Appeals Courts Split On Legality Of Subsidies For Affordable Care Act
By Julie Rovner
KHN Staff Writer
Jul 22, 2014 - Kaiser Health News
Two U.S. appeals courts Tuesday reached opposite conclusions about the
legality of subsidies in the Affordable Care Act, a key part of the law that
brings down the cost of coverage for millions of Americans.
In Washington, a three-judge panel at the U.S. Appeals Court for the D.C.
Circuit ruled that the Internal Revenue Service lacked
the authority to allow subsidies to be provided in exchanges not run by the
states.
That 2-1 ruling in Halbig v. Burwell could put at risk the millions of people
who bought insurance in the 36 states where these online insurance marketplaces
are run by the federal government. Judge Thomas Griffith, writing the majority
opinion, said they concluded "that the ACA unambiguously restricts" the
subsidies to "exchanges 'established by the state.' "
But within hours, a unanimous three-judge panel for the Fourth Circuit in
Richmond, Va., ruled exactly the
other way in King v. Burwell – that Congress always intended to allow
subsidies to be provided in both state and federally run exchanges.
"It is therefore clear that widely available tax credits are essential to
fulfilling the Act's primary goals and that Congress was aware of their
importance when drafting the bill," said the decision written by Judge Roger
Gregory.
The Obama administration said it will appeal the Halbig decision. The Justice
Department will ask the entire appeals court panel to review it, and that panel
is dominated by judges appointed by Democrats, 7-4.
Similar cases are pending in lower courts elsewhere around the country, but
the decision by the District of Columbia court is the first to suggest that
subsidies being offered the federal exchange might be invalid.
Should the decision eventually stand, it could mean at least 5 million
Americans would face an average premium increase of 76 percent, according to a
projection done by the consulting firm Avalere Health.
The Obama administration said it is confident, however, that the ruling will
be overturned.
"You don't need a fancy legal degree to understand that Congress intended for
every eligible American to have access to tax credits that would lower their
health care costs, regardless of whether it was state officials or federal
officials who were running the marketplace," said White House spokesman Josh
Earnest.
"We believe that this decision is incorrect, inconsistent with Congressional
intent, different from previous rulings, and at odds with the goal of the law:
to make health care affordable no matter where people live. The government
will therefore immediately seek further review of the court's decision," said a
statement from the Justice Department.
Meanwhile, Elizabeth Wydra, chief counsel for the Constitutional
Accountability Center, said the ruling wouldn't take effect right away. "The
court's rules are that it doesnft happen for 45 days," to give the government
time to ask for a full en banc hearing, "or 7 days after
the en banc hearing has been denied."
Supporters and opponents of the health law were quick to react to the Halbig
decision.
"There is no credible evidence in the record that Congress intended to
condition subsidies on whether a State, as opposed to HHS, established the
Exchange," said Wydra, who wrote a brief
on behalf of members of Congress who wrote the law. "Nor is there credible
evidence that any State even considered the possibility that its taxpayers would
be denied subsidies if the State opted to allow HHS to establish an Exchange on
its behalf."
Jonathan Adler, the law professor at Case Western Reserve University who
helped craft the case, disagreed. "The heart of the decision today is a
reaffirmation of the principle that the law is what Congress enacts, not what
Congress wanted to enact or what some, with the benefit of hindsight, wish
Congress had done differently," he said.