King vs. Burwell: Here's what Republicans say they'll do if the court guts Obamacare.

If the Supreme Court Guts Obamacare, Republicans Might Just Keep It Alive

If the Supreme Court Guts Obamacare, Republicans Might Just Keep It Alive

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March 2 2015 1:25 PM

If the Supreme Court Guts Obamacare, Republicans Might Just Keep It Alive

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All of health care? That can't be what you mean.

Photo by Luke Sharrett/Getty Images

On Wednesday, the Supreme Court will finally hear oral arguments in King v. Burwell, the conservative lawsuit designed to cripple Obamacare by cutting off subsidies to millions of Americans who have come to rely on them for purchasing health insurance. Quite reasonably, Republicans have started to worry that if the challenge succeeds, their party might face a wee bit of backlash from the hordes of voters who suddenly won’t be able to afford their medical coverage. So, over the past week, a few GOP members of Congress have started publicly outlining a plan to contain the fallout from a potential win at the high court.

Jordan Weissmann Jordan Weissmann

Jordan Weissmann is Slate’s senior business and economics correspondent.

Their idea: Keep Obamacare and its subsidies alive. But, you know, only temporarily.

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As Ezra Klein argues, the word “plan” might be too generous here. Unless it’s a vote to repeal or hobble Obamacare for the 56th time, the Republican leadership is just about incapable of passing legislation through the House of Representatives. And the notion that conservative hardliners will suddenly circle around a bill meant to prop up health care reform in the wake of a gruesome legal defeat seems a bit fanciful. But it’s a concept, at least. A coherent thought. And it shows that some Republicans are aware that this case has backed them into a political corner.

The problem is that even if voters don’t think they like Obamacare, they will almost certainly like even less the grisly spectacle that unfolds as millions lose their coverage due to a politically motivated court case. Currently, the federal government offers middle-class families subsidies, in the form of tax credits, to help them buy insurance on the state and federal health care exchanges that were created under the Affordable Care Act. The plaintiffs in King argue that’s illegal. Based on a four-word passage of the health law that may or may not have been a drafting error, they contend that Washington cannot give subsidies to residents of the 37 states that chose not to set up their own exchanges for either political or technical reasons, and instead relied on healthcare.gov.

If the justices agree, it could have ugly consequences for the entire U.S. health-insurance system. At least 9.3 million Americans would lose their subsidies, according to an analysis by the Robert Wood Johnson Foundation and Urban Institute. About 8.2 million would end up uninsured, as coverage would become too expensive (people who can’t afford a health plan are exempted from Obamacare’s individual mandate to buy coverage). While the dropouts would generally be younger and healthier, those remaining in the marketplace would likely be on the older and infirm side, which would cost insurers and potentially send premiums skyrocketing, forcing more people out of coverage. The end result would be “a textbook case of an adverse selection death spiral,” as the brief puts it.

It’s hard to predict exactly who would get blamed. Americans might reflexively split into their partisan camps, letting Democrats and Republicans point fingers at the other side while the carnage unfolded. But some conservatives (and liberal writers like Jonathan Chait) are predicting a bloodbath for Republicans if they simply stand pat as our health finance system implodes. Internal polling by GOP activists, reported on by Byron York, suggests that voters want lawmakers to “do something to restore subsidies” if the court nixes them. Last week, Ben Sasse, a conservative senator from Nebraska, wrote a fretful Wall Street Journal op-ed predicting a “deluge of attacks on Republicans for supposedly having caused this. Daily White House emergency briefings. Liberal interest-group ads of wheelchairs going over cliffs. President Obama’s cheerleaders in the media screaming that ideologues are killing patients.” This, Sasse worries, could force red-state governors to finally "fold" and build their exchanges in order to get Obamacare’s subsidies. Instead of taking that risk, he believes that Congress should pass a bill extending the subsidies for a “transitional” 18 months, by which point there might be a Republican in the White House who could scrap and replace the health law for good.

This weekend, Sasse’s idea got a boost from three more Republican senators—Orrin Hatch, Lamar Alexander, and John Barrasso—who wrote in the Washington Post that they would support providing a “bridge away from Obamacare” that would provide “financial assistance to help Americans keep the coverage they picked for a transitional period.” The rather short piece didn’t specify a time frame, and it included some noise about giving states more “freedom and flexibility” to mold their insurance marketplaces (which is basically a euphemism for deregulating so insurers can offer skimpier coverage than Obamacare currently allows). But the gist was clear enough: Should the King plaintiffs prevail, the GOP’s only significant idea is to keep Obamacare basically in tact until their ever-fractious majority can converge on something it likes better. If you think the House's Tea Party faction wouldn’t go for it, consider that Rush Limbaugh says he can’t think of a better way to deal with the fallout of a conservative high court win. But he's pretty terrified of how the Obama administration might parlay it politically.  

They probably already have found, say, people that are on dialysis in the 37 states with federal illegal subsidies and they've already made deals with this patient, "We're gonna feature your story when you lose your dialysis in June when the court rules."  They're gonna have 'em ready to go.  ‘Look what the Republicans have done now.  Their hatred of Obama is so boundless that they're willing to let patients die in order to deny Obama the success.’  I can hear it all now. And that's what the Regime wants. [The “Regime” is Limbaugh’s affectionate term for the Obama White House.]

There's an obvious downside to the temporary extension plan for Republicans. The Democrats might just win the White House again in 2016, which would lead us back to the same argument in 18 months. Except, that would be 18 more months for Americans to get used to Obamacare and its subsidies, making it all the harder to do away with them. And forcing an apocalyptic standoff over this particular issue with a brand-new president doesn't seem like an especially promising political tactic. But hey, if talk-radio Republicans are willing to entertain the idea, maybe the House will be, too.