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Ever since the Affordable Care Act’s passage in 2010, the Republican Party has made it clear it will do everything in its power to obstruct implementation of the law.
The Republican-controlled House of Representatives has voted 54 times to repeal the ACA. Among other ploys, Republicans have:
- Made up fantasies about ACA-created “death panels.”
- Come up with nonsense stories about the law creating a “part-time” nation and being a job-killer.
- Promoted stories about an explosion in insurance prices even as economists struggle to explain the sharp slowing of health care costs.
There is zero truth to most of the Republicans’ stories on the horrors of the ACA, but that has little relevance to their efforts to derail the program. They apparently believe there is no more pressing problem facing the country than making sure that people do not get health insurance.
This is the backdrop that must be kept in mind when considering the Halbig v. Sebelius case, which is moving through the court system. Most recently, the anti-ACA forces got a 2-1 favorable ruling from a panel of the D.C. appellate court. The same day, a Virginia panel ruled 3-0 against Halbig, arguing that the law can remain as is.
The issue in this case is fairly straightforward: There was a mistake in writing the law. The wording of the law says subsidies in the exchanges are only available in the exchanges that were established by the states.
If interpreted literally, people enrolled in the federally run exchanges would not be eligible for subsidies. This would exclude people in the 36 states that chose not to establish their own exchanges. Only the people in the states that established exchanges would be allowed to receive subsidies.
There is zero doubt this wording was a mistake. There is no record of any member of Congress, anyone connected with the administration or anyone involved in health care policy advocating subsidies be restricted to people enrolled in the state exchanges.
Even the Congressional Budget Office assumed without question that the subsidies were intended to apply to people in the federal exchanges when it analyzed the budgetary impact.
In spite of efforts to be careful, there are sometimes mistakes in the writing of a law. Usually, courts try to interpret a law in a way that makes sense even if is not literally what the law says.
If the rules on food stamps say beneficiaries can get $250,000 a month in benefits, instead of $250, judges usually would not insist that we give beneficiaries three quarters of a million dollars every month.
However, the Republican efforts to sabotage the law have been joined by their allies on the courts, so normal legal rules do not apply. It is likely the case will eventually be decided by the Supreme Court, and it is anyone’s guess how it will rule.
Although Republicans are obviously hoping to throw another wrench into the workings of the ACA, it is not clear this would really work to their advantage.
The people who would be losing subsidies are mostly in Republican-controlled states. They will lose their subsidies because their governors and/or legislators didn’t want to cooperate with the ACA.
Taking away subsidies from these people will probably be about as popular as taking away Medicare from people in these states. But hey, the Republicans think it is important to keep people from getting insurance.
There are many problems with the ACA. There should be a Medicare-type public option available to people. The program could pay less to the drug companies, saving hundreds of billions of dollars.
But it will only be possible to address these and other issues when the Republicans accept that the ACA exists and stop trying to find wacky legal theories to undo it.