the removal of tax subsidies means taking away cash from people already receiving it.
Unfortunately for the Republicans opposing the ACA, the news about the law, while largely failing to appear in the mainstream press, is good. Private insurers that originally avoided the exchanges now want a piece of the action. In all the states that have reported, the number of insurance companies in the exchanges will increase during the second year.
When insurers testified at a House hearing, they said that the law had not led to a government takeover; just the reverse, several insurers said their stock prices were going up. They also refused to say whether their insurance premiums would increase sharply.
The ACA is vastly decreasing the number of uninsured: for example, the uninsured in New Jersey is lower by 38 percent, in Minnesota by 40 percent, and in Kentucky by 50 percent. During the second quarter of 2014, the percentage of people without insurance fell to 13.4 percent—the lowest quarterly average since Gallup-Healthways began tracking health insurance in 2008.
The vast majority of people are paying their premiums, and almost 9 million more people have health insurance. Yet there hasn’t been a significant increase in new patients visiting doctors.
Over half the people think that the ACA has helped either their families or others in the country, according to a survey by CNN/ORC International survey. Thirty-eight percent think that the law is too liberal, but 17 percent oppose it because it’s not liberal enough. The remainder of the people support it.
Republicans are largely happy with their insurance: 74 percent of newly insured Republicans like the plans. Overall, 77 percent of people who had insurance prior to the rollout of the Affordable Care Act said they are pleased with the new coverage they obtained in the last year.
Best of all, insurance saves lives, according to a recent study in the Annals of Internal Medicine about the Massachusetts health care reform that started in 2007. While death rates from “amenable” causes and the overall death rate barely budged outside Massachusetts, both those went down significantly in Massachusetts. For every 830 people who got insurance in the state, about one person avoided a premature death. That would make between 17,000 and 24,000 more people staying alive in the nation. It’s the opposite of the “death panels” that Republicans announced during that hot summer to rile up conservatives.