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Will conflicting federal health care law rulings head to the Supreme Court?

July 22, 2014 at 6:38 PM EDT
The federal court of appeals based in Washington ruled that the Affordable Care Act does not allow policyholders who get insurance through the federal exchange to qualify for subsidies. A separate ruling, issued hours later by a federal appeals court in Virginia, said federal exchanges policies do qualify. Gwen Ifill talks to Julie Rovner of Kaiser Health News and Tom Goldstein of

GWEN IFILL: Now conflicting court rulings on the health care law.

The federal court of appeals based in Washington ruled today that the law doesn’t allow policy holders who get their insurance through the federal exchange to qualify for subsidies that would reduce the cost. But a separate ruling, issued hours later by a federal appeals court in Richmond, said those getting policies through the federal exchanges do qualify for the subsidies.

The rulings come down to different interpretations of the same passage of the law. Congress said if a state didn’t create its own insurance exchange, the federal government should. But the law also reads that subsidies be provided by — quote — “an exchange established by the state.”

Just 14 states, plus the District of Columbia, created their own exchanges. Five million enrollees now receive subsidies through the federal exchange.

So, what do these conflicting rulings mean for the future of the health care law?

For that, we turn to Julie Rovner of Kaiser Health News and Tom Goldstein, founder of

Let’s go back to the root of this challenge, Julie. Why did this come up?

JULIE ROVNER, Kaiser Health News: Well, because people who opposed the law found this, what appeared to be a drafting area, saying that subsidies were only available in the state-based exchange, and decided that they would sue over it to perhaps get another bite at the apple of trying to invalidate or really kind of make a mess of the rest of the law.

That’s what this comes down to. It’s whether or not this was a mistake or whether this was something that Congress intended to do when it wrote just that — just that one sentence about…

GWEN IFILL: And the whole point of these subsidies was to put the A in affordable care, right?

JULIE ROVNER: That’s exactly right.

And if this were to go away, there’s an estimate out now that about five million people would see premium increases of about 76 percent. Most of the people who are buying insurance on the exchanges are getting subsidies. Those subsidies are fairly large.

If the subsidies were not available, then basically insurance would become unaffordable and the individual mandate, the requirement for people to have insurance, does not apply to people for whom insurance is unaffordable.

GWEN IFILL: Now, Tom, the D.C. court ruled today that theirs was an unambiguous reading of the law, but yet this other reading of the law seems to open the whole thing to ambiguity.

TOM GOLDSTEIN, Yes, that’s right.

It’s shocked everyone, I’m sure, that this huge, sweeping law that takes up thousands of pages might not be perfectly clear to everyone. What the court of appeals in Washington today said is, the language says a state-created exchange. And even if it wouldn’t make a ton of sense necessarily for Congress to say part of the country has subsidies available to it and a large part of the country doesn’t, that’s the law that Congress wrote, and our job is just to enforce it.

The court of appeals in Richmond said, this statute is a mess. There are things that point in different directions about what Congress wanted. And because it’s unclear, it’s the administration’s job to figure it out.

GWEN IFILL: So, Congress was the one that opened the door for this kind of a challenge?

TOM GOLDSTEIN: Yes, absolutely.

Congress did say when there were supposed to be subsidies, but it’s just although unclear whether it literally meant only a state-created exchange or if instead it meant, if you buy your health care through the exchange and you can’t afford health insurance, we will help you out.

GWEN IFILL: So, if the first ruling were to stand, Julie, we’re assuming that it would — the only way to address it would be for every state to set up its own exchange, instead of relying on the federal one.

JULIE ROVNER: That would be the idea, that there — and there is a lot of discussion already about states could do that.

In some states, though, they actually passed constitutional amendments barring them from creating their own exchanges. You remember a lot of these states run by Republicans really want nothing to do with this law.

GWEN IFILL: Are there other ripple effects that affect other parts of the law as well?

JULIE ROVNER: Yes, it actually also affects the employer mandate, the requirement for employers to provide insurance, because that’s actually tied to the subsidies that individuals get.

The way the employer mandate works is, it says that employers only have to pay a fine if one of the — if they don’t offer insurance and one of their employees goes to the exchange and gets a subsidy. So, if there’s no subsidy, then there’s no way to enforce the employer part of this either.

GWEN IFILL: Tom, it seems that we have seen enough challenges now to the health care law, including the part that was upheld by the Supreme Court, and the Hobby Lobby decision about contraceptive coverage that we saw decided in the final days of the court. It seems like death by a thousand cuts?

