Former House Speaker Nancy Pelosi, D-Calif., infamously told the American people that Congress needed to pass the Affordable Care Act in order to find out what was in it. Her statement seems emblematic of the massive and continuing problems bequeathed by the legislation. Lack of clarity in President Obama’s signature health care law has already brought the ACA before the Supreme Court twice. Now the law is facing another significant legal challenge.
At issue is the wording that requires that government subsidies used to help individuals purchase health insurance be through exchanges “established by the state.” The D.C. Circuit Court of Appeals determined that this wording unambiguously requires ACA subsidies to be distributed through state-run exchanges. Those are currently operating in only 14 states and the District of Columbia. In addition, the ruling could put Utah itself in a uniquely awkward legal position, as our state exchange Avenue H is designed to provide health insurance for individuals through small business employers, not to individuals directly.
Just two hours after the D.C. Court of Appeals issued its ruling, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, found the opposite. They said the Obama administration’s workaround of offering subsidies through federal exchanges was a “permissible exercise” of its authority. Such contradictory rulings suggest that the ACA may find itself before the Supreme Court for a third time in four years. Even four years after passing the law, we still don’t really know what’s in it. This is problematic.
The federal government’s relationship with health care has always been a complicated one, and the confusion surrounding the ACA is making a bad situation worse. The health care industry constitutes a large chunk of the American economy. All of this uncertainty is wasting a great deal of time and money.
Some critics of the Affordable Care Act are hoping that the latest legal mess will finally put an end to the Affordable Care Act. Yet many who are eager to see its collapse are offering few alternatives to address the nation’s pressing health care problems. Returning to the pre-Obamacare status quo is not an acceptable option. Congress needs to focus on workable reforms to improve the system, and Utah Sen. Orrin Hatch’s health care bill could provide a good starting point for future discussions.
In the meantime, the Obama administration needs to recognize that they can’t be selective which parts of the ACA they’re willing to enforce. The ACA is deeply flawed legislation. But addressing these flaws is the work of Congress. Once we get a new Congress following the November elections, President Obama must put his preconceptions about the ACA aside and negotiate in good faith for substantial changes to the law with which legislators from both parties are able to live.