What happens if Republicans win the Supreme Court case against Obamacare? They might end up like the dog that caught the car.
This week the court will hear oral arguments in King v. Burwell, the case challenging the payment of Obamacare subsidies through the federal exchanges. If the justices bar the payment of subsidies through those exchanges, it would be both a victory for the health law’s critics and a problem for Republicans running Congress.
Which is why a Senate GOP working group has been meeting for months to figure out what to do should the challenge to Obamacare succeed.
It’s a difficult problem on several fronts. First, even in a victory scenario, nobody knows just what the court will do. Would subsidies stop immediately? After some period of time? Republican lawmakers don’t know any more than anyone else about what path the justices will choose.
More importantly, nobody knows what will follow. Recently Health and Human Services Secretary Sylvia Mathews Burwell told Republicans the administration has no “Plan B” should Obamacare lose in court. “We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision,” Burwell told the GOP.
So Republicans are working on their own plan. “We’re committed to helping the people who have been hurt by the health care law,” said Republican Sen. John Barrasso, leader of the working group. “We’re not going to help the law, but we’re going to help the people, so they are not left in the lurch.”
What that means is Republicans are going to find a way to continue paying subsidies to the estimated 7.5 million Americans who receive taxpayer-funded help to pay their insurance premiums through the federal Obamacare exchange.
The prospect of seeing those people lose their subsidies — even though some have received them for a short period of time, and even though Obamacare has imposed burdensome costs on many other Americans — is just too much for Republican lawmakers to risk.
“We’re worried about ads saying cancer patients are being thrown out of treatment, and Obama will be saying all Congress has to do is fix a typo,” said one senior GOP aide involved in the work. In recent private polling for the conservative group Independent Women’s Voice, a huge majority of respondents said it would be important to “do something to restore the subsidies” in the case of a court decision striking them down.
Hill Republicans fear such a scenario would create huge pressure on Republican governors, who originally declined to create Obamacare exchanges in their states, to change course and set up state exchanges. The result could ultimately be an Obamacare that is even more firmly rooted and difficult to repeal than it is now — all because of a Republican “victory” in court.
To avoid all that, GOP lawmakers have decided to keep the money flowing. Maybe the payments won’t be called subsidies, but they will be subsidies. The essence of Obamacare — government subsidizing the purchase of health insurance premiums — will remain intact.
For those conservatives who don’t like the idea of Obamacare as a new entitlement, who worry that it is furthering a sense of dependency on government — well, that is going to continue, no matter what happens in King v. Burwell.
The GOP working group still hasn’t decided on a specific plan. One group member, Sen. Ben Sasse, has proposed a system based on the old “Cobra” law that allowed people to continue their health insurance after leaving a job. Under Sasse’s proposal, the subsidies would continue for 18 months, until Congress passes a new health law to supersede Obamacare.
Is that even remotely a possibility? If the Supreme Court rules in June, Sasse’s 18-month plan would tide things over until the beginning of 2017, when there might be a new Republican president taking office. Or there might be a new Democratic president, which would stop GOP plans right there. And even if there is a Republican in the White House, remember that after six years of talking, the GOP has yet to unite behind any alternative to Obamacare. There’s nothing to assure they’ll ever do it.
Back in August 2013, when some Republicans were trying to defund Obamacare, even if it meant shutting down the government, one of the shutdown leaders, Sen. Ted Cruz, argued that, “The Obama administration’s plan is very simple — to get as many Americans as possible addicted to the subsidies, addicted to the sugar. They know the simple fact that in modern times, no major entitlement has ever gone into effect and then been undone.”
Now, as they work to keep the money flowing even in the event of victory in King v. Burwell, Republicans are proving that Cruz’s remarks were right on target.
Byron York is chief political correspondent for The Washington Examiner.
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