Post King Vs. Burwell: Now What?

By: Sara Rosenbaum

Despite its monumental achievement, the Affordable Care Act (ACA), like any landmark piece of legislation, was only the beginning. Its aim was grand, but even putting aside the wild circumstances of its enactment, it was evident that effective implementation would raise major challenges. A plausible assumption shared by many was that following the ACA’s legislative odyssey, life would settle down and the hard job of building out (and modifying where needed) its initial legislative scaffolding would get underway.

Things didn’t work out this way, of course. Since it was signed into law, the ACA has faced an unprecedented attempt at legislative nullification: in Congress, with more than 50 separate repeal votes; through a pileup of ongoing legal challenges in the courts; through a “50 vetoes” state strategy involving refusal to establish Exchanges and denial of the Medicaid expansion once the option became legally available in the wake of National Federation of Independent Business (NFIB) v. Sebelius; in the court of public opinion, through endless polls asserting a deep hatred of the law; and even in the ACA’s “Obamacare” moniker, an inherent sneer. (Who can blame the Administration for its ultimately unsuccessful effort to embrace and thus neutralize the name?) The demise of the law could not have been better scripted.

And yet the Affordable Care Act has prevailed. Five years after passage, it has succeeded in covering over 30 million Americans and has reduced the percentage of uninsured Americans by 20 percent from its 2010 high. The ACA has spawned a wide array of efforts to improve the accessibility, quality, and efficiency of health care. Primary care has been extended to an additional 5 million residents of the most severely medically underserved urban and rural communities. Efforts to transform Medicaid into a full pillar of health reform proceed steadily, through a combination of eligibility expansions and initiatives aimed at improving how care is organized, delivered, and financed.

In his Health Affairs Blog post on King, Tim Jost notes the lawsuits that await resolution. But the Court’s decision in King is an undeniable watershed. The Court’s opinion took far too long to emerge from behind the velvet drapes. But it amounts to a total legal refutation of the single greatest challenge to the ACA’s ability to function—a challenge that actually argued that Congress intentionally designed the law to fail—just as NFIB represents the most important test of the law’s basic constitutionality.

This is not to say that the war over health reform is over. It probably wouldn’t be summer were opponents not to try to wrap either an outright or a de facto ACA repeal effort inside an FY 2016 budget reconciliation bill. CBO’s estimated cost impact of repealing the law, between $137 billion and $353 billion depending on whether macroeconomic effects are accounted for, would seem to make such an effort impossible unless Congress were to set aside its own legislative process, which it always has the option of doing; alternatively, Congress could cobble together deep cuts in Medicare and Medicaid to come up with the necessary funds to pay for a repeal. (Such a bill surely would be vetoed, probably to many Republicans’ relief.)

Of course, the King decision is sure to give an added boost to efforts by Republican Presidential candidates to run campaigns based in large part on an ACA repeal, while forcing Democratic candidates to once again commit time and resources to a defense of the law. No matter how much the general public may tire of this process—especially as the law touches more and more families—and want to move on, the topic of ACA repeal will remain a staple of the political landscape.

But at some point, rage has to abate and the changes envisioned under the ACA have to be either overtly or tacitly allowed to become part of the basic legal fabric of the American health care system. Maybe that time is now finally approaching.

The Work That Remains:

Read More at Health Affairs Blog