NC backs Obamacare subsidies
Published February 4, 2015
by Sharon McCloskey, NC Policy Watch, February 4, 2015.
When the justices of the U.S. Supreme Court last confronted the Affordable Care Act in 2012, lines were clearly drawn along a partisan divide.
And even after the court upheld a key portion of the law – the individual mandate – in June of that year, hostility toward the Obama administration’s signature achievement continued to percolate throughout the ranks of Republican politicians across the country.
Certainly that happened in North Carolina.
Pat McCrory ran for governor in 2012 on an anti-Obamacare platform, as did state Senate President Phil Berger when he sought re-election in 2014.
Berger went so far as to launch an online petition seeking eradication of the law.
And former House Speaker Thom Tillis mildly equivocated on the subject during his recent campaign for the U.S. Senate, alternating between calling the health care law a disaster and casting it as “a great idea that can’t be paid for.”
But Obamacare enrollment numbers continue to grow and state residents are becoming more entrenched, causing many in the opposing corner to temper their statements and actions in the direction of accommodation.
And that, too, is happening in North Carolina.
Late last week in the most recent challenge to the Act now pending in the U.S. Supreme Court, Attorney General Roy Cooper signed on to a bipartisan, multistate friend-of-the-court brief, on behalf of North Carolina and in support of another key provision of the Act — the provision of subsidies to lower-income residents purchasing health insurance on an exchange.
If nothing else, that brief demonstrates that the experience of state residents enrolling in health insurance plans is flipping the switch on reaction to the law.
“It shows that states understand and are concerned about the severe damage that could be inflicted on their insurance markets if plaintiffs prevail in the tax credit cases,” Timothy S. Jost, a health law expert at Washington and Lee University in Virginia, said about a similar brief filed in the Supreme Court back in November by several of the same attorneys general – including Roy Cooper.
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The latest attack on Obamacare now before the nation’s highest court concerns tax credits, or subsidies, provided to make health insurance more affordable for lower-income enrollees.
In a number of lawsuits filed in federal courts, ACA opponents have argued that the law as written limits those subsidies to those who purchase on a state exchange and not, as interpreted by the Internal Revenue Service, to purchasers on either a state or federal exchange.
That interpretation would exclude North Carolinians, as well as the residents of the 33 other states in which governors opted to join the federal exchange rather than construct one of their own, from receiving the aid.
This past July, on the same day and within the same hour, two separate federal appeals courts handed down conflicting opinions on the challenge.
A split decision from the D.C. Circuit Court of Appeals came first, in which two of three judges agreed that subsidies could only be offered to purchasers on a state-run exchange.
But a unanimous decision from the Fourth Circuit soon followed, reaching the opposite result and upholding the availability of subsidies to all eligible purchasers on both state and federal exchanges.
The U.S. Supreme Court agreed in November to review that Fourth Circuit decision, and will hear argument on March 4.
Most experts agree that a decision limiting subsidies to purchasers on state exchanges would cripple Obamacare.
The non-partisan Urban Institute projects that in 2016, the loss of subsidies in the 34 states using the federal exchange would deprive more than 9.3 million Americans of almost $29 billion in financial assistance — an average of $3,090 per eligible person — and increase the number of uninsured by about 8.2 million people nationally.
In North Carolina, the Institute estimates that 465,000 residents would lose assistance totaling more than $1.5 billion, and 407,000 more would go uninsured.
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Virginia led 23 states filing the friend-of-the-court brief last week – a group that includes states governed by Democrats and by Republicans and states which are utilizing either a state or the federal exchange. Together they argue that the challenge to subsidies should be rejected because they weren’t clearly warned that residents would be harmed if states chose to use a federal exchange, rather than creating their own.
As stated in their brief:
Every State engaged in extensive deliberations to select the Exchange best suited to its needs. None had reason to believe that choosing a federally-facilitated Exchange would alter so fundamental a feature of the ACA as the availability of tax credits. Nothing in the ACA provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the States thought they had struck.
That’s an argument bolstered by some Republican state officials who have admitted, according to the Washington Post, that they never even contemplated the idea that subsidies would be anything other than universally available.
