The Supreme Court will hear oral arguments in the King v. Burwell case this week. Petitioners are asking that Obamacare be enforced as it was conceived and written by Democrats in 2010 rather than how it’s been conveniently re-imagined by Democrats in 2015.
Whatever the outcome will be, watching the Left panic over the case tells us just how risky a ruling could be for the future of Obamacare. If the SCOTUS does find that the 75-percent subsidy the federal government has been dubiously giving health insurers in the 37 states that rejected Obamacare “marketplaces” are illegal, there is a good chance the law could be in serious trouble.
Unless, that is, someone bails it out.
Which brings me to Sen. Ben Sasse, who recently warned in the Wall Street Journal that if the King v. Burwell goes the way of conservatives, the ensuing liberal attacks would be devastating. The GOP will be blamed for shutting off chemotherapy and dialysis machines and engaging in various forms of gentricide. Sasse argues that the administration will then approach all the non-subsidy state governments with bribes that would extend the subsidies to all states. Under political pressure, Republicans governors would be helpless to resist and Obamacare would be saved.
So the Nebraska senator has an idea:
So within a week I will introduce legislation that uses the 1985 “Cobra” law as a temporary model to protect those harmed by ObamaCare. Cobra offers workers who have lost their jobs the option to keep their health coverage for 18 months—so Congress should offer individuals losing insurance the ability to keep the coverage they picked, with financial assistance, for 18 transitional months. This would simultaneously avert the full-scale implementation of ObamaCare in these 37 suddenly desperate states. It would also help protect suffering patients entangled in the court’s decision to strike down illegal subsidy payments.
There are a few problems here.
For starters, are we certain all of this would go poorly for the GOP? The notion that Obamacare will suddenly become a liability for Republicans and people will be clamoring to save it after years of steady disapproval is a common talking point in the media these days, but it doesn’t exactly mesh with reality. If it turns out that the law was poorly written, amateurish, unenforceable, lawlessly enacted, and now directly hurting poor people, the one sure-fire way Republicans could lose the upper hand is by putting their fingerprints on the legislation.
What is likely is that over those transitional 18 months, Obamacare would only further metastasize. Democrats would never pass a bill that would offer market relief, so it’s unlikely that those using tax credits today would be able to find cheaper insurance in 2017, anyway. An extension without broader reforms would not change anything.
And, on a political level, the same pressures and societal anxieties that scare Sasse now will still exist when billions of dollars of subsidies he voted for would run out. Well, with one major difference. If the GOP Cobra plan passes, Washington will be debating the future of a Republican-passed plan in 2017 rather than debating a way replace Obamacare in 2015. Either way, Democrats will accuse Republicans of turning off chemotherapy and dialysis machines.
That’s if there’s ever a sunset for subsidies. Sasse’s plan would allow the King v. Burwell decision to end both the individual and employer mandates, and put an end to enrollment. That’s a great start. But it is exceedingly difficult to believe that 18 transitional months of subsidies won’t turn into 18 transitional years or more. Which welfare subsidy has ever seen a sunset, after all?
Sasse argues that Republicans will have to unify around a set longer-term solutions, and then turn the 2016 presidential election into a referendum on two competing visions of health-care policy. Is the best way to remind people about the competing visions to make the Democrats’ vision less disastrous? Sasse’s plan reinforces the notion that we have an uninsured problem rather than a price-controlled marketplace problem that needs less government interference. Once you’ve acquiesced to the idea that billions in subsidizes are needed, the idea becomes bipartisan.
Of course, there’s little chance Democrats would help pass Sasses’ 18-month plan. More likely, they will unite behind a plan that subsidizes those in states without contrived Obamacare “marketplaces” in perpetuity. Obama would not. Who knows who the next president will be? If Republican governors take whatever ensuing payoff is offered by the administration, they would either pay a price politically or not. The GOP should not be the one offering it.
If Obamacare crumbles, there will be immense political pressure on both sides. Democrats will continue to argue that a failure to give something to Americans is the equivalent of taking something away from them. And at some point conservative have to come up with compelling rejoinder to this argument. They can do it now, or later. What they shouldn’t do is make the Democrats’ arguments for them.
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