In the end, it may be a “drafting error” that kills the Affordable Care Act. The Supreme Court has agreed to hear King v. Burwell, a case that challenges the legality of federal subsidies for insurance purchased in the federal exchange. When the Affordable Care Act was passed, states were given the option of creating state-run exchanges in which their residents could purchase insurance. Thirty-six states chose not to. The federal government then had to set up its own exchanges for them, offering subsidies in those states for qualifying individuals.But the text of the law only empowers state governments to provide subsidies—not the federal government. King challenges the right of the federal government to offer subsides in those 36 states, and if the Court rules against the government, everyone in those states currently getting subsidies will become ineligible for them, effectively gutting the ability of the ACA to function at all in those states. More, via the NYT:
Representative Nancy Pelosi, the House minority leader, said the court’s move was a surprise. “It’s troubling that they would even consider this,” she said. “The language is very clear. The intent of Congress is very clear.” […]The case the Supreme Court agreed to hear comes from Virginia. It was brought by four people who said they did not want to be subject to the law’s requirement that they buy insurance or pay a penalty. If it was not for the subsidies, they said, they would have been eligible for a hardship exemption.
Pelosi wasn’t the only one surprised the Court agreed to hear the case; even to hear it means that the Court thinks the challenge has some merit, no matter which way the ruling eventually goes.But neither Democrats nor Republicans should be surprised. The law was poorly written, in part, because Democrats pushed it through quickly, after Scott Brown’s election in Massachusetts threatened their control of the Senate. The hastiness of that process all but ensured some error like this would surface. Republicans for their part have warned state governments to refuse to set up exchanges from the moment the law was passed—and that approach could wind up working for them if the Court decides their way in this case.It’s not clear how this case will be decided. It will be argued before the court February or March 2015, and decided in June 2015. Chief Justice Roberts will likely be a key swing vote, just as he was in National Federation of Independent Business v. Sebelius, the decision that upheld the individual mandate. But if the case goes against the Democrats and the administration, they will have only themselves to blame.