# Okay, fine, what'll happen if the Supreme Court destroys the ACA? **URL:** \ **Category:** Great Debates\ **Created:** [December 13, 2014, 9:49am UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102 "2014-12-13T09:49:09Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [December 14, 2014, 7:26pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/21 "2014-12-14T19:26:08Z")
> [@2ManyTacos](#): > > … > > For the ACA, it’d be pretty straightforward: [HC.Gov](http://HC.Gov) would lose the ability to hand out subsidies while state-based marketplaces (such as mine at Covered CA) would be entirely unaffected. Tons of people would drop their insurance, premiums would rise, & the markets in those states would become entirely dysfunctional. \*\*The question, really, is whether SCOTUS would introduce a severability clause into its ruling, making it so that the ACA would no longer apply _at all_ to states using [HC.Gov](http://HC.Gov). \*\* Effectively, then, the ACA would continue apace in welcoming states even as the pre-ACA shitfuck status-quo returned to the rest of the country. > … No severability issue really is needed. In states without a state exchange no subsidies would flow. Plans would be too expensive for most people and they would not be subject to a financial penalty for failing to have qualifying coverage as a result. Employers would generally be exempt as the employer mandate penalty is based in part on how many employees receive a subsidy. No subsidy = no employer penalty. Insurers may choose not to offer PPACA compliant policies in those states. They could underwrite those medically just like pre-PPACA and the policies would not have to have the mandatory benefits required under PPACA. Those benefits are required to make the coverage PPACA compliant, but if you no longer care about compliance then there is no problem. A few of the wealthiest people might incur a penalty anyway, assuming there are still PPACA compliant plans left in the state’s marketplace. A court might be called upon to rule if a penalty is warranted if there are no compliant plans available. Finally, making the entire PPACA not apply in states without an exchange could release businesses in those states from some of the other assorted taxes (ie medical device tax) that are included in the PPACA. This would leave competitors in states with an exchange at an unfair disadvantage. > [@2ManyTacos](#): > > … > And that’s where this case can certifiably destroy the Court’s public image. The arguments in favor of the plaintiffs are just so monumentally weak that (as **Elvis** indicated) it’s downright bizarre that the Court agreed to hear the case at all; it’s **especially suspicious, then, because there was no circuit split which would have compelled SCOTUS’s decision in normal times.** > … Of course there was a circuit split when the writ for cert was filed. It seems SCOTUS has simply recognized that this is a matter of significant importance and only they can provide final closure on this matter. ---
**Author:** ![RickG](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rickg/32/5174_2.png) [@RickG](https://boards.straightdope.com/u/RickG)\ **Post date:** [December 14, 2014, 7:56pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/22 "2014-12-14T19:56:06Z")
I suspect all the blame goes to the Democrats for passing a bill with flaws. Never mind that many of the flaws could easily be remedied with legislative compromise, which has become nearly impossible. The GOP gets the benefit of proving, once again, that the government can’t do anything right, even if they are the ones that make it impossible to fix any of the problems. So, we must continue dismantling government. Politically, I think this is a winning argument in the current climate. Anyone here ever read _Jennifer Government_ by Max Barry? I suspect that Ted Cruz would see it less as a satire and more of a fantasy of the way things should be under his Presidential Administration (Og forbid). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 14, 2014, 8:18pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/23 "2014-12-14T20:18:50Z")
> [@Iggy](#): > > Insurers may choose not to offer PPACA compliant policies in those states. They could underwrite those medically just like pre-PPACA and the policies would not have to have the mandatory benefits required under PPACA. Those benefits are required to make the coverage PPACA compliant, but if you no longer care about compliance then there is no problem. Is this correct? Suppose this happened and I live in a state with no exchange. Say I buy insurance on the private market that has impermissibly (by ACA standards) charged me a higher premium for a pre-existing condition, but is otherwise compliant. Do I still pay a penalty? ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [December 14, 2014, 10:22pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/24 "2014-12-14T22:22:48Z")
