With the Supreme Court slated to hear oral argument in the landmark case of King v. Burwell on March 4, Ron Pollock, executive director of Families USA, appeared on C-SPAN's Washington Journal to talk about the issue of federal healthcare subsidies provided through the Affordable Care Act (ACA).
He was interviewed by veteran Sunday host Steve Scully, who stated clearly that the issue before the Court is the subsidy and quoted section 1311 of the ACA: "An Exchange shall be a governmental agency or nonprofit entity that is established by a State." He asked Pollock what this legalese means.
Pollock responded that the anti-Obamacare plaintiffs argue that subsidies cannot be provided in the states that have refused to set up exchanges directly, but the federal government has done so in place of the states. However, reading the statute in its entirely, which is 900 pages, "It is really clear, not just that Congress' intent was to make sure that subsidies would be available in all states across the country, but if you read the statute section by section by section, you'd see that it's really absurd to suggest that you don't provide subsidies in the states where the federal government is doing so."
Pollock cited as an example that the federally run exchanges are supposed to report to the Treasury what the subsidies are and what the basis is for each subsidy, so obviously this contemplates that subsidies would be provided to people from the poverty line to four times the poverty line. The anti-Obamacare plaintiffs argue that in states where the federal government is running the exchanges, "The subsidies shall always be zero." Pollock finds unequivocally that this does not make sense.
Scully proceed to quote from the brief of Republican legislators that, "If the IRS' regulation is permitted to stand, projections indicate that it will result in tens of billions of dollars in unlawful spending over the next year, and hundreds of billions over the next decade. Finally, the departure from the statutory text at issue here is especially improper given the nature of the compromises that were required in order to pass the ACA. The executive should not be able to accomplish through grasping agency rulemaking, and friendly judicial review, what it could not accomplish in legislative negotiations."
Pollock responded again that the language of the statute is clear, even though some legislators voted against it, and the proponents of the ACA reiterated their intention in their own brief to the Court. Further, there was no statement in the Act that the subsidies were intended as an inducement for states to establish exchanges.
Only 13 states and the District of Columbia have established their own exchanges, while approximately 34 states have not, and Pollock said that in the latter states, 8 million people who are currently getting subsidies would lose the subsidies and the affordable health insurance. He expressed surprise that the Court took the case. Scully noted that audio of the oral argument would be available at 4:00 pm Friday on C-SPAN.
In fairness, the opponents of Obamacare also argue that their case is supported by the plain language of the statute and that unless exchanges are established by the states, it is unlawful to provide subsidies in those states.
(Archived video can be found here
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