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Smart Bombs: Repealniks face boomerang

The latest threat to the Affordable Care Act is a legal challenge – Halbig v. Burwell – asserting that subsidies cannot go to those who buy insurance in states that failed to set up exchanges. Washington is among 14 states that did, so if Halbig wins, the subsidies won’t stop here.

However, 36 exchanges are run by the feds, because those states decided not to establish their own. “Gotcha!” says the libertarian legal team behind Halbig, because the law says subsidies are available through “state” exchanges. That section doesn’t mention the federal ones.

So why would a law designed to expand access to uninsured Americans unravel because of this technicality? Politics, of course. The authors of the Affordable Care Act assumed states would want to tailor exchanges to their populations. It’s sensible, and a nod to local control. But what the authors didn’t foresee was a refusal to set up exchanges as a protest against the law itself.

In the first test of Halbig, a district court judge ruled in favor of the ACA, saying the challengers provided no evidence the bill intended to withhold subsidies based on who ran the exchange. But during oral arguments, two of the three members of the U.S. District Court of Appeals – both appointed by Republican presidents – seemed sympathetic to the literal interpretation of a sloppily constructed sentence. If they strike down the subsidies, about 5 million people will lose the financial aid that made their insurance affordable.

For argument’s sake, let’s say this happens and the ruling withstands further appeals. Big victory for Repealniks, right? Maybe not.

According to a recent Commonwealth Fund survey on the ACA, as reported by the New York Times (italics mine), “Overall, 73 percent of people who bought health plans and 87 percent of those who signed up for Medicaid said they were somewhat or very satisfied with their new health insurance. Seventy-four percent of newly insured Republicans liked their plans. Even 77 percent of people who had insurance before – including members of the much-publicized group whose plans got canceled last year – were happy with their new coverage.”

So not only are most Republicans fond of their ACA insurance, but the very leaders who took up the cause of those forced to switch coverage would have to explain to them why their new plan, which most of them like, is going to become unaffordable. It won’t be as simple as blaming the courts or the ACA authors, because states could still choose to replace their federal exchanges and keep the subsidies flowing.

Careful what you wish for.

Strange bedfellows. Now that legal pot is a reality in the Evergreen State, perhaps proponents, merchants and some libertarian-minded folks can forge an alliance to expand liberty and urge the federal government to back off, permanently.

Call it the Green Tea Party. Slogan: “Dude, don’t tread on me.”

First order of business is lobbying the Federal Drug Administration to reclassify marijuana. Last month, the Drug Enforcement Administration asked the FDA to take another look at whether it makes sense to treat pot as if it were heroin or LSD. The FDA turned down petitions in 2001 and 2006, but states continue to pass medical marijuana laws and ease up on recreational-use offenses.

The current status, Schedule I, is the most severe, and it’s the chief reason the feds stay actively involved in enforcement. The fear that the feds will swoop in on states has caused regulators to write tighter rules, such as limiting supply so legal pot won’t be diverted to states where it’s illegal. This, in turn, drives up the price of legal pot, which keeps street-corner dealers happy.

So anti-crime forces can join the party, too.

Associate Editor Gary Crooks can be reached at garyc@spokesman.com or (509) 459-5026. Follow him on Twitter @GaryCrooks.


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