> [@RickG](#): > > I suspect all the blame goes to the Democrats for passing a bill with flaws. Never mind that many of the flaws could easily be remedied with legislative compromise, which has become nearly impossible. > > The GOP gets the benefit of proving, once again, that the government can’t do anything right, even if they are the ones that make it impossible to fix any of the problems. So, we must continue dismantling government. Politically, I think this is a winning argument in the current climate. > > Anyone here ever read _Jennifer Government_ by Max Barry? I suspect that Ted Cruz would see it less as a satire and more of a fantasy of the way things should be under his Presidential Administration (Og forbid). The most darkly amusing part will be all the conservatives who currently have exchange subsidized health insurance who will lose and who will blame Obama. Either way, on a long enough timeline won’t more states create state based exchanges? Maybe not in deeply conservative states but in purple states it could happen, esp if people realize that they could have cheaper insurance if they lived in a different state. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [December 16, 2014, 2:06am UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/25 "2014-12-16T02:06:19Z")
> [@jtgain](#): > > Is this correct? Suppose this happened and I live in a state with no exchange. Say I buy insurance on the private market that has impermissibly (by ACA standards) charged me a higher premium for a pre-existing condition, but is otherwise compliant. Do I still pay a penalty? You are asking about non-compliant coverage. You would still be charged a penalty if you bought non-compliant coverage unless you have some other exemption from paying the penalty. You only pay a penalty if you fail to buy qualified (PPACA compliant) coverage _that is affordable_. IIRC, if the lowest cost individual plan costs more than 8% of annual income then it is not considered affordable. (For example, a one person household earning $30,000 annually would be exempt from a penalty if no plan is available costing US$200 or less per month.) If SCOTUS kills the subsidies in states on the federal exchange, the assumption is that the available plans will not be affordable for many Americans. If no affordable plan is available, then no penalty is owed. In such a case, those who are relatively healthy would be more likely to drop coverage than those with a chronic costly illness. This could lead to the so-called death spiral, with rising premiums and more of the healthy dropping out. Rising premiums could make even more people exempt from any penalty. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 3:19am UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/26 "2014-12-16T03:19:10Z")
> [@The\_Joker\_and\_the\_Thief](#): > > That’s a disingenuous argument. SCOTUS ruled that the subsidies were not a tax, instead of ruling on whether they were statutorily permitted. The court didn’t find the ACA constitutional–rather, it found it not unconstitutional solely under the one line of reasoning presented to it. No, the Court [really did](http://thinkprogress.org/justice/2014/11/10/3590596/how-chief-justice-roberts-could-score-a-big-victory-for-conservatives-and-save-obamacare/) validate the government’s position in the 2012 dissent: \* As Justices Scalia, Kennedy, Thomas and Alito explained in their joint dissent calling for the entire Affordable Care Act to be repealed, the subsidies are an essential element of the law’s core provisions. “ **Without the federal subsidies,” the four justices wrote, “individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges.” Indeed, without subsidies, “the exchanges would not operate as Congress intended and may not operate at all.”** \* Pretty cut & dry, no? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [December 16, 2014, 6:43am UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/27 "2014-12-16T06:43:43Z")
> [@2ManyTacos](#): > > … > Pretty cut & dry, no? Uh… no. There is no language in the dissent that specifically recognizes subsides on a federally run exchange. Nor is there language in the dissent that specifically excludes the possibility of subsidies on a federally run exchange. The dissent in [NFIB v. Seblius](http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf) (pdf link to decision with dissent) is silent on that matter. To be clear, the dissent certain speaks to “federal subsidies” but does so in the context of referring to exchanges that the ACA mandates that the States establish. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 3:26pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/28 "2014-12-16T15:26:29Z")
