HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Wednesday, June 24, 2015

Affordable Care, the Supreme Court, and the Wisdom of Crowds

How will the Supreme Court rule on the challenge to the Affordable Care Act’s subsidies that help millions of lower- and middle-income Americans afford their health care coverage? According to FantasySCOTUS’s court watchers, who have correctly predicted more than 70 percent of Supreme Court decisions so far this year, Obamacare should remain intact.

This result is not surprising. The arguments in favor of the government are much stronger than are those for the challenger. To be sure, the challengers cite to two lines in the Affordable Care Act (ACA) that authorize subsidies for insurance bought on state-operated health insurance exchanges, without mentioning federally-operated state exchanges. Hence, argue the challengers, subsidies should be provided only for insurance purchased on state-operated exchanges, which means in only about 1/3 of states. But other language in ACA indicates that the subsidies are available for insurance purchased on all exchanges. When a statute’s language is ambiguous and there are reasonable alternative interpretations, courts are supposed to defer to the executive branch’s interpretation, not substitute their own interpretation.

And if one looks beyond the specific references to the subsidies to the broader context of ACA and the intent of Congress, it becomes even clearer that the subsidies should stand. Several other sections of ACA assume that subsidies are available on all exchanges, as did members of Congress when they passed the law. Indeed, it wasn’t until nine months after ACA was passed that anyone noticed the language in the bill suggesting that subsidies might be available only on state-operated exchanges.

Of course, these arguments have not persuaded all federal judges, and they are not expected to have persuaded at least three Supreme Court justices. But if precedent prevails, ACA will survive its latest challenge.

[cross-posted Bill of Health and orentlicher.tumblr.com]

http://lawprofessors.typepad.com/healthlawprof_blog/2015/06/affordable-care-the-supreme-court-and-the-wisdom-of-crowds.html

Affordable Care Act, Health Care Reform, Health Reform, PPACA, Public Opinion | Permalink

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