Sunday, February 01, 2015

The real world case against King: Should the Supreme Court impose "risks and uncertainties" on U.S. economy?

Leave aside for a moment the frankly ridiculous question of whether the text of the ACA authorizes premium subsidies to flow through the federal exchange. .Timothy Jost, surveying 30 amicus briefs filed to support the IRS' reading of the law to that effect, first covers those primarily engaging with the text of the law then turns to those from stakeholders that detail the real-world effects of gutting the ACA.

A note before looking at Jost's powerful survey of these pleadings. Some would argue that these real world effects are immaterial: either the law authorizes subsidies to be credited through Healthcare.gov or it doesn't. As I noted once before, though, the conservative justices who dissented against  the 2012 decision that upheld the constitutionality of the ACA  demonstrated their sensitivity to the real world effects of Supreme Court decisions in that very dissent.

Justices Scalia, Kennedy,Thomas and Alito argued that since the individual mandate was unconstitutional the whole law must be struck down because all its key provisions were interdependent and many of them would wreak economic havoc if left to operate with a core provision removed.  They were quite specific about the potential consequences of disfguring the law without killing it:
What is known, however, is that severing other provisions from the Individual Mandate and Medicaid Expansion necessarily would impose significant risks and real uncertainties on insurance companies, their customers, all other major actors in the system, and the government treasury. And what also is known is this: Unnecessary risks and avoidable uncertainties are hostile to economic progress and fiscal stability and thus to the safety and welfare of the Nation and the Nation’s freedom. If those risks and uncertainties are to be imposed, it must not be by the Judiciary (NFIB v. Sebelius, dissent, p. 57).
To be fair, in writing of uncertainties not to be imposed by the Judiciary, the dissenters were referring specifically to the effects of declaring one part of a law unconstitutional and leaving the remainder to  flounder with a vital organ cut out. (Ironically, in arguing that the ACA could not function without the mandate, the dissenters quite precisely described how all the parts, very much including the federal subsidies, were interdependent, as Abbe Gluck has highlighted.) To invalidate an allegedly wrong regulatory ruling is a different animal. But again, these very justices have enumerated the interdependence of the law's parts; their court upheld the constitutionality of the whole, understood as the IRS understands it; and the real world effects they say the court should strive to avoid would be unleashed with a vengeance by an adverse ruling in King.

Now, on to the last part of Jost's survey of the amici:
A brief filed by over 100 public health deans and scholars documents the devastating effect of a decision against the IRS rule on the nation’s health. The brief predicts that a decision for the challengers could result in 9800 additional premature deaths annually.  Yet another brief by 52 distinguished economists (including 3 Nobel Prize winners) documents the economic effects of an adverse decision, not just on individuals now receiving premium tax credits, but also on the individual insurance markets in FFM states, which would be devastated through adverse selection by a decision for the challengers.


Separate amicus briefs were filed supporting the government by theAmerican Hospital Association and by other associations representing most of the nation’s hospitals; the Catholic Hospital AssociationHospital Corporation of America; the American Thoracic Society; the National Alliance of State Health CO-OPs; the National Association of Community Health Centers, American Nurses Association, and American College of Physiciansand theAmerican Academy of Pediatrics, together with the American Academy of Family Physicians, and Children’s Hospital Association demonstrating the disastrous effects that a decision against the government would have on American health care providers and insurers and their patients.  An excellent brief was also filed by Andy Pincus for America’s Health Insurance Plansdemonstrating the effects that an adverse decision would have on insured Americans, whether they are insured through the marketplaces or in the outside market.  Tellingly, no stakeholders filed amicus briefs supporting the plaintiffs.


Finally, and most importantly, about a dozen briefs were filed by individuals with chronic medical conditions; organizations representing individuals with medical needs, unions, an organization representing small employers, and organizations representing various minority and ethnic groups.  These briefs demonstrate the real world effects that an adverse decision would have on actual Americans now receiving help through the Affordable Care Act, some of whose lives depend on that help.  Particularly worth reading is a brief filed by Robert Weiner for Families USA which develops with great clarity the legal argument for upholding the IRS rule.
Maybe it's wishful thinking, but I can't bend my mind around even this Supreme Court unleashing such havoc

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