March 03,2015

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Charles Pope: 202-224-6854

Wyden Floor Statement on King v. Burwell

As Prepared for Delivery

Tomorrow morning the Supreme Court will hear oral arguments in a case titled King v. Burwell. The Supreme Court’s ruling could have sweeping consequences for the well-being of millions of Americans, and for the nation’s entire health care system. 

Here’s the issue at hand: whether Americans who’ve received the opportunity to buy quality health insurance, thanks to the Affordable Care Act, can get help paying for it. The law gave states a choice. They could design and manage an insurance exchange on their own, or they could allow their citizens to shop on a federally-run exchange. Furthermore, the law created tax credits to help people afford the cost of health insurance.

Thirty-six states took the federal option. Eighty-seven percent of the people who signed up in those states get financial help affording coverage. However, the petitioners in King v. Burwell argue that those Americans should be denied any assistance.

In my view, the answer is simple. Let’s help people in need. Let’s not go back to the time when health care was reserved for the healthy and wealthy.

Yet if you flip on C-SPAN and listen to Congress debate and question the administration, you’re likely to hear something wildly different. Some members of Congress are rooting for Americans to lose their subsidies, and consequently, their access to affordable health coverage. In fact, members of Congress have filed briefs with the Supreme Court making that argument. And at the same time, they’re asking how the administration will clean up the aftermath. It’s like pouring gasoline on a fire, and then indignantly demanding that somebody else put it out.

What kind of legislating is this, where members of Congress root for disruption and hardship?

There’s no question that the law’s implementation has at times been rocky. That’s true of all big legislation. And the process must keep improving. But the reality is, this comes down to a worn-out, six-year-old political fight over the Affordable Care Act.

The ACA’s core purpose – which has been clear from the outset – is to help as many people as possible get affordable, high-quality health insurance. Tax credits are key to making that work. Those tax credits are in question in this case.

To make their argument, the King petitioners scoured the text of the law and plucked out one obscure phrase buried in the text – “established by the State” – relating to how tax credits are calculated. According to the petitioners, those four words – that one small phrase – is enough to put millions of Americans in danger of losing their health insurance.  They argue, against common sense and the actual text and intent of the ACA, that the law was supposed to deprive millions of struggling families and individuals of affordable coverage.

This should not be a difficult case for the Supreme Court to decide. Looking at the law itself, the text is clear. To cite some examples, when a state declines to establish an exchange, the federal government is directed to fill in and establish “such exchange.” This makes sure insurance coverage and tax credits become available to any “applicable taxpayer,” regardless of where he or she lives. Furthermore, the information used to calculate subsidies is gathered from everybody who buys an insurance plan. That would be unnecessary if Americans in only some states were eligible for tax credits.

On top of that, it is a firmly established principle of statutory construction that, when interpreting a provision of a law, a court should read the provision in context, not in isolation.  It should consider how the part fits into the whole. As the Supreme Court has said, it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

Here, looking at the overall statutory scheme, there is only one plausible interpretation. States have the option of establishing exchanges. If they decline, the federal government will establish an exchange for them. It was written that way so that everybody who needs help and meets the relevant qualifications can receive subsidies. In my view, it’s impossible to reach any other conclusion. Without the broadest-possible access to health insurance – and financial help for those who need it – the system would be at risk.       

The petitioner’s interpretation makes absolutely no sense in the context of the overall statutory scheme. It would contradict the fundamental purpose of the Affordable Care Act, which is, as stated in the title, to provide “quality, affordable health care for all Americans.”

Finally, a statute should be interpreted under the assumption that, as the Supreme Court has said, “Congress … does not … hide elephants in mouseholes.” Congress does not slip major rules, which have huge ramifications, into obscure corners of the law. In this case, Congress would not slip a major rule denying tax credits to millions – in effect, a poison pill – deep into a line that simply defines the term “coverage month.”        

Furthermore, there is no evidence in the legislative history to support the petitioners’ warped reading of the law. If Congress intended for the tax credits to help only some Americans, we would have said so. The issue would have come up in committee hearings, markups, press conferences, or in debate on the House or Senate floor. It would have been reflected in fact sheets and press releases released to the public. It would have come up in the Committee Reports that accompanied the bill’s movement through Congress. But it never did. Not even once. The only way to get to the petitioners’ view is by cherry-picking and contorting a four-word phrase.

Need more proof? Look at the long record of analysis performed by the trusted, nonpartisan staffs of the Congressional Budget Office and Joint Committee on Taxation. It was their job to do the math – to score the bills and figure out exactly what the economic impacts would be. In every analysis and every communication the CBO and JCT had with Congress, they correctly presumed tax credits would be available to everybody who qualified. The tables and reports prepared by CBO and JCT are all online today. Anybody can read them.

In my view, the petitioner’s argument in this case is weak, and the text of the law and Congressional intent are clear.

But still, the wrong decision could make quality health insurance suddenly unaffordable for millions of Americans. And the negative effects of that ruling would radiate throughout our health care system. Recent studies of this case have suggested the cost of insurance could soar upward for more than seven million Americans. Only the people most in danger of needing serious medical care would remain insured. The cost of insurance premiums in the individual market could skyrocket for everybody. As a result, a crisis that starts with seven million people could grow to affect eight, nine, or ten million – maybe even more.

It would send us back to an era when quality health care was available only to the healthy and wealthy. That’s exactly what the Affordable Care Act was intended to prevent.

The federal government, independent health care organizations, stakeholders, and the people whose insurance is at stake all agree – the tax credits are meant for everybody. Even America's Health Insurance Plans, the trade association representing the nation’s largest insurers, takes that view. It wrote in a brief filed with the court that eliminating the subsidies, “would leave consumers in those states with a more unstable market and far higher costs than if the ACA had not been enacted...”

The only groups who argue otherwise are political partisans who want to see the Affordable Care Act brought down at any cost. Their baseless arguments pose a serious danger to the health of millions of Americans – the same people who went far too long without access to quality, affordable health care before the ACA.

I strongly hope that the Supreme Court will take a conservative approach in its ruling – rather than a radical and political one – and reject the challenge to the law. Then Congress can get on with the important business of improving the law where it needs to be improved, and addressing the other important needs of our health care system.

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