WASHINGTON — Sen. Orrin Hatch (R-Utah) on Monday tried to argue that something he wrote in 2010 does not undercut the premise of the anti-Obamacare lawsuit that the Supreme Court will hear next week.
It was not a particularly convincing effort.
Yes, we’re back to talking about King v. Burwell — the case, scheduled for oral argument on March 4, about how and where the federal government may help people buy health insurance. The Affordable Care Act calls upon states to create special insurance exchanges, through which people without access to job-based coverage can buy policies — and, depending on their incomes, qualify for tax credits that discount the premiums by hundreds or thousands of dollars a year. If states fail to act, the law says, the federal government should step in and create the exchanges instead.
About these issues, there’s no real argument. The controversy is over whether those federally run exchanges should be functionally similar to the state-run versions. The answer, according to the lawsuit, is unambiguously “no.” Proponents of this view focus on a few passages in the law — in particular, a key section authorizing the distribution of tax credits in exchanges “established by the State.” The section says nothing about federally run exchanges. This omission, the lawsuit claims, was intentional — designed to compel states to act out of fear their citizens wouldn’t get the tax credits.
If this view prevails in the Supreme Court, the consequences may be chaos and increased misery. Officials in roughly two-thirds of the states, including Florida and Texas, have not built exchanges. Millions of people now getting subsidized coverage in those places would lose their tax credits and, in most cases, become uninsured. Entire state insurance markets would likely become unstable.
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That’s one reason that the hunt for congressional intent is so fraught — and that, in cases of ambiguity over what a law actually says, courts traditionally allow executive branch agencies to make any “permissible” reading. The problem for Hatch and his allies is that, in King v. Burwell, showing such deference to agencies would almost certainly mean heeding the Obama administration’s interpretation of the law — so that Obamacare could continue working as it does today.
