Subscribe to Commentary


Don’t scrap the Constitution just to save the Affordable Care Act

Rep. Jason Spencer

Rep. Jason Spencer

Professor Erin C. Fuse Brown’s Orwellian defense of a counter-textual interpretation of the Affordable Care Act (ACA) regarding eligibility for federal tax subsidies would invite an epidemic of lawlessness throughout the Executive Branch. She would torture the word “State” to include “federal government” to promote health care policies she champions. But nothing good has ever come from her “the ends justify the means” attitude towards statutory interpretation.

Robert Bolt’s “A Man for All Seasons” said it all in this exchange between Roper and Sir Thomas More:

Roper: So now you’d give the devil the benefit of law?

More: Yes. What would you do? Cut a great road through the law to get after the devil?

Roper: I’d cut down every law in England to do that.

More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law, for my own safety’s sake.


No ambiguity

The case of King v. Burwell pending in the U.S. Supreme Court is not complex. Congress stipulated in the ACA that federal tax subsidies would be limited to individuals who purchased health insurance through an “[e]xchange established by the State.” There is no more ambiguity in the word “State” than there is in the meaning of the word “is.”

In more than 220 years of legislating, Congress has never treated “State” as synonymous with “federal government.” Indeed, the distinction between the two is the foundation of our system of federalism celebrated in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Decisions of the Supreme Court embracing the “plain meaning” doctrine of statutory construction overflow like the Nile. Words should be interpreted according to their ordinary meaning in common parlance unless the result would be absurd.

There is nothing absurd or quixotic about confining federal tax subsidies to health insurance purchased over exchanges established by States. It encourages them to establish exchanges to relieve the federal government of the burden of stepping into the breach. Thus, Jonathan Gruber, a prominent advocate for the ACA, elaborated, “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” He further amplified that, “if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens.”

‘Intellectually untidy’

Ms. Fuse Brown argues that interpreting “State” according to its plain meaning would undercut other provisions of the ACA. But she is hoisted on her own petard. To interpret “State” to include “federal government” as she urges would render the congressional policy of encouraging States to establish their own exchanges meaningless.

Congress routinely enacts legislation that is intellectually untidy because of sloth or otherwise. The ACA is but one example. Then House Speaker Nancy Pelosi (D-Calif.) confessed “we have to pass the bill so that you can find out what is in it.” It is not the business of the U.S. Supreme Court to force intellectual tidiness on a statute like the ACA, as befuddling as a Jackson Pollock painting.

Professor Fuse Brown correctly observes that Chevron v. National Resources Defense Council calls for judicial deference to agency interpretations of ambiguous statutory terms it is entrusted with enforcing. The Internal Revenue Service, an echo chamber of President Barack Obama, has predictably interpreted the term “State” in the ACA to include the federal government. But that zaniness should command no deference under Chevron because there is no ambiguity in the word “State.” Deference in these circumstances would do violence to the Constitution’s separation of powers by authorizing unelected partisan bureaucrats to usurp the legislative function of Congress.

Professor Fuse Brown would have the Supreme Court play the role of Platonic Guardians to save Congress from ineptitude or blunders. But the Founding Fathers endorsed self-government, not Plato’s Republic. If Congress believes it erred in the ACA in confining federal tax subsidies to health insurance purchased over State exchanges, it can amend the law to include exchanges operated by the federal government. Ms. Fuse Brown scorns that constitutional approach because she knows the Republican-controlled 114th Congress disagrees with her health policy preferences. But her remedy under our democratic dispensation is to work towards electing a Congress that will enact her views into law, not to vandalize the Constitution.

Antidote to ACA

Finally, the professor’s doomsday vision of Georgia without federal tax subsidies is overwrought. A lapse in the individual or employer health insurance mandate under the ACA in Georgia would mean that less expensive and more efficient health care would emerge through free-market incentives and options like Christian Health Care Ministries (CHCM), where the individual is empowered to make decisions without the threat of stiff fines imposed by the ACA.

CHCM is a perfect free-market antidote to the prohibitive cost of the ACA. The ACA is sending health care premiums soaring with or without federal tax subsidies, and a different approach is urgently needed for all Georgians.

If the ACA is so affordable, then why do the costs need vast federal subsidies?

