Abby Moncrieff and Jonathan Adler Debate the Affordable Care Act
The two scholars squared off on the statutes governing healthcare subsidies.
On October 16, the Boston University Federalist Society and the American Constitution Society co-hosted a debate between BU’s Peter Paul Career Development Professor and Associate Professor of Law Abigail Moncrieff and Case Western Reserve University’s Johan Verheij Memorial Professor of Law Jonathan Adler. The debate, entitled “The Obamacare Subsidies,” focused on a particular aspect of the Affordable Care Act (ACA) concerning the legality of an IRS rule authorizing tax credits in federal exchanges.
At issue is some ambiguous language in the Affordable Care Act that calls into question the subsidies of millions of people who bought insurance on the federal health exchange. The language, contained in Section 1401 of the ACA, has been the central focus in several recent cases, including Halbig v. Burwell and King v. Burwell.
The ACA’s problematic language begins in Section 1311, in which it defines a health insurance exchange as a “governmental agency or nonprofit entity that is established by a state.” The words “by a state” are crucial, as depending on how the statute is interpreted, they could indicate that only states, not the federal government, can establish exchanges. Section 1401 lays out who can get a federal insurance subsidy, stating that only those who are “enrolled…through an Exchange established by the State under 1311” can do so.
Essentially, the issue boils down to whether the only people who can qualify for subsidies are those who get coverage through a state-based exchange, or whether Section 1401 contains a drafting error.
Professor Adler is well-known for his recent arguments about the ACA subsidies for national versus state insurance exchanges. He argued that any federally established health insurance exchange does not have the authority to offer health insurance subsidies.
Professor Moncrieff, whose work focuses on structural governmental barriers to efficiency in healthcare payment and delivery, as well as more broadly on structural constitutional law, argued that such a narrow interpretation of the wording would significantly curtail the ACA’s ability to do what it was designed to do: make health care more affordable.
At the center of the debate was Congress’ intention when it wrote the ACA, and how that intention affects its implementation. Professor Adler argued that interpretation should be literal, and Congress’ ultimate intentions when it passed the law were irrelevant. Professor Moncrieff made the case for a more forgiving interpretation, taking into account Congress’ notoriously poor proofreading abilities.
“If we stick with only the literal words on the page,” she said, “we are effectively preventing the law from doing what it was written to do.”
Well-attended by students and faculty, and followed by a lively question-and-answer session, events like this one offer students the invaluable opportunity to learn from faculty and visiting scholars in a more informal and spontaneous environment than the traditional lecture.
Reported by Sara Womble