Annals of Derp: A long standing disagreement

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As the plaintiffs in King v. Burwell seem to melt gradually away, since none of them seem to be elegible for the Obamacare programs they are protesting against being forced to join—

the lead plaintiff, David King, served in the Army during the Vietnam War, likely making him eligible for free insurance from the Department of Veterans Affairs. A second plaintiff, Doug Hurst, is also a Vietnam veteran, his wife has indicated. A third plaintiff, Rose Luck, has faced questions from the government as to whether her low income makes her liable for the tax penalty under Obamacare for failure to have insurance. The fourth plaintiff, Brenda Levy, turns 65 in June which makes her eligible for Medicare, exempting her from the mandate.

—it comes into question whether the Supreme Court will have to make a decision on the case at all. They can easily just throw it out because none of the plaintiffs have standing to sue, and leave the legal questions to be argued when some better case comes along, although it's hard for me to see how that happens. (I hope they don't dodge it this way and judge the thing quickly on its lack of merit, but still.)

A true plaintiff has to be somebody who qualifies for a health insurance plan under the Federal Marketplace exchange operating in a state like Virginia that doesn't have its own state exchange and also for the government subsidies that get your premiums down in many cases to under $100 a month, and who complains that she or he doesn't want the subsidy. They'd rather not buy insurance at all than receive a subsidy because why?

Because section 1401 of the Affordable Care Act doesn't say that their subsidy is legal. It only says clearly that the subsidies are legal for residents of the state-established exchanges described in section 1311, and doesn't mention the federally established exchanges described in section 1321, which might mean Congress didn't want them to have the subsidies, though nobody who was in Congress at the time seems willing to say they didn't.

They are requesting the Court to deny them the subsidies that the government is totally willing to give them, so that they will not be able to pay for the insurance and be forced to pay the fine instead. Or will be, if the anti-ACA lawyers ever manage to find anybody who actually feels that way, which seems vanishingly improbable to me. They clearly haven't managed to do it yet; they have only found four people to whom the law doesn't even apply.

But of course the conservative heart beats in the constant hope of defeating this monstrous plan to force people to have adequate health care, and they're not giving it up just yet. Indeed, some farsighted Republicans have suddenly started wondering what happens if the dog finally catches that car and six million people wake up the next morning with health policies they can't afford. And worst of all, as Grace-Marie Turner (Galen Institute) and Diana Furchtgott-Roth (Manhattan Institute) note in today's Times,

If fewer people are enrolled and new enrollments decline, premiums will rise, leading to the breakdown of the exchange markets.

It's not just the people that will suffer—it's the markets, too! God forbid!

So what Turner and Furchtgott-Roth propose is that, first, Congress quickly pass legislation to permit people to have their subsidies for the rest of the year, and then,

beginning in 2016, instead of subsidies to individuals, the 37 states without exchanges could receive a new, capped allotment from the federal government that we call health checks. States could use the allocation to provide immediate premium assistance to people affected by the court decision, and similar checks could be extended to others who would need insurance afterward.

It's one of those beloved block-grant programs, intended to turn the Affordable Care Act into a voucher system of "premium support", just like the one Paul Ryan tried to turn Medicare into four years ago (without success). You could put them on smartcards, like the food stamps and the CHIP and whatnot.

This might sound like the same subsidies by a different name, but one advantage would be that health insurance policies supported by health checks would not be subject to the Affordable Care Act’s mandates, taxes, insurance rules and benefit requirements.

Oho. That is, in English, it would be the same subsidies under a different name, but all the rest of the ACA would vanish, so that insurance companies could go back to 20% premium increases and substandard benefits.

Only—and this is where Turner and Furchtgott-Roth may not have been thinking things through all that systematically—only for two thirds of the states. The ACA mandates, taxes, insurance rules, and benefit requirements would all survive in California and Washington and New York and Massachusetts and Minnesota and Colorado and Kentucky.

Of course, in reality, should the court decide against the Affordable Care Act, there are other options. Some supporters of the law are encouraging President Obama to simply declare existing federal exchanges to be state exchanges or license them to the states — a move that would further complicate an already ungainly law and already frayed executive-congressional relations.

Yes, and you think your solution, with two distinct and incompatible but equally complex ACAs for different parts of the country, would be gainly?

I wouldn't count on that.

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