But last March, two Republican-appointed judges on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit hinted during arguments in Halbig that they agree with the plaintiffs. “What we've got here is language that doesn't seem to be malleable in any way, shape or form,” Judge Raymond Randolph said during oral arguments. “If the legislation is just stupid, it's not up to the court to save it.”
Experts say the issue is probably headed to the Supreme Court, which is likely to rule no sooner than the spring of 2015.
“The first-order effect (of courts striking down the subsidies) is the world learns that President Obama was violating the law in a major way,” said Michael Cannon, director of health policy studies at the Cato Institute who is considered the intellectual father of the litigation.
It's widely agreed that most people who signed up for exchange plans would have difficulty affording the coverage without a subsidy. Nationally in 2013, the total premium cost for 83% of people who signed up for exchange plans exceeded 8% of their household income, not counting the subsidy. That 8% threshold is the definition of “unaffordable” in the law.
For many exchange plan enrollees, the subsidy covers much or most of their premium. The average premium subsidy nationally in 2014 was $2,890, according to the Kaiser Family Foundation.
Forty-nine economists who signed a friend-of-the-court brief in the Halbig and King cases supporting the Obama administration's position wrote that based on the best available projections, 6.5 million Americans would not or could not pay the full cost of their insurance and therefore would lose their coverage.
On top of that, the elimination of the subsidies would wipe out the law's requirement to obtain insurance for millions of people in the 36 states. That's because the premium would exceed the allowed percentage of household income, and the law waives the individual mandate for people in that situation. If the mandate were effectively eliminated in 36 states, political pressure likely would mount to repeal the individual mandate entirely. The insurance industry and many experts argue that would significantly reduce the number of insured Americans.
The end of subsidies in those 36 states also would have other major effects on coverage and rates. For one, it would effectively eliminate the requirement that employers in those states with 50 or more full-time workers offer their workers affordable coverage or pay a penalty. Employers are penalized for not offering coverage if even one of their workers obtains subsidized insurance through an exchange. But if the subsidies are eliminated in the 36 states, that would remove the penalty trigger.
Wiping out those subsidies also would create grave problems with the law's insurance market reforms. Insurers still would be required to take all comers regardless of age or health status and still could vary premiums only within a limited range based on age and smoking status.
But older and sicker enrollees in exchange plans would be the likeliest to find a way to keep their coverage. That would raise medical costs in the plans and drive up premiums, potentially sending the plans into an actuarial death spiral.
The impact would continue to widen. The individual-market risk pool under Obamacare includes plans both inside and outside the exchanges. In their amicus brief, the 49 economists wrote that “as premiums inside the exchanges rise, premiums outside the exchanges will rise as well, making insurance less affordable not just for low- and middle-income individuals who might have qualified for subsidies, but also for the sizable population … (of) self-employed, early retirees, individuals in employment transitions and individuals employed by small businesses that do not offer insurance coverage.”
Thus, the viability of the entire individual insurance market across the country would be threatened. Hospitals and physicians could face millions of newly uninsured patients, triggering chaos in the healthcare industry. That would put intense pressure on the Obama administration and Congress to repeal the law's popular insurance market reforms.