Everything Everyone Had To Say About Halbig and King

By Clive Riddle, July 25, 2014

Much has been written this week about the two conflicting circuit court decisions regarding Affordable Care Act Exchange subsidies - The Halbig v. Burwell decision that found against subsidies for FFE states was celebrated as a decisive blow against Obamacare by opponents; and hours later the King v. Burwell decision that came to an opposite conclusion and dampened, at least a tiny bit, such celebrations.

So is the net effect of the two decisions cause for Much Ado About Nothing, or Much Ado About Everything? Browsing the blogoshpere and articles from major organizations, here’s a sampling of what everyone had to see about the state of affairs in the aftermath – with some of the rhetoric a bit over-caffeinated and some seemingly more balanced:

• ACA Supporters Predict Ruling Against Subsidies Won't Go Into Effect
• Republicans Will Run On An Obamacare Replacement in 2016 – Will Democrats?
• Obamacare architect caught LYING about subsidy ‘typo’ on MSNBC
• Cheap solutions to Obamacare challenge could work: Experts
• Working around exchange subsidy ruling should be easy: experts
• If Obamacare subsidies go, states may have workarounds
• Rulings on Health Law Are Far From Last Word
• Obamacare Ruling: Congress’s Dysfunction Hands Power to the Courts
• Did Conservatives Just Win a Leninist Victory Over Obamacare?
• Wild day for Obamacare: Appeals court rulings conflict
• 4.683 million unanswered questions in Halbig
• A stinging defeat for the government
• NATIONAL JL: A Court Ruling Just Blew A Huge Hole In Obamacare

Given these were not SCOTUS decisions, the question is – what’s next? Margot Sanger-Katz of the New York Times answers that question in her article After Health Law Rulings, Here Are Possible Next Steps in which she spells out these scenarios and steps:

1. All the judges on the D.C. Circuit could decide the Halbig v. Burwell case.
2. The law’s challengers could ask the Fourth Circuit to reconsider King v. Burwell.
3. Decisions will be issued by other courts.
4. Either side — or both — could appeal the rulings to the Supreme Court. T
5. The Supreme Court could decide the case.
6. Congress could act.
7. States could act.

A Kaiser Health News article, New Health Law Court Decisions Could Have Limited Political Impact counsels that the decisions aren’t going to turn mid-term elections on their head: “Political analysts say this week’s court decisions on the legality of tax subsidies for those obtaining coverage under the Affordable Care Act may not have a broad impact on this fall’s midterm elections. The decisions sent a mixed legal message, complicating the political message as well. One appellate court panel ruled the subsidies cannot be provided in the 36 states relying on the federal insurance exchange; the other ruled in favor of the Obama administration, saying Congress intended that the subsidies be available regardless of whether states operated their own insurance marketplaces. Political candidates as well as voters will have to wait until the outcome of appeals of the cases to know their impact. But that didn’t stop some politicians from trying to immediately exploit the issue.”

If you are looking for a nice in-depth discussion of the situation – consider giving Timothy Jost’s Health Affairs Blog that provides such coverage: Implementing Health Reform: Appellate Decisions Split On Tax Credits In ACA Federal Exchange. He writes in part: “The issue in the cases is this: The ACA authorizes the IRS to provide premium tax credits to individuals with household incomes between 100 and 400 percent of the federal poverty level who are not eligible for other minimum essential coverage (such as affordable and adequate employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available to individuals who purchase coverage through the exchanges. The ACA requests that the states establish exchanges, and sixteen states and the District of Columbia have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that fail to set up their own exchanges. The federal government has done so in 34 states and is operating the individual exchange for two more. The IRS regulation allows premium tax credits to be awarded to eligible individuals in both states with state-operated exchanges and states with federal exchanges. Two subsections of the ACA, which describe how the amount of tax credits are to be computed and what months can be covered by tax credits, however, provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs in the King and Halbig cases argue that this provision bars the IRS from issuing premium tax credits to individuals who enroll in qualified health plans through federal, as opposed to state-operated, exchanges.”

What are the stakes? Tim tells us “these cases, as well as two other cases pending in the federal district courts in Oklahoma and Indiana brought by the attorneys general of those states, have clearly been brought for a political purpose — to bring down the ACA.”

But the last word on this for today perhaps should belong to John Stewart, who Adrianna McIntyre notes in her Vox Healthcare Blog: Still confused about the latest Obamacare lawsuits? Let Jon Stewart explain (which includes the video clip) “Stewart commended the judges on getting past stop signs the morning of the decision. ‘Until the law expressly provides a 'go' sign, we can in no way ascertain the intent of the framers of the sign. Surely the people honking behind me appreciate the rigor of my judicial acumen.’