On Tuesday, the Supreme Court heard oral argument in a case seeking to void subsidies under the Affordable Care Act for those who get insurance through the federal exchange (like me). The attorney for the plaintiffs, Michael Carvin, told the justices that if those subsidies are voided people will still get their insurance through the exchange so there’s no reason to believe it will lead to some big boost in the number of uninsured:
During oral arguments, Justice Kennedy said that this risk of a death spiral raised a “serious constitutional problem” for Carvin. Under the Supreme Court’s first Obamacare decision, Congress may not coerce states into acting against their will, and Kennedy was concerned forcing states to choose between setting up an exchange or having their individual insurance markets collapse amounted to unconstitutional coercion. Given two different ways of reading a law, Kennedy indicated that he may be obligated to choose the one that doesn’t raise this constitutional concern.
Carvin tried to downplay the risk that consumers would simply stop buying plans in the law’s health exchanges if the tax credits were cut off, claiming that these consumers would still be attracted to exchange plans by the fact that the exchanges offer “one-stop shopping” for people looking to buy insurance. He also claimed that Congress wasn’t worried about the risk of death spirals if the tax credits get cut off. According to Carvin, “there’s not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral.”
But Carvin himself sang a very different tune three years ago. Indeed, Wednesday was not the first time he’s stood in the well of the Supreme Courtroom and asked the justices to gut the Affordable Care Act. Carvin was also one of the lead attorneys in NFIB v. Sebelius, the first Supreme Court case attacking the law.
In a brief filed in NFIB, Carvin explained that “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” And, contrary to his more recent suggestion that Congress never envisioned any danger if the tax credits are cut off, Carvin wrote in 2012 that “the insurance exchanges cannot operate as intended by Congress absent those provisions.”
In a subsequent brief, Carvin elaborated that “the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges.” He also seemed to contradict his central claim that different states are treated differently depending on whether their exchange is operated by a state or the federal government. The Affordable Care Act, according to the Michael Carvin of 2012, “enables uniform and acceptable federal premium subsidies” (emphasis added).
This whole case is ridiculous. Absolutely no one, advocates or opponents of the ACA, believed when that law passed that it did not intend to provide subsidies to those who get insurance through federal exchanges rather than state ones. In fact, those who opposed the ACA argued that those subsidies would be massively expensive because they went to every eligible person who got insurance under the ACA. Now suddenly they want this strained and out of context reading of the law because it suits their goals.