After King v. Burwell Ruling, Health Law Issues Involve Implementation

This was published as a Wall Street Journal Think Tank column on June 25, 2015.

The practical effect of the Supreme Court’s 6-3 ruling in King v. Burwell is clear: It allows federal subsidies to continue to be provided to more than 6 million people and calms the political waters surrounding the Affordable Care Act, allowing implementation to continue in a more certain and predictable environment for the health-care industry, states, and consumers.

The ACA will, however, continue to be an issue in the run-up to the 2016 elections. Republicans in particular are likely to use the issue to rev up their base in hopes of increasing turnout in an election many think will hinge more on turnout than on efforts to move the increasingly small number of true independents.

The outcome of the 2016 presidential election could still prove decisive for the health-care law. The Congressional Budget Office projects that 23 million people will be covered in 2016. With so many covered and the ACA insurance reforms more firmly in place, repeal is likely to be more a rallying cry for the right than an achievable objective, but if Republicans win control of the legislative and executive branches that could bring efforts to substantially change the law. Even if repeal is unlikely, a fresh debate about the law in 2017 could prolong the ACA’s dubious status as the poster child of partisan division in U.S. politics.

On the other hand, if Democrats hold the White House or a Republican president decides not to push for major changes to the health-care law, the ACA could lose its super-size political status and gradually join Medicare and Medicaid as a sometimes contentious but more ordinary issue on the policy and political agendas.

Meanwhile, although steady progress is being made, significant challenges remain for ACA implementation, including: reaching those who are uninsured, a generally more difficult population to connect to insurance; stabilizing premium increases in the marketplaces as insurers get a better handle on their risk pools; and determining which of the Medicare payment and delivery reform projects implemented under the ACA are working and should be scaled up.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter,” Chief Justice John Roberts wrote for the court’s majority in King. The section of the ACA at issue “can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt,” he wrote. We don’t necessarily expect or want the Supreme Court to consider the policy, administrative, or political implications of its decisions, but they are nonetheless very real.

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