Michael Carvin, counsel to the petitioners in King v. Burwell, filed his opening brief before the Supreme Court on December 20. King challenges the Obama Administration’s claim that it may subsidize the cost of individual healthcare policies even in states that have not created state healthcare exchanges. On December 22, the Supreme Court announced that it will schedule oral argument in the case on March 4. Signaling the importance of the case, the Court said that it would hear arguments only in King that day instead of its usual practice of hearing arguments in two cases.
King is one of two cases in which CIR filed an amicus brief on behalf of several members of Congress arguing that the law creating Obamacare was clear: subsidies are available for individuals only in states that create exchanges. If the Supreme Court reverses and holds the law to its plain language, Obamacare could not survive in its present form: without subsidies, many individuals could not afford the insurance and only the sickest would sign up, forcing premiums to increase further, which would only speed the flight of the healthy out of the reach of Obamacare.
The possibility that the system of incentives and subsidies that was supposed to drive the majority of Americans into federal health insurance could collapse into a death-spiral of ever higher premiums resulting in fewer and fewer enrollees creates a political conundrum for the new Republican Congressional majority. It could decide to let the system collapse completely in the hopes that the blame would fall mainly on the White House. Or it could undertake the arduous task of reconstructing Obamacare with greater deference to individual choice and free-market principles. Or, finally, it could get the federal government out of the business of general health insurance entirely, reserving for the federal government the limited task of providing for the medical needs of the small set of truly uninsurable.
Current politics will not make the task easy. President Obama is likely to insist the new Congress simply change the law to endorse the Administration’s view that subsidies should be available for all. If the Republicans resist, the media will focus attention on the individuals who will suddenly lose their subsidies — and their insurance. Republicans will find it just as difficult to please their own constituents, who will insist that anything less than a full-scale repeal of Obamacare amounts to a sell-out. Further complicating matters is that Republican governors will come under to create state exchanges in the thirty-six states where they don’t now exist so that citizens in those states can take advantage of the subsidies provided under the original law.
In an recent editorial, the Wall Street Journal advised Republicans to focus on the fundamental problem with the “Affordable Care Act,” namely that the insurance it requires people to buy is not really affordable to many. If the federal government stopped insisting on selling “three-sizes-fits-all” insurance and instead let any insurer sell any configuration of insurance to anyone, anywhere, insurers would have an incentive to sell insurance individuals wanted and could afford, such as stripped-down, catastrophic insurance for younger, healthy individuals.
One thing is clear: the Constitution does not permit the Executive Branch to unilaterally re-write Congress’s laws to continually adapt them to changing market conditions. That is, the Constitution probably makes unworkable the sort of top-down, command and control of one-sixth of the economy that the Democrats undertook with Obamacare. The sooner the Supreme Court makes this plain, the sooner the other branches can get to work fashioning a health system based on stable, written laws passed by Congress and enforced, not re-written, by the Executive Branch.
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