Kathleen Sebelius on King v. Burwell: Obamacare Is Here to Stay

With the U.S. Supreme Court’s ruling, the battle moves from the courts back to the political arena.

Joshua Roberts / Reuters

“This is definitive,” said Kathleen Sebelius, the former secretary of health and human services, at the Aspen Ideas Festival on Friday. Sebelius was referring to Thursday’s 6-3 decision by the U.S. Supreme Court in King v. Burwell. The justices ruled that the health-insurance subsidies provided by the Affordable Care Act should be available to people whether the states they live in use the federal health-insurance exchange or run their own exchanges.

The decision hinged on four words in the ACA statute: “established by the state.” The plaintiffs contended that these words meant subsidies should only be available to those on state-run exchanges, not federal. But in the decision, Chief Justice John Roberts wrote, “We doubt that is what Congress meant to do.”

“What was at stake was 34 states, 6.4 million people who have subsidized insurance policies,” Sebelius said at the panel. “If the court had ruled for the plaintiffs, they would be subject to losing the subsidies that made their insurance affordable and thus lose their insurance. Roberts … basically said, you need to look at what Congress intended. Congress intended to help fix the insurance market, not destroy the insurance market.”

Bill Frist, the former Republican Senate majority leader, agreed, saying Roberts “captured it better than the legislation and the law actually did initially.”

Of course, this doesn’t mean that the highly contentious, partisan battle over the law is over. It just means it’s not a legal battle anymore. “The courts are no longer going to be the battlefield,” Frist said. “It’s going to be in the political arena.”

There was some debate over what the current Senate majority leader, Mitch McConnell, should do now, less-than-pleased with the decision as he is.

“I think Mitch is still going to be under a lot of pressure to schedule at least one more repeal vote,” said Tom Daschle, a former Democratic Senate majority leader who is now a lobbyist. “Not because they think it’s good politically in November 2016, but it’s good politically for their base. In the longer term I don’t think that’s going to work.”

The panel also discussed the possibility of McConnell trying to repeal parts of the law using reconciliation, a procedure for changing a law to reduce spending or otherwise make it conform to the budget.

Nancy-Ann DeParle, a partner at Consonance Capital Partners and the former deputy chief of staff for policy for President Obama, dismissed the tactic. “To use reconciliation you have to be able to show a budget impact that you reduce the deficit. This is not going to reduce the deficit.”

“We have had the lowest health inflation in 50 years,” Sebelius added. “We are starting to trend relatively near GDP with health inflation. It used to be double.”

“If I were Mitch McConnell, I would take a simple repeal vote and move on,” DeParle said.

Still, panelists of both parties expressed regret that the ACA hadn’t been more of a bipartisan effort from the beginning, wondering if some of this trouble could’ve been avoided if Obama had secured Republican buy-in.

“It was miserably passed and messily written,” Frist said. “The bill’s got good substance in it. The problem is when you write this stuff, you have to fix it … The opportunity to fix anything or modify it was erased by the way it was passed. There was no Republican at the table.”

“Not a day has gone by since the law passed that I haven’t wished we had Republican support,” DeParle said. “That would have made all the difference. It would not have been nearly as ugly as it’s been.”