This December 2, 2013 photo shows a woman reading the HealthCare.gov insurance marketplace internet site in Washington, D.C.  This week, two U.S appeals courts issued conflicting rulings on whether millions who buy health insurance on federally run health exchanges can get subsidies.

This December 2, 2013 photo shows a woman reading the HealthCare.gov insurance marketplace internet site in Washington, D.C. This week, two U.S appeals courts issued conflicting rulings on whether millions who buy health insurance on federally run health exchanges can get subsidies.

On July 22, two federal appeals courts issued conflicting opinions on Affordable Care Act subsidies for health insurance premiums. The US Court of Appeals for the District of Columbia ruled that, per the law as written, only consumers living in states running their own exchanges could possibly qualify for subsidies. Two hours later, an appeals court in Richmond, Virginia ruled that a state’s decision not to run its own exchange did not preclude residents from qualifying for lower premiums. We discuss the Affordable Care Act subsidies and the future of President Barack Obama’s signature legislation.

Guests

  • E.J. Dionne Jr. senior fellow, Brookings Institution; columnist for The Washington Post; and author of "Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent."
  • Julie Rovner senior correspondent, Kaiser Health News; author of "Health Care Policy and Politics A-Z."
  • Richard Hasen professor of law and political science at the University of California, Irvine, and author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown."
  • Douglas Holtz-Eakin president of the American Action Forum, chief economist and director of the Congressional Budget Office from 2003 to 2006.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Some five million people bought health insurance through Affordable Care exchanges, run not by their states, but by the federal government. A D.C. appeals court ruled these buyers could not qualify for federal subsidies. A Virginia appeals court said they could.

  • 10:07:16

    MS. DIANE REHMJoining me to explain the implications of these conflicting court rulings, E.J. Dionne, of the Brookings Institution. He's also a columnist for the Washington Post. Douglas Holtz-Eakin of the American Action Forum. Julie Rovner of Kaiser Health News. And joining us by phone from Los Angeles, Richard Hasen, professor of law and political science at the University of California, Irvine.

  • 10:07:50

    MS. DIANE REHMI'm sure many of you will join the conversation. Call us on 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Thank you all for being here.

  • 10:08:11

    MS. JULIE ROVNERNice to be here.

  • 10:08:12

    MR. DOUGLAS HOLTZ-EAKINThank you for being…

  • 10:08:13

    MR. E.J. DIONNE JR.Good to be with you, Diane.

  • 10:08:15

    MR. RICHARD HASENGood morning.

  • 10:08:15

    REHMGood morning. And first to you, Julie Rovner, this seems so confusing. First of all, what did the courts rule? And second, what will be the immediate effect of those rulings?

  • 10:08:36

    ROVNERWell, let's start with the last question. The immediate effect of those rulings is nothing. So people who have gotten these subsidies in these states and, of course, in others -- question where it's 34 or 36 states. The federal government is actually running the exchange for 36 states. Those people will be fine until this works itself out in the courts. And there is a very, very long way to go.

  • 10:08:58

    REHMYou're talking about a year or more?

  • 10:09:01

    ROVNERPossibly. I mean, there's…

  • 10:09:02

    REHMOkay.

  • 10:09:02

    ROVNER…some who think it could be a year and a half. It could…

  • 10:09:04

    REHMAnd you're saying people will continue to receive subsidies during that period.

  • 10:09:09

    ROVNERThat's right. Even the court that ruled against the subsidies, under the rules in the D.C. circuit, they do not send that back down to the lower court for 45 days, to give the government time to ask for a full hearing by the full appeals court, which the government has already said it's going to do. That alone could take several months. So let's start there.

  • 10:09:32

    REHMAll right.

  • 10:09:33

    ROVNERBut what's at stake here is a -- I think what everybody agrees is an inelegantly written line in very lengthy Affordable Care Act that says that subsidies are only available to people in exchanges established by a state. And then the question is whether -- I think, I think most people can see that that's probably not what Congress meant. The problem has been that is literally what it says.

  • 10:09:55

    REHMSo three words, "established by states."

  • 10:10:00

    ROVNER"By a state," it's actually four words.

  • 10:10:01

    REHMFour words, okay.

  • 10:10:03

    ROVNERBut that's what all of this is about, basically. Whether or not the federal government, in stepping in for the states -- which the law also says the federal government shall do if states do not establish their own exchanges. It's -- this is, you know, a huge, you know, it's all about -- if you want to be a law student -- it's all about statutory interpretation.

  • 10:10:22

    ROVNERAnd, you know, so far all of the judges, except this three-judge panel at the D.C. Court of Appeals, have said there is no question that Congress intended for these subsidies to be available in both state and federal exchanges.

  • 10:10:34

    REHMAll right. And turning to you, Rick Hasen. The divisive political battle apparently is now going to continue in the courts.

  • 10:10:49

    HASENThat's right. It's going to be in the courts and it's not going to be in Congress. You know, if we were in normal times, what would happen is that -- often, when Congress passes a law, especially a huge law like the healthcare law there are going to be problems, there are going to be drafting errors and Congress would come back and fix it.

  • 10:11:05

    HASENBut we're in such polarized times and, of course, the healthcare law is the signature issue of Republicans, in terms of trying to get it repealed, that we're not going to get a legislative fix to it. And so we know that the courts are going to be the last word. And so the only question is whether it's going to be these appellate courts or whether this will wind up before the United States Supreme Court.

  • 10:11:25

    REHMAnd how do you see it going?