TOM GOLDSTEIN: Well, so far.

GWEN IFILL: Or attempted death by…

TOM GOLDSTEIN: Exactly right.

There are certainly a lot of people who are very critical of the law. They have brought very sophisticated legal challenges. The statute has been upheld, by and large. This is the single greatest threat to the reach of the statute, to the attempt to help a lot of people be able to afford health care through insurance.

But it is a part of the law that people find offensive in many parts of the country because they don’t want the federal government so involved. It’s probably going to be up to the Supreme Court, just like the last major challenges.

GWEN IFILL: Are there other challenges in the pipeline, Julie?

JULIE ROVNER: There are a couple at lower courts. It’s not entirely clear that this would produce a requirement for the Supreme Court to take the case. The administration is going to appeal to the full appeals court in D.C.

GWEN IFILL: Tell me how that process works. We’re talking about two different courts and two different circuits today, and then what?

JULIE ROVNER: Well, right now, immediately, this was a three-judge panel of the court of appeals. And they will appeal to the en banc, to the entire appeals court. And generally there are more Democratic appointees than Republican appointees there.

There is at least a perception that it’s likely to be reversed by the full appeals court. And then you would have basically two appeals courts having ruled and not disagreeing. So, in that case, the Supreme Court would not have to take the case, but not clear whether they would.

GWEN IFILL: Well, explain. Remind us again, Tom, the way this works. The court then — at what point does the court have to decide whether it would intervene in this?

TOM GOLDSTEIN: Well, someone has to ask. So the plaintiffs who lost in Richmond today are inevitably going to ask the Supreme Court to step in.

The government could go straight to the Supreme Court, but the White House said today that it’s going to ask the full court of appeals in Washington to hear the case. So, we’re probably a year to 18 months away from getting a final answer. The Supreme Court could stay out.

I think it’s a little bit more likely that they will just say, this is so important and there will be enough people on the court, enough justices who are concerned about this issue, that they will decide to take it up. But it’s an open question.

GWEN IFILL: Why would this be as important or more important than any of the other challenges we have seen so far? Why would the court feel compelled? You don’t think the court would be compelled?

JULIE ROVNER: My guess would be is that if there’s no split in the circuits that the court wouldn’t really want to go back and revisit this again, unless they think they could change the decision that they got in 2012.

GWEN IFILL: The most immediate question, however, Julie, for people who are watching this tonight is, how does this affect me?  If they have their employer-covered insurance, it doesn’t affect them at all?


And actually, even if they have subsidies in the federal exchange states, it doesn’t affect them immediately. The way the rules work in the D.C. circuit is that they don’t even send the requirement back down to the district court, which is who would actually implement this, for 45 days to give the government full time to appeal to the full appeals court, which we know that the government is going to do.

So, obviously, this is not going to happen right away. It would be a very long time before people would actually start losing their subsidies that they’re getting now.

GWEN IFILL: And potentially how many people are we talking who would be affected by these rulings?

TOM GOLDSTEIN: Five million.

GWEN IFILL: Five million who are currently in the federal exchange.

TOM GOLDSTEIN: That’s exactly right.

GWEN IFILL: But are there others who are lined up?  Do we know how many people — there was so much discussion about who was registering at what pace for a long time there, but do we know if there are others who will also be affected?

JULIE ROVNER: As more people would join the federal exchanges, obviously it would affect more people.

I have seen some numbers that go into 2016, so it’s everybody who is getting the subsidies now and everybody who’s potentially eligible in those 36 states where the federal government is running the exchange.

TOM GOLDSTEIN: And then we have all the employers, as you mentioned, who wouldn’t be subject to the mandate that’s going to come into effect in the future that they provide health insurance, because none of their employees would be getting subsidies in those states.

GWEN IFILL: Is there a timetable for the courts to act again?

TOM GOLDSTEIN: No, the court of appeals can take its time in deciding whether to have the whole court hear the case. Most likely, everyone is sensitive to the question of whether it will go to the Supreme Court. I think you’re looking at 18 months is the best guess for when we will have a final answer.

GWEN IFILL: Oh, good. Oh, joy. Can’t wait.

Tom Goldstein of SCOTUSblog, Julie Rovner of Kaiser Health News, thank you both very much.

TOM GOLDSTEIN: Thanks so much.

JULIE ROVNER: Thank you.