Four Reasons the Affordable Care Act Is Not Going Anywhere

TEA Partiers briefly went nuts this morning.  That’s because a D.C. circuit court’s three-judge panel ruled that Congress did not intend for anybody in states that use the federal marketplace to get the insurance subsidies available to people in other states.

But the frenzied celebratory consumption of snack cakes was short lived.  Just hours later a three-judge panel in the Fourth Circuit Court of Appeals found that Congress did intend people receiving coverage through the federal government to get subsidies.

The issue at stake here is of particular interest to Montanans because we’re one of the 27 states that uses the federal marketplace.

But the Affordable Care Act subsidies aren’t going anywhere.  Here’s why:

1. The DC appeals court decision was made only by a three judge panel, not the full DC court of appeals.  The federal government says it will appeal to the full DC court of appeals. This means that all eleven judges would review the ruling.  The D.C. Circuit as a whole is much more liberal than the panel of three judges who heard the case.  It has seven judges appointed by Democrats and only four appointed by Republicans.  This means that the full court is likely to reverse the earlier decision.

2. The Fourth Circuit also liberal-leaning, so even if the Affordable Care Act’s opponents requested a full review to the Fourth Circuit, their ruling upholding the Affordable Care Act would still stand.

3.  As Vox reported earlier today, this means full panels of both circuit courts are likely to uphold the Affordable Care Act subsiies.  This means the Supreme Court is actually less likely to weigh in.  They are more likely to get involved with cases when  two lower courts with inconsistent rulings.  Of course they can choose whether to weigh in or not.

4. Finally, its pretty ludicrous to try to argue that Congress intended that the subsidies would only apply in states that run their own health insurance marketplaces.  “It is…clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill,” the Fourth Circuit Court ruled. Experts up and down the line agree that they couldn’t possibly have meant anything else.

The impact to tens of thousands of Montanans and millions of Americans who would no longer get a price break on insurance would be devastating.

Commissioner of Securities and Insurance Monica Lindeen reported recently that there are 30,000 people who were previously uninsured who gained coverage in Montana under the Affordable Care Act.  If the subsides were stripped from these middle class and low-income people, their premiums would have been an average of 76 percent higher in price than what they are paying now. Many of these people would no longer be able to afford health coverage.

If the DC panel’s ruling were upheld it would be one of the most devastating blows to middle class America in the nation’s history. It puts into perspective just how devastating a blow a faction of TEA Party legislators dealt Montanans last session.  That’s when they voted to bar Montana from accepting the money to pay for 100% of the health care coverage costs for 70,000 working poor Montanans.

Montana uses the federal marketplace because the Montana legislature rejected two bills in 2011 to create a state-based marketplace: HB 124 and HB 620 .

You can read the DC Circuit Court of Appeals anti-Affordable Care Act 2-1ruling here: Halbig v. Burwell,No. 14-5018 (D.C. Cir. July 22, 2014)

The Fourth Circuit ruling upholding the Affordable Care Act 3-0 is here: King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014).



18 Comments on "Four Reasons the Affordable Care Act Is Not Going Anywhere"


    Harvard legal scholar Laurence H. Tribe warned Tuesday of a “very high risk” that a crucial aspect of Obamacare – its government subsidies provision – could fall victim to a major legal challenge being mounted by conservatives. That is why, he also said, that the Supreme Court will almost certainly get “a second bite of the apple” in determining the fate of President Obama’s signature health law, with uncertain consequences.

    Tribe, 72, a prominent proponent of the Affordable Care Act – who taught both Obama and Supreme Court Chief Justice John Roberts as constitutional law students at Harvard Law School years ago – warned of the ACA’s prospects for surviving intact during an exclusive, hour-long interview in New York with editors of The Fiscal Times…

    During the first six-month enrollment period, about 8 million people signed up for Obamacare through the state and federal exchanges, with most enrolling through federally operated exchanges. Eighty-seven percent of those who signed up for insurance on the federal exchanges received subsidies – or about 5.4 million people, according to analyses.

    A definitive court ruling that subsidies provided through the federal exchanges are illegal would likely deliver a fatal blow to the insurance program – since it was designed to extend health coverage to millions of low-income people who couldn’t afford it without subsidies or tax credits. “I don’t have a crystal ball,” Tribe said in discussing the law’s chances should it reach the Supreme Court for yet another critical review. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”

  2. ACA, a massive Democrat sellout that forces everyone to buy private health insurance (after Obama had promised at least a public option) , mandates that we pay exorbitant premiums to private fiefdoms that skim 20% off each dollar before paying out $1 in benefits. If we cannot afford the premiums, taxpayers subsidize the private fiefdoms, and they take the same 20% rake.

