they are being extraordinarily cautious. that mad epps you to hear that. you want the girls back. we'll continue to file this story. that is appreciated. that's all the time we have time for. inside story is next on al jazeera. a federal appeals court was asked to rule n o the subsidies on the affordable care act, helping lower income insurance buyers. two of the three judges decided that it doesn't allow the i.r.s. to create subsidies in states that don't have their own market. the legal way for obamacare. it's the "inside story".

[ ♪ music ] hello, i'm ray suarez. to say the road from concept to implementation for the affordable care act was rocky would qualify as an understatement of this young century. the titanic legislative study, the death of teddy kennedy and replacement by republican. the attempts by house republicans to repeal the law. the supreme court decision on constitutionally, and the lengthening list of challenges. the decision of a 3-judge panel concluding a key structure of the health insurance law, the system of subsidies for low-income insurance buyers was not legal. at the same time another federal appeals court was deciding the law was permissible as is. the hurdles for obamacare never seemed to end.

the affordable care act passed in 2010 is 2400 pages long. this week's two opposing legal rulings hone in on one section. who qualifies for subsidies in the form of tax credits under the law. 14 states operate their open health care, and 36 opted not to create and run exchanges, letting washington do it in the form of healthcare.gov. section 36 (b) of the aca says tax credits go to people who buy health insurance in exchanges established by a state. a 3-judge panel by the circuit of appeals uses the language to fight down subsidies. senior circuit judge wrote in concurrence with the opinion:.

>> if this ruling stands it would wipe out financial assistance for the nearly 5 million americans who signed up. more in the future would take on higher costs. an analysis says these people will see, on average, a 76% increase in premiums, totally billions of dollars. none of this changed the reality that president obama's signature legislation remains a political football, very much on the fooled right now. speaker. house, republican john boehner said in a statement the ruling is further proof that president obama's health care law is unworkable. it cannot be fixed. republicans remain committed to

repealing the law and replacing it with solutions lowering health care costs and protecting american jobs. on the same day the u.s. court of appeal in richmond virginia weighed in on a subsidy wording. the court ruled that an internal rule outlining subsidies and credits is legal because it's essential to the structure of the law. >> you don't need a legal deg to understand that congress intended for every eligible american to have access to tax credits, regardless of whether it was state or federal officials running the marketplace. it's a clear intent of the law. >> the legal fight are not over. the obama administration is expected to appeal the ruling, striking down subsidies. the affordable care act could wind up before the supreme court. for now the law is the law.

no one will lose tax credits for buying insurance. the aca and four years old and is controversial for some as it is popular for others. the question is how potent is it as an election year issue, will candidates run on it, against it or ignore it altogether? . >> this time on "inside story", a look at the court decisions, and the twin paths forward for the affordable care act. the legal and political. will the supreme court take on the issuures of legislative language and the per miss ability of the subsidy system. if it does, could the aca face serious threats to its existence, even as millions of americans by insurance under its provisions. with the millions insured, what do candidates for public office say about the law's future between now and november. the obamacare, legal and

political future, let's begin with nicholas baggaley, professor of health law and policy at the university of michigan. welcome to the programme. >> thank you for having me. >> what was the essential question at the core of this case - how big versus ber well? >> well, as you explained in the introduction, the biggest problem for health insurance is it's unaffordable for many people. part of the plan of the affordable care act was to extend tax credits to people that may have been unable to afford health insurance on the exchanges. the language of the statute governing the calculation of the amount of the tax credits is tucked in a corner of the act, saying that the cal collision is to the amount of a health plan purchased established by the state. the d.c. circuit ruled that that language confined tax credits to

state-established exchanges. the fourth circuit said we have to read the provision in the context of the act as a whole. if que read the provisions -- if we read the provisions we would defeat the broader goals of the legislation, and reach a result congress never intended. it's a fight between the d.c. circuit and the fourth circuit about the proper way to make assistance of a statute. >> knich where things stand now, with two appellate panels coming to two different conclusions, in the mechanics of the way the appellate system works, what happiness next? >> the government and the d.c. circuit has an opportunity to petition for rehearing. it can ask the whole court to review the decision of this panel. there's a reason to think that the d.c. circuit is likely to grant consideration of this case. if that were to happen, the panel decision will be vacated

and if the d.c. circuit reached a different conclusion upon second look, we'd have no split among the circuit. the d.c. and the fourth circuit would rasp the same -- reach the same results. if that happened it would be a lesser candidate for the supreme court to review. they like to hear cases where the circuit courts are in did the. in the meantime the challengers could seek a full court rehandwriting at the fourth circuit, but may proceed to the supreme court. the supreme court will have to decide whether it's willing to take a case even though any split may be resolved. >> given what we know about the way the supreme court decides to hear cases or not. do they see themselves as the referee, the final stop for big questions about big national issues. like the affordable care act? >> well, they do see themselves as the last word on these issues. but sometimes even if you are the last word, it doesn't mean

you need to have the last word. if the lower courts need the right -- raf the right conclusion -- reach the right conclusion, sometimes the supreme court doesn't get involved. this could be one of those times. on the other times, this is a question of seminal importance to the significant piece of social welfare legislation in about 50 years. the supreme court feels that it has a responsibility to weigh in on a question. >> in the meantime, 36 states, the vast majority of states deciding not to create changes that stand at the cross roots of these questions raised in this case. -- crossroads of these questions raised in this case. if you lived in one of those states and went tonne healthcare.gov, and bought health insurance, what does this mean for you. >> the tax credits are not in jeopardy, not yet.

