Two recent federal court cases, both about federal subsidies for health insurance, came within hours of each other this week, putting the future of the Affordable Care Act into question.
In Halbig vs. Burwell, the U.S. Court of Appeals for the D.C. Circuit issued a 2-1 ruling that said people in states that don't operate their own marketplaces can't get subsidies. But a few hours later, the U.S. Court of Appeals for the Fourth Circuit reached the opposite conclusion in King vs. Burwell. Their unanimous decision upheld the legality of the subsidies for all states, even those without their own insurance marketplaces.
That same day Debbie Wasserman Schultz, the Democratic National Committee chair and congresswoman from Florida, appeared on the Nevada news program Ralston Reports.
"There was a lot of panic from supporters of the law after the Halbig decision came down from the panel at the D.C. court," said host Jon Ralston. But Wasserman Schultz said she thought it would be resolved in favor of maintaining the subsides for all states.
"I think ultimately, when the Supreme Court decides this, it’s going to be very clear that the unanimous ruling by the Fourth Circuit is the right one."
She also said Nevada had "a governor who refused to implement a state exchange." She quickly had to backtrack as Ralston reminded her of Gov. Brian Sandoval’s enthusiastic support of a state exchange. "Well, I stand corrected, I’m not from Nevada," Wasserman Schultz acknowledged.
But she went on to make another claim we found questionable.
"There were 36 states where Republicans who were in charge refused to implement a state exchange, and as a result people who get Affordable Care Act plans are getting them through the federal exchange," Wasserman Schultz said.
It turns out that Wasserman Schultz was off on this claim, too.
Numbers don’t lie
Using information compiled by the Kaiser Family Foundation, we looked at each state’s marketplace profile. We found a total of 36 states that currently use the federal exchange or state-federal partnerships and would be affected by Halbig vs. Burwell. We sorted them into four categories.
States with Republican governors that adopted the federal exchange: 27
States with Democratic governors that adopted the federal exchange: 2
States with Republican governors that adopted a state-federal partnership: 2
States with Democratic governors that adopted state-federal partnership: 5
So of the 36 states that use the federal exchange or a partnership program, only 29 actually had Republican governors when the decisions were made about establishing health care marketplaces.
In 27 of those states, Republican governors opted to use the federally established marketplace, Heathcare.gov, instead of a state-run program.
This number includes New Mexico and Idaho, whose Republican governors originally aimed to establish state-based marketplaces in 2013 and 2012, respectively. Both states ended up choosing a federally-facilitated marketplace but hope to open their own state-based marketplaces in 2014.
It also includes Utah, a state that had an insurance marketplace established before the Affordable Care Act was signed into law in 2010. In Utah, the federal government runs the market for individual insurance, but the state controls the insurance exchange for small businesses.
There are two Republican-led states, Iowa and Michigan, that supported independent state marketplaces, but ended up establishing state-federal partnerships instead. State-federal partnerships allow the states to play a role in the insurance marketplace, without assuming full responsibility.
In 2012, Iowa Republican Gov. Terry Branstad announced that the state would operate on a state-federal partnership for the time being. Branstad said they plan to transition to a state insurance marketplace by 2016. And in Michigan, Republican Gov. Rick Snyder supported the creation of a state-based marketplace, but opted for the partnership in 2012.
Republican governors were not alone in their decision to use the federal exchange or set up state-federal partnerships. Seven states with Democratic governors did it, too.
Of the seven states, two use the federal exchange, while five operate partnership marketplaces. For example, in Missouri, Democratic Gov. Jay Nixon attempted to set up a state marketplace in 2012, but voters blocked his attempts. Ultimately, Nixon was forced to back away from a state marketplace. In Montana, Democratic Gov. Brian Schweitzer opted for the federally run insurance marketplace.
The other five Democratic states that operate a state-federal partnership are New Hampshire, Delaware, West Virginia, Illinois and Arkansas.
In New Hampshire, Democratic Gov. Maggie Hassan established the partnership marketplace in February of 2013. Illinois Democratic Gov. Pat Quinn laid out a plan similar to that used in Iowa. The state is currently using a partnership exchange, but plans to establish a state marketplace by 2015.
DNC spokesman Michael Czin said that Wasserman Schultz meant to say there were "26 Republican governors who used the federal exchange this year instead of setting up their own state-based exchange." Czin was counting the number of states now that have Republican governors.
We think it’s more accurate to counts states that had Republican governors when the exchanges were set up, and that number would be 27 (not counting the two GOP governors that set up partnership exchanges).
Wasserman Schultz said that there were "36 states where Republicans who were in charge refused to implement a state exchange." There are 36 states that use the federal exchange or state-federal partnerships instead of state-based marketplaces. But seven of those states are run by Democrats. And, some of the states with Republican governors, like New Mexico and Idaho, tried to institute a state exchange before opting for federally-facilitated marketplace. So while most of the 36 states had Republican governors, not all of them did.
We rate this statement Mostly False.
NBC News 3, Ralston Report interview with Rep. Debbie Wasserman Schultz, July 22, 2014
Vox, "Why a federal court just ruled Obamacare subsidies are illegal in 36 states," July 22, 2014
PolitiFact, "In Idaho debate that went viral, challenger misfires on Obamacare marketplace claim," May 19, 2014
Politico, "Nevada's Republican governor is 'all in' on ACA," December 7, 2013
Idaho Statesman, "Courts issue conflicting rulings on health care tax subsidies," July 22, 2014
Santa Fe New Mexican, "State health exchange’s online market faces obstacles," July 11, 2014
Lewiston Morning Tribune, "Officials say they don't know if new enrollees previously had insurance :Idaho health care exchange leaders give their first report to state Legislature," Jan. 22, 2014, accessed via Nexis
The Kaiser Family Foundation, "State Health Insurance Marketplace Profiles," accessed July 23, 2014
The Kaiser Family Foundation, "State Health Insurance Marketplace Decisions, 2014," accessed July 23, 2014
United States Court of Appeals for the District of Columbia, Halbig v. Burwell, July 22, 2014
United States Court of Appeals for the Fourth Circuit, King et. al. v. Burwell, July 22, 2014
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