  • 10:11:29

    HASENWell, the next step, as Julie mentioned, is that the federal government is going to go -- in the case they lost, the one before the D.C. circuit -- they're going to ask for it to be heard by the full court. We call it an en banc court. And when that happens the court has discretion to take it. I think it's likely the court will take it. Thanks to the nuclear option that the Democrats in the Senate put forward, they got more nominees on the D.C. circuit. So there's a -- there are more Democratic appointed judges than Republican judges.

  • 10:12:01

    HASENQuite likely, if they take the case, since this has been dividing on party lines, that the en banc court will side with -- the same way that the 4th Circuit did and say that the subsidies are fine, even in the federal areas. And then it goes to the Supreme Court in a very interesting posture because there won't be a split between the two courts anymore.

  • 10:12:19

    HASENThey'd both be saying that the law means the same thing. But the court would still have discretion to take it. It's not clear whether they would take it. That's something that we may not know for maybe a year. I mean, really, it really depends. We're going to have to see -- there's a lot of lawyerly maneuvering to go on over the next few months to get a better picture of this.

  • 10:12:38

    REHMAll right. And before we get into that lawyerly and Congressional or non-Congressional maneuvering, just how crucial are these subsidies to the Affordable Health Care Act, Julie?

  • 10:12:54

    ROVNERWell, basically, they are -- as several of the decisions pointed out -- they are an important leg of this three-legged stool. What the, what the law did was it told insurance companies that they had to accept everyone, including those people who were sick. They could no -- and they couldn't charge more. In exchange, the insurance companies were supposed to get many more people through the individual mandate, the requirement that most people either have or have insurance or pay a fine.

  • 10:13:19

    ROVNERAnd the subsidies were the aid, the affordable part of the Affordable Care Act. So the subsidies are to help people afford that. Now, there is an out in the law that says if the least expensive premium is more than 8 percent of your income then you don't have to abide by the individual mandate. Well, the vast majority of these 5.some million people, who are now in the federal exchanges, they're all -- almost all getting subsidies. And the subsidies are very large. So one would presume that most of them would no longer have to buy insurance if it were to go away.

  • 10:13:52

    ROVNERThere's yet another piece to this, which is the employer mandate. This is a requirement that large employers, not small, but large employers either provide health insurance or pay a fine. But the fine is only triggered if one of your employees goes to the exchange and gets a subsidy. So if there's no subsidy, there's no enforcement for the employer part of this.

  • 10:14:12

    REHMInteresting. All right. Douglas Holtz-Eakin, I know you want to jump in here.

  • 10:14:17

    HOLTZ-EAKINNo. I just wanted to point out that, in fact, the increases would be quite large for those individuals who've already signed up in these federally-run exchanges, have bought an insurance policy, they've got a contract, they've got a premium. If you take the subsidies away -- we did a quick calculation that looks like, you know, five of those states, the increases are somewhere between 80 and 95 percent. In another 12 they're 75 to 79 percent. And in eight of them they're about 70 percent.

  • 10:14:43

    HOLTZ-EAKINAnd in 11 more there about 58 percent. So I don't think anyone should be confused about the implications of this for the law, if in fact, the interpretation of the D.C. court were to hold all the way through the Supreme Court. It would be a dramatic hit to this law. It would be unworkable in its current form.

  • 10:15:02

    DIONNE JR.It kills the Affordable Care Act.

  • 10:15:04

    REHME.J. Dionne?

  • 10:15:05

    DIONNE JR.I mean this would simply destroy the Affordable Care Act. Judge Harry Edwards, the dissenter in the D.C. circuit case, called the ruling of that majority on that panel a not-so veiled attempt to gut the law. And he also said it defies the will of Congress. And I think one of the mystifying things about this decision is anyone who watched any of the debate over the Affordable Care Act, or any of the public statements, knows that these subsidies -- which are at the heart of it -- the whole point is to help people who can't afford insurance to buy insurance at these -- that there was never any intention to have the subsidies apply only to the state-run exchanges.

  • 10:15:49

    DIONNE JR.And, you know, there's been a lot of talk about how badly drafted the Affordable Care Act was. And it does not win a drafting award. There's no question. But I was really struck in the 4th Circuit case, which ruled unanimously that, of course, you can't do what the D.C. Circuit wants to do. Judge Andre Davis had a wonderful line. The judge wrote, "Neither the cannons of construction nor any empirical analysis suggests that Congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. Sausage makers are indeed offended when their craft is linked to legislating."

  • 10:16:28

    REHMDoug?

  • 10:16:28

    DIONNE JR.So problems like this, while they may be -- crop up a little more in the ACA, these are very common in legislation.

  • 10:16:34

    REHMDouglas?

  • 10:16:34

    HOLTZ-EAKINIf you listen to the majority in the D.C. court, I mean, they knew exactly what they were doing. And to quote what they said, they said, "Applying the statutes' plain meaning, we find that Section 36b," about the key section, the IRS law, "unambiguously forecloses the interpretation embodied in the IRS rule. And instead limits the availability of premium tax credits to state-established exchanges. Thus, although our decision has major consequences, our role is quite limited. Deciding whether the IRS rule is a permissible reading of the ACA."

  • 10:17:02

    HOLTZ-EAKINSo there's a lot of drama here. There's drama on the law.

  • 10:17:05

    REHMLots of drama indeed.

  • 10:17:07

    HOLTZ-EAKINThere's drama on the appeals. There's going to be drama to the Supreme Court. But at the bottom of the drama is a very simple job. This is an administrative hearing. It's an administrative law. And the question is has the Congress spoken? If it has, that's what you have to do. If it's -- there's some ambiguity, the executive can interpret it with the rule. And what they decided was Congress has spoken. Read the law.

