Republicans can’t win Obamacare subsidies case

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.

Neil Siefring urges that approach at The Daily Caller:

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.

President Obama signs the Affordable Care Act, via Wikimedia Commons

President Obama signs the Affordable Care Act, via Wikimedia Commons

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.


Christian Trejbal is a freelance editorial writer, editor and political consultant based in Portland, Ore. He wrote exclusively for The (Bend) Bulletin and The Roanoke Times before founding Opinion in a Pinch. He serves on the board of directors of the Association of Opinion Journalists Foundation and is open government chairman. Follow him on Twitter @ctrejbal and facebook.

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  • BloggerDave

    There is another possibility which is the most likely… The SCOTUS rules against the subsidies but lets them continue until the next enrollment period to give Congress time to fix the law…

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  • Snarki, child of Loki

    PA and DE are leading the way for dealing with this problem: the (D) governors have written to HHS, asking that they set up a “state” exchange, and run it as part of the Federal exchange.

    Hey, states can subcontract setting up and running their exchanges, so why not subcontract to HHS, who is ALREADY running an exchange for citizens of their states?

    Okay, those are D (ergo “sane”) governors, and they aren’t the problem.

    I suggest that Obama’s CIA get busy forging letters from the R (ergo “insane”) governors. Then, they can try denying writing the letters, and eat up the blame for no subsidies.

    If the CIA doesn’t want the job, I’m sure that Anonymous would be willing to help out.

  • I think this article highly overestimates Republicans giving a crap about the repercussions from any fallout. These are the people who repeatedly want government shutdowns. They don’t care.

  • Bill_Perdue

    It works to make the rich richer. It does no work to provide free medical care and low cost drugs.

  • Bill_Perdue

    ObamaRomneyCare only works for the rich and it’s goal is to make them richer at our expense. The presumed patience of American workers with rightwing schemes to bilk them and make insurance companies and pharmaceutical giants rich at our expense is a day dream.

    Obama’s betrayal of the public option and his role promoting the passage of Prop 8 in 2008 were just two of the reasons that Congressional Democrats were slaughtered in 2010, losing 27 million voters who voted for Obama in 2008.

  • Indigo

    Somewhat.

  • 2karmanot

    It does annoy me somewhat that America revolves around Obozo’s sun! :-)

  • Indigo

    Eppur si muove. Regardless of the structural clumsiness and the chatter, the ACA works.

  • Indigo

    We need what works. Socialized medicine works but in the American social setting it’s just another day dream.

  • SK

    If the SCOTUS does what I expect them (and hold against the administration), Obama and the Democrats need to do just two things:

    1. Block any attempt to remove the individual mandate
    2. Refuse to allow changes to the employer mandates.

    Obama should veto any compromises on those two items, and in 2018, more people will benefit from Obamacare.

  • There was a hearing in that case last week about whether the House even has standing to sue. If the court sides with the GOP on that, the hearing on the merits would occur down the road. See, for example: http://www.washingtonpost.com/local/crime/judge-weighs-bid-to-toss-house-gop-suit-against-obama-health-care-law/2015/05/28/fbbb1226-04b6-11e5-8bda-c7b4e9a8f7ac_story.html

  • 1 in 4 Texans still has no insurance. Despite around a million Texans now covered under the ACA, there has been little improvement in the overall coverage vs population. Nearly 6 million people in Texas are still without any reliable access to affordable health care. Most of whom are low-wage earners; at least a million of those uninsured Texans fall into the gap where Medicaid expansion would have been the most beneficial, but in an entirely Republican-controlled state, they weren’t about to allow that to happen.

  • Bill_Perdue

    Obamacare is junk, we need socialized medicine.

  • In Texas, the second largest state, 1 in 4 people had NO health insurance before the ACA and no Republican showed the least concern about that fact.

  • emjayay

    According to the Daily Caller, “Republicans have pointed out for years that Obamacare is unworkable. If the Supreme Court helps prove them correct…” No, a bad ruling would prove no such thing.

    But if there is a bad ruling it would do two things: make more people realize how ridiculous the current court is, and wreck insurance markets in the states that mostly didn’t want the ACA in the first place. Some of those states will no doubt immediately set up their own exchanges. All they have to do is hire a company that did the system that is working well in some other state. The result would just be many states, probably among them all the Medicaid extension refusing states, not having working ACA, leaving a lot of states with it. This should make big enough markets of many millions of people which should keep on operating just fine. In the long run this should reduce growth in the other states, with some people and businesses deciding to not move there or move out and hospitals there screaming about the costs of treating people who can’t pay.

  • emjayay

    What ever happened with that absurd Republican lawsuit where they were OUTRAGED because Obama (of the executive branch, responsible for administration of the laws) decided to put off the employer mandate that the Republicans hate so much for a year?

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