I hope that you all had a very Merry Christmas and are ready to launch into the last week of 2015. Last year at the end of the year, instead of doing the top stories of 2014, I made a prediction on what I thought the three top legal stories would be in 2015. Let’s see how I did.
I got all three predictions right -- sort of.
Same Sex Marriage -- Top Legal Story of the Year
I’d say the top legal story of the year was one that I anticipated: Same Sex Marriage. Now, as I pointed out last year, the law makes seeing the future a lot easier than other realms because we have calendars of what we are going to do next. So I looked ahead at the calendar to see what is coming up, reviewed what has happened in the past, and I made a prognostication. Following that method is also the lawyer’s job description, but I digress. Obergefell v. Hodges is going to go into the history books and will be one of those marriage cases that get studied for generations, just like when I was in law school and I studied Loving v. Virginia (interracial marriage) and Reynolds v. United States (polygamy).
While the impact of the case was immediate, it didn’t change anything in Utah. However, if it hadn’t been for one county clerk in Kentucky, the case would have come off the front pages quickly. The impact of the case will be to make marriage between consenting adults the new normal, much like Loving v. Virginia allowed couples of different races to get married -- the disagreement with the policy didn’t entirely go away, but the legal acceptance solidified and the resistance waned.
Affordable Care Act -- Number 2 Legal Story of the Year
My second look into the future said that the Affordable Care Act (“ACA”) would be a top legal story throughout the year and it was, but mostly because nothing happened. The Supreme Court rebuffed a challenge in King v. Burwell that would have taken away the federal subsidy for those buying insurance, effectively uninsuring over 8 million people. Everyone kept their healthcare. The ACA has taken some hits in the past from the Supreme Court, but came out unscathed on this attack.
The next thing that didn’t happen was the Utah legislature completely failed to reach any kind of agreement on how to insure the 74,000 or so that fall into the insurance coverage gap that was originally intended to be covered by the ACA Medicaid expansion.
The Supreme Court and the Utah Legislature weren't t the only ones not acting on the ACA. Their congressional counterparts on the federal level effectively defunded the risk corridor which had been designed to allow new players into the insurance market and increase competition, like the recently deceased Arches insurance plan. This didn’t stop Congress from taxing the larger insurance companies the money that was supposed to go to the co-op plans like Arches. They just refused to let the money go where it needed to go.
The latest budget deal will cancel the health insurance tax on the big insurance companies a year early in 2017 (they will still get taxed in 2016), since the money that was supposed to go from the bigger companies to spread the risk over the entire insurance pool didn’t make its way out of Washington. Kind of like, "what tax gets paid to Washington DC, stays in Washington DC," especially if your state legislature decides to refuse the money.
Oh, two more things that won’t be happening with the ACA -- the tax on “Cadillac” policies, employer paid health insurance plans that exceed a threshold would be taxed beginning in 2018, but now it is 2020. Also, the sales tax on medical devices won’t go into effect for at least another couple of years.
If legislative budgeting boggles you, let me simplify how all this budgeting legislation worked: Big money won, little guys lost and all our insurance premiums will go up as a result. Not because of Obamacare, but because of successful attempts to defund key portions.
My Third Prediction
Two of my three predictions were right on the money. My third prediction last year? “I have no idea.” That's right, I hedged my bets and said I didn’t know. Now in hindsight, I’m still not sure what my third legal story of the year should be. The gun debate and shootings seems like an ongoing battle, played out quite literally in the streets of our country. Money seems to have permeated our political system, but that is more like salt in the ocean, something that is always there, maybe a little water has evaporated and it is a bit more salty than usual. And maybe the fact that I don’t know what the third biggest legal story makes me three for three on my guesses. At the very least it points out the value of the law. Things just don’t change that much in the legal arena. A stable society requires consistency in its laws. I predict the law will remain consistent in the coming year, providing a greater likelihood that we will all have a Happy New Year. Let’s hope I’m right again.