State Sen. Brian Kelsey (R-TN) isn’t wasting any time working to ensure that a Supreme Court case that could strip health insurance from millions of Americans inflicts maximal damage in Tennessee. A bill introduced by Kelsey would forbid Tennessee from taking a step that could restore health care to the tens of thousands of people in that state who are likely to lose it if the justices embrace a lawsuit attacking Obamacare. A companion bill in the state house would have the same effect.
These bills, moreover, undercut a suggestion by the lawyers behind this lawsuit that, should the justices decide to take away millions of people’s health care, the states will fix the problem.
The Affordable Care Act gives states “flexibility” to decide whether to set up a health exchange where people can buy subsidized health plans, or to allow the federal government to set up such an exchange for them. A lawsuit called King v. Burwell focuses on a few words of the law which, if read out of context, seem to suggest that tax credits which help people pay for insurance are not available in states with federally-run exchanges. If the Supreme Court agrees, millions will lose their health insurance and close to 10,000 will die every year, according to one estimate.
As recently as Wednesday, eight of the nine justices joined opinions reiterating that judges should not read single passages of a law in isolation and divorced from their broader context, as the King plaintiffs ask the Court to do. Rather, as Justice Elena Kagan wrote, ““[w]e do not ‘construe the meaning of statutory terms in a vacuum.’ Rather, we interpret particular words ‘in their context and with a view to their place in the overall statutory scheme.’”
Undeterred by the Court’s longstanding practice of reading words within their proper context, the King plaintiffs offer an alternative theory about how the law is supposed to operate. Though they offer little evidence to support this claim, and what little evidence they have offered has since been debunked, the King plaintiffs claim that Congress intentionally denied tax credits to people in states with federally-run exchanges as part of a scheme to force states to set up exchanges themselves.
In this narrative, it is the Obama administration’s fault that close to three dozen states elected for federally-run exchanges. They claim that, when the Internal Revenue Service promulgated a rule confirming that states actually are supposed to have flexibility to decide whether or not to set up their own exchange, this “eliminate[d] states’ incentive to establish Exchanges.” They also predict that states would have simply fallen in line if the IRS had not done so. “Had the IRS from the start made clear that subsidies were limited to state Exchanges,” the King plaintiffs claim in a brief, “states would not have overwhelmingly refused to establish them.”
There are obvious strategic reasons why these plaintiffs would want to convince the Court that states will simply step up if the Court cuts off tax credits. The justices are more likely to side with the plaintiffs if they believe that their decision will have relatively modest consequences. They are less likely to do so if they believe that they will personally be responsible for stripping health care from millions of Americans, killing thousands of people, and casting entire industries into chaos.
Which brings us back to Senator Kelsey’s effort to prevent Tennessee from setting up its own exchange. Kelsey is hardly alone among Republicans in his rigid opposition to Obamacare — or in his willingness to allow thousands to suffer in order to spite the law. Just hours after the King plaintiffs filed their brief suggesting that states would set up their own exchanges if they knew that failing to do so would have dire consequences, one of the primary architects of the King litigation argued that it is already unconstitutional for the state of Ohio to set up a state-run exchange under an amendment pushed by the law’s opponents. Other states have enacted similar provisions that could potentially raise legal obstacles to any attempt to mitigate the damage caused by a decision against Obamacare in King.
Indeed, it’s not even necessary to speculate how state lawmakers might respond if they have the opportunity to thwart part of the Affordable Care Act. After the Supreme Court declared the law’s Medicaid expansion optional, 22 states opted out of this expansion — despite the fact that opting in literally costs states nothing for the first three years of the expansion. Should the Court decide to make tax credits contingent upon state action as well, it is likely that many states will be similarly unwilling to implement the law. Many lawmakers will follow Kelsey’s lead and actively try to prevent efforts to mitigate King.
The justices, in other words, will be personally responsible for the chaos and lost lives that will result from a decision against Obamacare. The states are not going to bail them out.