In a recent Brookings Cafeteria podcast, Senior Fellow Alice Rivlin, director of the Engelberg Center for Health Care Reform, responded to a question about the King v. Burwell case now before the U.S. Supreme Court that could decide the future of the Affordable Care Act.
Listen to the entire podcast here.
She noted that the apparent ambiguity in the text of the law, the one specifying that subsidies are available “through an Exchange established by the State under [section] 1311 of the Patient Protection and Affordable Care Act,” would “in normal times … have been corrected right after the bill was passed.” She added that “after you pass any major piece of legislation [there] is a piece of corrective legislation where you get the glitches out.” Here is how Rivlin, the Leonard D. Schaeffer Chair in Health Policy Studies, put it:
It’s an unfortunate symptom of the polarization of our politics at the moment. I think there is no doubt, and most people think there is no doubt, that the Congress intended to extend the subsidies under the ACA to all Americans who qualified for them no matter where they lived. That’s a normal thing Congress would do. The Act was carelessly drafted, there were different versions, and somehow in the end somebody wrote a section that said the subsidies were only for the state exchanges and actually most of the states are now on the federal exchange. Now, I don’t think there’s any chance that Congress intended that a minority of the states would get these subsidies and people who happen to live in other states wouldn’t. However, that’s the way it reads, strictly interpreted.
So the court has got to decide, will we invalidate these subsidies in the states where the federal government runs the exchange or will we go with an interpretation of the intent of Congress?
In normal times, this would have been corrected right after the bill was passed. Normally, when we don’t have such bitter political polarization, what happens after you pass any major piece of legislation, is a piece of corrective legislation where you get the glitches out; there are always some glitches. But that didn’t happen this time and the Congress is so divided that it basically can’t happen.
So we’ll see what the Supreme Court does. They may go with intent of Congress [or] they may go with strict interpretation. If they go with the strict interpretation, then the Congress will have to decide what to do or individual states will have some options, too.