Wednesday, July 23, 2014

And yet another ACA decision...

Two appeals courts looked at the issue of subsidies on Federal exchanges under ACA and both issued decisions yesterday.  The DC circuit decision is covered in my post below, the Virginia circuit ruled in favor of the government:  See this story in the LA Times.

The Administration has announced its intent to ask the DC circuit to rehear the case, with the full set of judges rather than just a three-judge panel.  That would seem a reasonable thing to do, and could well remove the split between two appeals courts that would call for the Supreme Court to step in.  But as Jonathan Adler points out at the Volokh Conspiracy, the full rehearing is not a sure thing and there are other pending cases in other circuits.  The Supremes might get another shot at ACA yet.

Tuesday, July 22, 2014

And another ACA decision...

The United States Court of Appeals, DC circuit, this morning issued a decision that cuts to the heart of the Affordable Care Act...deciding that subsidies for insurance purchase are only valid for state-run exchanges.  More than 30 states have let the Federal government set up and run their insurance exchanges; these are the states that will be affected if the decision is held up.

This will be challenged in many ways, and personally I find it hard to believe it will stand, but who knows.  Recall that many thought the initial case against ACA, on the basis of it being an unconstitutional regulation of commerce, was scoffed at by many.

I will have to read the decision carefully to see what the judges said.  In the meantime, I attach here a link to the opinion (WSJ), and also a link to a post by Jonathan Adler at The Volokh Conspiracy.

Tuesday, July 01, 2014

Another ACA Supreme Decision: Burwell v. Hobby Lobby

The latest Affordable Care Act Supreme Court decision makes people line up pretty clearly on one side or another.  Here are a few observations on the case, with the first two points being on some good economic issues that were addressed.

  1.  Supporters (amici) of the Health and Human Services position made the argument that Hobby Lobby could just drop insurance coverage for its employees if it objected to providing the required birth control coverage. Since the penalty of $2,000 per person is less than the cost of providing insurance, this would be an easy way for Hobby Lobby to avoid the problem, supposedly.  The majority put this one to bed quite elegantly by pointing out (page 34 of the opinion) that benefits such as health care are part of employees' overall compensation, so that dropping such a benefit will have implications for either employment or the level of cash wages.  The majority even make the subtle points that health insurance is likely to be of greater value than cash because it is done on a pretax basis and because the individual coverage market is not very efficient. These are great points, which get to the heart of a bigger question:  Should and will employers drop health care coverage, and what will the employer mandate do for the level of employment?
  2. Another interesting point is the alternative that the majority says is probably feasible for Hobby Lobby and that has been actually set up by HHS to let religious nonprofits get out from under the birth control coverage requirement (see the opinion, pages 9-10, for discussion).  HHS permits insurers of employers who want an exemption from the birth control coverage requirement to pull such coverage out of the main health plan but then to offer it separately and to not charge the employees anything for the coverage.  Interesting, the claim is that the insurers will be happy to do this, rather than not offer the coverage at all, as the cost of the coverage will be less than the savings in health care expenses as fewer women go through pregnancy.   But what about self-insured employers -- there, putting the burden of coverage onto a third party administrator (TPA) is simply a cost to them; any savings from less childbirth goes to the employer.  Ah, HHS has a solution to that, which is to reduce the fee that such TPAs pay under another part of the ACA.  Boy, this is getting complicated!
  3. It was fun to see Dartmouth College mentioned in Ruth Bader Ginsburg's dissent!  I will let the curious reader find that.
  4. In arguing that for-profit corporations should not be excluded from having rights under the Religious Freedom Restoration Act (RFRA, the statute at the heart of the dispute here), the majority points out how many for-profit corporations now pursue objectives other than pure value-maximization for shareholders (opinion, page 23).  Touche!  Their point here is that for-profit companies can pursue many objectives, such as reducing carbon emissions or giving to charity, even when these cost the company and its owners profits.  "If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well."  So all that work by some activists to allow corporations to escape from the evil trap of pure profit maximization has come back to haunt them.  Ah, poetic justice.
  5. My position overall?  I am swayed by the logical consistency in thinking that the word person in the RFRA includes natural persons as well as nonprofit and for-profit corporations.  There is no logical way to say that it excludes some kinds of corporations or business organizations but not others.  The owners of Hobby Lobby are a family, it is an extremely closely-held business, and if Congress passes a law giving people the right to express religion free from undue regulatory interference (RFRA) then it applies to the family's corporation.  Plus, there are other ways to deal with what may well be a sound public policy issue -- the desire to give all women access to many forms of birth control.  Put that out in the open, through some general mechanism, rather than forcing it onto the employers.
  6. I do find Justice Ginsburg's dissent informative.  This quote by her really defines, I think, the difference between her and the majority:  "In the Court's view, RFRA demands accommodation of a for-profit corporations religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners' religious faith -- in these cases thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those  corporations employ."  That gets to the heart of it.  Justice Ginsburg would interpret all the language and issues in favor of the women employees; the majority sides with the owners of the business.