Making heads and tails (and “death spirals”) of the healthcare case, King v. Burwell

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Do you live in a state with its own exchange?

How many articles, journals, blog posts, podcasts, and Tweets does it take to understand King v. Burwell? The short answer: Several. One can easily find himself in their own “death spiral” of content, to use the parlance of the media and Justices recently, and still end up in the same place – confused, but maybe hungry for more.

I was hungry for more and followed the analyses closely, but even I got a bit lost in the weeds of the case. It’s been over a week since oral arguments were delivered in King v. Burwell, which took a second stab at the Affordable Care Act in the Supreme Court. By Thursday of last week, at least five friends and students asked me “What the heck is this case really about?” I forwarded links to articles and podcasts that delivered simple, straightforward explanations, and recommended writers to follow on Twitter. But I know some of those well-intentioned folks will never open that link, listen to the podcast, or even open the email. What to do?…

I used to write a segment called “5-cent and 10-cent rundowns” where I dissected critical Supreme Court cases into digestible, short write-ups that one could read to accomplish two goals: 1) gain an understanding of the case; 2) be able to explain the case to someone else if/when the subject came up. These rundowns are for the curious, the hardcore, or those who just want to bookmark this page to come back to in June, when a decision is likely to come down and there is a revival in interest for this case.

5-cent rundown: Can the federal government, via the Internal Revenue Service, give people assistance (tax credits) to purchase insurance through the Federal “exchange” even though the original language in the 2010 Affordable Care Act said the credits are only for those purchasing insurance on exchanges “established by the state”? This case centers on whether or not the Justices will read the law literally or take a broad interpretation of the ACA. These two dubious ways of interpreting the ACA are in essence what divides the Court. Textualists, like Scalia and Alito, are likely to follow the literal letter of the law, whereas Breyer, Sotomayor, and Ginsburg will interpret the letters, the sentence, and the broader context. Either way, this case is certain to be of consequence to the 11 million people getting their insurance through Obamacare.

10-cent rundown: If you’re a living, breathing citizen of the U.S. you have to have healthcare. That fact was established in the controversial 2010 ACA legislation. A separate, major SCOTUS case ruled this was law was constitutional. King isn’t going to impact folks who are fortunate enough to get healthcare through their employer. The core audience in this case are the 30+ million Americans who had no health insurance before Obamacare: Grad students, nannies, consultants, small-business owners, and millions of others.

Since health insurance was mandated, the ACA was written so that everyone would be able to go and get their own insurance in an open market called an “exchange.” The states could set up these exchanges or they could opt out. If your state said “Pass,” you could still go to the federal exchange and pick a provider at a price you could afford. Unless you live in one of the 16 states with its own exchange, you’re forced to get your insurance on the federal exchange. Since the federal government isn’t in the business of handing out cash, the Obama administration has the IRS provide the financial help in the form of tax credits to ease the financial burden of paying for insurance.

Dave King, a 64-year old man, and three other people from Virginia, represent the petitioners in this case. Virginia is one of the 34 states that doesn’t offer an exchange forcing residents into the federal exchange. Burwell is Sylvia Mathews Burwell, the Secretary of the Health and Human Services Department. Solicitor General Donald Verrilli is the attorney representing the government.

If you’re shocked an average-Joe like Mr. King took his case all the way to the Supreme Court, don’t be. Wealthy interest groups, think tanks, and public policy institutes scout petitioners for cases like this that, they think, are prime Supreme Court bait. In King’s case, the Competitive Enterprise Institute is supporting him and his legal team. Michael Carvin is King’s attorney and a Supreme Court advocate who argued the last Affordable Care Act case before the justices in 2012. King and the CEI want to convince four Justices, and either Kennedy or Chief Justice John Roberts, that the IRS and the Obama administration are violating the law by giving Americans in the 34 states without exchanges tax benefits therein dealing a fatal blow to spirit of the ACA.

The government’s argument asserts that King is isolating the words “established by the state” and taking them out of context. Further, it would be counterintuitive to create a piece of major legislation with four words that can internally dismantle the law. The Justices were reminded that many people can only afford to pay for mandatory insurance through the tax credits they get from the IRS. If the 11 million who’ve registered for Obamacare stop paying for their insurance because they no longer have financial support, the infrastructure of the ACA is crippled. As the ACA relies on a system in which millions of healthy people pay to offset the costs for those that are not, such a cataclysm would result in the interminable death spin for Obamacare.

I received a great question this week: “Who asked questions in the Court? The Justices tend to save their words for challenging hypothetical tests to the attorney or side they’re most troubled by. Silence can be golden. If they’re not asking questions they’re likely, but not always, leaning towards the attorney speaking. [The only exception being the consistently silent Clarence Thomas.] The usual left-leaning justices (Kagan and Sotomayor) challenged King’s attorney while Scalia and Alito had several questions for Solicitor General, Donald Verrilli. [The Wall Street Journal had a simple, easy to read play-by-play here.]

The legal equivalent to Muhammad Ali and Joe Frazier met, again, in the SCOTUS during oral arguments for King. Michael Carvin, a seasoned Supreme Court advocate who represented the petitioners, challenged the constitutionality of the ACA in 2012 and the Florida recount in 2000, versus Donald Verrilli. Verrilli’s mild-mannered, methodical approach, juxtaposed with Carvin’s brazen defense of statutory text, make listening to the audio of the oral arguments worth it.

What’s next? A decision. Many say the justices already know how they’re going to rule by the time oral arguments happen but crafting the text of the decision – especially in close (5-4) cases – takes time. A decision is expected at the end of June, just before the end of the Supreme Court’s term.

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