Because a Supreme Court decision for plaintiffs in King v. Burwell would impose extreme hardship on Affordable Care Act beneficiaries in 34 states and leave President Obama’s signature achievement in a frightening state of limbo, the law’s supporters are united in opposition to such a ruling.
And for the same reason, most analyses of the consequences of an adverse King decision have centered around the practical nightmare the ruling would create: How would states react? Congress? Insurance companies and providers? Obama himself? Will the pressure to fix the problem grow severe enough to force Republicans into surrender or to cut a reasonable deal?
These are important questions. But individually and combined, they hint at a premise that the aftermath of an adverse King ruling will exclusively affect, and be driven by, existing stakeholders. They neglect that the case itself, which will be decided in late June, is an unexploded ordnance lying in the middle of the 2016 presidential campaign field. An adverse King ruling wouldn’t just reintroduce familiar, crisis-driven legislative politics to Capitol Hill. It would likely become the defining issue of the Republican primary and general election. It would leave Republicans strategically and substantively divided over how to contain the fallout. And it would transform Obamacare as an issue from a modest liability for the Democratic candidate, into a factor that unifies the entire party against Republicans and the Supreme Court.
Because movement conservatives have signed on enthusiastically to the arguments of the King case, they convey the impression that the right is poised and eager for the Court to do their bidding. But activists and elected officials have different imperatives, and if you immerse yourself in the Republican Party’s posture toward this case—its public attestations, blind quotes, and conspicuous silences—a much more nuanced picture emerges. If the Court grants Republicans a “victory,” many actual Republicans won’t consider it a victory at all, and the competing concerns of anti-Obamacare zealots, industry-friendly pols, swing state incumbents, governors, and presidential candidates will break out into the open.
Democrats would obviously rather win than lose this case, and Republicans vice versa. But the truth is, as one anonymous GOP congressional health care aide conveyed to TPM’s Sahil Kapur, "King wins, they [the Obama administration and Democrats] hold a lot of high cards. And we hold what?"
That’s just one anonymous aide. But a lot of Republicans are privately “joking” that they’d be happier losing this case than winning.
Some Republican insurance commissioners take a dim view of the King case publicly. Others have communicated their squeamishness by keeping their heads down.
States on both side of the issue have filed briefs with the Supreme Court. But only six red states—Oklahoma, Alabama, Georgia, Nebraska, South Carolina, and West Virginia—joined a brief on behalf of the petitioners. Conspicuously missing are deeply conservative states like Texas, with large beneficiary pools, or any swing states under GOP control. Republican senators from many of those states—including Wisconsin, Ohio, and Florida—are in cycle in 2016.
By contrast, the following states have signed on to a brief supporting the government: Virginia, Kentucky, Massachusetts, Pennsylvania, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. Many of these are healthcare.gov states, and thus have a direct stake in the outcome.
The outcry for a fix will be broad, sustained, and lockstep, but it will meet wildly different audiences. Everyone in the GOP primary field will face extensive pressure to treat an adverse decision as an opportunity to get rid of the law altogether, but some of them will be governors or former governors who won’t be as amenable to using constituent suffering to leverage an unrealistic political goal. Republican Senate candidates from the above-mentioned Wisconsin, Ohio, and Florida, but also from Pennsylvania, New Hampshire, Illinois and elsewhere, will quickly see their political fortunes become entwined with the cause of fixing Obamacare.
As chaos grows, it will be tempting for these Republicans to claim that they and the broader right bear no culpability. Obama and Obamacare did this to them. But that message won’t wash outside of precincts where antipathy to the president already runs extremely deep. Elsewhere it’ll be drowned out by a simple but forceful argument, promulgated by people with much larger megaphones—and by the fact that everything was basically OK until five Republican-appointed Supreme Court justices intervened. Unlike Republicans, the team of organizers, lawyers, and political operatives who have banded together to save the ACA have adopted a strategy that precludes them from discussing their political contingency planning. But it stands to reason that Obama and Clinton would both lay the damage at the feet of those justices, and the party on whose behalf they had acted. The ruling would create a hydra of loyal but politically disengaged Obama supporters, consumer groups, health care providers, and other actors, none of whom will be satisfied with Republican excuse-making and inaction.
That returns us to the related question of whether Republicans would respond to the pressure by betraying the conservative base. Would they fix the law? Or perhaps patch it temporarily? Generally speaking, Republicans only break faith in this way when persisting would invite unsurvivable political damage. The various debt limit and government shutdown fights of the Obama years are the most similar precedents. But there are others. In recent years, Republicans proved they were willing to allow extended unemployment benefits to lapse, and the payroll tax holiday to expire. By contrast, they also revealed that they'd rather allow taxes on top earners to increase than explain to the broader public why they allowed taxes to increase up and down the income ladder.
In Arkansas, a now-retired Democrat expanded the state’s Medicaid program dramatically. The GOP-controlled legislature has since balked at multiple opportunities to rescind the expansion—even as its majority grew and a Republican moved into the governor’s mansion this year.
Which is the long way of saying that gaming this out is tough. But the question will be whether a ruling for King plaintiffs puts Republicans on their heels briefly, or whether it dominates campaign politics through November 2016.