  • 10:17:28

    REHMRick Hasen?

  • 10:17:29

    HASENWell, you know, there are different schools of interpretation. And the judges on the D.C. Circuit followed what we call textualism, which is kind of a seeing the law more as trying to figure out a logical puzzle, than trying to make a law work among people. So, you know, I think, first of all, as the 4th Circuit opinion demonstrates, there's a good textual argument that if you read the entire statute and try to harmonize it together, that the statute is ambiguous.

  • 10:18:02

    HASENAnd second, there's a long history of deferring, in the case of ambiguous language, to the agency charged with implementing a law. That's something know in the law as the Chevron Doctrine. And this is something that really should be up to the executive to decide how to really make the law work.

  • 10:18:22

    REHMRichard Hasen. He is professor of law, University of California, at Irvine. Short break. We'll be right back.

  • 10:20:01

    REHMAnd welcome back. We're talking about conflicting judgments by two courts yesterday in regard to the Affordable Care Act. And here with me, E.J. Dionne of the Brookings Institution, Douglas Holtz-Eakin of the American Action Forum, Julie Rovner of Kaiser Health News and Richard Hasen, Professor of law and political science at the University of California Irvine.

  • 10:20:39

    REHMHere's our first email. It's from Matt in Howard County, Md. He says, "I'd like to know your panel's thoughts on the idea that the language in question was not a mistake but an attempt to induce Republican governors to set up exchanges. I seem to remember several Democrats suggesting at the time that Republican governors were putting subsidy funds at risk if they did not set up their own exchanges. I think," says Matt, "it was a deliberate attempt by Democrats to get Republicans to cooperate with the law. And it has now backfired." What do you think, E.J.?

  • 10:21:33

    DIONNE JR.Well, Matt there summarized one of the central assertions of the people who brought the case. And that is what the majority claims in its decision. There's only one problem with that. There is absolutely not a shred of evidence, not a bit that this was intended as any sort of incentive. Indeed, you know, if you take it that way most of these Republican governors were against the subsidies. They didn't want any of this. So there is just no way that holds up. And that's what the decent made clear, that you really had to invent this rationale out of whole cloth (sp?) to justify this view.

  • 10:22:14

    REHMDoug.

  • 10:22:16

    HOLTZ-EAKINI think that's too strong. I mean, there is a letter from 12 members of the Texas delegation in the House basically saying we have to have a national exchange. Because if we do these state-based exchanges, Texas won't set up the state-based exchange and thus Texans won't get the subsidies.

  • 10:22:32

    HOLTZ-EAKINSo there was a clear sort of division between the House and the Senate as the law developed. There were those in the Senate who felt this incentive mechanism was, in fact, the way to go. They needed to get all the votes. The votes were scarce, if you recall. The House didn't like any of it. They wanted a clear statement that everybody got the money. And this is part of the results. So I don't think you can say there's no evidence. And people have read that record differently.

  • 10:22:56

    REHMJulie, how easy would a fix be?

  • 10:23:01

    ROVNERWell, there are already people who are talking about a fix if, you know, two years, however many down the line this ends up being upheld, that the federal exchanges cannot provide subsidies. One of them that people keep mentioning is that the states could simply contract with HealthCare.gov, the federal exchange. So the state would basically set up, you know, a paper exchange and then let the federal government do it, that that might be one route out, although that would presumably be litigated also.

  • 10:23:28

    ROVNEROne of the arguments is over how many of these state exchanges are real state exchanges? We've got a couple of states, Idaho and New Mexico, that created exchanges but let the federal government run it, at least at the beginning. That's why you sometimes see number 34 and sometimes 36 because of these two sort of hybrid exchanges. And you've got seven what are called partnership exchanges. The court didn't say, you know, what actually qualifies as a state-established exchange.

  • 10:23:53

    DIONNE JR.Well, could I just...

  • 10:23:54

    REHMGo ahead, E.J.

  • 10:23:55

    DIONNE JR....two things. One is, first of all, let's be clear. I think the likelihood, and I believe Rick Hasen agrees with this, is that in the end this is all going to go away. I really do believe that even though the D.C. circuit court is unusually reluctant to overturn panel decisions, in this case in order to get rid of the conflict of the circuits, they are going to take the case. Then you will not have a Supreme Court case.

  • 10:24:21

    DIONNE JR.Secondly, I think Justice Roberts and a couple other conservatives on the court will be very reluctant to go against the Chevron decision that says, when the statute is ambiguous, and at best the statute here is ambiguous, they go with the -- they let the agency rule. But just on Doug's point, I don't -- the states that were worried their governors wouldn't take it, came along with this suggestion. And there was no question. The Senate said yes, we will put the national exchange in there. There was no talk of incentives.

  • 10:24:55

    DIONNE JR.And Judge Edwards, in his descent, says this claim is nonsense made up out of old cloth. There is no credible evidence in the record that Congress intended to condition subsidies whether a state as opposed to HHS establish the exchange. And I just think that's true.

  • 10:25:11

    REHMAll right. Rick Hasen, do you want to jump in here?

  • 10:25:14

    HASENWell, I think I mostly agree with what E.J. said about this is not -- first of all, there's not going to be a congressional fix. I think that's pretty clear. Congress is so polarized. And many of the states, most of the states that are saying no they don't want to set up a state exchange, they're not going to be looking for a way to save this and, you know, joining this federal exchange. So I don't see a political fix. I see it ending in the courts.

