There's a weird, wonkish battle simmering just below the surface in today's big news about Obamacare subsidies: how many federally exchanges are there, anyway?
The number isn't trivial: the entire issue at hand is whether subsidies are legal in federally-run marketplaces. And the two federal circuit court decisions released today actually cite different numbers: the Fourth Circuit says there are 34 federally-run exchanges, while the D.C. Circuit decision says 36 exist.
And even among the people who have followed Obamacare regularly for years now, there's little agreement on which number is right.
Some people have jokes:
How is it so difficult to count the number of federal exchanges? It mostly comes down to two states, Idaho and New Mexico.
These states had hoped to scale up state-run exchanges in time for the the first round of enrollment, but didn't manage to do so; instead, the states defaulted to exchanges run by the federal government. The Obama administration likes to call these exchanges "supported" marketplaces, since both the feds are giving the states a hand.
The Halbig decision essentially says that Obamacare only authorizes subsidies in states that run their own marketplaces — a requirement that Idaho and New Mexico currently do not meet. If that does end up being the case, these two states would count as federal marketplaces, and ultimately could lose their subsidies if the government loses in the Supreme Court.
It's possible that Idaho or New Mexico could apply to switch to a state-run exchange, given that they're states who have expressed an interest in doing so. If they had planned to move to state-based exchanges for Obamacare's next round, they were supposed to file paperwork with the feds by June 30. No word yet on whether that has happened.
Oregon — which has announced that it will use Healthcare.gov for the enrollment period starting this fall — is going to be just fine, though. The state may be using the same software as the federally-run exchanges for the next enrollment period, but in the eyes of the law, they're still a state-run exchange.