Virginia and Kansas were two such states, wrote Greg Sargent in the Post:
Several state officials who were directly involved at the highest levels in early deliberations over setting up state exchanges — all of them Republicans or appointees of GOP governors — have told me that at no point in the decision-making process during the key time-frame was the possible loss of subsidies even considered as a factor. None of these officials — who were deeply involved in figuring out what the law meant for their states — read the statute as the challengers do.
Only seven states have asked the Supreme Court to find for the Act’s challengers and hold that subsidies are only available in states having their own exchange: Alabama, Georgia, Nebraska, Oklahoma, South Carolina, and West Virginia – in one brief – and Indiana in a separate filing.
That’s a considerable drop, given the activism attendant to the 2012 Obamacare challenge and considering that 31 states have Republican governors.
“I suspect what’s going on is that Republican states realize what a disaster this would be for their insurance markets,” Washington and Lee’s Timothy Jost told the New York Times.
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Gov. Pat McCrory’s office did not respond to a request for comment in time for this post.
Attorney General Roy Cooper referred Policy Watch to the press release from Virginia Attorney General Mark Herring, who led the states group in filing the amicus brief. To read that press release, click here.
To read the bipartisan amicus brief in which North Carolina joined, click here.
To read the six-state brief submitted in favor of restricting subsidies to purchasers on state exchanges, click here.
February 4, 2015 at 11:20 am
Richard Bunce says:
Luckily we are a nation of laws and not a mobocracy. The USSC will decide on the language of the law whether the tax credit/subsidy applies to ACA Marketplace customers in States that use the Federal exchange. If the USSC decides they do not then either Congress can modify the law or each State can decide to "create" their own exchange... perhaps with the Federal government as it's contractor.
What the USSC should never do is rule on the law based on what (some of) the people want it to be...
February 4, 2015 at 11:24 am
Richard Bunce says:
Would not be surprised if the USSC comes up with some interesting logic such as the language of the law is clear that Federal Exchanges are not included in the tax credit program but that would violate some equal protection language in the Constitution and so our remedy for this law is to remove the limits on the tax credit so it is available to residents of all the States.
February 5, 2015 at 7:56 pm
Norm Kelly says:
Unlike demons in Washington, I'll admit when I have not read the entire ruling. Demons told us they'd have to pass socialized medicine to know what was in it. However, SCOTUS didn't 'uphold a key portion of the law'. What SCOTUS did was modify the wording of the law in order to accept it. Demons wrote the law as a 'fine' if anyone had the audacity to not participate. SCOTUS said that Congress did not have the power to 'fine' people, but it could be a 'tax' and that would be acceptable. All along, Demons lied to us about that part of the law also; they repeatedly told us it would be a 'fine' and that no 'tax' would exist for non-participation. Suddenly, demons accepted the rewrite by SCOTUS and we have a tax for non-participation.
Whether Tillis referred to socialized medicine as 'a disaster' or 'a great idea that can't be paid for' he was right. He said exactly the same thing both times. Socialized medicine has failed everywhere it's been tried, every time it's been tried. Even in Cuba, contrary to Mike's opinion.
Well, this is an interesting statement: 'But Obamacare enrollment numbers continue to grow and state residents are becoming more entrenched'. Socialized medicine is THE LAW! One MUST participate or be taxed/fined/penalized for making a choice! So, even though NC did not expand mediscare to support socialized medicine, state residents have no choice but to participate. It's also important to remember that Socialized Medicine caused thousands and thousands of people to have their private-pay health insurance cancelled. Policies that these individuals CHOSE to buy were suddenly terminated, even though the liar-in-chief told us we could keep our policy. So, policies cancelled and being forced to participate just MIGHT account for enrollment numbers going up. When you give people NO CHOICE, they typically comply. Part of the no choice is that some families self-insure and MUST buy an Obamacancer policy in order to maintain coverage. Hence, enrollment numbers increase. But not because people WANT to participate. But because the full force of the central planners can come down on anyone who chooses not to participate. Kinda like in a dictatorship! So much for freedom of choice!
