Obamacare Under Challenge

Americans are fond of saying that “the President is the most powerful man in the world.” It is true that he has an array of weaponry at his disposal that could blow up the world seventeen times before breakfast. But, as Lyndon Johnson famously remarked about the conduct of the Vietnam War, “the only f***ing power I have is nuclear and I can’t use that!”

Having inherited the worst economic situation in decades from a Republican administration, the Obama administration has turned things round. For example, it has helped the car industry recover its strength. It has reduced unemployment. Abroad, it has ended its participation in the Iraq and Afghanistan wars, another inheritance from the Republicans. Yet Obama is under fire. This time, he faces a challenge in the Supreme Court which has taken up the Affordable Care Act, better known as Obamacare, for the third time.

The Supreme Court case is the latest effort by political opponents to wreck President Obama’s most important domestic achievement, the Affordable Care Act. If the Supremes find for the plaintiffs, Obama’s legacy will be tarnished, it will foment infighting among Republicans, augment partisanship, not to mention hatred, between the GOP Congress and the White House, and cause enormous chaos in the health insurance market. Worst of all, an estimated 9.6 million people would lose their health insurance cover.

The lawsuit before the Court, King v. Burwell, is unlike the previous two Obamacare cases that have been brought to the Supreme Court. Three years ago, in National Federation of Independent Business v. Sebelius, Chief Justice John Roberts joined the court’s four liberals in upholding the constitutionality of the Affordable Care Act’s individual mandate, permitting most Americans to obtain government-supported health insurance. Last year in Hobby Lobby v. Burwell, the Court weakened ACA birth-control coverage, a case which had religious freedom implications. The case was GOP inspired.

The ACA entitles Americans to buy health insurance through insurance exchanges. Thirteen states have established an exchange. The other thirty seven have not, but the federal government provides exchanges instead. Yesterday, the Court heard oral arguments in King v Burwell, a lawsuit engineered by conservative and libertarian think tanks who claim a handful of words within the ACA, “an exchange established by the state,” makes it illegal for the federal government to provide healthcare insurance whilst issuing tax credits in those  states using federal health insurance exchanges

The plaintiffs’ assertion has dire implications for low and moderate income people receiving those subsidies in states where the federal government, not the state, created a health insurance exchange. Just thirteen states and the District of Columbia are fully operating these marketplaces.

As of last month, 8.8 million people had taken private health insurance policies through the exchanges in the thirty seven states that use the FederalHealthCare.gov system. Millions more have used state-based marketplaces. According to a recent article in The Washington Post, since sign-ups began in October 2013, the share of customers on federal exchanges receiving tax credits for their coverage has been above 85 percent. According to data from the Department of Health and Human Services, the average value of those subsidies is $268 a month, bringing down the average monthly price to $105 for subsidized enrollees.

The ruling is expected in June. If the Supreme Court sides with the plaintiffs, a majority of the public will demand the subsidies restored, according to a survey by the Henry J. Kaiser Family Foundation. Their poll revealed that 64 percent of Americans believe Congress should enact a fix, and 59 percent think their own states should set up health insurance exchanges.

But a fix may never come. Congress could have made the Supreme Court hearing unnecessary by passing a simple amendment clarifying the intent of the Affordable Care Act. The Congressional Republicans have adamantly refused to consider this. The Obama administration maintains there’s nothing it can do on its own to mitigate the disappearance of subsidies.

It is a disgrace that the current Republican-controlled Congress should defy not only the will of a previous Congress but also a Supreme Court ruling that Obamacare was lawful, as well as the wishes of the majority of Americans. I have written on many occasions about the hypocrisy of legislators who enjoy, at taxpayers’ expense, the best medical health insurance plans but seek to deny protection to millions of their fellow citizens.

It is my understanding that the states could evade the consequences of an adverse Court ruling by establishing their own health insurance exchanges. However, Republicans control at least one branch of government in nearly all of the affected states and would probably block any such proposal. None has taken steps to begin the contentious, time-consuming and costly effort to do so.

A recent poll by the Urban Institute suggests that of those who would lose coverage, 62 percent live in Southern states, mostly governed by Republicans, 81 percent are employed and 61 percent are white. With an election looming next year, surely the Congressional Republicans should reconsider their position in the light of potential vote losses. Furthermore, the disruption would not be limited to people who qualify for health insurance subsidies. It would have profound effects on health insurance markets, often Republican led, in the affected states.

Having briefly read the reports of yesterday’s hearings, the justices seem to be keeping to their ideologies. If so, the ruling might sink ACA and restore millions of people to the position they had before 2013, worrying about their finances should they need medical care. How does this equate with the much vaunted American ideal of fairness? Mr Spock of Star Trek fame said it best: “The needs of the many outweigh the needs of the few.” It is to be hoped that the Supremes heed the spirit of the law, not its letter, and throw out the law suit.