    That was the best deal offered. Prior to “Obamacare” it was called “Romneycare,” and before that Heritage Foundation health care. Had McCain won in 2008, we’d probably call it “Sarahcare.” We don’t have choices, and elections do not have any impact in these matters. This deal was mandated by the threat of Single Payer in California and Vermont. Obama was ordered to stop it. Baucus opened his office to make that happen. These men are whores.

    We have a system now where we are required to buy policies, but enforcement is sketchy, many scofflaws might make the system unprofitable, that is where the Final Nine might step,in and rule that the insurance companies can go back to their old ways. As I read it, that is all that is at stake.

  3. Attention Mark ACA is working quite well without all the old lies you are trying to renew…what did Bill Maher call them… oh yea “Zombie lies.” Lies that never die when people like you spread them all over again.
    Give the lies a rest.

    In fact with all this spare time you have, you should send Max Baucus a thank you note. Apparently he helped save thousand of Americans who couldn’t afford to get well if the insurance Companies got there way! No death panels for you and the GOP!

    • It is easy to say, with some improvements in our system (in return for the private mandate insurers agreed to stop turning sick people down for insurance) that we got the best deal we could have got. But all of the people who had so much hope for a better system, and to whom Obama made promises, were told to lower their expectations and take a very bad deal or no deal at all. That’s all Democrats ever do, teach us to lower our expectations.

      Keep in mind that what is at stake in this court case are the subsidies to the private corporations who sell insurance. If the Mullahs decide they cannot be, it would be very easy to simply provide health care to these people and bypass the insurance companies. In a system as corrupt as ours, we are taught to think that subsidizing corporate greed is a good deal. We could have put these private tyrannies, these rent seekers, these ” incorporated humanitarians” out of business, and instead we chained ourselves to them.

      The industry hired Obama/Baucus to kill single payer. I do not thank them for that. I am no one’s toady. I do not expect honor from people who take bribes for their living. Baucus was one of the most corrupt men ever to grace the Montana scene, right up there with James Hill, Marcus Daly, William Clark. I do not send thank you notes to such men. What the hell is wrong with you people?

  4. Speaking of the Supreme Court, what’s with Justice Beth Baker continually siding with the TEA Party and conservative justices?

    • Unfortunately, I think the court got the law right. See

      • I believe she got it right as well and agree with your reasoning as to why.

        I do have some issues with your “fix” of section 9 however.

        1) Why set an age bar of 45?
        2) How do you propose to determine if an attorney has been a “full-time” attorney? By active status? By some other measure?
        3) In that we have only one law school in the state and teaching positions aren’t readily available there (to my understanding), 10 years teaching in Missoula seems like a bar that is unreachable for most. In addition, I would think that a longer requirement for active attorneys and less time required as a professor seems more reasonable.

        Just my 2 cents. Your mileage may differ.

        • How would you fix Section 9, if indeed you would revise it?

          • surelyyoujest11 | July 24, 2014 9:52 AM at 9:52 AM |

            I would make it a requirement that an attorney be on active, dues paid status for the 5 years minimum with no disciplinary actions within that time, in addition to the normal residency requirements etc.

            Might you be so kind as to respond to my questions now?

    • Seems to me she took into consideration the merits of the case and didn’t just vote on a partisan basis. I would think that is worthy of commendation not scorn, even if you disagree with her reasoning. The legal question was not a partisan one and a liberal could have just as easily found themselves in the shoes of Van Dyke.

  5. “Montana uses the federal marketplace because the Montana legislature rejected two bills in 2011 to create a state-based marketplace: HB 124 and HB 620.” So can we finally put to rest the myth that Republicans believe in “local control”?!

    They frequently claim they are for local control when they want to oppose a law or policy at the state or national level without actually admitting they are opposed. But when the opportunity comes for them to do something as a state or locality, they are of course then exposed for actually being opposed to the policy instead of “in favor of local control” for that policy.

  6. Legislative intent is so hard to determine. Sometimes you have to look at the video of the author of the bill while it was being debated:

    “Finally, its pretty ludicrous to try to argue that Congress intended that the subsidies would only apply in states that run their own health insurance marketplaces.”

    No, it is exactly what they meant. They wanted to force states into creating their own exchanges by holding out the carrot of subsidies because they wouldn’t have had the authority to require it. More and more contemporary video is emerging now that the internet is looking at this rather than the courts, and it’s all bad for the ACA.

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