House now has before it a proposal to change the definition of full-time
employment from thirty hours per week to forty hours to scale back the
reach of the mandate.161 It is possible that sufficient bipartisan support
could emerge for dropping the employer mandate entirely.
As this article goes to press, the Supreme Court has just eliminated a
major threat to implementation of the ACA with its decision in King v.
Burwell.162 In a 6-3 vote, the Court upheld the Obama Administration’s
position that the ACA supports providing federal subsidies, in the form of
tax credits, to help qualified, lower-income individuals purchase insurance
on an ACA exchange whether the exchange is run by a state or the federal
government.163 The Administration’s position runs counter to language in
the Act which, if read literally and without due regard for the apparent
legislative intent to give federal assistance to all qualified citizens, could be
construed to restrict subsidies to only those who purchase on an exchange
“established by (a) state.”164 If the Supreme Court had accepted the
plaintiffs’ position and denied subsidies to persons who purchased on
federal exchanges in the thirty-four states that had chosen not to set up their
own exchanges, a large percentage of the 6.4 million people who received
federal subsidies in connection with their purchases since January of 2014
may have been forced to drop out of the insured pool, possibly sending it
into a so-called “death spiral.”165 Although further legal and political
challenges are still possible, it is widely believed that the High Court’s
latest “rescue” of the ACA effectively assures that it is here to stay. If the
insurance exchanges, be they state or federal, continue to function well—as,
thankfully, they seem to be now—it might be acceptable to drop the
employer mandate and let the natural process of attrition nibble away at
EBHI. How long that attrition might take is an important question
addressed in Section IV infra.
A May 2014 policy brief by the Robert Wood Johnson Foundation and
the Urban Institute (“RWJF-Urban”) questions whether the mandate is
needed, opining that eliminating the mandate will not decrease insurance
coverage significantly.166 That prediction reflects the belief that many
161. Save American Workers Act of 2015, H.R. 30, 114th Cong. (2015).
162. King v. Burwell, 759 F.3d 358, 365 (4th Cir. 2014), cert. granted, 576 U.S. ___
(Decided June 25, 2015) (No. 14-114).
164. Id. (Challengers of the law argue the text of the ACA only allows for state-run
exchanges, not federally-run exchanges “enrolled in through an Exchange established by the
State under 1311.”).
165. See notes 111-112 supra and accompanying text.
166. Linda J. Blumberg, John Holahan and Matthew Buettgens, Why Not Just Eliminate
the Employer Mandate?, ROBERT WOOD JOHNSON FOUND. & URBAN INST. (May 2014),
available at http://www.urban.org/UploadedPDF/413117-Why-Not-Just-Eliminate-the-