Few people expect much to happen on health care in the 114th Congress, certainly not President Obama. He plans to continue bending and twisting his interpretation of Obamacare’s many complex provisions as necessary to keep it afloat and to avoid dealing at all with opposition to the law among the public or the Republicans who now run Congress.
But King v. Burwell could upend the president’s plans. That’s the case, now on the Supreme Court’s docket, contesting the legality of subsidy payments to people in states that chose not to build their own Obamacare insurance exchanges. A decision against the government’s provision of the subsidies would undermine the law in the 37 affected states and, in the process, disrupt insurance for millions of people who signed up for coverage on the assumption that the subsidies would be available to them.
The blame for the mess that would surely ensue should rightfully fall on the Obama administration and Democrats in Congress. Congressional Democrats wrote the statute on their own, and the administration has enforced it. If the Court rules that the statute was written carelessly and enforced lawlessly, Democrats will have no one to blame but themselves.
But don’t expect them to take responsibility. If the administration loses the case, Obama is sure to denounce the ruling as an ideological power grab by the Court and then to demand that Republicans in Congress fix it, with no strings attached. Further, the administration will almost certainly develop a workaround for the states, allowing them to designate and use the federal exchange as if it had been built by the states. This would give administration officials a justification to continue paying federal subsidies in the states agreeing to the workaround, even if it were legally questionable.
It will be tempting, under these circumstances, for Republicans in Congress to stand back and watch events unfold rather than step into the breach with a plan of action. After all, they had nothing to do with writing or implementing Obamacare, so why should they have to offer a solution? Moreover, many conservatives will see the loss of federal subsidies as the first step in the full unwinding of the law. Why on earth would the GOP want to step in?
What exactly would happen in the aftermath of a Court ruling in favor of the plaintiffs is certainly unpredictable. It is possible, perhaps, that the public would be so disgusted with the lawlessness of the administration that opinion would swing in the GOP’s favor, tempting the party to do nothing while the administration is forced to scramble to pick up the pieces. But it seems more likely that a combination of the president demanding a simple fix and public concern about the fate of the several million people with disrupted insurance arrangements in the affected states would put at least some of the pressure for a fix on Republicans.
And the pressure could be especially acute on Republican governors in the affected states. They are the ones who will be presiding over insurance markets that could unravel entirely. If the president offers them an easy route to building a “state” exchange, and there is no prospect of an alternative coming from Congress, then it seems probable that many Republican leaders in these states will succumb to the pressure coming from both the administration and the public to fix the mess by adopting state exchanges. Several Republican governors have stated that they would not accept such a “solution,” but as we have seen with the lure of Obamacare’s Medicaid expansion, the pressure to do so could ultimately be hard to resist.
If events were to unfold this way, it would, of course, be politically disastrous for the GOP. But it would also mean the party had missed a huge opportunity. Obamacare is being fully implemented nationwide. There will be some 10 or 11 million people getting insurance through the exchanges, and another several million more getting covered through Medicaid. The longer implementation proceeds, the harder it will be to undo. If the Court strikes a significant blow to the law, it will be perhaps the last opportunity for Republicans to begin moving health care policy in a very different direction in the Obama years. Despite the political risks, the GOP should recognize and take advantage of such an opportunity.