On the King v. Burwell ruling and the future of Obamacare in Arkansas | Arkansas Blog

Thursday, June 25, 2015

On the King v. Burwell ruling and the future of Obamacare in Arkansas

Posted By on Thu, Jun 25, 2015 at 10:09 AM

A few quick thoughts on the King v. Burwell ruling, which upheld Obamacare subsidies in 34 states, including Arkansas. 

* They'll never say it on the record, but many Arkansas Republicans are breathing a big sigh of relief right now. A lot of establishment GOPs, and even some right-wingers, foresaw a political nightmare. The state would have faced chaos in the insurance markets and tens of thousands of middle-income people losing their health insurance (or facing a huge de facto tax increase to keep their coverage). Tea Partiers would have fought tooth and nail against solutions to restore subsidies and help these folks. For GOPs, it was no-win. 

* I hesitate to say this, but it's at least possible that the King lawsuit will turn out to be an unexpected gift to the Affordable Care Act. This challenge took up a lot of oxygen, and anti-Obamacare activists, lawmakers, and advocacy groups have been held it up as the great hope to defeat the hated law. Now it's over, and they lost again — like in 2009 when the law passed, and 2012 when it was largely upheld by the Court, and in 2012 again when Obama was re-elected… It's over. Obamacare is here to stay. If this final (?) defeat finally brings closure, it could maybe, possibly bring more Republicans to the bargaining table. There are conservative reforms (ending the employer mandate for example) that Democrats would be willing to negotiate on. Could this help push Republican lawmakers toward a more productive stance than repeal-or-nothing? 

* What does this mean for the private option? I'd say it's good news. The private option would not have been directly impacted by King: all of the funding would have continued and all the PO beneficiaries would have kept their coverage. But nixing the subsidies would have made the private option more expensive and it also probably would have pushed more beneficiaries into the program. Given that the future of the private option is already dicey, those complications would have made the re-authorization climb that much steeper. Likewise, there is a momentum factor here: if the plaintiffs had won King, Tea Party activists would have argued that Obamacare was aaaalllmost vanquished. Even though that wouldn't really have been true, it would  have put additional pressure on GOP lawmakers to discontinue the Obamacare private option. (Plus, advocates for continuing coverage would have had to fight two battles at once, a tough slog in a heavily anti-ACA legislature.) The Health Reform Legislative Task Force now has a lot more breathing room to work. 

* A lot of smart folks thought the Court was going to rule the other way. My biases are obvious, but I would say that this is a victory for legal sanity. If the plaintiffs had won, we would have seen a parade of tortured close readings. The Court has traditionally given deference to governments to make reasonable interpretations in administering laws; that's ultimately what was upheld here. Worth noting that Chief Justice John Roberts is generally quite deferential to the executive (not to mention corporate boards). In that sense, his opinion can't be all that surprising. Probably the biggest surprise is that Justice Anthony Kennedy joined him, leaving only the trio of hyper-partisan GOP justices voting for the plaintiffs. The 6-3 win is about as much of a blowout as an Obamacare-related case can get; it's almost as if the plaintiffs were cynically taking a single phrase out of the context of the law. 

* The debate about what to do if the plaintiffs won was instructive. There were some Tea Party lawmakers and right-wing advocacy groups that said the subsidies should simply be left to die, but most mainstream Republicans responded by hinting at some kind of "fix" or "solution." Let me again point out that the problem they were fixing was people losing Obamacare subsidies. As many predicted, as the law becomes entrenched, it becomes politically harder and harder to undo its benefits. Can the lawmakers who just promised to restore subsidies for folks continue to argue with a straight face for repeal of Obamacare…which would take those subsidies, and a lot more, away from millions of Americans? They probably will, but at this point, we should know better. "Repeal" is a meaningless political pose. 

* Small point, but the funny thing about the finality of Supreme Court rulings is that it simply ends a certain strain of argument that can sound slightly surreal. Backers of the King lawsuit said they were fighting to uphold the "true" Obamcare…they said that it was Obamacare's fault if people lost Obamacare subsidies…they said any progress the law made because of subsidies didn't count because they were "illegal"…they said any opinions about the law didn't count until the subsidies were gutted…now all of that is irrelevant. The Supreme Court has ruled. The subsidies are legal. Moving on. 

* In Arkansas, chaos was avoided. Now it's time for the state to focus on the future of health care reform — including the private option, which now provides 250,000 Arkansans with health insurance.  

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