King v. Burwell: Jeffrey Toobin may or may not be correct about his larger point, but he sure got one fact wrong.
Jeffrey Toobin is a very smart man. He's a staff writer at The New Yorker and has been CNN's legal analyst for many years.
That doesn't mean he's correct about everything, however...and in fact, he made a very obvious, very significant factual error in his King v. Burwell opinion piece this morning, "Obama's Game of Chicken with the Supreme Court".
The main thrust of the piece is that if the Supreme Court does rule in favor of the plaintiffs in King v. Burwell and does make the IRS stop issuing federal tax credits to millions of people enrolled in private healthcare policies via the federal exchange, most people will blame President Obama and the Democratic Party for the fallout rather than the Republicans in Congress and their conservative think tank allies who brought the lawsuit, financed the lawsuit, cheered on the lawsuit and, most importantly, are refusing to take 5 minutes out of their day to "fix" the supposed "problem" in the language of the law.
Perhaps he'll be proven correct on this point. Obviously I hope not (in fact, obviously I'm hoping it will never come to that, and that the SCOTUS will instead rule in favor of the government anyway), but anything's possible. I'm not an expert on the Constitution, the Supreme Court, or the wording of the Affordable Care Act itself.
What I am pretty good at, however, are the numbers involved, and Mr. Toobin got a number wrong in the very first paragraph of his opinion piece. Ironically, correcting the error actually strengthens his argument, so it's probably not in my interest to correct him, but facts are facts. Here's the passage in question:
Sometime next month, the Supreme Court will decide King v. Burwell, and the conventional wisdom about the stakes in the case appears to have shifted. The case represents a challenge to the core of the Affordable Care Act. The plaintiffs charge that, based on a strict reading of single sentence (actually, four words), federal health-insurance subsidies should be available only in the sixteen states (and the District of Columbia) that set up their own health exchanges, or marketplaces. This means, they argue, that there should be no subsidies for people who now buy insurance on the federal exchange in the other thirty-four states. At the moment, about thirteen million people receive those subsidies.
The people with the most riding on the outcome, of course, are those thirteen million. Without subsidies, it’s likely that most of them will no longer be able to afford their insurance.
Toobin's link goes to a Kaiser Family Foundation map displaying "How Many Americans Could Lose Subsidies If the Supreme Court Rules for the Plaintiffs in King vs. Burwell?"
The grand total across all 34 states does indeed equal 13.4 million people. However, the problem should be obvious to anyone with even the slightest awareness of the 2015 Open Enrollment Period: Only 11.7 million people enrolled nationally during the open enrollment period, and even if you include my own estimate through today, it's still only 12.4 million. Furthermore, of those, only about 9.4 million are enrolled in one of the 37 states in question (less, if you subtract Nevada, Oregon and New Mexico, which may or may not get caught in the King crossfire)...and of those, only about 87% are actually receiving federal tax credits; the rest (including my wife and I) are paying full price. In addition, not all of those folks have/will pay their premiums; around 10-12% or so simply never do so, reducing the number down to around 7.2 million. Finally, even then there's some amount of attrition involved--just as some people enroll during the off-season, existing enrollees drop their policies due to life changes (getting married, getting a job with coverage, etc).
In the end, the number of currently enrolled people likely to lose their tax credits in the event of a King plaintiff win is "only" around 6.5 million...or exactly half the number Mr. Toobin claims.
It could be a bit higher, of course; perhaps as much as 7 million or so...but certainly nowhere near Toobin's 13 million.
So how did he manage to get this number so wrong? Simple. The KFF table he got the 13M number from clearly states that it's the Estimated Subsidized Enrollees who could potentially receive credits in those states in 2016.
Now, as I've pointed out, the number of people who would end up losing their policies as a result of the King decision will likely be more like 8-9 million, and there would also be another 4-5 million people who would have to pay through the nose to keep theirs...but that's not what Toobin says.
He specifically states that "at the moment, about thirteen million people receive those subsidies" which isn't even remotely close.
I mentioned this to him via Twitter several times this morning, and waited until after 6:30pm to see if he'd correct it, but he hasn't done so yet, so I'm doing so here.