Notice what I underlined? SCOTUS said: _as Congress intended_ when referring to the _federal subsidies._ The entire King argument is predicated upon Congress _intending_ to deny federal subsidies to states which refused to establish their own exchanges, never mind that there was no debate in Congress about it, no states were aware of it, and there is no Congressional record to that effect in existence. Still, here is the Court - in black & white - saying that Congress _intended_ for the existence of federal subsidies to make the exchanges operable in the first place. There’s also the matter of the reconciliation amendment to the ACA which [explicitly mandates](http://xpostfactoid.blogspot.com/2014/07/the-aca-provision-that-should-have.html) that the federal exchanges report the tax credit info that state residents receive. Again, there’s a black & white explicit requirement for federal exchanges & subsidies. That’s part of the reason why the _King_ argument is so monumentally stupid. At this point, conservatives are downright [begging the Court](http://www.usatoday.com/story/opinion/2014/12/04/obamacare-king-burwell-supreme-court-repeal-alternative-republicans-column/19922353/) to make an activist political decision, & a SCOTUS decision in favor of the plaintiffs would be a blatantly political judicial hack job. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 16, 2014, 3:35pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/29 "2014-12-16T15:35:33Z")
> [@2ManyTacos](#): > > No, the Court [really did](http://thinkprogress.org/justice/2014/11/10/3590596/how-chief-justice-roberts-could-score-a-big-victory-for-conservatives-and-save-obamacare/) validate the government’s position in the 2012 dissent: > \* > As Justices Scalia, Kennedy, Thomas and Alito explained in their joint dissent calling for the entire Affordable Care Act to be repealed, the subsidies are an essential element of the law’s core provisions. “ **Without the federal subsidies,” the four justices wrote, “individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges.” Indeed, without subsidies, “the exchanges would not operate as Congress intended and may not operate at all.”** \* > > Pretty cut & dry, no? No. The “federal subsidies” refers to the federal money allocated to State-created exchanges. No one disputes that Congress intended federal subsidies for state-created exchanges. That paragraph says nothing about providing federal subsidies to federal exchanges. Congress didn’t intend to do that. We know this, because Congress’ intent is shown in the words of the laws it passes. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 16, 2014, 3:39pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/30 "2014-12-16T15:39:29Z")
> [@2ManyTacos](#): > > That’s part of the reason why the _King_ argument is so monumentally stupid. At this point, conservatives are downright [begging the Court](http://www.usatoday.com/story/opinion/2014/12/04/obamacare-king-burwell-supreme-court-repeal-alternative-republicans-column/19922353/) to make an activist political decision, & a SCOTUS decision in favor of the plaintiffs would be a blatantly political judicial hack job. Nope. Activism means substituting the Court’s wisdom for the plain text of the law. Here, the plain text of the law does not authorize subsidies to federal exchanges. Claiming that it does is monumentally stupid. (Actually, it’s not – it’s a reasonable construction of the law. It’s just not as reasonable as following the plain text would be. But of course, for some reason, you can’t disagree with an argument but acknowledge it has validity.) ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 4:48pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/31 "2014-12-16T16:48:23Z")
> [@Bricker](#): > > Nope. Activism means substituting the Court’s wisdom for the plain text of the law. Here, the plain text of the law does not authorize subsidies to federal exchanges. Claiming that it does is monumentally stupid. > > (Actually, it’s not – it’s a reasonable construction of the law. It’s just not as reasonable as following the plain text would be. But of course, for some reason, you can’t disagree with an argument but acknowledge it has validity.) It’s because - straight up - it’s not a valid argument. Full stop. If you don’t believe me, go read up on Cannon & Adler - the two guys who concocted this fiasco - and then come back & tell me that their argument is legitimate & made in good faith. It can’t be done. The fact that there is a trutherism movement to this nonsense is evidence of its illegitimacy, given that there’s, y’know, not a scintilla of evidence that Congress intended for this to happen. Also, since you’re gung-ho about the law meaning what the law says, [here is the law EXPLICITLY saying that fed exchanges get tax credits.](http://www.healthreformwatch.com/2011/09/11/yes-the-federal-exchange-can-offer-premium-tax-credits/) Still, I’m sure that you’ll find some way to reconcile what the law _says_ with what you want it to _mean._ Motivated reasoning works like that. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [December 16, 2014, 4:50pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/32 "2014-12-16T16:50:22Z")
> [@2ManyTacos](#): > > It’s because - straight up - it’s not a valid argument. Full stop. But what’s really important - is it also illegitimate? ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 4:55pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/33 "2014-12-16T16:55:41Z")
Eh, I think it’s obviously both. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [December 16, 2014, 5:01pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/34 "2014-12-16T17:01:17Z")
