For a brief moment Tuesday, it looked as though the
But the triumph of conservatives' latest "not-so-veiled attempt to gut" the act (I am quoting from Judge Harry Edwards' dissent from the 2-1 majority ruling in the case of Halbig v. Burwell) was short-lived. Within a few hours, three judges of the 4th Circuit Court of Appeals, sitting in Richmond, ruled the other way in King v. Burwell, upholding the insurance subsidies.
The D.C. court's ruling, if it became settled law, would deprive as many as 4.7 million Americans of the assistance that makes their insurance affordable.
A large proportion of these Americans live in the same mostly Southern and Republican-controlled states that have also refused to expand Medicaid to provide health coverage to the poorest of their poor. Residents of those same states also have, on average, the poorest health profiles and poorest access to health insurance in the country. Those are also the states where the increase in costs imposed on residents by the ruling would be the sharpest. (See the accompanying map for the details.)
Do you see a pattern here?
The choice confronting Americans under the law, he wrote, is whether to spend money for health insurance (at whatever subsidized cost) or pay a federal tax penalty for not having it. But he slipped a card out of the deck: Spending money for health insurance means you get health insurance. For millions of Americans in the pre-ACA era, this wasn't an option. The ACA gives them that option.
Let's set aside that Klemencic's general understanding of the law, as published in Inc. magazine, is almost comically flawed. His position, as articulated by Judge Griffith, is that the ACA forces him to either "purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty."
In other words, Griffith wrote, the ACA "confronts Klemencic with a choice he'd rather avoid": whether to obtain health coverage for less than $1.75 a month or pay a higher tax penalty for the privilege of going without any coverage at all. When Dickens' Mr. Bumble declared that "the law is a ass," he wasn't talking about plaintiffs like Klemencic. But the latter certainly sounds like an ass, or at least like an unwitting tool of forces that have nothing like his interests at heart.
But a similar reluctance didn't govern the thinking of the people who concocted the legal theory Griffith accepted. They're Jonathan Adler, a law professor at Case Western Reserve law school, and Michael Cannon, director of health policy studies at the libertarian Cato Institute.
Cannon, for his part, has never made a secret of his hostility to the Affordable Care Act; among his objections is that it shifts the cost of coverage from working-class and poor enrollees to "taxpayers," by which he can only mean wealthier taxpayers. Cannon couches this objection in the libertarian vocabulary of "freedom"--victory in the Halbig case, he has written, would "free" 57 million Americans and 250,000 businesses from the oppression of the insurance mandate and ACA taxes.
Readers might recall that in April I accused Cannon of writing "the lamest anti-Obamacare column of all." In it he suggested, bizarrely, that the ACA actually gave people an incentive to drop their individual coverage. If you dropped your coverage and then came down with a horrid disease, he observed, you could always re-enroll. And if you needed to enroll in a hurry, without suffering through what might be a yearlong waiting period, you could do so by quickly getting married, moving to a new state, getting pregnant or misleading the government about your real income. Or you could seek help from "friends, family or the kindness of strangers." (Yes, he proposed this as national healthcare policy.)
Cannon's assessment of the consequences of Halbig are equally dubious. Just before the ruling came down, he wrote that it wouldn't increase premiums at all--premiums would stay the same, he argued, but enrollees would simply have to pay their whole cost rather than sharing the cost with the government. To the argument made by health economists that millions of Americans would drop policies made economically ruinous, which would raise premiums for those who remained, Cannon responded blithely:
"If a lack of subsidies in federal Exchanges leads to adverse selection, Halbig is not the cause. The cause is Congress tying those subsidies to state-established Exchanges, and 36 states refusing to cooperate."