During remarks at a WSJ breakfast, HHS Secretary Sylvia Burwell offered several remarks on the pending case of King v. Burwell:
A move by the court to strike a key component of the 2010 federal health-care overhaul could mean “the number of uninsured would jump dramatically” and that a “death spiral” would ensue in insurance markets in most of the country, she said, as sicker people kept coverage and healthier ones dropped it. …
“We believe we hold the right position,” Ms. Burwell said at a breakfast hosted by The Wall Street Journal. But “if that’s what the courts decide, we can’t undo the massive damage.”
Her remarks mirror what Josh Earnest said yesterday. A Court decision invalidating the IRS rule would be the Court inflicting “mass damage,” not Congress itself. This is a very subtle point, so let me try to make it clearly. I have no problem when Burwell says now that the government has the better side of the argument, and she hopes the Court will rule in her favor. But once the Court rules, however it rules, that will be the definitive construction of the statute. The Administration can disagree or disapprove of the Court’s ruling, but it no sense will it be the Court that inflicts “mass damage.” It will be the law that Congress wrote. The ongoing debates about judicial supremacy play into this question in a small, but important way. The President may have his own interpretation of 36B but the Court’s interpretation prevails–for better or worse. And because we are only dealing with a statute here, and not a Constitution, it can be changed. As it will
Few other states without state-run exchanges have Democratic leaders that could do this easily, and Republican-led states have indicated this would also be a stretch for them. Still, the possibility of such an arrangement hasn’t been acknowledged before by federal officials.
“We work with states every day,” Ms. Burwell said. “We’ll do all of that.”
Here is a (rough) transcript of the video.
We believe we hold the right position. We believe we are implementing the law as it was written . . . With regard to the question of what happens if the ruling would be for the plaintiffs, what would happen. First is, the number of uninsured would jump dramatically because we know the issue of affordability has been an important part of this. The 10.2 [million] you just mentioned. So … 85% of people receive on average a subsidy of $272 a month. That affordability goes away for a group of people. And therefore you increase the number of uninsured. The second thing that happens is what people refer to as the death spiral. What happen is you have a sicker pool and prices rises. That is a death spiral. The third thing that happens is raise in uncompensated care. That’s what happens in that scenario. What I think is important is at the point that occurs, we all go to move on. That’s what the American people are asking for. This is built in now. People aren’t worrying about pre-existing conditions anymore. A vast number of people who were previously uninsured are no insured.