The U.S. Supreme Court’s 6-3 decision in King v. Burwell to uphold federal tax subsidies in federally operated health exchanges virtually slams the door on judicial challenges to the Affordable Care Act (ACA).
Chief Justice Roberts delivered the Court’s opinion and he was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia wrote a dissenting opinion in which he was joined by Justices Thomas and Alito.
The Chief Justice’s opinion accepted virtually the entire argument offered by the Obama Administration and its supporters. In closing his opinion, the Chief Justice wrote:
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.
Following the opinion health insurers and hospitals praised the decision. Opponents issued statements sharply criticizing the Court’s decision.
It is clear the political and legislative struggle over implementation of the ACA is far from over. Press statements from the House and Senate Republican majority make it clear they intend to proceed with legislative repeal of the ACA. There are several budgetary and procedural obstacles.
The FY 2016 budget resolution includes reconciliation instructions to repeal the ACA. The House Committees on Education and the Workforce, Energy and Commerce, and Ways and Means and the Senate Committees on Finance and Health, Education, Labor and Pensions are each directed to produce bills reducing the deficit by $1 billion over ten years. Reconciliation bills are due to the respective Budget Committees by July 24th.
In addition, the Congressional Budget Office (CBO) released a report entitled Budgetary and Economic Effects of Repealing the Affordable Care Act. CBO, along with the Joint Committee on Taxation, concluded that ACA repeal would increase federal budget deficits by $137 billion over 10 years. The House can move a reconciliation bill with repeal language but no budget offsets by having the Rules Committee report a rule waiving all points of order. However, in the Senate, a reconciliation bill without sufficient budget offsets is subject to a 60-vote Budget Act point-of-order, making it virtually impossible for Republicans to get a reconciliation bill that repeals the ACA through the Senate.
Republican presidential candidates are likely to campaign even harder on ACA repeal. Four GOP presidential candidates are U.S. Senators (Rand Paul [R-KY], Lindsey Graham [R-SC], Ted Cruz [R-TX], and Marco Rubio [R-FL]) have made ACA repeal a major part of their campaign platforms. Any ACA-related legislation that does not contain repeal language will likely be filibustered by them.
House and Senate appropriations committees have been reporting FY 2016 bills which include language intended to defund ACA implementation. The House will be able to pass its bills easily.
In the Senate, Minority Leader Harry Reid [D-NV] has promised to filibuster all appropriations bills until Republicans agree to renegotiate discretionary spending caps. Senate Democrats have already stalled the FY 2016 Department of Defense bill. One can anticipate filibusters concerning any ACA weakening language.
Despite the Supreme Court’s ruling, the political and public relations struggle over implementation of the Affordable Care Act on Capitol Hill will continue for some time.
Julius W. Hobson, Jr. is Senior Policy Advisor at Polsinelli P.C. and Adjunct Professor of Political Management, Graduate School of Political Management, George Washington University, where he teaches courses on Lobbying, Electoral and Legislative Processes, and Legislative Writing and Research.