Wash. Post Implausibly Claims Supreme Court Case That Could Gut ACA Subsidies “Might Not Matter”

The Washington Post blog The Fix is claiming that an upcoming Supreme Court decision that could eliminate health care subsidies for millions of Americans under the Affordable Care Act (ACA) “might not matter” because Republicans might restore the subsidies, a proposition that seems not to consider the fact that the GOP has long ignored these tax credits' popularity in their quest to bring the law down, subsidies and all.

In March, the Supreme Court will hear arguments in King v. Burwell, a right-wing challenge to the ACA. The challengers argue that, based on their strained reading of the subsidies provision of the law, which was designed to make health insurance affordable, the IRS does not have the authority to provide tax credits to Americans who purchased their insurance through the federal health care exchange website. Instead, they argue, only consumers who bought insurance through state-based exchanges are eligible for the subsidies -- a problem since Republican-controlled states refused to set up their own sites.

In a January 28 post, The Fix argued that it “might not matter” if the Supreme Court strikes down the subsidies, because a new poll from the Kaiser Family Foundation suggests that the majority of Americans would want the Republican-controlled Congress to restore the subsidies.

But it actually matters a lot -- leading Republicans have repeatedly and publicly sided with the right-wing challengers of the subsidies as a way to bring down the ACA. In September, a group of congressional Republicans filed a brief with the Supreme Court asking the justices to hear the case and to rule that the IRS doesn't have the authority to provide subsidies to Americans who bought insurance through the federal exchange. Republican members of Congress know full well that if they are successful, the ACA will collapse -- that's their self-admitted goal.

Earlier this month, Sen. John Cornyn (R-TX), who was one of legislators who filed the brief, told Roll Call that he expected the court to “render a body blow to Obamacare from which I don't think it will ever recover.” In December, Sen. John Barrasso (R-WY) similarly argued that blocking the subsidies was “enough to bring down the health care law. ... We're going to continue to try one, repeal; two, strip out the worst parts of the law; and three, look to the courts.” Senate Majority Leader Mitch McConnell similarly made it clear that Republicans are not interested in restoring anything about the ACA if the court “take[s] it down,” but rather are looking for a "mulligan here, a major do-over of the whole thing." Even The Fix's post acknowledged that “just because restoring subsidies might be popular doesn't mean congressional Republicans would do it. The GOP base would certainly cry foul if they moved to do so.”

In fact, it is extremely unlikely, not just because these Republican legislators and others have expressed their desire to do away with the ACA entirely, but because they have supported this lawsuit despite the fact that the subsidies have long been popular, not just in the 2015 poll The Fix cited. The Fix post did not mention that Kaiser Family Foundation polls have consistently found high levels of support for these tax credits and that has not prevented Republicans from trying to do away with them. In March 2014, the support for subsidies was at 77 percent -- including 65 percent of Republicans. This was up a point from the 76 percent of respondents who supported the subsidies in a March 2013 poll.

None of these polls stopped the Republican enthusiasm for this right-wing legal challenge.

The Fix's post also glossed over the immediate human cost of striking down the subsidies and instead focused on the “significant PR issue” such a ruling would create for Republicans, who “would be forced to argue that Congress shouldn't restore the existing subsidies that many Americans enjoy.” It's actually millions of Americans who enjoy these subsidies. According to the American Cancer Society, the American Diabetes Association, and other patient advocacy groups, “an estimated 9.6 million people in 34 states would no longer be able to afford health coverage, leaving most of them no choice but to become uninsured.”

In a brief filed with the court, these groups argue that the outcome of King matters quite a bit because the “fight against cancer, diabetes, heart disease, stroke, and MS requires access to affordable, quality health care and health insurance” and without it, “sufferers of [these] chronic diseases ... have poorer health outcomes and require more costly care”:

[W]ithout the availability of tax credits to all eligible Americans (not just those who happen to purchase insurance from state-run Exchanges as [the challengers] contend), the following impacts would result, as estimated by a Rand Corporation study released in early January 2015: (1) enrollment in the ACA compliant individual insurance market in the 34 states with federally-facilitated Exchanges would decline by 9.6 million people, or 70 percent; and (2) unsubsidized premiums in the ACA-compliant individual insurance markets in those 34 states would increase by 47 percent.

Photo via Flickr/Adam Groffman under a Creative Commons License.