Congress Planning Legislation After King v. Burwell Supreme Court Decision

By Grace-Marie Turner

Congress is busily making plans for legislative action should the latest challenge to Obamacare prevail in the Supreme Court.

On Wednesday, the justices will hear arguments in King v. Burwell to decide whether the IRS had the authority to write a rule authorizing subsidies to go to millions of people in the 37 states with federal exchanges.

The plaintiffs say the language of the law is clear: Subsidies are allowed in “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.” It doesn’t just say this once, but nine times in various linguistic forms.

That is the point that MIT economist Jonathan Gruber made when he famously said: “If you’re a state, and you don’t set up an exchange, that means your citizens don’t get their tax credits.”

The government argues that it’s just a typo in the law: Congress clearly wanted subsidies to be available to citizens of all of the states, and the IRS therefore had the authority to write its rule.

House Speaker John Boehner and Senate Majority Leader Mitch McConnell each have appointed high-level task forces to come up with legislative solutions should the plaintiffs win.

Sens. Orrin Hatch (UT), Lamar Alexander (TN), and John Barrasso (WY) penned an op-ed for the Washington Post on Monday in which they described their “plan to protect Americans harmed by the administration’s actions” and about giving “states the freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices.”