  • 10:25:38

    HASENBut I think E.J.'s really asked the interesting question. If there's no split, will the Supreme Court take the case? One of the interesting things is although you have five conservatives on the Supreme Court, you only have really two, Scalia and Thomas who are committed to this kind of textualist analysis which, you know, really won't look at legislative history and is really very narrow. And it's not clear that Roberts, Alito and Kennedy would go along with that. So it's not clear that the court would divide on party or ideological lines if it does go to the Supreme Court.

  • 10:26:12

    REHMDouglas.

  • 10:26:13

    HOLTZ-EAKINSo I would agree with Rick and E.J. in that I fully expect the D.C. court to overturn this, right. I mean, that was the whole point of packing the D.C. court. I don't think that means that you're guaranteed not to have a split. There are more cases floating around out there, one in Oklahoma, one in Indiana. We could yet again see this come up. And I think then the Supreme Court would be obligated to take this up.

  • 10:26:38

    HOLTZ-EAKINAnd so I fully expect this to end up at the Supreme Court. When, we just don't know. As Julie has pointed out, in between it won't mean anything other than the theoretical argument and the finger-pointing over the Affordable Care Act will continue, and that's that.

  • 10:26:51

    REHMExcept confusion on the part of the public.

  • 10:26:54

    HOLTZ-EAKINI 100 percent agree, yes.

  • 10:26:57

    REHMAnd that's the toughest point, Julie.

  • 10:27:00

    ROVNERThat's right. I mean, you know, this now gives opponents of the law the ability to go out and say in these 36 states, 34 states, however many we're counting, these subsidies that you're getting might be illegal. I mean, immediately yesterday after the ruling there were questions. It's like, well, would this apply retroactively? Would people have to give their subsidies back who've not been getting them for the better part of a year?

  • 10:27:19

    REHMExactly, yeah. Right.

  • 10:27:22

    ROVNERSo yes, it does -- it adds a layer of confusion and it will not -- you know, whether or not the Supreme Court takes the case will not be resolved quickly.

  • 10:27:29

    DIONNE JR.Which is the problem with judicial activism. I mean, if I can go farther probably than Rick would go, I think it's very clear that you have a lot of...

  • 10:27:39

    HASENOf course you will, E.J. That's what you do.

  • 10:27:40

    DIONNE JR.Well, I hope so. Although maybe Rick agrees with this. I really think you're seeing in the courts an effort by conservative jurists who say, well, if we lose in the Legislative Branch, we are going to figure out some way to win in the Judicial Branch. Because again, I think that this is such a tortured reading of the law. And just Doug mentioned the packing of the D.C. circuit. That might also be called filling normally occurring vacancies, which is what the president...

  • 10:28:12

    REHMDo you believe that the D.C. court's judgment was an effort to gut the Affordable Care Act?

  • 10:28:22

    DIONNE JR.I believe that and so did Judge Edwards that said, or who used that very word, gut.

  • 10:28:27

    HOLTZ-EAKINSo let's be clear, the majority said, we understand the implications. It's not something we want to do. We feel compelled to issue this ruling because the congress spoke and we -- in those circumstances it is not up to an administrating agency to implement a rule. The congress has spoken.

  • 10:28:45

    REHMRick Hasen.

  • 10:28:46

    HASENI think I disagree with both of them. What I'd say is that -- because E.J.'s making it sound as though this was a political partisan decision by judges who were looking for a way to gut the Affordable Care Act. I think the causation is a little more insinuating. And what really happens is Republican presidents nominate judges who read the laws in a narrow textualist way. Not all of them but many of them. And that produces results like the result we got from the D.C. circuit.

  • 10:29:13

    HASENI don't think these judges are consciously trying to decide for their party, just like I don't think that Judge Edwards was trying to decide as a Democrat. I think they have different worldviews. They were chosen in part because of those worldviews and we end up with this kind of split. And we see it all across the law, not just in health care.

  • 10:29:31

    REHMJulie.

  • 10:29:31

    DIONNE JR.Rick, I didn't say party, I said ideology and I think that's key. They -- it happens that ideology and party coincide these days but I think that there is, when you look at what textualism or originalism leads to, in about 80 percent of the cases or some large percentage, it leads in precisely the political direction that the justice would pick if they just made a political decision.

  • 10:29:54

    REHMJulie.

  • 10:29:54

    ROVNERRegardless of how the judges ruled or how they came to their conclusion, I think it goes unquestioned that the point of the lawsuit being filed was to gut the law, that there was political motive to filing the lawsuit in the first place.

  • 10:30:09

    REHMYou know, I go back to the public perception of what's going on here. Here's an email from Tony in Tamarac, Fla. who says, "I fear we're entering an era where more than ever principles are being jettisoned in favor of results. Once we have laws that do not mean what was written, we're on the road to the end of the Republic. It's shameful that court decisions can be predicted by party affiliation. We cannot abandon our system of separation of powers just to get a result we want," Doug.

  • 10:30:58

    HOLTZ-EAKINI certainly would say that the courts are one thing but I would say exactly the opposite is true in congress, which is why we can't get this solved. There there's been a recent unwillingness to come to principle compromise to actually achieve a result. And instead any deviation from a strong set of principles is viewed as surrender and unacceptable. And as a result we have this divide and logjam in congress. So I don't know how you want to characterize this era but it's certainly not very functional

  • 10:31:25

    DIONNE JR.But the irony to that is the ACA is itself a compromise, that what most Democrats and liberals wanted was something much closer to a single-payer system, much closer to, you know, Medicare for all. And they said, all right, we know that Republican conservatives want a couple of things. They want to preserve the private health insurance market, which this law does, and they want to give as much authority to the states as they want.

