WASHINGTON — Congress just gave the Supreme Court a glimpse of what to expect if it drives a stake through the heart of Obamacare: Chaos.
Oral arguments in King v. Burwell are this Wednesday, and they come amidst peak dysfunction in the new Republican-led Congress, which would be tasked with fixing the law if the justices rule that federal exchange subsidies for Americans in some three-dozen states are not allowed under the language of the Affordable Care Act.
The legal question is about how to interpret the relevant text of the law and its place in the overall statutory scheme. But the case poses grave consequences if premium tax credits are wiped out for more than 7 million Americans in one fell swoop. Persuading five justices to rule against Obamacare may require persuading the Court, most notably Chief Justice John Roberts, that Congress is prepared to fix the damage to the health care system, some court watchers say.
“As a rule, Supreme Court justices are reluctant to invalidate a law on which many relied. It will be far easier for the justices to enforce the law’s existing language if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling,” conservative law professor and litigator Randy Barnett wrote in a December op-ed for USA Today.
That task just became more complicated.
Congress has spent the past month struggling mightily to avert a crisis that it manufactured — avoiding a shutdown of the Department of Homeland Security. A bipartisan funding bill was negotiated late last year, but House Republicans imperiled it by attaching controversial provisions to attack President Barack Obama’s immigration policies. Chaos erupted Friday when House Republicans tanked their own leaders’ emergency bill designed to stave off a shutdown for a mere three weeks. Democrats eventually rushed to the rescue on a one-week extension, but DHS came within 10 minutes of a shutdown. Republicans leaders return to Washington on Monday with another shutdown looming Friday at midnight.
This is the same Congress that will be tasked with fixing a crisis in the health care system if Obamacare loses at the Supreme Court. And compared to DHS funding, reforming health care is orders of magnitude more challenging for Republicans.
Though they have endorsed the King lawsuit, Republicans have failed rally around a solution of their own in the five years since Obamacare was enacted, stymied by internal divisions and an unclear path to achieving similar goals without taxes or subsidies or regulations or mandates that many conservatives abhor. Compared to DHS funding, health care reform carries far greater pressures from competing constituencies and powerful interest groups.
Sen. Ben Sasse (R-NE) warned of the consequences of a ruling against Obamacare, insisting that Republicans must have a plan to deal with them. “Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real,” he recently wrote in the Wall Street Journal, calling for using the 1985 “COBRA” law to protect existing coverage.
Republican committee chairmen recognize this dilemma, too. They have been working to convey to the Court publicly that they’ll be ready with an Obamacare replacement plan when the decision (expected by the end of June) comes. A Washington Post op-ed published Sunday by Sens. Lamar Alexander (R-TN), Orrin Hatch (R-UT), and John Barrasso (R-WY) sketches out a proposal to provide “financial assistance” for Americans to temporarily keep their coverage and give states “freedom and flexibility” to devise their own solutions.
There are no details, and there is no bill. There’s certainly no consensus in the Republican Party about what to do, and it’s doubtful there will be by the time of a ruling. If the Supreme Court finds that Obamacare subsidies are limited to state-run exchanges, Congress has just given it a glimpse of what to expect.
This time, though, Republican leaders won’t be able to rely on Democrats to come to the rescue. Democrats would likely insist on a simple tweak to make clear the subsidies are available in all states. But Hatch, who chairs the powerful Senate Finance Committee, dismissed that option as a road to “socialism.”
“The Democrats are going to just say, ‘Let’s just keep Obamacare going.’ Obamacare is going to bankrupt the country. Once people get hooked on it, the only answer is to move this country to socialism,” he told the New York Times in an article published Sunday. “If anybody really believes that socialism’s a better system than our free market system, they’re nuts.”
The justices will meet privately on Friday to cast their votes in the King case — the same day Congress could conceivably shut down the Department of Homeland Security over a partisan dispute about immigration.