King v. Burwell is frivolous, jeopardizes health insurance provided through Obama's Affordable Care Act


Six words in a more than 1,000-page law have brought President Barak Obama’s Affordable Care Act (ACA) under Supreme Court scrutiny yet again.

The Court heard oral arguments on March 4 in the case King v. Burwell over the meaning of the words “an exchange established by the State” after a court battle that began in January of 2014.

This ridiculous suit borders on frivolous and jeopardizes health insurance for nearly 8 million Americans. It is merely the result of conservative lawyers trying to manufacture ways to gut the Affordable Care Act.

The ACA allows for states to either establish their own health care exchanges (those pesky websites where people go to buy health insurance) or opt out and let the federal government set one up for them. Currently, only 16 states run their own exchanges – including New York – and the federal government runs the remaining 34.

The federal government also provides tax subsidies to people enrolled in both state and federally run exchanges so that they may be able to afford health care. According to the law, subsidies are available for those who buy insurance on exchanges “established by the State.” The plaintiffs argue that the federal government is violating its own law when it provides subsidies to those who are enrolled in a federally controlled exchange because the text “established by the State” means those exchanges that are state run.

If their argument is upheld, subsidies will be cut off to nearly 8 million Americans, meaning they will likely lose their health care and the ACA will be gutted.

The argument is quite simply a lame attempt by conservatives to gut Obama’s signature health care law. After the ACA was passed in 2010, conservative think tank American Enterprise Institute sponsored a conference of conservative lawyers to search the new law for ways to bring a lawsuit forward, according to an article in The New Yorker.

Michael Greve is a board member of the Competitive Enterprise Institute, a libertarian think tank funded in part by the Koch brothers and those responsible for bringing the challenge to the ACA. The Koch brothers are ultra-conservatives who put millions of dollars into politics, and it’s no coincidence that their think tank is suing.

Of the ACA, Greve said, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

It looks like they finally found something that stuck.

In the past “the State” has been taken to mean both state and federal government, and it is clear that Congress intended both state and federal exchanges to receive subsidies. Luckily, some of the justices on the Supreme Court see this, too.

If Congress had not intended to provide subsidies to both state and federal programs, it wouldn’t have bothered to create a federal program. The law would have been doomed to fail from the beginning because nobody would be able to afford anything on it. In this case, Congress created a “fallback” because they knew some Republican controlled states may opt out of the Democratic law.

Associate Justice Ruth Bader Ginsburg voiced this same opinion when she said, “You can have your program if you want it, and if you don't, there's a fallback. There's the federal program. I mean that's a typical pattern.”

The pattern she is referring to has been used in laws such as the Clean Air Act, and allows for state implementation of the law first, and then if that doesn’t work, a plan implemented by the federal government.

The ACA is no different.

Associate Justice Elena Kagan offered a simple hypothetical example in her oral argument that demonstrates just how simple this case is. She has three law clerks: Will, Elizabeth and Amanda. If she asks Will to write a memo and asks Amanda to edit it, but then also instructs Elizabeth to write the memo if Will is too busy, should Amanda still edit the memo? Justice Kagan’s question was met with laughter in the courtroom because the answer is so obvious.

Of course Amanda should still edit the memo; that’s her job. This exact situation can be paralleled to the case at hand. If the states opt out, we would still expect the federal government to subsidize the federal program. Otherwise they are failing to do their job and the law falls apart.

Justice Kagan also noted that the context is key.

“It's the whole structure and context of the provision that suggests whether those instructions carry over to the substitute, isn't it?” she asked.

Context is certainly important, and four or five words should not be pulled out of context and scrutinized without the rest of the more than the 1,000-page document. Taken in context, it is clear that Congress intended to fund both state and federal programs. Without their funding, the entire system would fall apart.

We will have to wait until June to hear a final verdict in this case. Meanwhile the health insurance of roughly 8 million people hangs in the balance. We can only hope that the Court rules in favor of the government.

While it is far from perfect, the Affordable Care Act has changes the lives of millions of Americans, and is hopefully here to stay. It is a good step toward a single payer system, but that’s an argument for another day.

William Krause is the political columnist and can be reached at