  • 10:31:51

    DIONNE JR.So rather than just set up one national exchange they said, okay, let's set up these state exchanges. Every single aspect of the liberal effort to compromise has been turned into a boomerang against liberals trying to kill this law.

  • 10:32:07

    REHMRick Hasen.

  • 10:32:08

    HASENI want to go back to what Doug said about the polarization of congress. And it really -- the big change now and the broader picture here beyond health care is that it used to be that Congress all the time reversed statutory decisions of the courts, even the Supreme Court. Unlike a constitutional decision which is really fine unless we amend the constitution, when it comes to the meaning of statutes, congress has the last word.

  • 10:32:34

    HASENBut I did a study a few years ago and I found that the number of times that congress now overturns the Supreme Court has fallen to almost nothing. There are almost no overturns. And the few times when something overturns it's when you have one party in control. And so that's a big change from the past. It gives courts a lot more power.

  • 10:32:56

    REHMAnd you're listening to "The Diane Rehm Show." Let's open the phones, 800-433-8850. Let's go first to Eric in Dallas, Texas. You're on the air.

  • 10:33:13

    ERICGood morning, Diane and guests.

  • 10:33:14

    REHMHi there.

  • 10:33:16

    ERICYeah, it's certainly an interesting question between what the law reads and congress's interpretation. But if I was the Republican Party I might want to step back a little bit and watch the law potentially fail on its own, because in Texas I got a plan under the exchanges from Blue Cross. I was pretty excited to get it. I was one of the first to sign up, didn't have any problems with the marketplace. And now I have a plan where I really can't find any doctors and I can't go to a specialist. I can't even go to a specialist for an eczema problem because nobody will take it. They say, ah, we don't take Obamacare.

  • 10:33:59

    ERICAnd I've seen a couple stories on NPR where emergency room visits are out even under the Affordable Care Act because we can't go anywhere, but the emergency room. And...

  • 10:34:13

    REHMNow, Julie, is that because Texas has not signed on to the Affordable Care Act?

  • 10:34:22

    ROVNERNo. This is because a lot of companies were faced with the idea we're going to have more -- we're going to have sick people coming in. We're going to have, you know, more expensive plans. One of the ways they save money is by having something called narrow networks. So these plans are different from plans that a lot of people are used to and they...

  • 10:34:37

    REHMAnd narrow networks are less expensive?

  • 10:34:40

    ROVNERYes, because they're going to drive -- they're going to try to drive everybody to just a few providers. And they cut deals with those providers. But in some cases we have seen it becomes extremely difficult to then find someone who takes your insurance. And this is something that the federal government is looking at, that's states are looking at, whether some of these networks have actually gotten too narrow. But yeah, there are -- it's the first year. There are a lot of bumps with a lot of these plans.

  • 10:35:00

    REHMSure. E.J.

  • 10:35:02

    DIONNE JR.Eric said, you know, a doctor said I don't take Obamacare. Let's be clear. There is no such insurance as Obamacare. Obamacare facilitates the purchase of private insurance. And Julie described the problems very well, but I want to salute Eric on one thing which is, this is a political question. And if Eric wants to go out there and campaign and say, let's politically repeal Obamacare, that is his right under the Constitution of the United States. And to use a technicality the way the majority did on the D.C. circuit on this panel to try to avoid the law, that's not the way forward. Let's keep arguing about it. If it works it works, and if it doesn't, we will eventually repeal it.

  • 10:35:42

    REHMAll right. To Jerry in O'Fallon, Mo. Hi there, you're on the air.

  • 10:35:48

    JERRYGood morning. First of all, I would like to remind one of your guests that the term packing the court applies to actually adding seats, as Franklin Roosevelt did, to the Supreme Court room...

  • 10:35:58

    DIONNE JR.Thank you, sir.

  • 10:36:01

    JERRY...not filling existing vacancies, which the Republicans have done in previous administrations. I think if I were a Republican I would be kind of on thin ice at this point because as this goes on -- I guess I'm taking the opposite tag of the previous caller -- people I know that now have insurance in Missouri, which doesn't have an exchange, are going to be getting benefits that will be taken away. And I think you're going to see kind of an opposite effect of people saying, you know, I can no longer afford insurance because of this decision.

  • 10:36:33

    REHMAll right. Julie, do you want to comment?

  • 10:36:36

    ROVNERYeah, I mean, you know, this was the other immediate thing yesterday when the reaction is, you know, how might this play politically.

  • 10:36:42

    REHMExactly.

  • 10:36:42

    ROVNERAnd the answer is, now that the law is -- I mean, we saw in 2012 when Justice Roberts basically saved the law, it had been -- much of it was in effect but obviously not sort of this big piece with people actually going out and getting insurance. The idea of actually taking this away could be not necessarily the politics that those who filed the lawsuit anticipated.

  • 10:37:01

    REHMDoug.

  • 10:37:02

    HOLTZ-EAKINI think the political fallout is going to be complicated. I mean, the first thing it does, no question, is it reenergizes the debate over Obamacare at all. And that actually helps Republicans on average. The second thing it's going to do is raise again the specter of executive overreach which Republicans have tried to use very successfully against the president and hurts Democrats in election year. But after that when it's whose fault and how do you fix it, it doesn't cut so cleanly.

  • 10:37:25

    REHMAll right. Short break. We'll be back with more of your calls, your email. I look forward to speaking with you.

