For Republicans, a Supreme Court ruling on Obamacare that should be cause for celebration could instead sew intraparty divisions and complicate life for their presidential contenders.
On the surface, a decision for the plaintiff in King v. Burwell would be a victory for Republican opponents of President Obama’s Affordable Care Act. Ruling that Obamacare makes government subsidies available only to those people who buy health insurance on a state-run exchange, as the statute is indeed written, would be particularly satisfying to conservatives who have charged that the administration with subverting the law in implementing various parts of it.
But if the approximately 6.5 million people who have purchased insurance on healthcare.gov and received subsidies suddenly lose federal aid and can’t afford the coverage that Obamacare forces them to buy, Republicans in Congress and on the 2016 campaign trail could face a political quandary.
If Republicans can’t reach consensus, they also might end up sparring with each other on an issue that has been a unifier six years running.
“I suspect that, quietly, a lot of the candidates and congressional leaders are hoping the court upholds the law as written, leaving Obamacare as a whole intact for us to run against next year,” speculated one Republican consultant based in Washington.
The party is broadly divided into two camps in the debate over how to respond in the event that Supreme Court rules against the Obama administration.
One camp argues for what some Republicans call the “inertia” approach. Under this strategy, if people who purchased plans on the federal exchange and were eligible for subsidies lose them, Republicans should do nothing. They opposed Obamacare from Day 1, and should let the president deal with the fallout. This keeps the GOP’s fingerprints off the law, and satisfies conservatives who oppose doing anything other than full repeal. This route is particularly popular among Tea Party activists and their adherents.
“Extending the subsidies would be political malpractice,” Jim DeMint, president of the Heritage Foundation, a conservative think tank, wrote this week in an op-ed in the Washington Examiner. “It would be far better for far more people if Congress simply repealed Obamacare.”
The other camp argues for an “orderly” wind down of Obamacare.
This strategy assumes it is politically unwise — and unfair — to leave Americans who lose subsidies out in the cold. So, Republican Congressional leaders and some of the GOP presidential contenders have prepared proposals to maintain the subsidies in the interim as part of a plan to radically overhaul the law over the next six to 18 months. Obama would veto it, but this avenue would protect Republicans from blame and force the president to engage with them.
“The goal is to provide an off-ramp for our people to escape this law without losing their insurance, and all conservatives in Congress should work together toward this goal,” Sen. Marco Rubio of Florida wrote in a March op-ed for FoxNews.com. Rubio, a Republican presidential candidate, has said repeatedly on the campaign trail that he favors “repealing and replacing” Obamacare before the law “repeals and replaces” American small businesses.
In King v. Burwell, the Obama administration argued that the federal government should be able to provide health insurance subsidies to Americans who buy coverage on healthcare.gov, even though the text of the Affordable Care Act states that to be eligible, policies have to be purchased on exchanges set up by individual states. This is an issue because several Republican governors who oppose Obamacare declined to set up health insurance exchanges, leaving healthcare.gov as their only venue to buy insurance if they don’t receive coverage through other means.
Some Republican governors, though not all, also rejected the expansion of Medicaid coverage for the poor made available under the Affordable Care Act.
Obama has offered no new legislative plan for helping Americans that would be affected if the court rules for King. The president’s solution is for the Republican-controlled Congress to pass a one-sentence law that makes federal subsidies available to Americans who purchased plans on the federal exchange.
While that clearly won’t happen, GOP congressional leaders are likely to push legislation that maintains subsidies long enough for affected to Americans to transition to a new system.
Voting on such proposals could be politically tricky for the senators running for president, including Rubio, Ted Cruz of Texas, Lindsey Graham of South Carolina and Rand Paul of Kentucky.
None believe in doing nothing. But voting for a solution could produce political blowback with GOP primary voters still intense in its opposition to Obamacare. Voting against, meanwhile, could be problematic in the general election, when the nominee faces impacted votes in battleground states.
The governors expected to run, including New Jersey’s Chris Christie, Ohio’s John Kasich and Wisconsin’s Scott Walker could get tripped up by constituents who look to them to create a state exchange in the absence of their ability to access subsidies through healthcare.gov.
This would be political kryptonite in a Republican presidential primary. But with the sitting governors who are running for the Republican presidential nomination mostly serving in blue states or swing states, they could find themselves dealing with a media firestorm at home.
An email to a Christie spokesman went unanswered Wednesday. A spokesman for Kasich told the Examiner that the Ohio Republican would respond once the court rules.
Walker discussed his thoughts in an op-ed published on CNN.com, making clear that he would not respond by setting up a federal exchange. Walker did not accept the Medicaid expansion, choosing instead to reform his state’s Medicaid program to increase the number of Wisconsin residents in poverty who are covered by the program.
“Governors across the country have been clear: If the Supreme Court strikes down the Obama executive overreach, we will not bail out Obama at the expense of the American people. We will not set up state exchanges under the rules of Obamacare,” Walker wrote.
There is a third option that could protect the Republicans from political risk while still giving them the victory they claim to seek in King v. Burwell. The court could rule for King but allow the subsidies to flow for a period of time until Congress and the White House come to a resolution.
Disclosure: The author’s wife works as an adviser to Scott Walker.
