King v. Burwel, is a lawsuit before the Supreme Court that threatens to undermine the Affordable Care Act (ACA). The case challenges the government’s provision of tax credits to help consumers buy health insurance in states where the federal government runs the marketplace. Learn about what’s at stake in King v. Burwell.
One remarkable development in the King v. Burwell litigation which deserves more attention is the vast disparity in the quantity and quality of friend-of-the-court briefs that have been filed on both sides in the case. The diversity of signatories that have filed such briefs supporting the continuation of tax-credit premium subsidies in all states is exceedingly impressive. In quantity and diversity of participation, and in the substantive quality of the briefs, the submissions in favor of retaining premium subsidies far surpass the submissions from ACA opponents.
Among the key points in these briefs are matters that should be of great significance to Justices willing to make a decision on the merits rather than ideological or partisan inclinations:
- None of the states had any notice that their decisions to run a health marketplace, or to delegate such operations to the federal government, would have any impact on the availability of premium subsidies for their residents.
- The members who wrote the ACA never contemplated withholding premium subsidies in states that delegated marketplace administration to the federal government.
- Eliminating premium subsidies would result in an estimated 9.6 million losing their ACA-compliant health insurance in states with federal marketplaces, thereby causing a huge number to re-join the ranks of the uninsured.
- A decision in favor of the plaintiffs (the anti-ACA petitioners) would cause a “death spiral” of huge premium increases and cripple insurance markets.
- Eliminating the premium subsidies would force much greater dependence on emergency rooms and would have a devastating impact on hospitals, their patients, and the communities they serve.
Beyond these key points, as I wrote for the journal Health Affairs, it is not only the intent of Congress that would be flouted by a decision favoring the anti-ACA petitioners, but the very text of the statute would be contravened. As such, there is good reason to believe that the ultimate decision by the Court will allow the continuation of premium subsidies in all states across the country.