On the one hand, Republicans in Congress are urging the Supreme Court to strike down subsidies for health insurance provided to millions of people in more than 30 states. On the other, they are chiding the Obama administration because it has no plan to avert the hardship that could occur if they win in court.
The Republicans now have realized that a court decision in their favor poses political risks to members of their party, who are frantically trying to come up with alternatives to the Affordable Care Act and a strategy to respond to such a ruling.
With a significant increase in their numbers on Capitol Hill, Republicans theoretically have more power to undo President Obama’s health care overhaul, but they also have more responsibility for the results. The challenges were illustrated by several events in the last few days.
The No. 2 Republican in the Senate, John Cornyn of Texas, said the Obama administration’s top health official was treating Congress with contempt by refusing to discuss contingency plans if the Supreme Court blocked subsidy payments.
At a Senate hearing, Sylvia Mathews Burwell, the secretary of health and human services, repeatedly dodged questions from Republicans who asked about the court case, King v. Burwell, in which she is a defendant.
That provoked Mr. Cornyn, who told her: “You’re a highly intelligent, charming person, but you’ve refused to answer our questions. That does not strike me as trying to work with Congress, but rather contemptuous of Congress’s oversight responsibilities.”
Senator Orrin G. Hatch, Republican of Utah and chairman of the Finance Committee, expressed similar frustration. And Senator Ted Cruz, Republican of Texas, said, “The administration has done absolutely nothing to prepare for an upcoming Supreme Court decision that could leave millions of Americans unable to afford insurance thanks to this failed law.”
In a legal brief, Mr. Cornyn, Mr. Hatch, Mr. Cruz and other Republican lawmakers urged the court to hold that subsidies provided to people in the federal insurance exchange were illegal. Such a ruling would blow a hole in the health care law, jeopardizing subsidies for more than five million people in states that use the federal exchange.
Democrats complained of hypocrisy.
“I find it ironic for Republican senators to argue that the federal exchange subsidies are illegal and then demand that the administration explain how it plans to repair the damage that will be done if their argument is successful and the Supreme Court rules in their favor,” said Senator Ron Wyden of Oregon, the senior Democrat on the Finance Committee. “It’s like throwing gasoline on a fire, then indignantly asking the administration for its plan to put out the fire.”
Insurers canceled many policies that did not meet coverage standards set by the Affordable Care Act. The cancellations embarrassed Mr. Obama, who had repeatedly promised that “if you like your health care plan, you can keep it.” But if Republicans prevail in court, many people could lose their insurance plans because they would lose the subsidies and could no longer afford the premiums.
Afraid of being blamed for such disruption, Republicans are trying to prepare a remedy.
“We want to help people who have been hurt by the president’s illegal actions, but we don’t want to help this terrible law. We don’t want to help Obamacare,” said Senator John Barrasso of Wyoming, the chairman of the Senate Republican Policy Committee.
Some conservatives like Thomas P. Miller of the American Enterprise Institute have been urging Republicans to devise a contingency plan that would allow consumers to keep insurance subsidies for a transition period. The existence of such a plan “would reassure Supreme Court justices” that they could rule against the administration without fear of causing turmoil in insurance markets, he said.
“You can’t do this in a scramble at the last minute,” Mr. Miller said. “You need to have legislation drafted in advance. Republicans will come under pressure from constituents, hospitals and insurers to continue the subsidies.”
The health care law offers subsidies, in the form of tax credits, to low- and moderate-income people who buy insurance through “an exchange established by the state.” Rules issued by the Internal Revenue Service make the subsidies available in all states.
In their legal brief, Mr. Cornyn and other Republican lawmakers said, “Congress has not granted the I.R.S. any authority to extend premium subsidies to health plans offered through an exchange established by the federal government.”
Republicans said the administration should tell consumers about the possible impact of a Supreme Court ruling.
“Without the tax credits, millions of people will be confronted with Obamacare’s true cost and will face much higher premiums,” Senate Republican leaders said in a recent letter to the administration. “Some could see their coverage canceled. It is imperative that people understand this risk as they contemplate signing up for coverage.”
Ms. Burwell said that a ruling against the administration could have a devastating effect on premiums and coverage. But, she said, the administration has not taken steps to inform consumers because officials felt sure their position was correct, “in terms of the spirit of the law and the intent of Congress, as well as the letter of the law.”
The House passed a bill last week to repeal the Affordable Care Act. The bill directed several House committees to draft “replacement legislation” within six months. The House adopted a similar directive in 2011.
Lawmakers from both parties said that repeal and replacement had become more difficult as more people gained coverage under the law and insurers found ways to profit from it.