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On February 17, 2014, Jenner & Block filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit in the case of Halbig v. Sibelius, which challenges the availability of premium subsidies under the Affordable Care Act (ACA) to low or moderate income persons buying coverage through federal exchanges in the 36 states that declined to establish their own insurance exchanges. The brief, arguing in support of the economic underpinnings of the ACA, was submitted on behalf of a group of 48 internationally recognized economic scholars, including two Nobel Laureates and economists who served in the administrations of Presidents Johnson, Ford, Carter, George H.W. Bush, Clinton, George W. Bush and Obama.
The brief is notable for addressing a key issue: “[N]amely, whether Congress intended the negative economic consequences that would flow from Appellants’ proffered interpretation of the statute.” It argues that reform of the health care system is essential to constraining the growth of health care spending and to extending health insurance coverage. It states that premium subsidies are essential to achieving the universal health care coverage that Congress sought to establish under the ACA. Interpreting the law as proposed by those challenging this provision would “thwart Congress’s goal of bringing affordable health care to all Americans.”
According to the brief, “Congress – correctly – structured the ACA as a series of interlocking reforms, of which premium subsidies are essential components. If those subsidies are unavailable to the many who will buy insurance on the federal Exchange, the other components of the ACA will not work, and the legislation will fail to achieve its goal of expanding coverage. The best available economic modeling demonstrates that, without these subsidies, average premiums would double and an estimated 6.5 million fewer Americans would have health insurance. These increased premiums would burden not just those who would otherwise have been eligible for the subsidies, but the remaining enrollees as well.”
The amici include Peter Diamond and Eric Maskin, both recipients of the Nobel Prize in Economic Sciences; Henry Aaron, a former assistant secretary of the Department of Health Education & Welfare; Alice Rivlin, former director of the Congressional Budget Office; and Lawrence Summers, former director of the National Economic Council.