Republicans Better Pray Supreme Court Upholds ObamaCare

Ryan Bhandari |

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Since the Affordable Care Act was passed in March 2010, Republicans have tried to repeal the piece of legislation 56 times as of February 2015. While some may say this is a completely childish and futile exercise of frustration, others may say that it’s symbolically important to continuously reaffirm their fervent opposition to the bill.

The best chance Republicans had at killing the bill came in the 2012 Supreme Court case, but the court upheld almost all the key provisions of the law, much to the ire of conservatives across the country. Oh, how they wished Chief Justice Roberts hadn’t turned his back on them. If only they had another opportunity to dismantle the law, they would surely seize it and never look back. The opportunity to tarnish the president’s legacy is far too tempting for any good, red-blooded Congressman to ignore.

Be careful what you wish for. Two and a half years after the 2012 Supreme Court decision, the Supreme Court agreed to hear King vs. Burwell – a case that threatens to completely dismantle Obama’s signature piece of legislation. But for Republicans’ sake moving forward, they better hope the Supreme Court upholds the law and sides with Burwell, because if the Supreme Court sides with King, Republicans face a potentially disastrous political situation going forward.

What is King vs. Burwell?

King vs. Burwell deals with the intent of the Affordable Care Act. Challengers argue that under the explicitly written language of the ACA, only federal subsidies for state-run exchanges are legal.

When the Affordable Care Act was passed, each state was mandated to set up a health care exchange marketplace where consumers could compare different insurance policies and purchase the one that suits them best. The 2012 Supreme Court Case ruled it unconstitutional to force states to set up exchanges. Instead, states had a choice in the matter. Sixteen states and the District of Columbia chose to set up their own health care exchanges, while thirty-four states chose not to. Of course, people of those states were still required to purchase insurance, so the government set up a federal website for people living in states with stubborn legislatures and/or governors who refused to set up a state-run exchange.

Now, the entire future of the ACA comes down to four words: “established by the state.” It is written in the law that subsidies only apply to healthcare exchanges set up by the state. But remember, when the law was written in 2010, the idea was that every state had to set up its own healthcare exchange. So a team of Republican lawyers cleverly brought forth a lawsuit challenging the intent behind the wording of the law. Whether or not the Court upholds this provision of the bill has a lot to do with legal jargon (click here for a detailed explanation). Yet, while many Republicans may be openly cheering for the Court to put a knife in the ACA, those same Republicans should be quietly hoping that they don’t, because it will create a terrible political situation for them.

Once You Give Something, You Can’t Take It Away

It’s a hell of a lot easier to give someone an entitlement, handout, or subsidy than it is to take it away. There are roughly 6.4 million people receiving subsidies for their health insurance plans purchased through the federal exchange. They are in jeopardy of losing their subsidy and consequently, losing their plan, and 6.4 million people losing their plan would have a disastrous effect on the insurance marketplace.

Across the country, premiums will spike. Without the subsidies from the federal government, people will be paying up to five or six times the amount they pay right now. For example, the average monthly premium for an individual in the state of Florida (receiving a subsidy) is $68 right now. If the Supreme Court removes the subsidy, the average monthly payment will rise to $347. If this happens, many of the younger, healthier people receiving subsidies may decide it’s not worth it to pay for health insurance. They will drop out of the insurance pool altogether, and if we see a mass exodus of young people from the insurance pool, that’s going to raise everybody’s insurance premiums across the country. Essentially, this Supreme Court decision could ruin the ACA.

Republicans Could Fix This Easily…But They Won’t

The sad thing is that Republicans could fix this entire fiasco by amending the ACA to include subsidies for states that use the federal exchange – but they’re not going to do that. Conservatives have been chomping at the bit to ruin the ACA, and this will certainly do the job, but it will cost the Republicans in the long run.

That’s why they are planning on alternative options if the Supreme Court strips away the subsidies. Wisconsin Senator Ron Johnson faces a tough re-election campaign next year – a campaign that he might lose if he does nothing while 130,000 Wisconsinites lose their health insurance subsidy. Sen. Johnson has come up with his own alternative plan; he proposes to continue subsidies for 18 months (ironically, right until the 2016 election finishes…) and to remove the individual and employer mandate from the bill. The latter is a complete nonstarter for Democrats though, so that proposal in its current form is going nowhere.

McConnell and 32 GOP Senators support Johnson’s plan. However, many house conservatives as well as prominent presidential candidates like Rand Paul and Ted Cruz would rather see the bill die. Many GOP members worry about looking hypocritical voting to save a bill they voted to repeal over 50 times.         

Republicans, therefore, are caught between a rock and a hard place. Essentially, they have three options, and none of them are particularly attractive. Firstly, they can save the bill and increase their chances for Senate re-election in hotly contested states like Ohio, Florida, Illinois, New Hampshire, and North Carolina., but if they do this, they’ll look weak and infuriate their hardline base. Option Two is to cling to their principles and appease their base…while they let millions of people suffer.

The third option is to pass Senator Johnson’s bill knowing that Obama would never sign it, because it guts major provisions of the ACA. This way Republicans can say they tried to fix the problem, but it was the president’s stubbornness that got in the way. But Republicans will likely still lose the PR battle on that front as well. After all, it was conservative strategists who pushed for this lawsuit in the first place, and when Republicans shut down the government in October 2013 over funding for the ACA, they certainly lost the PR battle. In short, they really don’t have any good options.

Thus, Republicans better hope that the Supreme Court upholds this key provision of the ACA so Republicans can just throw their hands up in the air and say, “well, we tried and we failed, it was out of our hands.” At this point, this sort of perceived political impotence is the only scenario that could end well for them. 

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