The Supreme Court surprise that wasn’t

Ruling on health care subsidies was expected, but is still a relief

THOSE CLOSELY WATCHING the US Supreme Court process on the King v. Burwell suit that almost upended insurance subsidies for about 6.4 million Americans knew that one of three outcomes was most likely – 5-4 for the plaintiffs, or 5-4 or 6-3 for the government.  That indicated to me a two-thirds probability of a pro-Affordable Care Act ruling.

Intellectually, that’s what I expected.  Too many long-standing and widely-shared judicial precedents would have been trampled by a ruling for the libertarian Cato Institute’s lawsuit – including the core Chevron principle that “context matters,” and the Pennhurst principle that federal laws shall not “surprise states,” among others.  With a ruling for the plaintiffs, the Court’s only way out would be to repeat the scandalous ruling in Bush v. Gore, in 2000, that the court’s decision installing George W. Bush as president would represent no precedent for any future case.

Still, it would have been foolhardy to assume any certain result from this Supreme Court. Happily, the decision was not close, as the court ruled 6-3 that the health care law allows not just states, but also the federal government, to operate exchanges providing insurance subsidies. The window of opportunity for using the Supreme Court to disassemble the ACA is now all but ended, even as a baker’s dozen of cases are still in circulation.

As Tim Jost point out, the new decision represents a step backwards for the law’s opponents because it prevents a future Republican president from eliminating the ACA’s subsidies without a subsequent act of Congress.  Prior to this decision, a new administration could have eliminated them simply by changing Internal Revenue Service regulations.  Good work and thanks, Cato!

More happily, 6.4 million Americans in 34 or so states face no judicially dictated suspension of the subsidies that enable them to obtain health insurance.  And the individual insurance markets in those states will not face immediate and catastrophic disruption that would upend coverage for millions more.

And happily for Republicans, they can resume their generalized and surgical attacks on the ACA without needing to move any legislation representing an alternative approach that has eluded them for more than five years since the ACA’s signing.  Ditto for the 18 or so presidential candidates.  Some of us with longer memories recall Rep. Paul Ryan, the Republican chairman of the House Ways & Means Committee publicly promising around the time of the court’s hearing in early March that the House would write and introduce and have scored by the Congressional Budget Office a replacement bill before the Supreme Court rule announced a decision.  Never mind.

President Obama is now assured that he will walk out of the White House for the last time as president in January 2017 with his landmark legislative accomplishment intact.  If his successor is of the Republican variety and holds on to Republican control of the Senate and House, some significant surgery on the law will likely occur, though far less than complete or even drastic scaling back.  If his successor is a Democrat, the law’s place in the nation’s health care system is secured.

It’s not as if the ACA does not require surgery.  From a progressive perspective, it most certainly does – as this Families USA Health Reform 2.0 agenda from earlier this year makes plain.  The truth is the Affordable Care Act is not nearly affordable enough, as the growing chorus of complaints about unaffordable deductibles makes evident.  Many of the other non-coverage reforms, such as the penalties on hospitals with high rates of Medicare patient readmissions within 30 days after discharge, need fixing.

A Congress less consumed with life-or-death struggles over ACA repeal would be paying serious attention to these important challenges and would be working in countless ways to fix and improve innumerable provisions in the law – as happens with any complex new statute. I like the call the process “continuous policy improvement.”

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My hope is that the King ruling begins to provide space for Congress and the Obama administration to begin working to fix and improve the portions of the ACA that need attention.  Let the process begin.

John McDonough teaches at the Harvard TH Chan School of Public Health and blogs at healthstew.com.