Georgians can afford free-market prices. They cannot afford a lawless Executive Branch.


State Rep. Jason Spencer represents District 180, which includes Camden, Charlton, and Ware counties. Rep. Spencer is the author of the Georgia Health Care Freedom Act that was introduced as House Bill 707 during the 2014 Legislative Session, but was ultimately passed by amending House Bill 943. The Georgia Health Care Freedom Act prohibits the state of Georgia from creating a health insurance exchange.

Much at stake for Georgia in upcoming high court ruling

This spring, the Supreme Court will hear the latest challenge to the Affordable Care Act, in King v. Burwell. The case is about whether the federal government can give subsidies to people who obtain health insurance on an exchange operated by the federal government in a state that has declined to set up its own exchange.

Erin C. Fuse Brown

Erin C. Fuse Brown

The legal question involves a provision of the ACA that provides tax subsidies to people who purchase insurance through an “Exchange established by the State.” Challengers argue this means subsidies are not permitted in states where the federal government operates the insurance exchange because the state has declined to do so.

The five words, in a vacuum, suggest only those in state-established exchanges are eligible for subsidies. But the rest of the ACA has several provisions that would be rendered absurd or meaningless if those in federal exchanges could not receive subsidies.

Moreover, the whole purpose of the ACA would be undercut, because suddenly millions of people whom the ACA was supposed to cover would effectively lose their health insurance. The current interpretation by the IRS makes subsidies available on both state and federal exchanges, which is what Congress almost certainly intended the law to do.

The question for the Supreme Court is whether it will defer to the IRS interpretation of Congress’ intent and let the subsidies stand, or strike it down and cut off subsidies for the millions of Americans who receive subsidies to purchase their insurance on a federal exchange.

What’s at stake in Georgia?

Georgia does not operate its own exchange, and an estimated 784,000 people in Georgia would lose their subsidies if the Supreme Court rules for the challengers. For most of these people who make between 100 percent and 400 percent of the federal poverty level, health insurance would become unaffordable and they would likely lose their coverage.

Those who lose subsidies in Georgia would not be subject to the individual mandate to buy health insurance, and employers in Georgia would not be subject to the employer mandate to provide coverage. But in addition to losing their subsidies going forward, individuals who received federal subsidies my face some unfortunate tax consequences. Tax law scholar Andy Grewal cautions that those who received subsidies to purchase federal exchange coverage in this 2014-2015 coverage year may have to pay back those subsidies if the court strikes down the federal subsidies.

A decision against the government would also destabilize the health insurance market. Those who continue to purchase coverage without subsidies will likely be sicker than those who drop coverage. When healthier people drop out of the insurance market, this drives up premiums and leads to what is known as a health insurance death spiral.

Hospitals and other medical providers, too, will be pinched as individuals lose their health insurance. Hospitals and providers were just starting to see their uncompensated care figures improve as more people gained coverage under the ACA. This trend will reverse if people lose insurance coverage due to the loss of subsidies.

What can be done?

If the Supreme Court rules that there are no subsidies available on the federal exchanges, there are two potential routes to avoid these negative effects, but both are politically fraught.

First, Congress could pass a simple, technical correction to the ACA to allow subsidies on the state or federal exchanges. The incoming Congress, however, is unlikely to do anything to fix Obamacare, and there appears to be no political will even for such a small correction.

Second, states like Georgia with federally operated exchanges could take steps to establish a state exchange, perhaps even continuing to use the federal exchange as a technological backbone. There are questions of just how much a state would have to do to establish its own exchange, but whether the action is symbolic or substantive, the difficulty is political, not technological. In 2014, Georgia became one of seven states that have made a workaround even more difficult by legislatively prohibiting the state from establishing its own exchange.

Thus, for states like Georgia, a Supreme Court decision that strikes down federal exchange subsidies would have grievous consequences for patients, providers, and the stability and affordability of health insurance.

What’s at stake for Supreme Court?


If the court takes this opportunity to gut the ACA, it does so at the cost of the principle of separation of powers and the Supreme Court’s institutional legitimacy and credibility.

