The Supreme Court announced today its decision to hear the case of King v. Burwell, which challenges the Affordable Care Act’s insurance subsidies, claiming that the law doesn’t explicitly define the federal government’s role in offering premium assistance to roughly five million lower income families. The plaintiffs argue that the language in law: “exchange established by the State,” suggests that subsidies provided by the federal government for policies sold via the federal exchange are illegal.
Here’s the good news. The Supremes have mostly upheld the law, even the unpopular individual mandate, which bodes well for the federal government’s view that the congressional language is quite clear.
The bad news is much more complicated.
First of all, the decision to hear the case is unprecedented given how the plaintiffs have failed to win a single decision at the appellate level. There haven’t been any “en banc” hearings at that level either, meaning that the King challenge hasn’t been heard by a entire bench of appellate judges — a crucial stage in a judicial process that’s usually routine before reaching the Supremes. Furthermore, the decision was announced on a Friday, or “take out the trash” day, even though these sorts of announcements are reserved for Mondays.
What does this indicate? Politics. The Court’s politics are showing more than any time since Bush v. Gore, and that’s bad.
More bad news. If the subsidies were overturned, premiums for low income families would skyrocket by upwards of $3,000 annually. Many of the five million new enrollees would cancel their policies, thus repopulating emergency rooms and sparking an all new glut of bankruptcies due to medical expenses.
Put another way: the conservative justices will have in effect raised taxes on working and middle class families, almost literally forcing them to pay a growing mandate tax penalty, partly due to the fact that the Court has already upheld the individual mandate. Yes, conservatives will have manufactured a de facto tax hike, simply to stage a political counterattack against the Obama administration and congressional Democrats.
With fewer customers in the exchanges, insurers will have no choice but to raise rates for other non-subsidized customers, driving more people out of the ranks of the insured. And, no, there’s very little chance for the Republican Congress to approve a clarification in the language.
So, even without deciding on the subsidies yet, the Court has exposed itself as an increasingly and menacingly political body willing to abandon its rules and traditions in order to jab Barack Obama in the eye. “Dangerous” barely skims the surface of how bad this is.