Section 1311 of the Affordable Care Act grants “an Exchange established by the state” authority (to issue subsidies), but doesn’t mention an Exchange established by the federal government.
HealthCare.Gov is an exchange established by the federal government, on behalf of the states. The federal government, under the power of the HHS secretary, is given authority to do pretty much everything related to exchanges, however it’s never expressly given power to issue subsidies in the PPACA.
- Section 1311 of the Affordable Care Act gives “an Exchange established by the state” authority to enter into an agreement with an eligible entity to carry out 1 or more responsibilities of the Exchange.
- Sec 1401 uses that authority to grant subsidies.
- Later rulings by the IRS clarified that this includes an exchange established by the federal government on behalf of the state.
- The lawsuit states that the IRS didn’t have the authority to do this.
- A simple fix would be congress amending the law to include something to the effect of “or the federal government” to section 1311.
- Failure to provide a fix could jeopardize subsidies for millions if the court rules in favor of King.
- Oral arguments begin March 4th. A ruling isn’t expected until June.
This is the key to understanding King V. Burwell, the upcoming supreme court case which begins hearing arguments this week. Please note, there are a number of other related lawsuits which all charge the same thing.
No matter what side of the isle you stand on, the technicality referenced 9 times in the 955 pages of the compilation of the PPACA, could be the Achilles heel of health care reform in the united states.
Given it’s importance, go ahead and open up the compilation of the PPACA and do a command find for “an Exchange established by the State”. How do you think this should be interpreted by the courts?