Last week gave rise to an existential threat to the Affordable Care Act -- and it had nothing to do with the Republican takeover of the U.S. Senate.
On Friday, the U.S. Supreme Court decided to hear King v. Burwell, a case in which opponents of health reform claim that health insurance subsidies for individuals who buy insurance on the federal Obamacare exchange are invalid. Seizing on language in the ACA that they assert restricts subsidies to “an Exchange established by the State,” the plaintiffs -- who lost their case before the 4th Circuit Court of Appeals -- seek to restrict subsidies only to individuals who buy insurance on state-based exchanges. Because 36 states did not establish their own exchanges, the case puts subsidies for millions of Americans at risk -- and the Supreme Court's willingness to take King v. Burwell up is a worrying sign; the Obama administration had hoped the case would be resolved in the lower courts.
As economist Paul Krugman explains in his New York Times column today, the case threatens to unravel Obamacare. Health reform, he writes, is a "three-legged stool" involving a ban on discrimination against people with preexisting conditions; a requirement that everyone buy insurance, so that the risk pool is balanced out; and subsidies to ensure that people can actually afford the health insurance they're required to purchase. Sawing off the third leg would trigger "grotesque" consequences, Krugman warns.
"States like California that run their own exchanges would be unaffected," he notes. "But in places like New Jersey, where G.O.P. politicians refused to take a role, premiums would soar, healthy individuals would drop out, and health reform would go into a death spiral."
All of this, Krugman laments, over an "obvious typo" in the ACA. "[E]verything else in the act makes it clear" that denying subsidies to people on the federal Obamacare exchange "was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language," he writes.
Underlying the latest assault on Obamacare is "rabid partisanship," not "serious legal reasoning," Krugman argues. But lest you think the suit's obvious frivolousness dooms it to failure, he observes that "all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law."
More from Krugman's column:
Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.