The question in King will be resolved under the framework developed by the Supreme Court in its famous Chevron v. Natural Resources Defense Council case. That case provides that if a statutory provision is ambiguous, then the court must defer to the agency’s interpretation, so long as it is permissible. The notion of “Chevron deference” is rooted in our constitutional principle of separation of powers. Such judicial deference gives agencies primary responsibility for the policy judgments inherent in statutory interpretation and prevents unelected judges from infusing their political preferences into the policymaking process.

It would be a paradigmatic form of judicial activism for the Supreme Court to dismantle the core of a duly passed, constitutional statute by Congress. Such action would create the specter of a Supreme Court that engages in an elaborate game of “gotcha” with Congress, using the slightest textual inconsistencies as a sword to unwind entire statutory schemes. In so doing, the court would send a dangerous message: Congress can make no error in drafting its laws or else a majority of justices with a jaundiced eye toward the statutory policy will seize on the slightest textual inconsistency to bring the statute down.

King is a simple Chevron case requiring judicial restraint and deference. If it rules otherwise, the court does harm not just to the ACA, the millions of Americans depending on the subsidies to obtain health coverage, the health insurance market and health care providers, but also to the principles of separation of powers that counsel against judicial policymaking, and to the institutional legitimacy of the Supreme Court.


Erin C. Fuse Brown, JD, MPH, is an assistant professor of law at Georgia State University’s College of Law and a faculty member of GSU’s Center for Law, Health & Society. She teaches and researches in the areas of health law and policy and administrative law.   



Obamacare through European eyes

It’s been about a year since the United States fully implemented the Affordable Care Act – called by friends and foes “Obamacare.” It’s been about a year since curiosity rose in Europe about the highly contested milestone reform, and since my editors got hungrier by the day for stories about healthcare in America.

Katja Ridderbusch

Katja Ridderbusch

And it’s been about a year since people started calling me a socialist – neighbors, interviewees, even friends who are working in the health care arena. Sometimes with a wink, sometimes dead serious.  For one, because I think that Obamacare, overall, is a step in the right direction. But mostly because I happen to be from Europe — Germany to be precise–and that’s where, in the minds of many Americans, the somewhat subversive ideas that inspired the ACA are harbored.

At first glance, there’s some truth in this. It seems like the Affordable Care Act has pushed America a tad closer to Europe, a baby step. Mostly because there is an insurance mandate in place in the U.S. now, which is also the case in most European countries. Also, because insurance companies can no longer deny coverage based on pre-existing conditions, and parents are allowed to insure their kids under their plan until age 26.

And that’s where the similarities end. The most obvious difference, no doubt, is that for the American population between the ages of 18 and 65, which makes up the majority of the workforce, health insurance still is, by and large, based on private, for-profit coverage. In most European countries, health care is largely a not-for-profit endeavor, and is therefore regulated, organized and subsidized by the government.

Also, there is no such thing as a uniform European health care system, as each country has its own, and most of them vary considerably.  It’s somewhat ironic that Britain – which of all European nations is considered politically, economically and culturally closest to the United States – has the only “socialized” health care system in the Old World that truly deserves the name: the National Health Service.  In my native Germany, health care is more market oriented, and patients for the most part have the choice of insurance, doctors, hospitals, and treatments.

Spreading the risk is one of the principles that German health care was established upon 131 years ago. Federal law requires all Germans to have health insurance, but does not provide coverage directly. About 85 percent of the population purchase non-profit insurance called statutory health insurance. Premiums are based on the individual’s income. A person pays roughly 8 percent of their gross income into the insurance, while the employer contributes about the same amount.

Private insurance is bought by 10 percent of the population, mostly civil servants and self-employed. The private insurance market is also regulated, but is more flexible, more expensive and offers better elective services, like a single hospital room, or faster treatment by a leading physician. The remaining 5 percent fall under specialty insurance programs.

All insurance in Germany covers comprehensive medical care. Health care spending in Germany accounts for 11 percent of the GDP. In the U.S., it’s 17 percent. Less than 1 percent  of the German population has no health insurance at all; compared with 13.4 percent in the U.S., almost a year after the ACA went into effect – which is the lowest the uninsured rate has been since 2008.


