How The Supreme Court Can Kill Obamacare Without Overturning It

[mahatmakanejeeves]

How The Supreme Court Can Kill Obamacare Without Overturning It

The latest Supreme Court case over Obamacare is technically just a challenge to one regulation, not even to the law itself—but it could nevertheless make the law's basic structure completely dysfunctional.

The legal challenge over the law's insurance subsidies could tear apart several sections of the Affordable Care Act, setting off an insurance "death spiral" that could make the law unworkable in more than half the country. That's because the subsidies are part of a complex, interwoven set of policies that aim to balance out each state's insurance market.
....

But if the Supreme Court sides with the King challengers, the two biggest tools to create a balanced marketplace would disappear or become substantially weaker in 36 states. And in the meantime, the law's more expensive provisions—like the requirement that insurers cover everyone—would still be on the books.

So, the only people buying insurance would be the desperately sick people who will take it at almost any cost, and insurers would have to cover those patients, but without a flow of healthier customers to offset the cost.

[upaloopa]

1. If the SCOTUS kills Obamacare let the blue states

set up a plan like MA did.
If red state folks want to vote for repukes or don't vote at all let them live by their vote or non vote.
It's red state congress critters who are punishing you.

[Scuba]

2. My governor won't set up an exchange, yet you want to punish the good Dems here. Why?

[upaloopa]

3. I don't want to punish anyone.

I have no power to punish anyone. My state has an exchange I can't do anything about your state. Move or get a progressive governor I guess. Your call.

[Scuba]

4. Thanks for your support and compassion.

[upaloopa]

5. What the hell do you want me to do?

I moved from OH to CA to get away from wing nut government. That is what it takes. I can't change life in red states.

[Scuba]

6. Show a little caring for others maybe?

[upaloopa]

7. I care but it is your neighbors that have to make

changes. WI voters had three tries to get rid of Walker, most red states could have changed to more progressive government but no they just keep giving us tea party loonies now we have a federal government full of them. Have compassion on me for screwing over the whole country!

[rtracey]

12. I agree

I totally agree with you, and say to anyone in a red state, sorry, but how important are these issues to you. I have just seen my blue state elect a GOP governor, so I know what it feels like. I don't think this is a new voting scheme in our state, but for the red states, perhaps you need to seek out why these people are voting for the GOP. Do your citizens not understand the BS they are spouting, are they confused, are they lazy, are they idiots, or are they truly right wingers who think liberals are the evil doers. I can't help you in your state, only you can do that. I also agree that all states should set up their own private network of insurance, and if your state says no, then see if you can get out of state coverage, or move out. Drastic things need to take place. Look at Kansas, you people reelected Brownback...what are you guys thinking, he has run your state into the ground and you still brought him back.....that is the GOP thinking...good luck red states....

[okieinpain]

14. is that possible, if so that would be a good alternative. n/t.

[Blue Idaho]

8. A lot of "So's" and "If's" in that OP.

So what if none of that stuff happens?

Just sayin'

[quadrature]

9. how did this happen?

this is just my opinion.

the planning for PPACA, was, -->
Throw mud at the wall, see what sticks.

nobody read the entire law.
garbage in, garbage out.

.............
or not,
please enlighten me.

[Rstrstx]

10. From reading through the portions I have of the ACA..

..it doesn't come across as garbage per se, there's a lot of bureaucratic babble that I suppose all laws contain, but the rush job getting it passed definitely left some edges unfinished that could have been cleaned up by reconciliation under normal circumstances. If we subjected other bills to the same level of scrutiny we'd find plenty to criticize in them as well. Different groups appear to have been in charge or writing different parts of the law, and constraints due to Senator Kennedy's untimely death essentially forced them to freeze the law where it stood.

As to the parts I've read:

The passages establishing the state and federal subsidies seem to be written as well as could be expected for a rush job, the minor inconsistencies should not sink it and don't appear to be in question.

The Medicaid part should have had a "Plan B" in place should a state have rejected the expansion or the court struck it down (turns out both happened). There should have been, at a minimum, a backup plan for rogue states, it could have been done in a single sentence. After all, they put a contingency in for people who didn't qualify for Medicaid for residency reasons but never accounted for people who would have qualified under the new Medicaid but couldn't because they lived a state so brazen it turned down the entire program. You can clearly see the intent for everyone who they believe qualified to get in on the action but the court threw that into chaos. I assume Congress never thought a state would dare turn such a generous offer down or the court would invalidate it. Hindsight is 20/20 I suppose.

By far the most crudely written part of the bill is the part that deals with the tax credits. It does indeed appear that those who started writing this statute were considering at some point of only giving credits to state run exchanges. And Gruber's big fat mouth and ego have only served to enhance the idea that such intent might be there. But the wording they used and the logic here is so drastically different from the rest of the bill you get the impression they were written on different planets. The rest of the bill went out of its way to ensure people not covered by one provision could be picked up by another. And even in a first draft form if they had really wanted to restrict the credits to state exchanges it should have been more clearly spelled out, but as it reads it just comes across as a vague approach that wasn't really thought out much, if at all. The evidence is clear this was - best case scenario for the plaintiffs - a very preliminary idea, since it didn't even reach the research phase. If the authors of this part had done their homework they would have realized their language was way too insufficient to force states to create their own exchanges or else "suffer the consequences". That's because previous court rulings have determined that Congress needs to put states on alert - in very clear language - of exactly what will happen should they turn down one of their programs, especially when it comes to money. Obviously there is no such language in the tax credit part, there's just that measly phrase 'established by the state' the plaintiffs are resting their entire case upon.

Because of that weakly worded phrase the plaintiffs demand a draconian remedy and ask the justices to look only where they want them to. They may be in for a surprise should the Supreme Court decide to examine their claim and established case law with a finer magnifying glass than the appellate courts used. The appellate courts only considered whether the 'state' phrase was ambiguous and used relevant applicable precedence, they never attended to the broader question of whether the phrase correctly follows requirements of the monetary sort as established by previous court decisions.

So that's a long-winded way of saying "yes, there are parts that are sloppy" (particularly the tax credit). So are lots of laws. But I wouldn't go so far as to call the ACA garbage or the product of stuff being thrown out there - that plays right into the right's desire to frame the law. It is even more fantastic to believe this sloppiness requires an invalidation of a major part of the law. If anything it suggests the credits should be upheld. And the "throwing everything at the wall to see if it sticks" approach is a much more accurate description of the right's attempt to gut the law, they have been and are still filing suit after suit to bring it down at any cost.

[quadrature]

13. thank you for your excellent comments

I agree with a lot of what you wrote.
sometimes I exaggerate a bit.

.....................
it should not have been a rush job.
from the time of Obama's election,
to the time final Senate action.
14 months, seems like more than enough time.
(note Franken seated July '10)