A Harvard Law Student may have found another King v. Burwell Workaround
2018 MIDTERM ELECTION
Time: D H M S
Last July, I came up with a rather idiotic-sounding "solution" to the "problem" caused by the infamous King v. Burwell court case:
So, the question becomes, just how much of the "establishment" has to be done by the state, and how much is allowed for by the Feds? For that matter, if "the state" contracts out the actual site development work to a private corporation, that's technically not being done by "the state" or "the Feds"...it's being done by a private company which is simply paid for their services by one or the other (ie, the Oracle debacle in Oregon; CGI Federal at the Federal level; Deloitte or Accenture in other states, etc).
In other words, what do "established by" and "facilitates participation" actually mean?
Depending on the answer to those and related questions, there could be an incredibly stupid-sounding solution.
I'm referring to domain names.
Yes, that's right: For just $9.95 apiece (or less, if you shop around), the United States Federal Government could simply ask the health departments of the 36 states in question to snap up a domain name along the lines of:
...and so forth.
Then, just set up those domain names to repoint to the appropriate sub-section of Healthcare.gov (healthcare.gov/alabama, healthcare.gov/alaska, etc.) Heck, Illinois is already set up this way.
Does that count as "establishing" an exchange? What about if the state threw in a little splashpage before you get redirected to HC.gov?
As dumb as that sounds, it was actually taken seriously for a few months by some respected law professors and the like, although eventually some of them backed off by stating that it would take considerably more than that to "establish" an exchange to the specifications necessary to pass Constitutional muster.
In November, one of the regular supporters of ACASignups.net came up with another interesting potential workaround which I dubbed "The State Exchange Two-Step":
the majority said that a person does not have to be a resident of a particular state — a "qualified individual" under the language of the law —in order to apply for health coverage on the exchange of a particular place.
Therein lies the solution. If the Supreme Court accepts that interpretation of the law (including that portion of the Halbig panel majority's opinion), then the federal government could then arrange with the states that DO have exchanges to handle applicants from states that don't.
It could work as follows:
- A resident of, say, Mississippi, could go to Healthcare.gov, and then be forwarded to the exchange of another state, say, California (or a randomly selected state).
- At the California exchange, the Mississippi resident would be asked whether he or she is a resident of California.
- When the Mississippi resident answers no, the California exchange would ask what state he or she is from.
- When the applicant selects "Mississippi" as the answer, the California exchange would then either (1) have the information for Mississippi plans on the site itself, or (2) send the applicant back to Healthcare.gov.
The Mississippi applicant, by applying for coverage on the California exchange, would then be applying for coverage "an Exchange established by the State under [section 1311] of the Patient Protection and Affordable Care Act."
The problem would then be solved. I am simply following that the Halbig panel majority said. It said that a person does not have to be a "qualified individual" in order to apply to coverage on an exchange.
Of course, if this proposal ends up being adopted, the Right would go bananas and the word "impeachment" would fly. The Department of Health and Human Services should just coolly respond: "That's what we're going to do. If you don't like it, file another one of your lawsuits and we'll see you back at the Supreme Court in three years."
The above is that best that I can do. It would be tragedy if this law came undone because of a drafting goof.
Well, today, an enterprising Harvard law student has come up with a third King workaround which might be worth exploring if push comes to shove:
Writing in the student-run Harvard Journal on Legislation, Freilich Jones, JD16, says a section buried deep in the law gives HHS Secretary Sylvia Burwell the authority to set up an exchange for a state either “directly or through an agreement with a not-for-profit entity” (emphasis added by Jones). Elsewhere in the law, exchanges are defined as “a government agency or nonprofit entity that is established by a state.”
In other words, it all depends on what the meaning of the word “a” is.
Put the two phrases together and they give the federal government the right to subcontract operations of HealthCare.gov, which is running the exchanges for 37 states, with a nonprofit entity created by any one of those states, Jones claims. The workaround “depends on a very literal reading of the text of the ACA, precisely the sort of reading that the Supreme Court is almost certain to endorse if it finds for the plaintiffs in King.”
At present, seven states (California, Connecticut, Delaware, Hawaii, Oregon, Rhode Island, and Vermont) have legislatures and a governor's mansion controlled by Democrats. They would no doubt be amenable to setting up the non-profit entity. Hawaii's exchange is already run by a government-initiated nonprofit.
In other words, if I'm following this correctly, a single state such as Connecticut would simply have to agree to set up a non-profit entity, which in turn would subcontract with HC.gov to handle things for them (even if in name only...presumably the nonprofit would in turn sub-subcontract the actual operations right back over to the HC.gov folks, as silly as that may be).
For that matter, since the District of Columbia is defined as a "state" for purposes of the ACA (otherwise they wouldn't be able to run their own exchange, DC Health Link, which they do), it's even conceivable that DC would be legally allowed to set up the non-profit entity in question...which means that HC.gov might not even have to leave the District.
Again, hopefully none of this silliness will be necessary to discuss/debate if a) at leaset 5 members of the Supreme Court don't act like jackasses or b) if the Republicans in Congress would simply take 5 minutes out of their day to scribble (in crayon if need be) "...or the federal government" at the end of the sentence in question. Still, it's nice to know that there may be some options, no matter how inane they sound.