As the Supreme Court winds down its current term, some big decisions are coming this month. Most eyes are on Obergefell v. Hodges, the same-sex marriage case, but don’t forget that Obamacare is on trial again. In King v. Burwell, the court could punch a deadly hole in the Affordable Care Act.
Republicans have tried to tear down President Obama’s signature policy achievement since the get-go. In the House of Representatives, they have voted more than 50 times to repeal Obamacare, but the Senate has served as a bulwark to ensure that the gains made for the health of the American people remain in place.
Republicans failed in the courts, too. A challenge of the ACA’s mandate that almost all Americans buy insurance lost.
But you know what they say: If at first (or second, or fiftieth) you don’t succeed…
Conservatives returned to the Supreme Court this term in King v. Burwell. It’s a dry, legalistic case that centers on a couple of words in the Affordable Care Act. It gets somewhat technical, but the short explanation is that one section of the law, read a particular way, could forbid the federal government from providing subsidies to American families who buy insurance through the federal health insurance exchange. Those who buy through state-run exchanges would not be affected.
Defenders of Obamacare insist that the challengers at best are misinterpreting a passage to create conflict that doesn’t exist when read in the full scope of the law. At worst it’s just a typo.
Still, apparently there’s enough room for debate to merit a Supreme Court case, and the court could go either way. No matter what, though, Republicans will lose. Every scenario spells political damage for the GOP.
Consider the possibilities:
Nuclear option: SCOTUS rules against subsidies and Republicans do nothing
In some sense, this is the easiest path for Republicans. There’s no coalition to build, no consensus to find among disparate conservative views. Just stand aside and let nature take its course.
Republicans shouldn’t disrupt Obamacare’s collapse if the Supreme Court decides the subsidies are unworkable. The blame for this lies squarely with our scholar-leader President Obama and the Democrats. Republicans should not rescue them from their mistakes. Republicans have pointed out for years that Obamacare is unworkable. If the Supreme Court helps prove them correct, Republican leadership in the House should take advantage of the decision to pivot health care back to the states as rapidly as possible and get the federal government out of the health care business at which it has failed so badly.
Republicans in the House and Senate should resist the temptation to provide mouth-to-mouth to the bureaucracy the left has constructed. They have done so too often in the past.
Meanwhile, millions of Americans who rely on subsidies and the health care exchanges would stop buying insurance. Everything would snowball from there.
Without the larger pool of clients, insurance companies and the overall healthcare system would face mounting costs, driving up prices for everyone else.
Low-income families that benefit from preventive health services would not receive them. Minor problems would become major health issues over time, costing everyone more money in the long run. Much of Obamacare would likely unravel.
That might appeal to some of the far right, but the Republicans who killed the subsidies and did nothing to prevent the ensuing pain and suffering would hand Democrats a powerful issue heading into the 2016 congressional and presidential elections. “All Republicans can do is tear down progress and screw over the poor,” campaign ads will proclaim in so many words. “They promised to replace Obamacare, but they did nothing.”
Most of the 30 states that use the federal exchange do so because Republican governors and legislatures refused to create their own. Those are some of the most cash-strapped states, unable and unwilling to pay for the subsidies themselves.
Republican legislatures and governors could create state exchanges, like they were originally encouraged to do. But as other states discovered, setting up an exchange can be tough, expensive and time-consuming. Plus those state leaders would risk being seen as embracing Obamacare.
Apply a Band-Aid: SCOTUS rules against subsidies and Republicans restore them
If the Supreme Court rules against the subsidies, it will be based on a technical error in the drafting of the Affordable Care Act. There’s nothing inherently unconstitutional about providing the subsidies, only an arguable oversight in how Congress wrote the law. A new law could correct that error.
That’s what many of those governor’s want. Wisconsin Governor Scott Walker is the most recent to demand that Congress fix things. Walker threw down the gauntlet:
We’re gonna push back. This is a problem that was created by this president and the Congress that was in the majority at that time. There’s gonna be incredible pressure — we heard it about a month and a half ago when I was at the White House with all the other governors from across the country. The president doesn’t have a fallback plan. But this is not something the state created. This is something the federal government — this president and the Congress created. They’ve gotta come up with a solution.
There’s some small chance that a few Republicans in competitive districts would join with Democrats to pass such a law. It would almost certainly be a stopgap, temporary extension, setting up another crisis in a year or two, most likely after the 2016 election. The GOP – more so than Democrats – has become quite adept at kicking the can down the road rather than making difficult policy and spending decisions.
Again, Democrats would be able to hammer them on the campaign trail. “See, even Republicans want to preserve Obamacare. But now they’ve set up a health care cliff.”
Many Republicans running last year made killing Obamacare a cornerstone of their campaigns. If they go back on that promise, they would infuriate and demoralize their base. That’s not the way to head into a presidential election year.
Continued failure: SCOTUS upholds subsidies
This might be the least damaging outcome for Republicans, but it still isn’t good. In terms of the law itself, nothing would change; the subsidies would continue. In terms of the bigger debate, however, things will remain far from settled.
Another Supreme Court loss would be incredibly demoralizing.
Republicans could fall back on their old strategy, but surely it’s wearing thin with their base. After a few dozen pointless votes to repeal Obamacare in the House of Representatives, a couple of more won’t satisfy anyone. They could try some scarlet-letter laws, but they just made the party look silly and impotent. When you can’t do something real, go for hollow symbolism.
Democrats would seize the rhetorical high ground in this case, too. They would declare, “See, we told you so. Republicans have been wasting everyone’s time with a frivolous lawsuit because they can’t abide an Obama success and can’t accomplish repeal legislatively.”
It’s not a slogan that fires people up, but it does reiterate who the losers are. Again, not exactly the way to head into 2016.
Win or lose in King v. Burwell, Republicans will come out damaged. Then again, if there’s one party that is capable of screwing up an excellent opportunity like this, it’s the Democrats. That’s the only thing Republicans have going for them.