The Supreme Court is scheduled to hand down its decision this month in the case of King v. Burwell. The case seeks to determine whether the health insurance subsidies that are part of the Affordable Care Act can legally be available through the federal health insurance exchange, Healthcare.gov, or if states must create their own healthcare exchanges in order to access the subsidies. Let's take a look back at seven quotes from the oral arguments in March that sum up how we got here, problems that might arise if that part of the law was struck down, and a potential solution.
Not a typo
The petitioner argued that Congress really meant to give the subsidies only to people in states that set up their own exchanges as an incentive to get states to create their own exchanges, but some of the Supreme Court Justices seemed less than convinced:
Do you really believe that states fully understood that they were not going to get -- their citizens were not going to get -- subsidies if they let the Federal government [run their exchange]? -- Justice Sotomayor
There's at least a presumption, as we interpret statutes, that Congress does not mean to impose heavy burdens and Draconian choices on states unless it says so awfully clearly. -- Justice Kagan
The same argument that the Supreme Court used a few years ago to strike down the part of Obamacare that required states to expand Medicaid -- it imposed a heavy burden on the state -- could be used to keep the law from requiring states to either set up their own exchanges or forgo the subsidy for their citizens.
But whether enough of the Justices buy into this argument, and how they'll deal with it -- removing the state-run requirement to get the subsidies or striking down the subsidies entirely -- remains to be seen.
Someone needed a proofreader
The language here in 36B was not the product of some last-minute deal, it wasn't the product of scrambling at the end. The language that emerged here, the statutory structure with the language of 36B about tax credits, the language that's in 1311, the language that's in 1321 was the product of the Senate Finance Committee markup, which went on for weeks and weeks. It was a public -- it was a public hearing. It -- frankly, it was covered by C-SPAN. You can go watch it on the C-SPAN archives if you want to; and you will see coming out of that that the -- that the understanding, the clear understanding was with this statutory setup would result in subsidies being available in every State. -- Solicitor General Donald B. Verrilli Jr.
When Solicitor General Verrilli mentions 1311, 1321, and 36B, he's referring to sections or subsections of the Affordable Care Act that he is attempting to defend. Verrilli's argument is basically that separating subsidies and exchanges was a typo. Congress decided that the federal government would offer subsidies and, because not every state would want to set up an exchange, the federal government would set up an exchange for those states that chose not to.
Those two ideas are in separate sections of the law, but the part about the subsidies says that they'll be available to people who enrolled "through an Exchange established by the State under 1311."
What will happen if it's struck down?
No one's going to visit the program if there are no subsidies because not enough people will buy the programs to stay in the exchanges. -- Justice Sotomayor
Verrilli was a little more end-of-the-world about the prospects of the ACA if the subsidies die:
It precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid, and of course it revokes the promise of affordable care for millions of Americans. -- Solicitor General Verrilli
The only reason insurers such as UnitedHealth Group, Aetna, and Cigna were able to accept everyone regardless of preexisting conditions was because Obamacare mandated that everyone must have health insurance, thus spreading costs out over a larger population. The only way to get these healthy people on insurance en masse was to subsidize the cost.
If there aren't any subsidies, there's a danger of entering the so-called death spiral. In this scenario, the healthiest people may leave an insurance program because it's too expensive. This might require the rates to increase, as the average medical cost per person would be higher if the healthiest people were gone, which could cause the next-healthiest people to leave, and so on.
Fix the typo?
What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? -- Justice Scalia
In theory, this issue could all go away if Congress would just rewrite the law as Verrilli claims it was intended to be -- which is also the way the government has been following the law since the exchanges were set up. But this is a different Congress than the one that initially passed the law, which is likely to make for some lively debates in Congress if the Supreme Court says that the subsidies are unconstitutional.
The alternative is for all the states to set up their own exchanges, rather than use healthcare.gov, but that would likely take longer to set up than the time remaining before the next enrollment period.
Delay the impact of the decision
Would it not be possible, if we were to adopt Petitioners' interpretation of the statute, to stay the mandate until the end of this tax year as we have done in other cases where we have adopted an interpretation of the constitutional -- or a statute that would have very disruptive consequences? -- Justice Alito
Alito seems to be trying to strike a compromise, allowing the Supreme Court to follow the law as it was written, but allowing Congress and/or the states time to fix the problem before there's an impact.
What's an investor to do?
In addition to health insurers, companies that run hospitals, such as Community Health Systems, LifePoint, and Tenet Healthcare are also at risk because the Supreme Court's decision could result in more uninsured people. This could cause an increase in unpaid bills that the hospitals would have to absorb.
If you have a strong feeling about which way the Supreme Court is going to rule, you could buy or short the insurers and hospitals, betting for the status quo, or a disruption of the law, respectively. Most investors, however, would probably be best off staying out of the sectors until the Supreme Court hands down its ruling. The binary nature of the ruling -- with just one or two Justices likely to decide the law's fate -- is too much risk for most investors without a background in constitutional law to handle.