Last week’s ruling in the Supreme Court on the Affordable Care Act has been framed as an end to all the uncertainty about the law. As we’re seeing with the Medicaid expansion, that’s not true. But it’s not even true in a legal context. As Jennifer Habenkorn points out, there are several other challenges to the law, on discrete parts rather than the entire thing, working their way through the courts.
The next wave of lawsuits likely wouldn’t put the whole law at stake, as the challenge to the individual mandate could have. But they’re going after pieces of the law that happen to be red meat for many conservative voters — like the law’s contraception mandate and a new Medicare panel that Republicans call a “rationing board.”
And one possible legal challenge, which would try to block the feds from offering subsidies in a federal health insurance exchange, is meant to exploit a loophole in the law. But it could also be a good “messaging hit” — allowing them to attack the subsidies they see as a budget-busting new entitlement.
Setting aside the “messaging hit,” this is a serious problem. The courts could rule that, while the federal government can take over the exchanges from states which decide not to enact them, they cannot deliver subsidies on a federal exchange. There is no specific authorization for subsidies in a federal exchange in the law, although the federal exchanges are just backstops for states that don’t provide their own. The Administration allowed the tax subsidies when they wrote the regulation for the reversion to federal exchanges, but opponents could argue to the courts that this regulation misread the law. A ruling in favor of the opponents would mean that states resisting implementation of Obamacare would not only subject their poor residents to ineligibility for Medicaid, but they would stop anyone in their state from receiving subsidies for the exchanges. This seems like a tiny loophole to exploit, but considering that four Justices wanted to take down the entire law as unconstitutional because of Commerce clause questions about the individual mandate, it’s definitely worth some awareness.
Meanwhile, the biggest implications from the ruling could come outside the health care space:
Chief Justice John Roberts’s surprise opinion, which allows states to opt out of the law’s Medicaid expansion, could set up a series of legal showdowns between states and the federal government over the strings attached to billions of dollars in federal grants for everything from transportation to education and the environment.
It’ll take many years — and many lawsuits — before the full effects of Roberts’s health care ruling are sorted out. Still, legal experts on both the right and the left agree that the door is now open for states to challenge everything from the Clean Air Act to No Child Left Behind and anti-discrimination protections.
“When you’ve got 50 different states and possibilities of 50 different objections to something that Congress does, I think it’s very hard to be very specific, but I think this decision is going to embolden states to challenge federal mandates,” Sen. Chuck Grassley (R-Iowa) said in an interview.
I think the problem could come about when the feds try to add on new regulations and condition them to existing state-federal partnerships. For example, a new regulation that’s part of the acceptance of existing highway funds could be seen as unnecessarily coercive, like the Medicaid expansion was. But again, you have a court that could take the thin crack in federal mandates made by the health care ruling, and widen it. Remember that they got 7 votes on the court for the Medicaid ruling.




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As I understand it there is an additional problem for employers in states with Fed set up exchanges.
A literal reading of the ban on Fed subsidies/credits, plus an employee with coverage through such an exchange rather than from the employer, would cause the employer to be penalized even though there was coverage. Apparently there would be no way around that problem at this time.
Let’s do a little “bottom line” check here:
All the republicans have to do on any of this, is sustain the gridlock, and since Obama has been so willing to see it happen, it’s hard to blame only them. In fact, I don’t think there is a sign on John Boehner’s desk saying:
“The buck stops here.” That’s in the Oval Office.
But, we’ll know more about that in a few months.
I misread, and need to amend this.
The penalty on the employer is levied whenever an employee accesses any exchange which has premium assistance from a Fed credit/subsidy. That’s to encourage an employer to offer insurance through work.
Under ACA the “mistake” appears where, in a Fed run exchange, there would be no Fed credit/subsidy. Lacking such subsidy an employee using such an exchange would *not* trigger a penalty on the employer. But then if the Administration tries to get IRS to apply credit/subsidy, the employer would then become harmed by a resulting penalty by fiat, contrary to what ACA set forth.
This is just wrong:
I’m sorry to keep hammering on this, but Dday & Jon Walker are both just wrong about that, as are all mainstream press accounts up thru Friday at mid-day, June 29. There was a fabulous C-SPAN panel on Friday afternoon hosted or moderated by Art Spitzer at the offices of Arnold & Porter in DC (probably sponsored by DC Bar) at which excellent reporters debunked many of the myths about what the Court had just decided the day before. I will contribute link in a moment.
The crucial fact is that Justices do not “vote” for legal rationales, they only “vote” for the outcome (judgment) that they want, then they “vote” to “join” or “concur in” or “dissent from” a particular opinion which is designated the “opinion of the Court” if it receives a majority of votes. None of the dissenting four Justices “voted” for any aspect of any part of the Chief Justice’s theories, arguments, analysis or conclusions.
Observers deduced similar approaches by the dissenters and the Chief Justice (CJ). Observers also noted similar reasoning by the four liberals and the CJ. But only parts I, II and III-C constituted the “opinion of the Court,” and none of those parts constituted or included “the Medicaid ruling” that Dday refers to. The four liberals voted ONLY for the judgment to AFFIRM the constitutionality of the Medicaid Expansion (which the 11th Circuit found to be constitutional) which was based on the narrow judgment (with NO majority legal theory or reasoning) that section 1396c was unconstitutional.
This is the event, but I thought I saw a re-run of the live panel discussion presented on Friday, June 29, not Tuesday, July 3:
LINK (see bottom of page)
So far, C-SPAN’s laughable search tool does not show it as a program that already aired.
Gogle found the C-SPAN video, it was indeed first presented July 3, 2012, so I must have seen it live.
At least one contributor on Volokh Conspiracy used the “7 votes” meme that Dday used here, but that contributor, who is identified as a professor, did not “show his math” for how he counted those votes. A different contributor on the same blog stated expressly that there was a “concurrence (on this issue) of the four conservatives”, but that is just flatly wrong. Nowhere in the unsigned dissent did any of the four dissenters write that they “concurred” with anything the CJ wrote. Period.
This is a crucial fact. None of the dissenters ever wrote that they “voted for” or “concurred in” any part of any of the many sub-parts of the CJ’s opinion. The fact that even supposedly expert pundits at Volokh Conspiracy could draw such a fundamentally wrong conclusion shows how important it is to stick to the text of what the Justices wrote.
In contrast, when a faction of the Court does want to vote for part of the writing of another faction, they know how to say so, as Justice Ginsburg did when she very carefully wrote that her opinion was “concurring in part, concurring in the judgment in part, and dissenting in part.”. She used that careful formula very deliberately because on the critical Medicaid Expansion argument, she very carefully wrote only that “I therefore concur in the judgment with respect to Part IV-B” of the CJ’s opinion. That means she agreed ONLY with the RESULT (the judgment) in part IV-B, not the theory or reasoning or analysis.