Much has been written about the Halbig/King litigation that centers on the question of whether federal subsidies can flow to persons who purchased coverage in states with federally facilitated exchanges (I’m not going to try for comprehensive link round up). I have nothing to add on the merits of the case. I write to report drastic changes in what Duke undergraduates (mix of frosh, soph and pre-med kids) taking my class at Duke University (PPS 165, Introduction to the U.S. Health Care System) have thought about it over the past 3 Fall terms (2012, 2013, 2014).
I assigned the identical memo prompt all 3 semesters. The goal was to get them to look at the text of the law and the IRS regs and decide what they thought; it is an assignment in making a decision and writing persuasively. I provided little to no discussion of the issues prior to their writing. The breakdown of student views across the 3 semesters were as follows (No means a conclusion that tax credits cannot legally flow to persons buying in a federally facilitated exchange; yes means they are allowable):
- Fall 2012: 5 no, 37 yes
- Fall 2013: 14 no, 21 yes
- Fall 2014: 18 no, 12 yes (these were due today; there were several students who have yet to turn in their memo)
This is quite a shift in 2 years. A few words on context. In Fall 2012, this topic was esoteric and very few were discussing it broadly in the nation. I had Michael Cannon, a principal architect of the legal challenge, come in and address my class and he talked about the litigation, but not only about that. The memos turned in that semester were due AFTER he lectured. The biggest difference in how the semesters went was in 2012 they heard directly from one of the main advocates for the no answer prior to writing the memo.
In 2013, there was some more cultural discussion about the case, but the students mostly carried on with the assignment and it was done largely in a vacuum. This semester was very different. Many students emailed and asked about using other sources to complete the assignment, the politics of the issues, and the case generally was brought up by students a fair amount during the give and take across the semester. Discussion of this issue and this litigation is now more widely dispersed in the culture, and the students weren’t able to write the memo in the same type of vacuum as were the proceeding two semesters. The politics and were front and center. What does this all mean?
One answer is that I am unsure.
Another answer is that I think this demonstrates how politics and public opinion intersect with the courts. We have a judicial system that adjudicates disagreements between the executive and legislative branch all the time. Typically the cases are cripplingly boring and no one watches. Sometimes they are high profile. What is plausible by way of the answer(s) the judicial branch could give on difficult cases, is at least in part determined by the political climate of the day. The advocates/litigants who are opposed to the tax credits flowing to states with federally facilitated exchanges have done a good job of discussing the issue broadly in the culture in a manner that provides the political context to allow a ruling that they would like. Their preferred ruling seems more plausible today that it would have been 2 years ago, in large part because the issue has been linked to a broader political discussion. Neither the facts, nor the law have changed.
I haven’t read the memos yet, so don’t know how good they are, but assigning the same memo 3 Fall semesters in a row has been a fascinating experience.