Predicting the Fallout from King v. Burwell — Exchanges and the ACA – Nicholas Bagley, J.D., David K. Jones, Ph.D., and Timothy Stoltzfus Jost, J.D., December 10, 2014. DOI: 10.1056/NEJMp1414191.
“The U.S. Supreme Court’s surprise announcement on November 7 that it would hear King v. Burwell [759 F.3d 358] struck fear in the hearts of supporters of the Affordable Care Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased “through an Exchange established by the State.” According to the plaintiffs in King, that language means that consumers who buy insurance through federally run exchanges don’t qualify for subsidies. The Court’s decision to hear the case without a split between appellate courts suggests that at least four justices harbor serious doubts about the IRS rule’s validity. Not long after the announcement, however, some voices began questioning whether a decision in King invalidating the rule would matter all that much. Those voices included both proponents of the litigation trying to minimize the chaos it would cause and financial advisors hoping to calm jittery investors. They have argued that the states that refused to create exchanges would, under intense political pressure to restore large tax credits to middle-class citizens, move quickly to do so, and the Department of Health and Human Services (HHS) would help them by relaxing any applicable rules.”