Dylan Scott’s article about what might happen if the Supreme Court invalidates health insurance subsidies being paid to people who bought insurance through HealthCare.gov is fascinating. For instance:

What leeway does the ACA itself give the administration? It seems self-evident that the states currently using the federal exchange would be required to do something, to “establish” their own exchanges, and the Health and Human Services Department therefore couldn’t just decree that all exchanges are state-based. States also probably need to do more than, say, sign a piece of paper declaring their exchange state-based.

“Now you could perhaps define the word ‘established’ down. HHS might be tempted to do so,” Bagley said. “But at the minimum, that kind of move from the administration would be sure to provoke a prompt legal response.”

There’s an additional problem not cited in the article. Specifically, state-established exchanges are part of Section 1311:

(d) Requirements
(1) In general

An Exchange shall be a governmental agency or nonprofit entity that is established by a State.

Changing that language requires legislation, which Mitch McConnell might agree to in exchange for other concessions:

That also extends to Congress, which as Bagley and Jones both noted, could correct the problem with ease by amending the law to allow tax credits on the federal exchanges. “Congress could fix this with a stroke of the pen,” Bagley said. “I could write the statute in a single sentence.”

But nobody is really expecting that. Incoming Senate Majority Leader Mitch McConnell said earlier this month that SCOTUS could “take down” Obamacare in the King case and that would open up the opportunity for “a major do-over.”

“If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing,” he said, in comments flagged by the Washington Post’s Greg Sargent.

While the administration might be willing to do a lot to save the law, an emboldened Republican Congress seems unlikely to settle for anything less than major concessions, as McConnell suggests. So a fix in Washington doesn’t appear in the cards.

It’s interesting that Democrats fear a Washington fix because that would require them making major concessions in exchange for those subsidies. In other words, DC Democrats are most afraid of actually improving the ACA.

That’s insane on a multitude of fronts, starting with the fact that the ACA is a weighty millstone around their political necks. Democrats got crushed in 2010 and 2014 because of the ACA. Despite experiencing those historical thumpings, Democrats don’t want to change the ACA. It’s their right to commit political suicide.

2 Responses to “Halbig v. Burwell: What if?”

  • walter hanson says:


    Lets keep in mind two things:

    One of the key selling points for Obamacare was suppose to be the free care or greatly reduce health care expenses. No subsidies there will be dramatic price increases.

    Two, a lot of states didn’t want to set up the exchanges because they were trying to protect themselves from extra medical costs being shoved on to them by the federal government. How will the states that have been trying to avoid that extra cost not be affected by the so called simple switch.

    Walter Hanson
    Minneapolis, MN

  • Kate Smith says:

    As far as I can see, the ACA does nothing to reduce the cost of healthcare. It has simply reduced the cost of health INSURANCE and only for a few. That health insurance will continue to pay the same prices which go up each year, and not due to the ACA except in the most minimal way. Minimal because, if you can not afford the $300 per month or more for health insurance (3600 per year), how in the world are you going to be able to pay the first $5,000-6000 in care before coverage starts to pay? Those first charges of the year are now considered compensated care because the patient has insurance but studies have shown the collection rate is not much better then uninsured rates for the newly insured. Long ago, we doomed the healthcare industry to ever increasing costs by demanding that in exchange for an opportunity to do business that all hospitals stabilize every patient that comes in their door regardless of their ability to pay. No matter how much you try to transfer the cost of healthcare, it is the patient in the end that pays all costs and, in my experience, a very small profit margin that for the most part gets reinvested back into the healthcare system.

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