Insurance and job are separated


Another difference: in Germany, health insurance and employment are, for the most part, de-coupled. While the ACA tries to fill that gap now, the majority of Americans still receive health insurance through their employer. When they leave or lose their job, they often lose insurance. In Germany, individuals can keep their insurance when they switch jobs, take it to the next employer, who will then continue to pay the mandated share, or pay the full premiums themselves. In case of unemployment, a government agency will jump in and subsidize the payments.

Munich, Germany

Munich, Germany

While certainly not socialized, the German health care system is heavily regulated, especially when it comes to doctors’ and hospital fees, as well as drug prices. Also, there are caps on the number of physicians who are licensed to practice in a certain geographical area. A doctor in Miami once explained to me that in America, you may have a hundred plastic surgeons and no family physician within a 30 mile or so radius – just as long as the market supports it. No chance for that to happen in Germany.

Here lies, I’m convinced, the deepest ideological divide between the European and American approach to health care: How freedom is defined. While Americans often feel that government intervention restrains their freedom, Europeans, by contrast, expect governments to secure freedom for their citizens. Many Americans therefore perceive a health insurance mandate as a constraint on their personal freedom, even though accidents and illness make up the largest share of personal bankruptcies in the U.S. Most Europeans, on the other hand, view mandatory insurance as peace of mind, providing the freedom of not having to worry about exploding medical costs and instead, being able to focus on whatever they consider important in their lives.

Finally, it’s not only that the U.S. has come a tiny bit closer to Europe in the field of health care, but also that Germany’s health care system has become more “Americanized”, albeit involuntarily.  While the United States has the best-trained doctors and most advanced medical technology on the globe, the problem is that access to this world-class medical care is limited to those who can afford it. It’s interestingly enough that Germany, of all places, having been described a role model for “equal access” quality medical care, has come under growing scrutiny for developing exactly what “Obamacare” is trying to fix: a two-class health care system.

In recent years, more and more Germans with statutory health insurance have been seeking treatment in the country’s emergency rooms for problems that don’t require emergency care. They have health insurance, but doctors’ offices are swamped, and it takes those patients up to three months to get an appointment, with a specialist in particular. For patients with private insurance, it’s a different story, because they have proven to be more profitable for doctors. All this happens as health care costs in Germany are on the rise, and out-of-pocket payments for all patients have doubled in the past 20 years.

Maybe neither socialism nor capitalism is to blame. And maybe organizing health care and making it widely accessible is just an extremely complex and, at times, incredibly messy business, that requires continuing review, tinkering and sometimes, substantial change.


Katja Ridderbusch is an Atlanta-based senior foreign correspondent for German news media, including daily nationals Die Welt and Der Tagesspiegel, as well as Spiegel online. She frequently reports about health care in the U.S.


An important time for people on Medicare

Fall is a wonderful time of year. Changing leaves. Cooler weather. It’s also the season for people with Medicare to review their current Medicare coverage, as Medicare Open Enrollment begins.

Marilyn Tavenner

Marilyn Tavenner

As we prepare for Medicare Open Enrollment, which began on Oct. 15 and ends on Dec. 7, Medicare wants everyone to know that quality continues to improve both in Medicare Advantage and in the Part D Prescription Drug Program.

Each year, plan costs and coverage can change.

During open enrollment, seniors and people with disabilities across the country have the opportunity to review their current Medicare coverage and see if they want to make any changes for the next year. It’s important for people with Medicare to take the time to make sure their current situation still meets their health care needs best.

To help people choose a plan, Medicare calculates “star ratings” for Medicare health and prescription drug plans. Each plan gets a number of stars on a scale of 1 to 5 — with 5 being the best — based on quality and performance. These ratings are designed to help people with Medicare, their families, and caregivers compare plans, in addition to information on their premiums and benefits.

This year, people with Medicare who choose to enroll in a Medicare health or prescription drug plan will have access to more high-rated, four- and five-star plans than ever before. Approximately 60 percent of Medicare Advantage enrollees are in a Medicare Advantage Plan earning four or more stars in 2015, compared to an estimated 17 percent back in 2009. Likewise, about 53 percent of Part D enrollees are currently enrolled in stand-alone prescription drug plans with four or more stars for 2015, compared to just 16 percent in 2009.

Since the passage of the Affordable Care Act, enrollment in Medicare Advantage will increase 42 percent to an all-time high of over 16 million, and Medicare Advantage premiums will have decreased by 6 percent.