  • 10:40:01

    REHMAnd welcome back to our discussion once again of the Affordable Care Act. Two conflicting court rulings that now leave consumers a little bit unsure. Here's an email from Alison in Fulton, Maryland who says, "we seem to be focused on the law and politics, but do the judges think about the people whose lives this will affect? How can the Republican Party be happy that 5 million Americans could lose health insurance? How could this be good for Republicans and, second, how might this impact the general economy and health insurance companies?" Doug?

  • 10:40:57

    HOLTZ-EAKINWell, I certainly think the courts are aware of what they've done. I mean, again, if you read the majority opinion of D.C. court, they know this is a big deal. They know it's going to affect very many Americans who would lose their subsidies and they're not all happy about that fact. As far as the Republicans, this has never been a fight about whether people should have insurance.

  • 10:41:16

    HOLTZ-EAKINIf you go back to the beginnings of the healthcare debate, the 2007, 2008 campaign, the legislative debate, there was agreement there should be better affordable insurance options for every American. There should be healthcare that had higher quality at lower costs and the fight was about...

  • 10:41:29

    REHMBut they didn't offer a plan.

  • 10:41:32

    HOLTZ-EAKIN...the fight was about how to get there.

  • 10:41:33

    REHMYeah.

  • 10:41:33

    HOLTZ-EAKINAnd they still have an obligation to get there. I don't think anyone should be confused about that. But you shouldn't confuse that with we don't want people to have health insurance. I don't think that's fair.

  • 10:41:42

    REHME.J.

  • 10:41:43

    DIONNE JR.First of all, we have all run into people in our lives who say I really hate to do this, but I have no choice. So I don't know how you read the language in that decision, but let's take them at their word. I think that this raises the fundamental issue of how people feel now about Obamacare compared to how they did before, that we discussed earlier, and that's what we have elections for.

  • 10:42:08

    DIONNE JR.And I think we're gonna have a really interesting case in Kentucky where Mitch McConnell has been one of the leaders in trying to repeal Obamacare. Kentucky has been one of the quite successful states in getting insurance to a whole lot of people. Repealing Obamacare means taking insurance away from a lot of Kentuckians and we're gonna find out is live political...

  • 10:42:29

    HOLTZ-EAKINAnd then giving it to them in another way, which is the difference between a political statement, which is I want to repeal it and claim that that means people never have insurance again.

  • 10:42:36

    DIONNE JR.But there has been...

  • 10:42:38

    HOLTZ-EAKINRepublicans have consistently said, they're going to repeal and replace with a system they like better.

  • 10:42:42

    DIONNE JR.But they have not come up with any replacement. And they keep telling us, as you know, Doug. You would -- I have full confidence that if you were in Congress, you'd put up a plan that we could argue about right here. The fact is that we have not seen such a plan. They promised it and promised it and can't come up with it.

  • 10:42:58

    REHMAll right. I'm going back to the phones to Diane in Norman, Oklahoma. You're on the air.

  • 10:43:05

    DIANEYes. Thank you for taking my call.

  • 10:43:07

    REHMCertainly.

  • 10:43:07

    DIANEThe new healthcare program has saved my family in actual hard cash every month, $1350 a month, that last December we were paying out and we now are not paying out that much for the same health coverage. And what I'm thinking is if they win, this is going to literally drive me to the streets to campaign against every Republican in the state of Oklahoma.

  • 10:43:41

    REHMJulie.

  • 10:43:41

    ROVNERWell, you know, the one thing that is now being seen is that there are a lot of winners from this law. You know, we kept hearing about all the losers, the people who lost their insurance, but we now know, as Doug said, there are other estimates that there are somewhere in the neighborhood of 5 million people getting these subsidies. The subsidies tend to be very large, 80 or 90 percent in many cases.

  • 10:44:01

    ROVNERIt would be a lot of people who would their insurance.

  • 10:44:05

    REHMAnd to Warren in Del Ray Beach, Florida. You're on the air.

  • 10:44:10

    WARRENThank you. It's pouring outside. It's more like Dull Ray Beach, Florida. I am listening to this. And I lived in England. My mother was English, everyone, and of course, what they have over there is better than anything we have here. This is a great country for medical care or anything else if you're fabulously rich. I think that -- well, for one thing, what we have -- don't call them exchanges.

  • 10:44:40

    WARRENIt's a fancy name. They're bureaus. They're marketplaces. They're not exchanges. I also deplore the term Obamacare. I think that anyone who wants to repeal the Affordable Care Act should be compelled -- this is the politicians also, Diane -- to declare before the world, I want to repeal affordable medical care.

  • 10:45:08

    REHMAll right, sir. Thanks for your call. Julie, do you think that's what's going on here?

  • 10:45:14

    ROVNERThat...

  • 10:45:16

    REHMPeople want to simply overturn, throw out, the Affordable Care Act.

  • 10:45:23

    ROVNEROh, well, that was certainly, you know, the motivation behind filing the lawsuit was to do as much mischief as possible. And as we pointed out, it would, you know, if this decision yesterday out of the D.C. Appeals Court is allowed to stand, it would do tremendous mischief to the structure of the law. It's worth pointing out, though, you know, this is not the only time Congress has written, you know, in artfully something.

  • 10:45:44

    ROVNERIn fact, that's where this whole chevron standard comes from. It's from another case where it was hard to tell what Congress meant so there's -- and when you read the decisions, there are dozens and dozens of cases where courts are called upon to interpret whether Congress -- whether they meant what they said...

  • 10:45:59

    REHMWhat it said.

  • 10:45:59

    ROVNER...or whether they kind of miswrote it.

  • 10:46:01

    REHMExactly. E.J.

