The Affordable Care Act  (ACA) is under judicial scrutiny again today with the U.S. Supreme Court hearing arguments in King v. Burwell.  In King, the plaintiffs challenge the subsidies that offset the price of insurance issued through federally run online marketplaces.  Newsworks turned to Professor Lisa McElroy in a Feb. 26 broadcast for her thoughts on the case.

The main issue in the case is whether the language of the ACA only allows for subsidies to be issued through state-run, not federally run marketplaces, McElroy said.  According to the language of the ACA, the exchanges are supposed to be state run, McElroy claimed.  However, the government is arguing that when Congress drafted the ACA it had no intention of invalidating subsidies entirely simply because they were not state run, she said. More broadly, the government is saying "if you get rid of the ability of all these people to get their subsidies, they're not going to be able to buy the insurance and the ACA will crash," McElroy argued.

McElroy said that the outcome of the case will come down to the interpretation of the statutory language that allows for subsidies.  This will be done through both a literal interpretation of the language and in the context of similar statutes, she added.  Ultimately, however, the justices will have to consider whether invalidating subsidies through the federal exchanges would cause the whole ACA to collapse, she concluded.