the court's decisions don't have legal effect or come into force for six weeks or so. by that point the supreme court may have decided to resolve the case, at which point the question will linger. the supreme court at the earliest will hear the case in the spring, maybe the fall. we'll have an opinion a couple of months after that. not much chance on the ground for people purchasing health care. on the other hand, there is some reason to fear that in the states that have federally establish established exchanges, the supreme court could evaporate. the states will face a difficult choice. if they chose not to establish an exchange because they didn't know that tax records rode on whether or not they chose to establish their own exchange. they may have a change of heart and say "we don't like the affordable care act, we prefer not to establish an exchange,

when it's tax credits for our sit gps on the line -- citizens on the line, we need to get our act together." not every state will do so, some may. we'll take a break. when we come back we'll look at the legal saga for the care consider, and how elected officials and aspiring elected officials will choose to run their campaigns between now and the midterm elections. this is "inside story", stay with us.

welcome back to "inside story" on al jazeera america. i'm ray suarez. a look at the legal and political future of the affordable care act - this time on the programme this week's appellate court decision would dismantle the subsidy system in states that decided not to sponsor their own exchanges, uninsured americans are concentrated. some of the most dangerous democratic seats are in places where obamacare is unpopular, and a lot of people don't have insurance. how do you craft a campaign for the midterms, whether you are a republican talking to newly insured voters or a democrat talking to voters that don't like the aca. professor nicholas baggaley is with us and we are joined by simon rowsen burg, president of the new democrat network, and paul howard, director of the

manhattan excellent of progress. as we look at issues, choices strategies from now until november, how do you craft a strategy that takes the different regional realities into account and the fact that some 20 million people are now injured? >> right, you are starting from the reality that it is a midterm election. this is where the party loses seats. they are facing head winds. don't forget the veterans administration scandal. a foreign policy. this problem, flaw in the d.c. circuit court highlighted, and the fourth circuit court said the law is ambiguous. the argument of the administration is better than that of the plaintiff. both courts agree that is a problem, the legislative record was not clear. if you were running against the

law, you are saying this is more information, it is badly written, purely designed, continues to have unintended consequences because it was pushed through along bipartisan lines, would have produced less acrimony, and less litigation. >> if you are a republican getting ready for november, do you run against the affordable care act? >> i think you do. what is happening is, like, there'll be winners, people of lower income, people with pre-existing conditions are better off under the law. at the same time the cost of health insurance increased because what the affordable care act does is it makes the basic package of insurance that all cover more expensive and says basically that everyone has to pay the same price. it raises the baseline of

coverage. for people that don't qualify, they are facing higher insurance costs of the the budget office estimates when all is said and done. there'll be 23 million uninsured americans and the u.s. will face crippling health care costs through its entitlement programmes. enormous problems to tackle that the former care act does not address. that's where you fit into the narrative. all races are local. state by state. right now democrats are running into head windows. >> during earlier cycle, if you ran against the affordable care act, or on it, you were running against the law or with it that hadn't taken effect. now that it's here, had the strategy changed. now that there's millions of people that had health insurance, does the posture of a democrat change. does it depends on where you are

running. >> there are parts of the country where the law is popular and where it's working. the negative case my colleague painted is not the real experience people have with the law. it's working. it got off to a rough start. we didn't know where we'd be. we have data. close to 20 million are covered. the magic cost curve is bending down. we saw a percentage of g.d.p., health care going down for the first time in a generation. the health care system today is better for everybody. everybody is better off with a functioning individual market. costs are coming down and over all the democrats have to do a better job at leaning into this and making the case that the big thing they pushed made health care interesting for everybody. >> one of the interesting paradoxes is there's high levels of uninsurance in places where there's endangered democrats.

for example, louisiana, where mary landrieu is running for election, and the affordable care act is unpopular, where david prior in arkansas and the affordable care act is unpopular - yet there are high levels of uninsurance and underinsurance in those states. how come democrats are not deciding to run hard an the access. >> in some of those states it disappeared as an issue. this is clearly - the republicans basically bet the farm in this would deliver the midterms as in 2010. it hasn't panned out. despite it being a tough year for the democrats. they don't have a national narrative. health care is not a major creditor part of what we are doing in washington or the campaigns. the contrast to what you were

you talking about is what is happening in kentucky. mitch mcconnell may lose his race because the democratic governor embraced obamacare, it worked. mitch mcconnell can against it. it may be essential and central to the most important republican leader losing in the fall. >> can the senate minority leader threat the needle and run against obamacare even - excuse me, paul howard, even while connect, the kentucky programme turns out to be popular among many? >> right. i think the needle you need to thread is put together solutions that work. the health care cost started in the mid 2000s. others acknowledged that for a long time. apparently a big part is the lagging economic recovering. we know the health care cost lagging for seller years, people expect it it pick up and trend.