> [@2ManyTacos](#): > > [here is the law EXPLICITLY saying that fed exchanges get tax credits.](http://www.healthreformwatch.com/2011/09/11/yes-the-federal-exchange-can-offer-premium-tax-credits/) Did you mean to link to that particular article? Because if you did, I think you have no idea what the word “explicitly” means. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 5:03pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/35 "2014-12-16T17:03:26Z")
Again, motivated reasoning at work. :dubious: ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [December 16, 2014, 5:11pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/36 "2014-12-16T17:11:52Z")
> [@2ManyTacos](#): > > [here is the law EXPLICITLY saying that fed exchanges get tax credits.](http://www.healthreformwatch.com/2011/09/11/yes-the-federal-exchange-can-offer-premium-tax-credits/) That isn’t the law. It’s one person’s opinion about the law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 16, 2014, 5:27pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/37 "2014-12-16T17:27:36Z")
> [@2ManyTacos](#): > > It’s because - straight up - it’s not a valid argument. Full stop. > > If you don’t believe me, go read up on Cannon & Adler - the two guys who concocted this fiasco - and then come back & tell me that their argument is legitimate & made in good faith. It can’t be done. Their argument is legitimate and made in good faith. Looks like it can be done. > [@](#): > > The fact that there is a trutherism movement to this nonsense is evidence of its illegitimacy, given that there’s, y’know, not a scintilla of evidence that Congress intended for this to happen. Also, since you’re gung-ho about the law meaning what the law says, [here is the law EXPLICITLY saying that fed exchanges get tax credits.](http://www.healthreformwatch.com/2011/09/11/yes-the-federal-exchange-can-offer-premium-tax-credits/) There’s more than a scintilla: there are the actual words that Congress passed. And you’re completely incorrect in your claim that anything in that link “explicitly” says that fed exchanges get tax credits. The link points out that 1321(c) requires federal exchanges report to the IRS and to the taxpayer any information regarding tax credits provided to individuals through the exchange. From this one might _infer_ that Congress intended the federal exchanges to offer subsidies, or one could infer that Congress left that in as a placeholder, intending the report to constitute “zero dollars,” unless Congress acted further to authorize subsidies for federal exchanges, which they never did. Do you not understand what the word “explicit” means? ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [December 16, 2014, 5:32pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/38 "2014-12-16T17:32:55Z")
> [@2ManyTacos](#): > > Still, I’m sure that you’ll find some way to reconcile what the law _says_ with what you want it to _mean._ Motivated reasoning works like that. This far, no further. Please don’t make it personal. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [December 16, 2014, 5:43pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/39 "2014-12-16T17:43:03Z")
> [@Bricker](#): > > There’s more than a scintilla: there are the actual words that Congress passed. > > And you’re completely incorrect in your claim that anything in that link “explicitly” says that fed exchanges get tax credits. The link points out that 1321(c) requires federal exchanges report to the IRS and to the taxpayer any information regarding tax credits provided to individuals through the exchange. From this one might _infer_ that Congress intended the federal exchanges to offer subsidies, or one could infer that Congress left that in as a placeholder, intending the report to constitute “zero dollars,” unless Congress acted further to authorize subsidies for federal exchanges, which they never did. > > Do you not understand what the word “explicit” means? If you’re admitting (which you just did) that the law can be interpreted from multiple angles, then this lawsuit easily falls under the _Chevron_ doctrine, and it’s a 9-0 slam dunk win for the government. 😃 ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [December 16, 2014, 5:49pm UTC](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102/40 "2014-12-16T17:49:41Z")
> [@2ManyTacos](#): > > If you’re admitting (which you just did) that the law can be interpreted from multiple angles, then this lawsuit easily falls under the _Chevron_ doctrine, and it’s a 9-0 slam dunk win for the government. 😃 > **[ObamaCare, Chevron And Congressional Delegation](https://www.forbes.com/sites/jvdelong/2014/11/19/obamacare-chevron-and-congressional-delegation/)** > > Contemporary statutes creep increasingly close to the reductio ad absurdum provided by Scalia 25 years ago, whereby Congress votes all power to the President and adjourns. The ACA is an example, and Dodd-Frank might be even worse. [Previous page](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102.md?page=1) [Next page](https://boards.straightdope.com/t/okay-fine-whatll-happen-if-the-supreme-court-destroys-the-aca/707102.md?page=3)