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Articles by Galen Institute

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Robert Book: King Consequences Go Far Beyond Subsidies June 29, 2015

By Robert Book

Forbes, June 29, 2017

While most of the reaction to the Supreme Court’s decision in King v. Burwell has centered on the political victory for the president and the various winners and losers from the decision itself, a more far-reaching consequence has received much less notice. The legal dispute hinged around whether a law means what it says, or means what someone reading later – say, an admistration official – thinks it must have really meant, or prefers it would have meant. More generally, however, the issue raised is whether laws passed by Congress have to be administered as written, or whether a President can change the law it will in whatever what he or she thinks will be better.

Grace-Marie Turner of the Galen Institute has compiled a list of 51 changes made to the ACA since it was passed. Of these, 17 were made in the “traditional” ways laws are changed – Congress passed a new law describing the change, and the president signed it. Two were made by the Supreme Court in 2012, one on constitutional grounds.

However, 32 of these changes were made solely by the Obama administration announcing it would not implement the law as written. In some cases, the announcements were made through the regulatory process (for example, the additional tax credits upheld in King v. Burwell, but also those extended credits to employees not eligible under the ACA, and delaying the Small-Employer Health Option Program).

 

Continued on Forbes…

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King v Burwell Could Turn On A Surprising Legal Twist June 25, 2015

By Grace-Marie Turner

Forbes, June 24, 2015

A guest post on The Washington Post’s Volokh Conspiracy blog has Washington buzzing about a possible outcome of the Supreme Court decision on King v Burwell.

James Blumstein, University professor of constitutional law and health law and policy at Vanderbilt Law School and director of the Vanderbilt Health Policy Center, explains in his article, “Why the procedural posture of King v. Burwell might matter.”

“The broad implications of the King decision have been front and center for a long time,” he writes. “Lost in these discussions – especially those that have focused on the potential for immediate disarray in state insurance markets – has been the procedural posture of the litigation now pending before the Supreme Court.”

Get ready for some legalese, but this could matter a great deal in the decision: “The lower court (the Court of Appeals for the Fourth Circuit) granted the government’s motion to dismiss the case. A motion to dismiss is premised on the following reasoning: Even if plaintiffs’ facts are correct, their legal claim is unwarranted — there is no legal violation asserted in the pleadings. If the Supreme Court agrees with the plaintiffs’ challenge in King, holding that the IRS regulation is invalid, then the Court can only overturn the lower courts’ granting of the government’s motion to dismiss. Procedurally, that is the only relief that the Supreme Court can grant at this stage.

“Of course, if the Supreme Court rules favorably for plaintiffs’ position, the plaintiffs will win their case – eventually. But some additional procedural steps are needed, and they will take some time.”
Blumstein’s post is worth reading to prepare yourself for a more drawn out impact of the court’s decision. The bottom line: A decision along these lines could give everyone more time to develop a remedy if the court decides the IRS did act illegally in allowing subsidies in federal exchanges.

“This breathing room will give the various players – states, Congress, the Obama Administration, insurance carriers, hospitals and other providers – time to consider next steps; and it will allow for a transition to the next stage without an abrupt change in the insurance status of those currently receiving subsidies but whose subsidies are not legally appropriate under a proper interpretation of the ACA.”

Here is a link to his full article, posted by Jonathan H. Adler who teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law.

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Avik Roy: Conservative Think Tank: 10 Countries With Universal Health Care Have Freer Economies Than The U.S. June 22, 2015

By Avik Roy

Forbes, January 27, 2015

Many American conservatives oppose universal health insurance because they see it as fundamentally antithetical to a free society. “If we persevere in our quixotic quest for a fetishized medical equality we will sacrifice personal freedom as its price,” wrote a guest editorialist in the ]Wall Street Journal in 2009. But according to the Heritage Foundation, a leading conservative think tank, ten nations freer than the United States have achieved universal health coverage. It turns out that the right kind of health reform could cover more Americans while increasing economic freedom.

Today, Heritage published its 2015 Index of Economic Freedom, an annual look at economic liberty around the world. The United States stayed put at #12, just below Ireland, Mauritius, and Denmark.

What’s striking about the list is that of the eleven countries ahead of the U.S. in economic freedom, ten have achieved universal coverage. Many Americans on both the right on the left subscribe to the myth that the U.S. has a free-market health care system. It doesn’t. U.S. government entities spend more per-capita on health care than all but two other countries in the world.

The Swiss and Singaporean models

The two advanced economies with the most economically free health care systems—Switzerland and Singapore—have achieved universal health insurance while spending a fraction of what the U.S. spends. Switzerland’s public spending on health care is about half of America’s, and Singapore’s is about a fifth of ours. If we had either of those systems, we wouldn’t have a federal budget deficit.

Tellingly, on the Heritage Index of Economic Freedom, both Switzerland (#5) and Singapore (#2) rank far higher than the U.S. on overall economic freedom. Both countries serve as models for my health reform plan, Transcending Obamacare, which would adapt features of the Swiss and Singaporean health care systems to liberate U.S. health care from onerous regulations and wasteful spending. We’ve modeled the plan as reducing federal spending by $10.5 trillion over 30 years, while increasing the number of people with health insurance by 12 million.

Continued on Forbes…

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Meghan McCarthy : Block Grants Are Potential GOP Solution After King v. Burwell June 8, 2015

By Meghan McCarthy

Morning Consult, June 7, 2015

Republicans in Congress have repeatedly promised they will have a plan if the Supreme Court rules that an estimated 6.4 million Americans can’t get health insurance subsidies from the federal government.

Though the GOP has not reached a consensus – and few if any details are discussed in public – there is plenty of activity behind the scenes, as disparate groups in the House and Senate work to at least unify around an opening bid.

Many of the “just-in-case” plans for a Supreme Court ruling against the Obama administration focus on how replacement subsidies should be structured so people don’t end up owing insurers hundreds of dollars. The court’s decision on the case, King vs. Burwell, is expected around the end of the month.

But there’s another potential plan that’s getting serious consideration on Capitol Hill, according to multiple GOP sources. It is designed, in part, to carry along reluctant Republicans who want a repeal of Obamacare and nothing more. Mirrored off of CHIP, a popular federal health insurance program for children, the plan would largely end the federal government’s role as an insurance regulator and give that power back to the states—along with a chunk of money to spend as they see fit on insurance coverage.

It’s unclear if the proposal will make it into a final bill. Senior lawmakers are rumored to have sent early packages to the Congressional Budget Office for initial scoring, but leaders in the House and Senate have said they won’t reveal any plans until after the court issues its ruling.

“We’re certainly going to have a plan for our view of what needs to be done to protect the American people in the wake of this really terrible bill,” Senate Majority Leader Mitch McConnell (R-Ky.) said in an interview with Morning Consult on Thursday.

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