Wow, here's a surprise. Roy Cooper is supporting his demon party! Like he's never done that before. The LAW states that only where a state sets up it's own exchange can tax credits be given to participants. The LAW states that any state, like NC, that chose NOT to setup our own exchange would forfeit the tax credits for participants. This is the wording of the LAW. What Roy Cooper is asking SCOTUS to do, once again, is to ignore the LAW and accept changes after the fact to allow the law to do what it was never intended to do. Funny how libs have a cow when the defense of marriage act passes, becomes law, but are happy as pigs in mud when the demon leader CHOOSES to ignore the law! When it's a law libs hate, they cheer ignoring it. When it's a law that increases socialism and therefore the lib agenda, no opposition is allowed. And the wording of the law can be changed without Congressional approval just to satisfy libs agenda goals! Amazing! Mind Boggling. Not surprising though, as libs don't care about the law, only their agenda.
Funny how the law gives states the choice to setup their own exchange or let the central planners handle it. If there wasn't a reason to setup their own exchanges then why did the demons who wrote the law make this differentiation? The answer is provided by demons themselves. They tried to bribe states into setting up their own exchanges by no permitting tax credits if the state chose to use the central planner exchange. The bribe was purposely written into the law, according to architects of the law. What happened? It appears about 34 states chose NOT to accept the bribe. What do proponents of socialized medicine want to happen? They want the law to be changed after the fact to take out the wording for the bribe. They want us to forget that the bribe ever existed. Again, laws are meaningless to central planners, socialists, libs!
'Every State engaged in extensive deliberations to select the Exchange best suited to its needs. None had reason to believe that choosing a federally-facilitated Exchange would alter so fundamental a feature of the ACA as the availability of tax credits'. Could this have anything to do with the fact that NO ONE knew what was in the law? Just because you are ignorant of the law doesn't give you a pass. Next time I'm ticketed by a police officer, will I be able to use the 'i didn't know' excuse? Of course not! And states shouldn't be given this pass either. The wording of the law says clearly that federal exchange users are not eligible for tax credits. The architects even told us they did this on purpose! So, no out for yous guys!
'retroactively imposing such a new condition now would upend the bargain the States thought they had struck'. There's a problem with this statement, even if it does appear in a legal brief. It's WRONG! It's an outright lie. This is NOT retroactively imposing a new condition. This is implementing the LAW the way it was PURPOSELY worded! I should not have to repeat this so often before it sinks in to such apparently thick heads! You may have THOUGHT you were striking one bargain but you were LIED to or MISLED by the central planners, not provided accurate information, and the LAW is still the LAW! Even if you were hoodwinked, the law is the law. Take the hoodwinkers to court and sue their butts off! But follow the DAM- law!
'Only seven states have asked the Supreme Court ...' So, now the number is important. The law is meaningless because not enough have filed a lawsuit? Really? This is what socialism comes down to? If we get enough to oppose socialism, are you telling us that you socialists will simply go away and let freedom ring? I do NOT believe you!
'what a disaster this would be for their insurance markets'. Not a true statement. This would NOT be a disaster for the insurance market. It would be a disaster for proponents of socialized medicine. The health insurance market has been strong across the country for years. It's only the interference by socialist central planners that is having such a negative impact on health insurance companies. And the architects told us that was also part of the plan: make the markets so hard to support, so prone to non-profitability that the central planners would 'have' to step in and take-over the health industry in it's entirety. Part of the scheme!
'bipartisan amicus brief in which North Carolina joined'. So, be honest, did NC join or did Roy Cooper join? Is Roy doing this at the behest of the rest of NC government? Or has Roy acted on his own with this issue because he's already campaigning for Governor? Roy wouldn't uphold our Constitutional change to protect marriage even though he was required to do so by the Legislature. So, he's proven his willingness to go it alone. Is he doing it again with socialized medicine? Who in state government asked Roy to participate in forcing subsidies AGAINST the wording of the law? This may not matter to socialists/libs, but it matters to those of us who believe the law matters!
