Or, at least, that seems to be the most likely outcome.
If the Supreme Court strikes down federal health-insurance subsidies in the 34 states that chose not to participate in Obamacare’s insurance “marketplaces,” it will be the first time the law’s viability is truly threatened. And we don’t have Republicans to thank for it.
In fact, the GOP has prepared for the moment by crafting a few proposals to extend subsidies, without asking for any real concessions from Democrats. And even if they could ask for a compromise, would Democrats—led by the administration’s Sylvia Burwell—ever agree to move forward on a legislative fix that even marginally destabilizes Obamacare anyway? Doubtful. (Ramesh Ponnuru believes the GOP will end up passing an extension without any real demands.)
Democrats, on the other hand, spent months framing the post-King v Burwell debate.
As court after court took up the case, left punditry worked on creating the impression that enforcing the law as it was written was outlandish, unprecedented, and laughable. They acted as if removing subsidies that didn’t even exist a few years earlier would pose a cataclysmic blow to humanity. Lately, though, contemplating the possibility (though, I think slim) that subsidies might go away, they’ve modified this position, continuing to call the case immoral and partisan, but also contending that the Obamacare death spiral would not happen.
Of course not. The fact that the GOP is preoccupied with potential political blowback rather than taking the opportunity to disrupt the law, tells us everything we need to know about the party’s effectiveness. Deep in this Bloomberg piece unpacking the debate, there’s this sort of thing:
Privately, some Republican aides who work on health policy confess that they’d prefer to see the subsidies upheld, seeing few, if any, options to get a health care bill past Obama’s desk and fearful their party will be blamed for the fallout.
As MIT economist and Obamacare architect Jonathan Gruber says, it’s “the stupidity of the American voter” that makes this entire thing tick. The GOP makes a similar assumption if it buys into the idea that there will be a fundamental shift in public opinion against them if the administration’s law continues not to work. There are two compelling reasons for the GOP to do nothing.
First, it’s worth repeating that the proposals Republicans have offered to extend Obamacare subsidies hinge on a number of completely fantastical notions: 1) that Obamacare subsidies will only be extended until the GOP wins the presidency in 2016 and holds the Senate, 2) that Republicans will be able to override any filibuster from Democrats or overcome any moderate Republican opposition in the Senate to overturn Obamacare, even if they can win the presidency and hold the Senate, and 3) that Republicans will be able to present a cohesive and sellable plan to replace Obamacare within two years.
Good luck with that.
It seems far more likely that Ron Johnson and others would be saving Obamacare, period. If this is not the goal, the only question the GOP should be asking is: Would Barack Obama be willing to allow millions of Americans to have health subsidies snatched from them just to save the individual mandate? Because surely the president would trade one of the least popular provisions in the law?
The answer will be no. And if the Supreme Court affirms that the administration’s congressional allies wrote the law in a way that was meant to punish/reward states for participating, it would be counterproductive for the GOP leadership—who still maintains it wants to do away with Obamacare—the one chance they may to weaken the law. It’s worth remembering that this is not just about subsidies. If the government loses, the individual mandate will not be workable in 34 states, since the administration can’t punish just some people for not having insurance.
Second … what fallout? It should be reiterated that there’s simply no proof that the public wants to save Obamacare (which is the wrong question, anyway), despite the perception media would like to create.
A CBS News poll found that for the first time more Americans–barely–support Obamacare, but when we take all the polling, basically, the contours of opposition remain the same. Around 70 percent of Republicans oppose the law while around 70 percent of Democrats support it. Independents are split somewhere in the middle. Fifty-five percent of those polled think “that there are some good things in the law, though changes are needed to make it work better.” And Republicans have long supported some of the most popular provisions in the law, including banning insurance companies from denying coverage to people with pre-existing conditions and so on.
But only 9 percent of Americans believe the health-care law is working correctly. If Obama loses, the Supreme Court will have asserted that the administration can’t keep implementing a poorly written and conceived law in any way it sees fit. It would reaffirm the public’s negative perception of the law. Those 34 states—most of them with Republican legislatures and governors—will not end up participating. Republicans should be fighting to let them craft their own policies. As others have argued, without the subsidies, effectively you’ll have two systems. That’s a good start.
But if King v. Burwell goes the way of Republicans, for the first time in this debate, they will have some leverage, even if they seem intent on throwing away. If Obama succeeds, either by winning the case or with a GOP assist, well, then we continue in the real chaos.