UPDATE: I posted what follows in January, reflecting on the JALSA amicus brief led by Prof. Abigail Moncrieff from BU that argues that petitioners’ interpretation in King v. Burwell would make the ACA unconstitutional by forcing states to choose between establishing exchanges and torpedoing their individual health insurance markets. In other words, “death spirals to the rescue.” It looks like that argument got noticed by Justice Kennedy, who pressed the petitioners hard for a response at oral argument this morning. (See here.) A very interesting development, and congratulations are in order to Abby and the other JALSA signatories (as well as other amici who pressed this argument) for at the very least helping to call attention to an argument that wound up playing big at argument. Will be interesting to see how the opinion comes out!
ORIGINAL POST (Jan. 27, 2015):
We’ve heard a lot about “death spirals” and how they could stand in the way of the Affordable Care Act’s goal of a functioning individual health insurance marketplace. Seth Chandler has an interesting blog devoted to the subject, “ACA Death Spiral.” And those who have been following King v. Burwell, the Supreme Court’s latest ACA case, have been predicting that a ruling against the government there would be disastrous because it would only exacerbate the “death spiral” threat to individual health insurance markets. (See a sum-up of such predictions here.)
But could death spirals save the ACA? According to a fascinating amicus brief filed in the King case by a number of interest groups and co-signed by several prominent law professors and Bill of Health contributors (I understand that Abigail Moncrieff is the driving force behind the brief, joined by Allison Hoffman, Sharona Hoffman, Russell Korobkin, Joan Krause, Stephen Marks, Kevin Outterson, and Theodore Ruger), the answer might be yes. The argument boils down to “death spirals to the rescue.” (Here is a copy: 14-114 bsac JALSA.)