Although Americans are signing up for health insurance on the Obamacare exchanges for the second year, there is some uncertainty in the law's future, with legal and legislative challenges ahead. Here are five things to know about the law's future in the current political climate.
The courts could still weigh in
Justices have already ruled on Obamacare twice, once in June of 2012 when they upheld the individual mandate, and again this past June when they said that the administration must exempt closely-held firms with religious objections from a rule requiring large companies to pay for their employees' birth control. Just days after the midterm elections, the Supreme Court announced it would hear another challenge, King v. Burwell, that questions whether the federal government can give subsidies to Americans who purchased their insurance through federally-run health care exchanges. The challenge rests on the reading of one line from section 1311 of the law, which says the federal government will give subsidies to eligible consumers who buy insurance from an exchange "established by the State." The suit interprets that line to mean that subsidies are not available to customers in the 36 federal health insurance exchanges.
The full D.C. Circuit Court of Appeals is planning to re-hear a similar case in December, but that case is now less relevant since the Supreme Court has decided to weigh in. Should the Supreme Court rule against the administration in the King case, it could be a devastating blow to the law's future, possibly disallowing the subsidies for Americans who bought insurance in the federal exchanges.
The medical device tax may be repealed
One way the law raises revenue for subsidies is through a 2.3 percent excise tax on the sale of medical devices. It's long been a target for repeal by the law's opponents, including Sen. Orrin Hatch, R-Utah, who will be the chairman of the Senate Finance Committee when Republicans formally take charge of the Senate in January.
The House has already passed a repeal of the tax three times, and a repeal has bipartisan support in the Senate. During a nonbinding vote to repeal the tax in March of 2013, 33 Democrats voted "yes" alongside the Republicans, for an overall 79 senators supporting the move.
While the repeal may have similar support in the new Senate, there are still questions about how the revenue would be replaced. The Obama administration has said it is open to the repeal, if Congress comes up with a way to replace the tax's nearly $30 billion in revenue over the next decade.
The GOP wants to change the law's definition of the work week
Another policy change Republican leaders are eyeing is the requirement for the number of hours an employee must work before their employer is obligated to provide them with health insurance or pay a fine. Currently, that threshold is 30 hours; the GOP wants to make it 40.
In a Wall Street Journal op-ed published the day after the election, House Speaker John Boehner, R-Ohio, and Senate Minority Leader Mitch McConnell, R-Kentucky, the next majority leader, called the rule, "an arbitrary and destructive government barrier to more hours and better pay."
The White House, however, says that more people will lose their health insurance if the minimum number of hours goes up to 40 per week, and warns that it will increase the deficit. When the Congressional Budget Office analyzed a House bill passed earlier this year that would change the work week from 30 to 40 hours, it found that about 1 million people would lose their employment-based health coverage, and there would be an increase of 500,000 and 1 million people looking for coverage through Medicaid, the Children's Health Insurance Program, or the health insurance exchanges. It would also increase the number of people without health insurance by just under 500,000 people and increase the deficit by $73.7 billion over the next 10 years.
This proposal, however, has less Democratic support: When the House passed their bill to restore the 40-hour workweek in 2014, just 18 Democrats voted yes. Between the president's threat to veto such a move and the low levels of Democratic support, it is less likely to become law.
Full repeal is unlikely--for now
Many Republicans will be chomping at the bit to pass a full repeal of the health care law, which President Obama has pledged to veto (he's drawn a line at anything that would result in newly insured Americans losing their coverage or undermining the basic structure of the law). But Senate Majority Leader-Elect Mitch McConnell, R-Kentucky, has conceded that without a filibuster-proof majority, it will be difficult to get a repeal past Democratic opposition in the Senate, let alone enough support to overturn a presidential veto if it ever made it that far.
Still, Republicans may well push for a full repeal, fueled in part by comments that came to light last week in which Jonathan Gruber, an economist and consultant who helped write the law, said it passed thanks to "the stupidity of the American voter." In another recent clip that has surfaced, he says that the law's authors intentionally mislabeled a tax on wealthy policyholders as a tax on their high-end insurance plans to make it seem more palatable.
At a press conference in Brisbane Sunday, President Obama said of Gruber, "The fact that some advisor who never worked on our staff expressed an opinion that I completely disagree with in terms of the voters, is no reflection on the actual process that was run."
Republicans also seemed determined to make Mr. Obama continue defending the law publicly.
"Even though we don't have the votes to override the veto, if that's what the president wants to do then the president needs to stand ready to explain to the American people why it is that a healthcare law that's making healthcare more expensive and more difficult for many people to get is still a law that he wants to impose on them," Sen. Mike Lee, R-Utah, said on CBS' "Face the Nation" Sunday.
The election stalled the expansion of Medicaid
2,275,000 more people stood to acquire health insurance through Medicare program after the 2014 midterm elections in states where Democratic or independent gubernatorial candidates had pledged to expand coverage, according to the firm Avalere Health. But of those five of those states - Florida, Georgia, Kansas, Maine and Alaska - Republicans candidates won the first four. Alaska elected independent candidate Bill Walker, who has pledged to expand the program.
Additionally, Arkansas--which is getting a new Republican governor, Asa Hutchison, after Democratic Gov. Mike Beebe was term-limited out of his job--could see the program rolled back, although it would be difficult, given the number of people that have gained coverage through the expansion.
Under the law, the federal-state health program was supposed to be expanded in all 50 states to anyone with an income under 138 percent of the federal poverty line. But the Supreme Court that the expansion had to be optional, not mandatory, and only 27 states and the District of Columbia have expanded their programs so far.