that's right. you face the question of what are you offering on net. you can't say repeal, because ironically it turps the art against, as republicans said, if you like, you made the promise, if you like what you have, you can keep it. the president delayed the mandate for many whose policies would have been cancel. a couple of years were now they'll face the same situation. you can say there needs to be significant fixes, reforms to the affordable care act, mary landrieu, others in alaska says the same thing. there need to be more flexibility. all the market-driven films are on the table. there'll probably be a pivot after the midterm elections. bills will potentially get through a senate. getting to the president's desk, where the president said i'm willing to accept commonsense fixes that come to my desk.

you may see some come to the desk with the reality - yes, this is the system. everyone needs to play in. >> given the machinery set up to make the affordable care act a reality, can you tinker with it? is the current state of american politics open to that possibility, or do you have to take the whole thing down if you start the debate again? >> congress can fix this tomorrow with the stroke of a me. it's an easy fix. it would be an easy one. the question of whether we can move forward with tweaks depend on the level of government you are talking about. will congress make the tweaks necessary to get the affordable care act working. maybe not. there's a lot of room for federal agencies to implement the law consistent with what the statute says, and a lot of room for states to work with the

federal government. in the case of the exchange litigation, if the supreme court says the tax credits are not available on federally funded exchanges, states could choose to set up their own exchanges. at the state level some politics are a little more congenial to getting state-established exchanges up off the ground. we'll take a break. when we come back we'll talk about whether there's a time horizon for the affordable care act battle in real politics. you know, they weren't fighting about medicaid by the 197 # ections -- 1976 elections. this is "inside story", stay with us.

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advantage in continuing to pound it. with an estimated 20 million americans insured who were not before, is it clear what the strategy is for november. simon rowsen burg, along with the people who are covered, are people who think that this fight is kind of over. are there other things crowding tonne the national plate, you might say, that between now and november may look like asked and answered - old business. >> well, certainly the fact that immigration, for example, and what has happened on the border became a major issue is in part because of an absence because of the two domestic issues dominating the election. not being to either sigh side's advantage. you don't see either running on it, which is unusual. and a reason why the foreign

policy struggles and challenges are important for voters because of an a sense, and not an appearance. to some degree you are right. basically health care is becoming part of the national fabric, it's not as controversial as it was. there'll be bump, tweaks will need to be made. it's part of your country. i think it's for the better. paul, howard, along with the millions who have been hurt and the millions who have been helped, there's probably many more millions who have not seen the daily realities of their life change at all. and when the republicans were fighting this thing in the early days they made it sounds like the sky was going to fall. there are downside risks... ..if you oppose the affordable care act, if you oppose its goals, maybe you ought to be arguing about sub else's november approaches, because a lot of people don't see the

horrors threatened from this thing. >> my own perspective, a lit the more nuanced - the laws are all dessert and no spinach. it's complex, fiscally problematic. let's not forget the original prognostication is that after the affordable care act went into effect, this will be a slam dunk for democrats. that's the original prognostication that is not coming true. there needs to be real solutions. we have tied insurance to employer spon tored cover -- sponsored coverage. it's another trance of subsidies. it creates a group of people who will get benefitted subsidies. that's something that needs to be solved. employees, middle income families are seeing more take home pay eaten by health

insurance premiums. they'll increase next year. if you look at this, the challenges for democrats and republicans - this is a narrative. was the law implemented well, designed well. is it achieving all goals? some of them, perhaps, some not. is this an administration that is the right one to meet those goals? >> i think if that's the message played out in the elections, as the professor sud, small ball, doesn't play well to the democrats, who don't have a we were in charge as things got better. as the challengers, republicans have the message. my challenge is there has to be an alternative that addresses the changes raised and implemented and the problems before the aca came in effect. >> i'm going to try to get professor baggaley have one word before - and we are up against

our time - could the legal intertwine - could we argue this as the immediate terms arrive. >> i think for now it will be quiet during the midterms but will erupt after. and states will be torp between a dire -- torn between a desire to help out their state questions and a desire to resist care. >> thank you to all my guests for joining me. that brings us to the end of this edition of "inside story". thank you for being with us. i'm ray suarez. phil torres

>> this is "techknow," a show of invo vasions that can save lives, we'll explore the intersection of hart ware and huge -- hardware and humanity. let's check out the team. marita davison is specialising in ecology. tonight, what are the scientists at monsanta up to. we go into their lab. are they moving away from