This seems awfully familiar...
However, if the courts decide to look at the case on the "micro" level--parsing exact definitions of the word "State" (which seems to be the concensus as to how they're proceeding from the people I've talked to about it), then they'll also have to (or at least certainly should) also look equally closely at two other words: "Establish" and "Facilitate."
So, as I said, depending on how the court defines the terms "establish" (ie, to "establish" an insurance marketplace) and "facilitate" (as in, "facilitating" the purchase of insurance policies through the marketplace), it's conceivable that all it would take for any of the individual states to "establish" their own exchange would be to register a domain name at GoDaddy or wherever and set up a simple welcome/information portal site...which would then lead them to HC.gov for the actual purchase of the policy.
As petty and stupid as this may sound, it's no more petty and stupid than the plaintiff's case in the first place.
At the end of that post, I added an update from a guy named Jamey Harvey, who heads up the project team for the DC "state" exchange, who confirmed my point about the state-run exchanges needing to hook into various Federal databases, thus making the term "establish" pretty open to interpretation (after all, if it's OK for a state exchange to rely on some federal databases/resources to operate but still be considered "established" by the state, how far does that extend?)
...If you've read this far, you get the point. It's conceivable that we could be looking at the following scenario:
- 15 "State-Based Marketplaces" (CA, CO, CT, DC, HI, KY, MD, MA, MN, NV, NY, OR, RI, VT, WA)
- 2 "Supported State-Based Marketplaces" (ID, NM)
- 7 "Partnership" Marketplaces (AR, DE, IL, IA, MI, NH, WV)
- 7 "Plan Management" Marketplaces (KS, ME, MT, NE, OH, SD, VA)
- 2 "SB-SHOP" Marketplaces (MS, UT)
...leaving only 18 actual completely "Federally-Facilitated Marketplaces" (AL, AK, AZ, FL, GA, IN, LA, MO, NJ, NC, ND, OK, PA, SC, TN, TX, WI and WY).
In other words, it's possible that the courts might decide that 32 states (plus DC) "count" as being "established" by the "state" and therefore IRS subsidies are kosher for them, leaving only the 18 states listed above as a source of trouble.
Obamacare's escape hatch: the controversial way Obama could save health reform
The dividing line between "state" and "federal" exchange is a bit fuzzy
The health care law envisioned two distinct types of health insurance marketplaces: those that the states established and those that the federal government ran.
In actuality, though, the lines between "state" and "federal" marketplace aren't totally clear. There are, arguably, five different types of marketplaces operating under Obamacare right now, all with different levels of state and federal involvement.
...When experts talk about "state exchanges," that's typically shorthand for the first two categories:
- State-based marketplaces
- Federally-supported state-based marketplaces
...And when experts talk about "federal exchanges," that usually means anything down here:
- Partnership marketplaces
- Un-official partnership marketplaces
- Federal marketplaces
...The Obama administration would be redefining the word "establish" away from a definition focused on states taking a specific action and towards one focused on a specific pattern of behavior.
"You can establish something by engaging in a pattern of conduct," Bagley says. "A good example is you may not want to establish a smoking habit, and you may tell yourself you don't have a smoking habit, but if you're going through a pack a day you probably have established a smoking habit."