A split decision in federal courts doesn’t mean a technical knockout for the Affordable Care Act, but it does set up more rounds of counterproductive sparring. The sooner the U.S. Supreme Court steps in, the sooner this fight will be over.
Tuesday morning, the U.S. District Court of Appeals for the District of Columbia ruled that tax credits to help purchase medical insurance should not be available to residents of the 36 states that declined to set up their own health care exchanges. A few hours later, the 4th Circuit Court of Appeals said the subsidies were safe.
At stake is government aid for nearly 5 million low- and middle-income households. Remove that, and most of them would return to the position they were in before the law passed: unable to afford health care coverage.
On its face, the legal challenge makes little sense. The plaintiffs pinpoint a section of the law stating that tax credits are available when purchases are made on an “exchange established by the state.” They contend that because the federal exchanges aren’t mentioned, the tax credits aren’t in play.
But this literal interpretation removes the law from its context. The entire point was to expand health care coverage and control costs. The exchanges were the mechanisms chosen to achieve those goals. When statehouses debated whether to establish exchanges, they didn’t discuss whether the subsidies hinged on them doing so.
For instance, when Idaho Gov. Butch Otter’s office put together a report on why it would be wise for the state to establish an exchange, nowhere did it say that subsidies would be the reward. Those were presumed to be available regardless. Instead, the report pointed out that Idaho could manage matters more efficiently (a 1.5 percent surcharge per policy vs. the feds’ 3.5 percent) and could better tailor insurance offerings to the needs of Idahoans. The Legislature ultimately was persuaded, and a hybrid state/federal exchange signed up 76,000 Idahoans – far exceeding expectations.
Idaho is planning to open its stand-alone exchange this November, when the next open enrollment period begins.
Washington state has had an exchange from the outset, so the subsidies would continue even if the challenge were to prevail.
The clear intent of Congress failed to persuade two of the three judges in the D.C. court majority. Meanwhile, the 4th Circuit looked at the law in context and ruled unanimously that the Internal Revenue Service was within its bounds to clarify that the subsidies were to be available no matter who ran the exchanges.
Congress could clear up any confusion by adopting a simple amendment to the law, but the House of Representatives would have to stop its repeal campaign and do something constructive.
The best course now is to put the dueling opinions on a fast track to the U.S. Supreme Court for a final ruling.
Then the focus can turn to improving the law, rather than undermining it for political purposes.