I’ve been toying with an idea that might allow the Obama administration, in the event that it loses in King v. Burwell, to keep subsidies flowing to residents in some of the 34 states that declined to create an exchange. What if HHS declared that any state that performs substantial, ongoing, and essential exchange functions […]
If the government loses in King v. Burwell, Congress will come under intense pressure to restore insurance subsidies in the 34 states that refused to set up their own exchanges. Anticipating the tricky post-King politics, Senate Republicans appear to have coalesced around a bill crafted by Senator Johnson that would extend subsidies through 2017 to […]
If the Supreme Court rules for the plaintiffs in King v. Burwell, the thirty-four states without their own exchanges will come under immense pressure to create them. But there’s a catch, one that so far has gone unmentioned in the debate over King. Could residents of the states with new state-based exchanges even qualify for […]
The always-interesting Will Baude has a provocative piece on King v. Burwell at the New York Times. As he sees it, the Obama administration has an ace up its sleeve when it comes to avoiding the fallout of an adverse decision. [L]uckily the Constitution supplies a contingency plan, even if the administration doesn’t know it […]
In parsing Justice Kennedy’s comments about federalism from oral argument in King yesterday, it’s important to notice that federalism principles could affect the outcomes in two very different ways. Most of Kennedy’s comments suggested that threatening the states with the loss of tax credits and the destruction of their individual insurance markets would be unconstitutionally […]
Given the Chief Justice’s near-silence at oral argument in King v. Burwell yesterday, much will be made of Justice Kennedy’s sensitivity to the argument that accepting the plaintiffs’ interpretation of the statute would raise serious federalism concerns. That’s completely appropriate. But I want to call attention to a different question that Kennedy asked the government’s […]
One of the strangest things about King v. Burwell is the challengers’ claim that the ACA clearly withholds tax credits from states that refused to set up exchanges. When asked why on earth Congress would do such a thing, the challengers insist that Congress badly wanted the states to establish their own exchanges. The tax […]
I was reading the ACA again yesterday—a pretty typical Sunday for me—when I came across another statutory clue that Congress could not have meant to strip tax credits from states with federally established exchanges. The ACA requires all individual and small-group insurers to cover the “essential health benefits,” but the statute was pretty vague about […]
The government says that its regulations require it to withhold data. The government is wrong. In the case of the missing substance use data , CMS has fingered a culprit. It’s those pesky regulations: specifically, regulations in Part 2 of Volume 42 of the Code of Federal Regulations. The Substance Abuse and Mental Health Services […]
I have a new piece at the New England Journal of Medicine, co-authored with David Jones and Tim Jost, that grapples with the practical consequences of a Supreme Court decision against the government in King v. Burwell. As we explain, the fallout could be much worse than is commonly appreciated. In particular, we are not […]
According to recent reports, CMS has begun withholding from researchers Medicare and Medicaid claims data relating to substance use diagnoses and related procedures. The agency’s decision will impair research relating not only to substance use, but also any research that depends on unbiased Medicare and Medicaid data. Much of that research is designed to improve […]
In King, the government is looking to demonstrate from the broader context of the Act that Congress didn’t mean to withdraw tax credits from states with federal back-up exchanges. That context includes three stopgap measures designed to afford temporary relief until the exchanges went live. One of those measures has received a lot of attention: […]
Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available. Writing the […]
Last week, I wrote that “there would be no legal basis for entering a stay” if the Supreme Court inKing v. Burwell invalidates the IRS’s rule governing the distribution of tax credits. I received some thoughtful pushback on that point, most notably from Will Baude and Andy Grewal. In light of their comments, I want […]
What would happen if the Supreme Court rules for the challengers in King? Not down the line, but immediately? I’ve heard some suggestions that the Court, keen to avoid the upheaval of insurance markets, might enter a stay or otherwise give the administration and Congress time to come up with a fix. That’s wishful thinking. […]