  • 10:46:02

    DIONNE JR.The last two callers saying here's what we have gotten out of Obamacare -- and I agree with the caller, by the way. We shouldn't call it Obamacare, but we're stuck with it and even Obama accepted that. But the last two callers show that there are now a lot of people out there who are getting real benefits under the law.

  • 10:46:19

    DIONNE JR.Nancy Pelosi was much criticized for saying essentially that we won't know the full effects of this until we pass it. Well, now we know and I think we're seeing -- and Doug might even agree with me on this -- that Republicans are making this less of an issue now than they were several months ago. And I think it's because they know full well that there are people out there just like our callers who are actually benefitting from it.

  • 10:46:42

    REHMBut are the court cases going to reignite that whole debate, Doug?

  • 10:46:49

    HOLTZ-EAKINI think, in the end, you know, the president worked very hard to convey the message that it's working. We signed up 8 million people. You can fight about whether that's the right metric for working. It's the law of the land. Let's move on. This undid that in terms of the politics of it and it will reenergize this from now to November for better or for worse.

  • 10:47:07

    HOLTZ-EAKINI think that's a reality. Republicans have, I think, you know, increasingly recognized that they're unlikely to have super majorities in the Senate and control of the House and the ability to dictate healthcare reform and as a result, there have been a lot of different strategies about what to do next in terms of changing this law and getting what they want.

  • 10:47:28

    REHMJulie.

  • 10:47:28

    ROVNERThe Republicans, themselves, have a tremendous split about how to proceed on healthcare. That's why we haven't seen this "replace bill." You know, they kept promising there would be one. There hasn't been one. That's because the Republicans are even more divided, you know. The only thing they agree on is that they don't like the Affordable Care Act.

  • 10:47:44

    ROVNERThey have absolutely no agreement on how they would like to see it replaced.

  • 10:47:48

    REHMAll right. To Houston, Texas, Charles, you're on the air.

  • 10:47:54

    CHARLESGood morning.

  • 10:47:55

    REHMHi.

  • 10:47:56

    CHARLESFirst of all, I'd say I agree with you. It's almost impossible to repeal any welfare act. Once you get people receiving thousands or tens of thousands of dollars in benefits every year, they will become single issue voters and activists and fight tooth and nail to keep it. The people who pay hundreds in taxes to support it, you know, it's just one of their issues.

  • 10:48:23

    CHARLESAnd my real reason I called was I never hear anybody talking about the cost of this thing. How much are we spending to provide these subsidies? How much are we spending on enforcement and administration and the IRS and elsewhere? The second group of questions is, I can see where once we've got Uncle Sugar on the hook to pay for everything, a lot of people are going to do what the nurses are doing.

  • 10:48:56

    CHARLESThey're gonna say, hey, it's time for us to get a raise.

  • 10:48:59

    REHMAll right, sir, thanks for calling. Doug, how much is all this costing thus far?

  • 10:49:07

    HOLTZ-EAKINThis is an enormous expensive initiative and there'll be about a trillion dollars in spending over the next decade in terms of these subsidies and the expansions of Medicaid. There are taxes that have been posed to help pay for it, in part. There are planned cuts to Medicare that are supposed to pay for in part that'll impose different kinds of costs as we change networks and things.

  • 10:49:28

    HOLTZ-EAKINI don’t think you can underestimate that this is a dramatic transformation of the health sector, of the US economy, which is one-fifth...

  • 10:49:35

    REHMAnd on the other hand...

  • 10:49:37

    HOLTZ-EAKIN...and the budget.

  • 10:49:37

    REHM...how much could it save, Julie?

  • 10:49:40

    ROVNERWell, that's -- the Congressional Budget Office has said repeatedly, although they're no longer doing estimates of the entire law because they can't because it's too embedded in what's going on, but they do still say that this part, the exchanges, the subsidies, will pay for itself. The funding mechanisms will pay for it. It will not add to the deficit. They've been fairly clear about that.

  • 10:50:00

    REHMRick Hasen, I know you're going to have to leave us soon. Do you want to jump in here?

  • 10:50:07

    HASENWell, I would just say that the whole discussion here shows that we're very likely facing political paralysis at least until we have another president on this question. And so it just -- when Congress and the president are at odds or when Congress is stalemated itself, it just empowers the courts. And if we're gonna tell courts to interpret statutes that are poorly written, which is what we tell courts to do every day, court's going to have a tremendous amount of power when there are holes and gaps in laws.

  • 10:50:35

    HASENAnd that's what we're seeing here is the empowerment of the courts.

  • 10:50:38

    REHME.J.

  • 10:50:40

    DIONNE JR.Well, I do agree with that in the sense that we, as Rick suggested, used to have Congress coming in when there was a small problem with a law. They'd pass bills called technical fixes where they took language that was not clear and made it clear. So, yes, at the moment, we have that. On the other hand, paralysis is a bit of a strong word because let's take what's in front of us.

  • 10:51:06

    DIONNE JR.If the courts eventually say, all of this from the DC Circuit is wrong, we're going ahead with Obamacare, don't worry about it, we are having a very, very important piece of legislation work its way through our national life. And a lot of people are gonna benefit from it. There'll be arguments about if anybody has costs and then we'll have a Democratic debate.

  • 10:51:28

    DIONNE JR.So I agree with him that where we are now is, at time, depressing, but we're also talking about a great achievement here that's working its way through the system.

  • 10:51:37

    REHMDoug.

  • 10:51:38

    HOLTZ-EAKINOh, E.J., let's be clear about the arithmetic. Someone's paying the cost. This doesn't come out of free so -- and many people are unhappy about that.

