This week, just hours apart, the District of Columbia Court of Appeals and the Fourth Circuit Court of Appeals ruled on a key provision in the Affordable Care Act. The language stated that federal subsidies were only available to insureds in states that had set up their own insurance exchanges. In a precise reading of the statute the subsidies would not apply in states with no state exchanges and where the federal government filled in to provide the exchange.
The congressional drafters of the legislation wrote their obvious intent imprecisely, and the D.C. Court of Appeals held their feet to the fire and interpreted the language exactly as it read, i.e. to exclude subsidies where a state did not set up an insurance exchange. The Fourth Circuit, in reviewing the congressional record, interpreted their intent by reviewing the entire ACA law, and held that the provision was also applicable to the federal exchange. Both ways of analyzing the statutory language are legitimate, but the high court could be the ultimate decider of which will prevail. Unless the D.C. Circuit overturns their decision on review, the likelihood is that the issue will go before the Supreme Court.
Conservatives rejoiced when the D.C. Court’s decision was announced a few hours before the Fourth Circuit’s. To them it was another nail in the ACA coffin. They want to kill Obamacare so badly they can taste it. Yet in the recent primary election and runoff, most of those who ran on the promise of repealing the ACA didn’t do too well at the polls. It’s one thing to continually tear down someone else’s ideas, but it’s another when you have none of your own.
As most readers know, the ACA, under different names, was supported by Mitt Romney, Newt Gingrich, the conservative Heritage Foundation, and other conservatives and groups. As evidence that it’s really about Obama more than the law, consider that the Republican House has yet to come up with one meaningful healthcare proposal of its own. Sure, Congressman Tom Price touts his plan that would supersede the ACA and “work so much better”, but it’s fair to ask why it hasn’t even gotten a committee hearing. The Republicans had six years under George W. Bush where they also had both houses of congress, and yet the only healthcare reform the American people got was the unwanted Medicare Part D, which is more costly to the taxpayers than the ACA according to the nonpartisan Government Accounting Office. I think it’s fair to ask why they didn’t address the health insurance problem when they had a chance. Same for tax and immigration reform. We got nothing.
It’s too early to know how the latest court rulings will turn out. But if the high court ultimately upholds the D.C. Court’s interpretation, the ACA could be substantially weakened, especially if the Republican House refuses to pass a revised provision that clarifies the original intent of the then Democratic congress. That would mean a lot of people would no longer be able to afford to purchase insurance. And that in turn would result in a proliferation of ER visits by indigents, something the ACA (and RomneyCare) was intended to get under control. That begs the question: Do the Republicans have a Plan B for those who could lose their insurance?
The ACA includes specific wellness provisions. This is a good thing, and healthy workers add to the productivity of our economy, which in turns increases the GDP. Sick people are a drain. It makes sense for people to have health insurance, work, and pay taxes that reduce the amount of the health insurance subsidies. To go back to where we were before the ACA, where insurers could rescind policies for a variety of reasons, deny medical procedures and drugs because they were costly, not because a doctor said they were needed, would be a big mistake. The focus should be on tinkering with the ACA to make it better each and every day, not to tear it down and rejoice when a court strikes a key provision. I’ve always liked the man in the arena better than the critic who has no sweat equity in the fight. Right now our representatives act more like spectators than the players we elected them to be.