For people with Medicare, this is good news in how they receive care. Plans that are higher rated deliver a high level of care, such as improving the coordination of care, managing diabetes or other chronic conditions more efficiently, screening for and preventing illnesses, making sure people get much-needed prescription drugs, or getting appointments and care quickly. A high rating also means these plans give better customer service, with fewer complaints or long waits for care.

If you have Medicare and need assistance, you can visit, call 1-800-MEDICARE (1-800-633-4227), or contact your State Health Insurance Assistance Program (In this state, it’s GeorgiaCares, whose phone number is 866-552-4464, option #4).

You should have received the 2015 “Medicare & You” Handbook and important notices from your current plan, Medicare, or Social Security about changes to your coverage. If you’re satisfied with your current coverage, there’s nothing you need to do.

Better quality in Medicare health and prescription drug plans isn’t the only good news for people with Medicare. For most seniors who have Original Medicare, the 2015 Part B premium will stay unchanged for a second consecutive year at $104.90. This means more of seniors’ retirement income and any increase in Social Security benefits will stay in their pockets. The Part B deductible will stay the same as well.

Medicare is working hard to make sure this good news continues so that seniors and people with disabilities will continue to get the health care coverage they deserve.


Marilyn Tavenner is administrator of the Centers for Medicare & Medicaid Services.

Georgia’s health is bad and getting worse

Dr Harry Heiman

Dr. Harry Heiman

By every measure, Georgia is failing to meet the health and health care needs of its citizens. Not only are our health outcomes poor, they are declining relative to the rest of the country. Despite political rhetoric that lauds the health and prosperity of our state, objective data tell a very different story. Through a health lens, our state is going from bad to worse, a trend that will continue without a change in course.

Georgia ranked 45th out of 50 states and the District of Columbia in the Commonwealth Fund’s 2014 state health rankings, down from 36th in the fund’s 2009 report across dimensions ranging from access and affordability to healthy lives and equity. Today, Georgia has the third-highest rate of uninsured persons in the country.

We are among the worst states in the country for low birth-weight babies, obesity and diabetes, and both racial/ethnic and rural disparities in health status. These are not trends that align with health and prosperity.

Despite compelling data that Medicaid expansion would improve access to care for low-income Georgians, grow jobs, and support rural hospitals and the communities they serve, our state Legislature has chosen inaction. Actually, worse than inaction, they passed two bills that created additional barriers to access to health care for low-income Georgians — a glaring example of failed state leadership.

But health is much more than health care.

Socioeconomic status, level of education, and the social and environmental context in which people live, learn, work, and play are now understood to be the strongest drivers of health. Unfortunately, we are failing here as well.

Almost 1 in 5 Georgians lives at or below the poverty level, a number that is higher for rural Georgians and children, where it is more than 1 in 4. Georgia’s unemployment rate is the highest in the country, even surpassing Mississippi. Our high school graduation rate ranks 45th in the country. We recently received a grade of “F” for food insecurity and food deserts — communities without affordable access to healthy foods.

These are not statistics that reflect prosperity or conditions that support good health. These are statistics reflecting conditions that predictably lead to worse health.

Through the lens of health and prosperity, our state leadership is failing, and all Georgians, but especially the most vulnerable Georgians, are paying the price. State leadership that fails to adequately prioritize and fund education, fails to adequately manage and staff food assistance programs (jeopardizing federal funding) and child protective services (jeopardizing the welfare of our most vulnerable children), and fails to take action to provide affordable access to health care for low-income Georgians, is not the leadership we need.

Georgia needs and deserves leadership and a proactive policy agenda that is truly aligned with the health and prosperity of our state. Georgia needs leaders who are prepared to take action to both ensure access to affordable, quality health care for all Georgians and to align policies across all sectors that advance the health and prosperity of our state. The status quo is unacceptable. Rhetoric in the face of failing policies and failing metrics is no longer acceptable. Our children, our communities and our state deserve better.


Harry J. Heiman, MD, MPH, is director of health policy for the Satcher Health Leadership Institute at the Morehouse School of Medicine. He is active in Georgians for a Healthy Future and the Georgia Academy of Family Physicians.

  • Sign up for our mailing list.