Editor’s Desk

King v. Burwell, by the numbers

Peter Wehrwein

Editor

3: Nevada, New Mexico, and Oregon have authorized state-run exchanges but are using the federal exchange for many enrollment functions. If King prevails, it’s not clear how the court decision will affect these three states.

3: As Lyle Denniston and others have written, the premium subsidies at issue in King v. Burwell are one of the legs of the ACA’s three-legged stool. The other two are the individual mandate and the rules against denying or pricing insurance because of pre-existing conditions. 

ACA supporters say that if court rules in favor of King, the premiums will become unaffordable and the insurance markets that the ACA has created will go into a death spiral of fewer and fewer participants and higher and higher premiums.

The law’s critics note, though, that the effect of the ruling against the insurance subsidies will depend on how Congress responds and, moreover, it’s in the interest of ACA supporters to paint a scary picture of the consequences of a ruling against the premium subsidies. 

4: “….established by the State.” King v. Burwell hinges on those four words in the ACA.

The plaintiffs argue that they plainly mean that subsidies, in the form of tax credits, should be available to people in states that set up their own exchanges and not to people who live in states that chose not to and used the federal government’s exchange instead.

Michael Cannon is the director of health policy studies at the Cato Institute, a libertarian think tank. Here is his summary of the plain language aspect of plaintiff’s case:

Section 1311 [of the ACA] directs states to establish exchanges, and Section 1321 directs the federal government to establish exchanges “within” any state that fails to do so.

Section 1401 authorizes subsidies (nominally, “tax credits”) for exchange enrollees whose household income falls between 100 and 400% of the federal poverty level, who are not eligible for qualified employer coverage or other government programs, and who enroll in coverage “through an Exchange established by the State.” Each of these eligibility restrictions is as clear as the next.

The statute makes no provision for subsidies in federally established exchanges.

Amy Howe, a reporter for the must-read Scotus blog for all things King v. Burwell, summed up the government’s position this way:

Defending the availability of subsidies for all, the federal government counters that the challengers’ focus on the four words “established by the State” is too narrow. If you look at all of the ACA, the government argues, it is clear that subsidies are available whenever you buy health insurance on an exchange, whether it’s an exchange established by the state or instead by the federal government. 

Others have noted that it's telling that the states were never told that if they depend on the federal exchange their residents wouldn't be eligible for premium subsidies. If the ACA was intended to work that way, why didn't the statute make it clearer? 

5:  The number of justices need for a majority opinion. Breyer, Ginsburg, Kagan, and Sotomayer are considered sure bets for the administration and upholding the premium subsidies. Alito, Scalia and Thomas seem likely to side with King. Kennedy and possibly Roberts are swing votes. Roberts’s vote was the deciding one in National Federation of Independent Business v. Sebelius, the 2012 decision that upheld the individual mandate but also let states opt of Medicaid expansion.

13: The number of states that set up their own exchanges, a group that includes California, Colorado, Connecticut, Hawaii, Idaho, Kentucky, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Vermont, and Washington.  Premium subsidies in those states are not at issue in King v. Burwell.  Washington, D.C., also set up exchange.

34: The number of states that depend on the federal government exchange. If court rules in favor of King, residents in these states will lose premium subsidies. Congress could revisit the ACA and extend subsidies to states using the federal exchange. That’s extremely unlikely. Republicans are talking about a temporary of extension of some kind, so people who get the subsidies wouldn’t lose them suddenly.

87 (percent): HHS says that 87% of the Americans who bought insurance in states using the federal exchange received some level of subsidy.

272 (in dollars): The average subsidy per enrollee in the 34 states that used the federal exchange, according to an absolute gem of an interactive tool created Kaiser Family Foundation. Alaska has the costliest subsidies on a per enrollee basis; the average subsidy there is $536. The subsidies are least expensive in Arizona, where average subsidy per enrollee is $158.

1,470,000: The number of Google hits when I searched on King v. Burwell this morning.

6,387,784: The Kaiser Family Foundation’s tally of the number of Americans who lose their premium subsidies if the court rules in favor of King and against the Obama administration. Other groups have come up with a slightly higher estimate of 7.5 million.