The Supreme Court can force the essential debate on the ACA

The Supreme Court has agreed to hear the case of King v. Burwell.  Intervention by the Court results from a challenge to a ruling by the U.S. Courts of Appeal for the Fourth Circuit that upheld IRS regulations extending subsidies to people enrolled in Obamacare through federal insurance exchanges.  Other federal courts had issued contrary rulings on the question.  A lower court in Oklahoma had ruled against extending subsidies, as had a panel of the Court of Appeals for the District of Columbia.

Thirty-five states use the federal exchange. They have chosen not to establish their own.  The ACA stated that subsidies could only be provided for people who signed up for Obamacare on "an exchange established by the state".  Jonathan Gruber, the economist and chief architect of Obamacare said in 2012 that "if you are a state and you don't set up an exchange that means your citizens don't get their tax credit (subsidy)".  He also said "Federal funding provisions (for subsidies) were included (in the ACA) to reward states with their own exchanges and punish those that forced the creation of Federal exchanges".

The Supreme Court will hear arguments in King v. Burwell in March. A decision is expected in June.  The Court is uniquely positioned to incent a process that will require the Congress and the President to fix Obamacare.

Liberals will argue that a judgment to limit subsidies to state established exchanges would negatively impact 5.4 million Americans.  The liberals will say the obvious intent of the ACA was to extend subsidies to citizens regardless of how they signed up.  The conservatives will argue that subsidies should end immediately, seeing this action by the Court as a means to end Obamacare.

The Court can both rule that subsidies are limited to state exchanges and set in motion a process to fix Obamacare.  The Court should affirm the ACA as written, but it should issue a delay of implementation of its order for some period of time, say 12 months.  The Court would, therefore, both do its job and cause the Congress and the President to fix the law.  It would force an expeditious effort to fix the language and substance of the ACA or to seek more effective ways to solve the problem of the uninsured and the high cost of healthcare in America.

Neither Congress nor the President have been willing to deal with the politically tough problems related to U.S. healthcare.  Essential decisions will have dramatic implications on insurers, healthcare providers and other key industry stakeholders.  We know, among other items, that we need to reduce excess hospital capacity, stop economic incentives that drive unnecessary testing and treatment, and end the absurd cost of a malpractice system run amuck.

We spend more than twice as much per capita on healthcare than other developed countries.  Adjusted for population size we spend $860 billion more per year than the second most expensive country, Norway.  While the intent of Obamacare is to reduce the number of uninsured Americans, after the second year of enrollment we still have 31 million uninsured citizens.

The Supreme Court has a historic opportunity to improve our healthcare system.  It should uphold the explicit language of the ACA and compel the Congress and the President to make difficult choices to solve an eminently soluble problem.  If the Court chooses the other available courses, ordering the immediate suspension of subsidies or upholding the IRS extension of subsidies contrary to the law, the Court will miss this historic opportunity to inspire the national dialogue we need to have to solve our healthcare crisis.

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