A swing-voter justice on the U.S. Supreme Court could still hold his or her judicial nose long enough to let the U.S. Department of Health and Human Services (HHS) keep running the public health insurance exchange system pretty much as "planned."
(With, obviously, the word "planned" used broadly enough to refer both to something "planned" in the traditional sense and something "fastened together with duct tape at the last minute, at 4:30 a.m. Eastern Time, by interns — really great interns — who are hopped up on energy drinks.)
A three-judge panel at the D.C. Circuit Court of Appeals today ruled 2-1, in Halbig vs. Burwell, that the Patient Protection and Affordable Care Act (PPACA) does not directly give the Obama administration permission to provide PPACA premium subsidies for moderate-income consumers who buy private qualified health plan (QHP) coverage through the public exchanges run by HHS. Therefore, the D.C. Circuit said, the Obama administration can't do that, because it's not in the law.
The three-judge panel at the 4th Circuit Court of Appeals ruled, two hours later, 3-0, in King vs. Burwell, that the HHS-run exchanges can offer premium subsidies. PPACA is much a mess, the 4th Circuit held, and the legislative history so scanty, that it's not clear what Congress meant about the tax credit when it drafted the law. But, the 4th Circuit said, the law does give the HHS secretary the authority to clear up ambiguities, and the Supreme Court has ruled in the best that, when a law is open to interpretation, the courts ought to let the agency implementing it interpret it, so, the country should let the HHS-run exchanges offer PPACA subsidies.
If the Supreme Court ends up siding with the D.C. Circuit, and blocks the use of PPACA premium subsidies at the HHS-run exchanges, what then?
One thought is: Any state that's even somewhat open to making peace with HHS, even just for the sake of letting residents get QHP subsidy money, will probably be able to find some way to call its exchange a state-based exchange. The universe of states that want the subsidy money might be a lot bigger than the universe of states that want to set up enrollment systems.
A second thought is that it will be interesting to see what happens when Republican-dominated governments in light Red states and swing states yank premium subsidies away from millions of QHP holders. Will those state governments turn hundreds of thousands of previously politically inert Democrats and independents into committed voters who want to see QHP subsidy opponents' heads on spikes?
