In March, the Supreme Court heard oral arguments in King v Burwell, a case that could broadly impact the functioning of the Affordable Care Act (ACA). The central question in King v Burwell is whether the federal government may provide subsidies for citizens to purchase health insurance on exchanges that were established by the federal government, rather than by their own state. If the court rules for the government, these subsidies will remain in place. If the court rules against the government, subsidies may no longer be provided to people living in states that have not established their own exchanges.
A decision is expected by the end of June, and a ruling against the government could harm not only the 6.4 million people receiving these subsidies, but also the individual insurance markets in the 34 states that have not established their own exchanges. These markets would likely descend into an actuarial “death spiral,” in which healthier people exit the market in cycles, leaving sicker patients to pay ever-higher premiums.
This isn’t the first time the Supreme Court has heard a case that poses a serious challenge to the ACA. Three years ago, in NFIB v Sebelius, the court upheld the individual mandate (the requirement that individuals carry insurance) while striking down the mandatory Medicaid expansion. That rendered the Medicaid expansion optional for states. Now, nearly three years after the NFIB ruling, just over half of the states have expanded Medicaid, but many low-income Americans in much of the South and Great Plains still lack access to coverage.
Both NFIB and King explore the relationship between the federal government and the states and consider when and how the federal government may encourage or require the states to act in certain ways.
But one key difference between the cases is how well the nine justices of the Supreme Court understand the ACA.
Three years ago, it was clear from both the oral argument and opinions in NFIB that the justices did not fully appreciate the health policy consequences of their ruling.
Yet in the oral argument in King, the justices displayed a much more sophisticated understanding of the law, and the opinions in King will likely display that understanding.
A key fact driving this changed understanding is the way in which law professors contributed to the case, both in the public discourse and more formally before the court.
What were law professors saying about NFIB in 2012?
Oral arguments are not the only place the justices get information about a case. They also receive briefs from both parties, as well as amicus briefs (briefs filed by groups who are not involved in the case but have an interest in the outcome). And, like other Americans, they (and their clerks) read newspapers and magazines and blogs.
When the justices took up the NFIB case in 2012, there was an enormous amount of media coverage. It was the first real challenge to the ACA, and commentators were eager to weigh in. Notably, many law professors and other academics made their voices heard in the case, writing amicus briefs before the court or writing articles or blog posts explaining their views.
But the most influential voices were from scholars of constitutional law, rather than from scholars of health law and policy. And in the oral arguments and the subsequent opinions in the case, it was clear that the court had not fully understood the way the ACA worked. They understood the essential idea that the main portions of the act are interrelated, but they did not appreciate the details of how that relationship functioned.
The way the court handled the Medicaid expansion illustrates this well. When the court made the expansion optional, it understood that some states would choose to expand their Medicaid programs, and that others would not. But it wasn’t that simple. There were a whole range of additional consequences that the court did not appear to appreciate.
The ACA originally envisioned that the Medicaid expansion would extend coverage to all individuals making less than 138% of the federal poverty level. As a result, the ACA did not exempt people making less than that amount from the individual mandate, and it made subsidies on the exchanges available only to people making over 100% of the poverty level.
So the Supreme Court’s decision harmed individuals making less than the poverty level in states that chose not to adopt the Medicaid expansion: they were subject to the individual mandate, but they were not eligible to receive subsidies, even though they needed them the most. The secretary of Health and Human Services had to issue a hardship exemption from the individual mandate for people in states that had not expanded Medicaid who fell into this gap.
Would a more complete understanding of the ACA have led to a different outcome in NFIB? Probably not, given the nature of the legal questions involved. But it still could have made a difference. A better understanding might have changed some justices’ votes, particularly in the context of the Medicaid expansion. And it would more likely have changed some of the reasoning in the opinions, perhaps in a way that would have offered a sense of how the court understood the ACA that could have guided the parties in King v Burwell.
Do the justices understand what is at stake in King v Burwell?
The oral argument before the court was different this time around. Some justices displayed a much more sophisticated understanding of how King could affect the ACA, showing that they had developed a more detailed understanding of how the different parts of the ACA are interrelated than they had in 2012.
For example, Justice Sotomayor and Justice Breyer referred to the Medicaid “maintenance of effort” problem. Essentially, the ACA requires the states to maintain their existing Medicaid eligibility and enrollment standards until “an exchange established by the State” is operational. States can’t kick people off the Medicaid rolls if there’s nowhere for them to go.
But King hinges on the interpretation of precisely this key phrase (“established by the State”), at another of its locations within the ACA. If the petitioners prevail, then the states that have not created their own exchanges will be held indefinitely to the eligibility rules they had in 2010. If they lowered their standards, they would suddenly be at risk for losing all of their Medicaid funding.
Given the nature of the legal questions involved, the fact that the justices have a more accurate understanding of the potential implications of a ruling for the petitioners in this case makes them more likely to decide it correctly, in the government’s favor.
How did health law professors help?
Health law scholars played a much larger role in educating the justices about the consequences of their ruling this time around. They published articles in the New England Journal of Medicine, articles in more traditional law reviews, op-eds in prominent media outlets, extensive blog posts, and they even submitted formal amicus briefs before the court itself.
Some of this increase in law professor involvement is because today there are simply more available avenues for engagement than there were even in 2012. However, some more traditional avenues are also taking on new forms.
For instance, law professors have always engaged in scholarly research and writing in journals and law reviews. But the idea of using such scholarship to promote a particular view of cases that are before the Supreme Court, rather than to analyze cases that have already been decided, is relatively new.
There are serious debates to be had about the proper role of law professors as advocates, rather than as scholars. Law professors have had and will continue to have discussions about whether and under what circumstances they should participate as advocates in the merits of a case itself, or even sign onto an amicus brief.
But the idea that law professors should act as scholars and educators, in a way that improves the justices’ understanding of the composition of the very laws before them, has the potential to raise the level of debate before the court. And in King v Burwell, the justices’ improved understanding of the ACA is likely to lead to a more informed result than the ones reached in NFIB.