Crossroads ahead

Republicans are taking one more, and perhaps last, legal shot at Obamacare.

The issue could again put Arkansas in a national spotlight, much in the way our private-option form of Medicaid expansion put us there.

It will depend on whether Gov. Asa Hutchinson is a typical Republican governor. So far he hasn't quite been.

The private-option form of Medicaid expansion survives for now under him. His opening tax cut was for regular people, not rich people.


This week the U.S. Supreme Court will hear the case of King v. Burwell, which argues that--by the wording of the Affordable Care Act--people may not get federal subsidies to help them with their health-insurance coverage unless they purchase those plans on state health-care exchanges, of which there are few.

There is a line in the law referring to these subsidies as being given on the "exchange established by the state." There is no specific mention of subsidies on the federal exchange, though the federal government is a "state," you might say.

As it happens, the 37 states not setting up their own exchanges, including Arkansas, use the federal exchange by default. When an Arkansas customer or one in those other 36 states goes online to seek health plans, he is proceeding through a state portal to an array of plans actually presented on the federal exchange.

It doesn't make any difference to the customer. It seems to make a lot of difference to the lawyers and politicians.

Persons with incomes in the low-to-middle range qualify for a sliding scale of subsidies to help them buy their policies chosen from this exchange listing all available plans. On average, subsidized buyers pay about $80 a month and get federal tax credits for the other $300 to $400 a month--with the subsidies decreasing as incomes increase, to the point that the subsidies end.

A lot of working people can't pay $400 or $500 a month for health insurance, at least if they also require housing, transportation, clothing and sustenance.

So since most states did not set up their own exchanges, and since the federal exchange gets used instead in those states', then millions of newly insured persons would no longer get that subsidy if the Supreme Court ruled that, indeed, the Affordable Care Act means what it says--that the subsidies get provided--only--by state exchanges.

It's a technical matter of wording--sloppy wording--versus a legal interpretation of congressional intent.

It could well be that the Supreme Court will break out 4-to-4, with the liberals for interpreting clear congressional intent to subsidize all eligible purchasers and the conservatives being sticklers for the wording. Then Chief Justice John Roberts would go either way. Conservatives were worrying last week that the chief justice had agreed with Justice Ruth Bader Ginsburg in a different case on a generous acceptance of legislative intent.

If the court rules in favor of congressional intent, then the issue dies and Republicans lose again and Obamacare proceeds status quo.

But if the court rules that "state" means "state" and only "state," then we would face a situation without subsidies in 37 states. Without the participation of all those subsidized participants in those states, all of Obamacare could well collapse.

Mandated coverage of pre-existing conditions requires universal or near-universal participation to prevent rates from soaring to unmanageable heights for everybody except those to whom money isn't any object.

Last week at the national meeting of governors in Washington, Republicans generally seemed to be of this attitude: If Obamacare loses this court case, then so be it, hooray, we've won, Obamacare dies and a greater America proceeds.

Not expressing that view, or any view, but appearing by his questions of federal officials to be more open-minded and thoughtful, was ... well, our guy, Asa.

Multiple sources indicate that Hutchinson is concerned about the sudden pulling of the insurance rug from the 57,000 or so state residents now getting subsidized insurance on the exchange.

These are entirely different people, better-off people, than the state's nearly quarter-million Medicaid expansion customers who are getting their insurance bought for them by the state with federal money on the federal exchange, and for whom Asa already has bought a couple of years.

Hutchinson is described as being in a state of contemplation over this issue and to be gathering all the facts he can.

It is not out of question--in consideration of conceivable scenarios--that the court could void the subsidies in a ruling in May or June, and that Hutchinson, rare if not alone among Republican governors, would be calling a special legislative session to try to establish a state exchange to protect those customers, at least until the state could seek a full waiver for 2017 to run that exchange in a more conservative way.

Sometimes political leaders confront defining moments. We'll see if Asa intersects with one in a few months.

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John Brummett's column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

Editorial on 03/01/2015

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