GOP Leaders May Be Undermining A Core Argument In Supreme Court Case Against Obamacare

The Supreme Court will have another chance to cripple Obamacare in 2015, and Republicans are hoping they do just that.

But the Republicans who will run Congress next year may be unintentionally undermining their chances of a victory in King v. Burwell, by arguing that a defeat for the Obama administration would gravely damage the law and signaling they would not fix the language at issue in Obamacare. Such a ruling would invalidate premium tax credits for Americans in most states, rendering insurance unaffordable for millions and imperiling other provisions in the law.

Incoming Senate Majority Leader Mitch McConnell (R-KY) recently said a decision against the law would “take it down” and allow for “a major do-over of the whole thing — that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.” No. 4 GOP Sen. John Barrasso (WY) said a ruling against the White House “alone is enough to bring down the health care law.” He said Republicans will “look to the courts” as part of their efforts to repeal or undermine the law, according to Politico.

The problem is that this message — that a ruling against Obamacare would assist Republican efforts to weaken Obamacare — contradicts the message undergirding the lawsuit: that the challengers are simply trying to perfect the law’s implementation, not harm it.

“What’s telling about these statements is that the challengers claim they’re trying to uphold what Congress always meant to do. And that argument has always been hogwash. But the fact that you’ve got Republicans now admitting that their hope is not to uphold the law but to put a fork in it — that’s no great newsflash, but it does complicate the plaintiffs’ litigation story,” said Nicholas Bagley, a law professor at the University of Michigan and an expert on the King case.

The GOP statements also undermine an argument that has benefited the legal challenge: that Congress can simply “fix” the law if the courts determine that the letter of the law contradicts what its authors say they intended.

In a brief filed with the Fourth Circuit Court of Appeals, the challengers cited legal precedent which says: “‘[I]t is up to Congress rather than the courts to fix’ even ‘unintentional drafting gap[s].'” Although the Fourth Circuit rejected that reasoning, the D.C. Circuit Court of Appeals embraced it, citing the exact same line in its ruling against Obamacare subsidies.

Jonathan Adler, a law professor at Case Western Reserve University and a key architect of the legal challenge, argued in SCOTUSblog last month that the partisan divide over Obamacare “should not obscure the simple fact that the law clearly says what it says, that it means what it says, and that if Congress made an error, it is up to Congress to fix it.”

But Republicans openly say they won’t fix it. In July, House Speaker John Boehner (R-OH) said the D.C. Circuit ruling against Obamacare proves the law “is completely unworkable.”

“It cannot be fixed,” Boehner said in a statement.

This juxtaposition could weigh on Chief Justice John Roberts, whose deciding vote saved most of Obamacare in 2012. He declined to become the first chief justice in 75 years to crush a sitting president’s signature law, even though the crux of it had not been implemented yet. Today it is benefiting millions.

Supreme Court Chief Justice John Roberts greets President Barack Obama on Capitol Hill in Washington, Tuesday, Jan. 24, 2012, prior to the president’s State of the Union address. (AP Photo/J. Scott Applewhite)

“I think the Chief fully understood the political stakes here before Mitch McConnell opened his mouth. And I’m quite sure that the government will draw the Court’s attention to the dramatic real world consequences of a decision invalidating the IRS rule,” Bagley said.

Roberts has taken the “Congress can fix it” escape route before. In his majority opinion last year invalidating a centerpiece of the Voting Rights Act, he argued Congress could fix the problem by passing a new formula to determine which jurisdictions need federal pre-approval to change their voting laws.

“Congress may draft another formula based on current conditions,” he wrote.

Tim Jost, a health law expert, said he doesn’t think “anybody has been fooled by” the challenger’s argument that they simply want to enforce Obamacare and not damage it. But he argued that the GOP leaders’ remarks make that “even clearer.”

“I don’t see how any justice could argue that this is a technical problem in the bill and Congress can fix technical problems,” he said. “But to the extent that these statements makes that even clearer, I suppose that might have some minimal effect on the court.”

Adler doesn’t think the comments by the Republican leaders hurt the case.

“I don’t see the conflict,” he said in an email. “The plaintiffs argument is that agencies (and courts) are bound by the law Congress passed, not the law some now wish Congress had passed instead. If Congress thinks there is a problem — that is, if Congress believes that following the text of the law creates a ‘technical problem’ — Congress may fix it. Such a fix could either be to do what PPACA supporters want, or it could be something else.”

The justices may recognize that the political toxicity of Obamacare makes it unlikely Congress would fix it. But GOP remarks rooting for the Supreme Court to deal a blow to the law, which they have failed to do through the political process, could nevertheless give pause to Roberts, who has worked to bolster the Supreme Court’s image as an impartial judicial body. It is a reminder that the Court he leads could bear the brunt of public ire if subsidies are stripped from millions of Americans and insurance markets are thrown into turmoil.

“If the Court were to rule against the government, it may point out that Congress could fix this,” Jost said. “But the justices are sophisticated enough to know that such an outcome is unlikely in our current political climate … and given the toxicity of health care as a political issue.”