  • 10:51:43

    DIONNE JR.Oh, I agree. I'm paying part of the cost and I'm willingly paying part of that cost.

  • 10:51:47

    HOLTZ-EAKINAnd that's a legitimate point of view. So honestly think that, you know, I've said this many times. The Affordable Care Act was the beginning, not the end, of health care reform in the United States.

  • 10:51:56

    DIONNE JR.Yes. I agree.

  • 10:51:56

    HOLTZ-EAKINIt will not survive in its current form. Whether the courts take it apart or a future Congress and president actually pass legislation to make it look different, I think that's inevitable because this is, in fact, too costly for what it accomplishes and it accomplishes too little, quite frankly, on both the insurance and the cost control front. So we're far from done with health care reform.

  • 10:52:14

    DIONNE JR.I agree, but for a different reason. In other words, I think that this was what Senator Harkin, when it passed, called a starter home and that we're gonna be at trying to fix health care for a long time. And I think the Affordable Care Act will be more effective, rather than less effective, but we're still gonna need some fixes.

  • 10:52:31

    REHMAnd you're listening to "The Diane Rehm Show." Julie.

  • 10:52:36

    ROVNERI think both of you are right, but one of the important things that E.J. mentioned is the Congress' inability to do technical corrections. I mean, this is the biggest bill that Congress has passed in decades for which there has not been a series of technical fixes. That's always the tradition. You pass a major law. You find, fairly quickly, things in it that don’t work or don't work as you intended, not even talking about sort of things that were miswritten, but things that actually need to go in and change.

  • 10:53:03

    ROVNERWhen they passed the Balanced Budget Act in 1997, they did what they called, you know, Balanced Budget fix bills, I think three years running, I mean, because, obviously, there were things in there -- it was an enormous piece of legislation and there were things that didn't work the way they intended and so Congress went back and fixed them.

  • 10:53:16

    ROVNERBut as we've pointed out, Congress is so polarized that they haven't been able to do any technical corrections. So this is an enormous change in the health care system to which Congress has basically said, sorry, we can't really help you right now.

  • 10:53:28

    REHMDoug.

  • 10:53:28

    HOLTZ-EAKINI'm gonna agree and just point out that, you know, this technical fix affects about $600 billion in spending over the next decade and as a result, is far from viewed as technical from the opponents of the bill and so they're unlikely to say, oh, well, this is just a drafting issue, we're gonna let it go. The political stakes are too high for that to happen and that's why we got the lawsuit.

  • 10:53:48

    HOLTZ-EAKINI agree. They knew that this was an important weakness and they filed suit to try to take advantage of it.

  • 10:53:53

    REHMBut at the same time, you talk about the spending, if it goes forward, can we realistically expect savings to individuals, to the health care system itself?

  • 10:54:12

    HOLTZ-EAKINSo we can certainly expect some savings for individuals. We heard a caller on there.

  • 10:54:17

    REHMSure.

  • 10:54:17

    HOLTZ-EAKINSome people have very expensive medical conditions and expensive insurance. They'll be better off. It's an open question still whether the health care system as a whole will cost us less relative to our economy and our incomes and whether you can attribute that to the Affordable Care Act. That's an open question right now and a good debate.

  • 10:54:34

    REHME.J.

  • 10:54:35

    DIONNE JR.What was the purpose of the Affordable Care Act? It was to reduce the number of Americans without health insurance. What are we seeing? We're seeing that the number of Americans without health insurance is dropping. I think that's a non-ambiguous fact. We also see that it is dropping especially fast in states that have fully implemented the law, including the Medicaid expansion.

  • 10:54:57

    DIONNE JR.That's what it set out to do. Will there be problems along the way? Of course. There'll be problems in any big piece of social legislation, but I think lowering the percentage of Americans without health insurance is clearly in the common good.

  • 10:55:11

    REHMAll right. One last quick caller. Larry in Charlotte, North Carolina, you're on the air.

  • 10:55:18

    LARRYGood morning. Hello, everyone.

  • 10:55:20

    REHMHi.

  • 10:55:20

    LARRYIt seems to me that this debate and all of the points being made are the inevitable result of the way the bill was passed and that is without any support from the opposition party, in this case, the Republicans. It seems to me that the Democrats took advantage of a moment in time where they had the political power to pass the bill, fair enough.

  • 10:55:46

    LARRYBut now, to profess consternation when they don't get the support that they would like when they try to fix the obvious flaws, seems to me a failing of memory about how this thing came to be in the first place.

  • 10:56:05

    REHMAll right, sir. Thanks for your call. E.J., you're gonna get the last word.

  • 10:56:11

    DIONNE JR.I think all kinds of efforts were made in this bill to have it look like bills proposed years ago by Republicans like the late John Chavey (sp?), Republicans decided they couldn't vote for it or wouldn't vote for it. I don't know how you can put all the burden on the sponsors of this bill when the other side didn't want to go along.

  • 10:56:28

    DIONNE JR.But I hope, just to end on a positive note, that someday we can actually have a constructive debate where instead of talking about repeal, repeal, repeal, we talk about how to make the thing better. That would be awfully good for our republic.

  • 10:56:40

    REHMAll right. We'll leave it there. E.J. Dionne, Douglas Holtz-Eakin, Julie Rovner, Richard Hasen, thank you all.

  • 10:56:50

    DIONNE JR.Thank you.

  • 10:56:50

    ROVNERThank you.

  • 10:56:51

    REHMAnd thanks for listening. I'm Diane Rehm.

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