What will SCOTUS do? [Callie Gable guest post].

As the date of the Supreme Court ruling in King v Burwell looms, I knew that any self respecting health policy blogger should put forth some prediction. Alas, I could not muster the energy of a thoughtful one in the midst of an R01 deadline. Luckily, Callie Gable, a rising senior at Duke this fall is working with me, and so I outsourced the musings. Callie wrote this last Summer when she interned with Reihan Salam at the National Review, and she is one of the best health policy students I have ever taught, so listen up when you hear her name. You can follow her on twitter @CallieGable

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The days to conjure up a futile prediction about the King v Burwell decision are running out. It appears that the Supreme Court will finally end months of speculation on Thursday or Friday, one of the two new decision days that were just added to the calendar. Despite the best efforts of wonks everywhere, the outcome of this case is still basically unpredictable – but my money is on a ruling that keeps the subsidies flowing.

The plaintiffs win the argument but lose the case. The actual text is plain, straightforward, and unambiguous. As Justice Scalia said, “is it not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says.” But context trumps text in this case. The court doesn’t have tunnel vision; a few words that don’t jive with hundreds of thousands of others are unlikely to dismantle the whole law.

The plaintiff’s make a good case, citing – among other solid arguments – the legislative history of the law and the fact that U.S. territories like Guam have Obamacare, sans subsidies. But at the end of the day, these points pale in comparison to the power of congressional intent, and they likely mean less in the eyes of the Court than some may think. Regardless of whether or not the law was written to become unworkable should states decide to not participate, the intent of the law was, and still is, clear.

Ruling in favor of King would conflict directly with the intent of the law, potentially seriously disrupting states’ insurance markets and causing lots of people to lose insurance coverage (although the outcome may not be as disastrous as some make it out to be). And as Justice Kennedy pointed out, such a ruling could open another argument regarding the possibility that linking the exchanges to federal subsidies is coercive – though it seems to me that such an argument may have little merit. Finally, the only thing we can be fairly certain about is that Congress can’t be counted on to clean up the mess if the insurance market does go bust, making handing the law back to it another con for a pro King ruling.

A more interesting question, I think, is how exactly a pro Burwell decision would be executed. The court could hand down a straight forward ruling or some sort of compromise – the possibilities are endless. But another possibility is Chevron deference, meaning the original agency would be left to interpret the law, read: Obama interprets the law as he intended for the next year…but we don’t know who is going to be in the White House in 2016, and how he or she will interpret the statute, which would certainly make the 2016 race even more interesting.

We do know that the Court already bent over backwards to keep the ACA on the books in 2012, when Justice Roberts made an unlikely alliance with the Court’s liberal core. And a ruling in favor of Burwell would require far less a legal stretch than did the 2012 ruling.

Could North Carolina circumvent King v Burwell?

Adam Linker has an op-ed this morning in the News and Observer encouraging the North Carolina General Assembly and the Governor to:

re-establish(ing) state control over our insurance marketplace. In fact, most of the pieces are already in place. Our Department of Insurance is proactive about reviewing insurance policies. Our health care and insurance communities meet regularly and could easily form an oversight board. Our outreach and enrollment efforts are national models. All we need is for the governor to work with legislators to vest these organizations with the power to form a state marketplace.

I wrote a post last summer asking what does it mean for a state to establish an exchange with respect to the looming Supreme Court case that will determine if tax credits (515,000 North Carolinians have just signed up for coverage and are getting such subsidies) can legally flow to states using the federally facilitated exchange. My post is wonky and complicated, but health policy is wonky and complicated and runs through the various ways that States could move forward on a state-specific exchange.

However, I am less certain now than I was last summer that North Carolina could do something in the short run to definitely make the tax credits flowing to our state safe regardless of what the Supreme Court rules (there isn’t enough time to set up all the functions). It is unclear if a simple statement of establishing an exchange and then pointing to healthcare.gov for people to shop for coverage would be enough, in large part because of the uncertainty of what the Supreme Court may say (I know no one who predicted the mix of what they said in 2012). The North Carolina Attorney General Roy Cooper has already signed onto an amicus brief that argues that the actions taken by the State to use the federal exchange was made under the belief that the citizens of North Carolina would be able to receive such tax credits.

Even a simple statement of the intent of the North Carolina General Assembly to have the tax credits flow to our citizens with which to purchase private health insurance could prove important, and certainly wouldn’t hurt anything, if our leaders are worried about over half a million North Carolinians losing these tax credits.