Things to keep in mind about the King v. Burwell SCOTUS ruling


  • The court ruled that the subsidies were integral to the functioning of insurance markets under the ACA, and that Congress constructed the law with that in mind. The Court did not use an alternative legal argument to uphold the subsidies – saying that the law was ambiguous but the executive branch (in this case the IRS) had the right to interpret it so that subsidies are available in both state and federal exchanges. This is not a minor distinction – that latter interpretation (used by one of the lower courts) would have meant that a future administration could come in and change the subsidy policy. The 6-3 court ruling bars a future administration from doing so. (A future Congress could still change the law regarding subsidies but a future administration couldn’t just flip a switch and stop them.)

  • The politics won’t go away. There will be more votes in Congress (though Obamacare won’t be repealed) and more political debate over provisions in the law, such as the Cadillac tax and the medical device tax. There will be attacks on the law over affordability as well. The 2016 race is already well underway and the ACA will be a theme.

  • President Barack Obama said immediately after the ruling that he would make it a priority to work with states that have not expanded Medicaid to date, to see if he could persuade them to do so now. It’s unlikely a host of states that have resisted this long will change in the next few months but a few might.

  • Some states that are still having technical or financial difficulties with their own exchanges may migrate, at least in part, to Four states – Nevada, New Mexico, Oregon and, soon, Hawaii – will be using for enrollment and eligibility but will still control enough of the exchange themselves to be technically considered a state exchange. Margaret Sanger-Katz wrote about this in the New York Times’ Upshot and Stephanie Armour in the Wall Street Journal. Some experts, such as Tom Miller at the American Enterprise Institute, have speculated that CMS will allow more varieties of state-federal partnerships.

  • The ruling does gives the states and the health plans more certainty about the 2016 signup season. Some of the rate proposals have come in quite high – we’ll see whether or how much they come down.

  • Some states may start looking at 1332 waivers, which let them have more flexibility in how they achieve ACA coverage goals in their state, starting in 2017. The final rules haven’t come out so we don’t know how much flexibility they’ll have – and, in this case, a future administration can change the regulations, up to a point. We’re written about this here and a Health Affairs blog post has been updated with the latest.

In short – the King ruing may have avoided chaos. But we’ll still have plenty to write about.

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