Oklahoma seeks faster health care appeal (UPDATED)
on Nov 22, 2014 at 8:03 am
UPDATED 11:21 a.m. The Oklahoma petition for review before the appeals court rules is here. The state noted that it is willing to have its case, if granted, put on the same briefing schedule as King v. Burwell, and asks for a quick response to its petition if the Court wishes a response. The state would seek argument time, it noted. (Thanks to a helpful reader for sending a copy of the petition.)
The state of Oklahoma, arguing that the Supreme Court should consider the views of a state government when it rules on the legality of federal tax subsidies to be paid to insurance-buying consumers under the Affordable Care Act, has urged the Court to review that state’s case when it considers the already granted case of King v. Burwell.
Following a request by the Obama administration, Oklahoma’s case is on hold now at the U.S. Court of Appeals for the Tenth Circuit, while the Justices review the King case. But Oklahoma’s attorney general, Scott Pruitt, is now seeking to bypass the appeals court with a new petition. The petition itself is not yet available, but it has been docketed by the Supreme Court.
At issue in the King case, as well as in Oklahoma’s challenge, is whether subsidies to help consumers afford health insurance purchased on a marketplace (“exchange”) are available only on exchanges set up by state governments, and not those created by the federal government. Oklahoma is one of the states that refused to set up its own exchange.
After a federal judge ruled that the subsidies are not available on the federal exchanges, the Obama administration appealed that case to the Tenth Circuit. It has been scheduled for a hearing at the appeals court on January 21, but that has now been cancelled.
The King case was filed in federal court by four individuals living in Virginia. Their challenge failed in the U.S. Court of Appeals for the Fourth Circuit, so they appealed to the Supreme Court. The Justices granted review on November 7, and the case is expected to be heard in early March.
In announcing plans to ask the Supreme Court to take on the Oklahoma case now, to be heard along with the King case, the state’s attorney general said the Court should do so “to ensure the Court hears the perspective of a sovereign state” and “to ensure state’s rights are at the table when a decision is made.”
He noted that Congress had given the states the choice whether to set up an insurance exchange. “The ACA,” he said, “places significant weight on the decision made by the states: whether tax credits and subsidies are available to its citizens, whether larger employers in the states are subject to penalties for failure to comply with the employer mandate requirements, whether many individuals are subject to the individual mandate’s penalty.” “Only Oklahoma,” he said, “and not the individual petitioners in King . . . had to make the decision about whether to create an exchange.”
The Justice Department will have the option of replying to the Oklahoma petition.
Update: Added material from the petition:
Oklahoma officials argued that their case would add two more interests to those at stake in King v. Burwell. While that case puts before the Court the interests of individuals covered by the ACA mandate to obtain health insurance, and the interests of the federal government in providing subsidies and running exchanges, the Oklahoma case adds the perspective of a state government affected by the subsidies system as well as a state in its role as a large employer covered by a separate insurance mandate under ACA.
(The blog thanks Howard Bashman of How Appealing blog for the tip on the Oklahoma filing in the Supreme Court.)