Experts weigh in on covering the SCOTUS challenge

Joanne Kenen

About Joanne Kenen

Joanne Kenen, (@JoanneKenen) the health editor at Politico, is AHCJ’s topic leader on health reform and curates related material at healthjournalism.org. She welcomes questions and suggestions on health reform resources and tip sheets at joanne@healthjournalism.org. Follow her on Facebook.

Photo: Seth Borenstein, Associated Press/New York UniversityPhil Galewitz, of Kaiser Health News; Tom Goldstein, an attorney and founder of SCOTUSblog; Christine Eibner, a senior economist at Rand Corp.; and Thomas Miller, a fellow at the American Enterprise Institute (left to right) discussed how to cover Burwell vs. King Supreme Court Case during a chapter event at the NYU Washington, D.C., Center on Feb. 18.

Photo: Seth Borenstein, Associated Press/New York UniversityPhil Galewitz, of Kaiser Health News; Tom Goldstein, an attorney and founder of SCOTUSblog; Christine Eibner, a senior economist at Rand Corp.; and Thomas Miller, a fellow at the American Enterprise Institute (left to right) discussed how to cover King v. Burwell at the NYU Washington, D.C., Center on Feb. 18.

The Washington, D.C., chapter of the Association of Health Care Journalists had a session last week about the upcoming King v. Burwell case that will go before the Supreme Court challenging whether the Affordable Care Act subsidies can flow through the federal exchanges.

More than 30 people attended the event at New York University’s D.C. campus, including some students and faculty, and it was mentioned in Politico Pulse. Seth Borenstein, a science writer for The Associated Press and adjunct professor, helped organize and co-host the session. Kaiser Health News reporter Phil Galewitz, who leads the D.C. chapter, and Margot Sanger-Katz, a health writer with The New York Times, spoke to students after the event about how journalists have covered the Affordable Care Act.

A ruling for King would affect people in 34 states. Three other states – Nevada, New Mexico and Oregon – are using HealthCare.gov technology but are running enough of their own exchange to be a sort of hybrid. Briefs for both sides filed in the case agree that it will affect 34 states, not 37.

We’re assembling a tip sheet with more resources on the case, but here are some highlights from the event.

The speakers were Tom Goldstein, an attorney and founder of SCOTUSblog; Christine Eibner, a senior economist at Rand Corp.; and Thomas Miller, a fellow at the American Enterprise Institute.

How much do the subsidies matter?

Eibner began with an overview of why the subsidies matter, and what would happen if they get taken away. The individual mandate was the “stick” to get people covered; the subsidies were the carrot. Together they “guard against adverse selection.”

If they are struck by the court, she said, about 8 million people would lose subsidies. [This number is an update from the report published in January.] In that case the people who keep paying for their coverage without financial assistance are probably those with the highest health needs, or at least high risk for high health expenses – adverse selection.

Premiums wouldn’t change this year – they can’t midyear. But they would soar a whopping 47 percent in the individual market next year.

If the subsidies go away “this would be really destructive,” she said.

What does the case boil down to?

Goldstein said it pits a literal interpretation of four words in the case, referring to the exchanges “established by the state” against a broader interpretation drawing on other provisions of the law and what Congress intended.

The court must look at the ambiguity in the statute and decide “has the IRS interpreted it in a reasonable way, one that is not outlandish.”

It’s not a constitutional issue, like the 2012 National Federation of Independent Business case. It’s a case of interpretation. “This is why we have courts,” he said.

Many people are predicting “chaos” if the subsidies are struck. Is this true?

Miller, a critic of the ACA, was quite skeptical about the gloomy predictions, and the assessments that it’s hard to find a fix.

If the rules don’t allow easy fixes, he predicted, the rules would be changed – fast. Or they’d be read differently.

“There will be some creative reinterpretation,” he said. People who say “you can’t do that” one day will say something different if King wins.

A political compromise also could arise. Congress would extend the subsidies, but the White House would have to give up something, he said, citing the employer mandate or the individual mandate as possibilities.

He predicted “half a dozen to 10 states” will figure out how to modify their exchanges to qualify for ongoing subsidies.

What should we watch for during oral arguments?

Goldstein said, “The oral arguments will give you pretty good sense of where the judges will end up” – although it’s not always crystal clear and there can be surprises.

In addition, it’s not always clear where Chief Justice John Roberts is going to end up – and he could well be the deciding vote again in this case.

“The thing to be aware with the chief justice, he does view it as his role to ask hard questions of both sides,” Goldstein said. “That makes him harder to read.”

The key will be if Roberts “thinks there is enough play in the joints.” If he indicates that he thinks the whole statute isn’t well drafted, he’s less likely to bring it down on the basis of four words.

The other potential deciding vote to watch for is Justice Anthony Kennedy.

Goldstein said it’s virtually unimaginable that any of the four liberal justices would side against the administration – they agree with the ACA and the IRS’s right to interpret it. It will come down to how many of the other five join them.

There are a lot of efforts in D.C. right now to sway public opinion. Can the justices be “lobbied”?

Goldstein said the members of the court do not care about the lobbying per se but they will be concerned about the consequences of striking the subsidies.

Roberts’ decision to uphold the law in 2012 – before millions of people started getting covered – indicated that he didn’t want “this fundamental question that’s been debated in the country for decades to be decided in the judiciary.”

If they strike the law, how fast would the subsidies end?

Normally it’s 25 days – but they may be able to take some kind of action, or put something in the ruling that allows for a more orderly transition, Goldstein said.

Miller agreed that 25 days is the normal frame but added, “there’s a little cushion.”

Can their ruling change subsidies in the state-run exchanges?

No. Just the 34 states.

How can we avoid getting the ruling wrong, given the time pressure the media is under?

Goldstein said that if the White House wins, the ruling will be clear and obvious – probably a sentence.

If King wins – we have to take the time to find the nuances in the ruling. There could be something about the timing (other than 25 days) or some other elements that could help states move ahead. We have to be a little patient.

We’ve been hearing a lot about the plaintiff’s “standing” or lack of standing. Is that going to matter?

Both Goldstein and Miller were dubious that the case would be thrown out over that – it does not appear at this point that all four plaintiffs lack standing. (Only one needs to have standing for the case to proceed.)

(NOTE: in a brief conversation after the panel, Goldstein acknowledged there’s some chance that the only plaintiff who has standing is a woman who will turn 65 – Medicare eligible – earlier in June. That could affect her standing – meaning there’s a slim possibility the justices would act earlier in the month, while she’s still ACA-eligible. He did not see this as likely, but possible.)

When will the ruling come down?

Goldstein predicted it would be the final Monday in June. (June 29). He expected it to be the last decision of the term, after gay marriage.

Phil Galewitz of Kaiser Health News contributed to this post. (Editors’ note: Updated 2/25/2015 with information about NYU and its students.)

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