A Supreme Court ruling for plaintiffs in King v. Burwell, the case that threatens Affordable Care Act subsidies in three dozen states, would unleash terrible chaos and create a tremendous amount of uncertainty in the U.S. political system.
Anyone who claims to know how that uncertainty would be resolved is lying, but everyone who’s followed the issue closely knows that the story wouldn’t end with more than 30 states limping along with hobbled insurance markets in perpetuity. Something would eventually give—which is just to say that the law’s supporters and enemies would both pour into the breach and fight it out for an optimal solution. Nobody knows what that solution would look like, or if it will be amenable to the law’s supporters, who would feel righteously aggrieved about having to accept some lesser version of Obamacare by conservative judicial fiat.
But the certain fact that something would eventually fill the giant hole conservatives are asking the Supreme Court to blow in the law makes things awkward for ACA supporters, who want the Court to be singularly mindful of the disorder and suffering they’d be inviting by ruling for the challengers.
It is thus not in their interest to betray any suggestion that they’re working on contingency plans—legal, political, legislative, administrative—and thereby alert the Court that it would not be inviting Armageddon by ruling for the plaintiffs. Even as the absence of contingency planning would amount to a stunning dereliction of duty.
Consider the response I got Thursday morning, at a briefing for reporters hosted by the Center for American Progress, when I asked how the Obama administration and the law’s supporters would respond politically to an adverse ruling, premising my question on the assumption that a solution would eventually materialize.
“It was instructive to do this, because I think it’s fascinating how everyone is interested, I mean it’s like a fascinating construct to go through how everyone is interested in gaming out the fantasy baseball we’ll be living with—the political fantasy baseball,” said CAP President Neera Tanden. “But what I’m saying is it’s just very difficult, just in that situation, right? You’ll have people saying guaranteed issue, subsidies. Republicans will be like, let’s get rid of all of it. Conservatives will say let’s get rid of the subsidies in those states.”
Many conservatives would indeed want to use an adverse King ruling as a pretext for repealing the whole law. Others would have different ideas. Presumably none of them would be immediately amenable to liberals. But the right is starting to grapple with the question, and it’s ugly. Talking Points Memo’s Sahil Kapur documents how thoroughly the possibility of a ruling for King plaintiffs has stumped Republicans.
Try to report a counter parallel story about Democratic contingency planning, and you’ll hear a lot about how devastating such a ruling would be to beneficiaries, hospitals, and others, but the premise that a solution would eventually materialize will be met with derision.
“This is not reporting,” Tanden said. “This is punditocracy…. We’ve looked at the law, we can’t come out with a fix.”
“The burden is on the challengers and the plaintiff, isn’t it, to explain how they’re going to get out of this rabbit hole?" posited Topher Spiro, CAP's vice president for health policy. "So we can’t think of a plausible theory. We’re not going to sit here and think of some fantasy land. You’ve got to ask the other side what do they think it’s going to happen. And when they can’t give you an answer, that’ll tell you where we stand."
CAP’s argument is simple. It is not plausible that all 34 healthcare.gov states would respond to the ruling by establishing their own exchanges, and people in states that do act would nevertheless experience tremendous hardship. Likewise, because the Supreme Court would be declaring the subsidies in those states unlawful, the law itself would suddenly become much cheaper for budget scorekeeping purposes—$340 billion cheaper. Republicans, they surmise, would refuse to pass a simple fix, and use this budgeting quirk as a pretext to argue that restoring the status quo ante would amount to $340 billion in new deficit spending. That the spending was already paid for when the ACA became law would not matter for Congressional Budget Office purposes.
This is almost certainly how the fight would begin. But as state insurance markets began their death spirals, Republicans would face tremendous pressure to ignore budgeting conventions—particularly one this cynical. Congress routinely passes temporary deficit-financed legislation to prevent doctors from experiencing scheduled pay cuts. Tanden compared the possibility of an analogous, temporary-patch outcome for Obamacare to a “colorectal exam.”
“My own view,” Tanden said, “is that perhaps daydreaming about alternatives that will likely never happen seems to me to be—might be better to just think through what the actual result of the decision, a possible adverse decision, would be.”
Got that, John Roberts?