Chevron After King v. Burwell

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.   

I agree with Chris that the way the Court reached today's outcome could have broader consequences for administrative law.  I offer some very, tentative off-the-cuff thoughts about the opinion below the fold.

 

Thoughts on King v. Burwell

By Professor Brietta Clark

Today the Supreme Court, in a 6-3 decision in King v. Burwell, held that subsidies (or tax credits) are available to help consumers buy insurance, whether they purchase insurance on a State or Federal Exchange. In upholding this critical piece of the Affordable Care Act (ACA), the Court interpreted the law in a way that is most faithful to Congress’s goals of making insurance more affordable and of ensuring the availability of meaningful insurance offerings in the market. Practically, this decision is important because consumers in states that have resisted reform efforts are already suffering from the failure of these states to expand Medicaid; by holding that the ACA authorizes subsidies on a Federal exchange, the Supreme Court has preserved at least one important avenue for increased health care access in these states. But health reform proponents are not only happy about what the Court decided; they are relieved because of how the Court came to its decision.

The issue in the case – whether subsidies would be available for consumers purchasing insurance on a Federal exchange – turned on a question of statutory interpretation. Petitioners challenged the IRS rule authorizing the subsidies as inconsistent with the Affordable Care Act. Specifically, they pointed to language in a provision in the Act, now Section 36B of the Internal Revenue Code, which defines the premium assistance credit amount by referring to an insurance plan that is enrolled in through “an Exchange established by the State….” Petitioners insisted that this text only authorizes subsidies for use on state-run exchanges, but does not authorize them for use in states that have a Federal exchange. Government officials defended the IRS rule by arguing that the relevant language must be read within the context of the statute as a whole, and that based on this, it was clear that Congress intended to make subsidies available for use on State and Federal exchanges.

Disability and Voting

By Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

Health reform survives legal challenge!

By Professor Brietta Clark

Today, the Supreme Court upheld the most controversial part of the Patient Protection and Affordable Care Act - the individual mandate. The mandate requires citizens to purchase health insurance by 2014 or pay a tax, unless they qualify for an exemption. The mandate was held to be a constitutional exercise of Congess's tax and spend power. Because the mandate was held constitutional, there was no need to consider whether the other private insurance reforms would survive: they do.

The court also considered a challenge to the Medicaid expansion provision: this provision expands eligibility to all adults who fall below a certain income level. Many states like this expansion because it is generously funded by the federal government - 100% in the beginning. Other states challenged it because states that refuse to comply with these new eligibility requirements risk losing existing Medicaid funding. The court seemed to create a compromise in this case. It upheld the expansion program (and importantly the opportunity to get new federal funding to subsidize the expansion for states that want to participate), but it held that states must be given a "genuine choice" to decide whether or not to participate. This means that the federal government cannot take away states' existing funding if they do not want to participate in the expansion. Unfortunately, this means that there will be even more inconsistency among the different states in terms of the quality of and access to health care for our most vulnerable citizens.

This Supreme Court's opinion is very long, and it will likely take legal scholars some time to understand and debate the full implications of this decision for the federal government's power to create and regulate social welfare programs, as well as for constitutional law more generally. For now, though, I think the significant practical implications of this decision for health policy are clear. The Affordable Care Act is the most comprehensive attempt to increase health care access through insurance expansion, and to try to reduce health inequity for women, people with disabilities, and racial and ethnic minorities, that we have seen in decades. I also think it is safe to say that in this polarized environment this could be our last chance to try to fix the healthcare system in a meaningful way for many more decades. No one can say for sure whether this reform will work, but because of the court's decision, we will at least get the chance to find out.

That said, I will continue to follow health reform closely, as will other health care advocates and legal scholars, because there are still many questions to be answered. President Obama's health reform law offers promises of affordability, meaningful health benefits, accessibility to quality providers, and fairness in how benefits are allocated, but whether such promises will be realized depends on how public programs are administered and how closely private insurers are regulated. To follow progress on implementation, check out my blog. For the full Supreme Court opinion, click here.