There is No Preparing for Health Care Calvinball
There is a chance that the Supreme Court could use the King v. Burwell case to rule that the Affordable Care Act tax credits can only be provided on the “state-based” exchange. This would leave the people in the 34 states which chose to use the federally run exchange in a precarious situation, but at this point I believe it makes no sense for state government to try to prepare for this eventuality.
The simple fact is the case is crap. The Congressional record and official Congressional Budget Office reports make it clear almost everyone involved in the working on the law intended for tax credits to be open to everyone. Many sections of the law simply won’t make logical sense if that wasn’t the case. Even if you think the poorly written language in the bill is ambiguous, past precedent would require giving deference to the executive branch in deciding what ambiguous language means.
If the Supreme Court rules against Healthcare.gov providing tax credits they will be playing Calvinball. They will be acting as an unelected and unaccountable third legislative branch and not as a Constitutional court. There is no preparing for Calvinball.
A reasonable and constrained Supreme Court, that legitimately feels the badly written language in the ACA forced them to rule in favor of King, would bend over backwards to offer state governments’ solutions. The easiest would be to just let state government quickly create a shell exchange website that just contracted everything to Healthcare.gov. If the Supreme Court allows this obvious solution, it would take state governments only a few days to implement it, so there is no need to prepare.
On the other hand, any Supreme Court majority that rules in favor of King might not be acting like a group of reasonable legal umpires. They will probably be acting as political players, using raw power to stop policies they personally oppose. They could be out to do maximum damage. Trying to predict what twisted definition such a Supreme Court would use to decide what does or does not qualify as a “state” exchange is impossible to guess. Several experts recently tried to do just that in the New England Journal of Medicine and effectively admitted they couldn’t.
Two reasons why states should try to prepare for the King v. Burwell ruling
First, we need to accept this fight is about politics, not about legal precedent. If state officials in these 34 states don’t want tax credits to be taken away, their best bet is to focus on the politics. State officials doing anything to prepare for an unfavorable ruling indirectly provide credence to the case. Having almost no one take the case seriously should potentially make the Supreme Court Justices more reluctant to play politics.
Second, there is no preparing for Calvinball. Trying to craft a solution without even knowing what the actual legal problem is will be nearly impossible. If the Supreme Court is being reasonable, the solution will be incredibly quick and simple, but if Supreme Court is actually trying to be destructive, state officials trying to make modest preparations could even prove to be counterproductive. Theoretically, the Supreme Court could craft their definition of a “state exchange” to purposely exclude the possible solutions state officials were working on.
The only way for states to completely prepare for any possible ruling on this case would be to start setting up a new exchange entirely from scratch, right away; a process that is very difficult, extremely costly, and can take years. It doesn’t seem worth it to spend the time and resources preparing for something that only might happen.