Or so I think.
On Friday, November 7, the U.S. Supreme Court agreed to hear (granted the petitioner’s writ of certiorari in) King v. Burwell. In King, a panel of the Fourth Circuit unanimously rejected the argument that the federal government cannot, under the Affordable Care Act, subsidize low income consumers who buy health plans in the 36 states where the federal government, and not the states, runs the system’s “health exchanges.”
As a fan of this expanded health coverage, I think that’s bad because it puts that expansion at risk based on a drafting glitch in the Act. More broadly, though, I think it is bad because the Court’s decision to take a case like this now, with only one appellate court decision on the topic, looks unnecessary, political, and, indeed, partisan. And that, too, is bad for the country ­– and the Court.
The argument against the subsidies hinges on a small textual point. The provisions authorizing and, in some other respects involving, the subsidies refer to “exchanges established by the States,” not to federally-run exchanges. Similar problems exist in other sections of the rapidly cobbled together final bill and to (almost) everyone, it clearly makes no sense that Congress would intend to provide subsidies to consumers in states that ran their own exchanges but not in states that chose to let the federal government provide the exchanges. It’s fundamentally a silly argument, calling for a strict interpretation of a few words of statutory language in a way that would profoundly contradict the legislature’s intent.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.