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U.S.: It has no fix if Court nullifies health care subsidies

Answering a question from a member of Congress, Health and Human Services Secretary Sylvia M. Burwell said on Tuesday that the Obama administration would have no way to fix “the massive damage” if the Supreme Court were to strike down the current system of subsidies for those who need financial help to buy health insurance.   Her letter (with the identity of the House member deleted) can be read here.

Recounting the dire outlook government officials see if they lose the case of King v. Burwell, scheduled for oral argument at the Court next week, Burwell wrote: “We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”

The letter appeared to be released in an effort to continue to build public support for the subsidy system under the Affordable Care Act, even as that system has appeared to be under a significant threat in the Supreme Court.  A loss for the government in that case could mean — at least in the short term, in the absence of a fix by Congress — that subsidies would no longer be available to consumers who buy health insurance in a marketplace (“exchange”) operated by the federal government in thirty-four states.

So far, only sixteen states have set up their own exchanges.  No one doubts that subsidies would be available for consumers who shop on those marketplaces.  The dispute before the Court is whether to interpret the ACA language dealing with subsidies to mean that they are not available for consumers who shop on the federal exchanges.

Burwell has said in several public statements recently that the government remains confident that the ACA subsidies question will be decided by the Court in the government’s favor, and she repeated that in the letter made public on Tuesday.   Some of the same points she made about the consequences of a defeat have been spelled out for the Court in briefs filed in the pending case. Briefing has now been completed for that case.

The case is set for a one-hour oral argument before the Justices next Wednesday at 10 a.m.  No other case is set for hearing that day, so it seems likely that the Court may allow the questioning by the Justices and comments by the lawyers to go on beyond an hour.

(NOTE: Secretary Burwell’s letter was first made public by NBC News.  A reader of the blog made available the copy with the name of the member of the House blacked out.)


Recommended Citation: Lyle Denniston, U.S.: It has no fix if Court nullifies health care subsidies, SCOTUSblog (Feb. 24, 2015, 5:33 PM),