For months, Republicans have rallied around the latest Supreme Court challenge to Obamacare—embracing it as their last real opportunity to bring down the president’s health care law once and for all.
Senate Majority Leader Mitch McConnell admitted as much during an interview with The Wall Street Journal in January, when he suggested that the legal challenge could successfully do what the GOP never could–repeal the law.
But as the Court challenge draws near, Republicans acknowledge that a ruling against Obamacare would be a disaster for millions of Americans. Now, with a week before oral arguments, they’re scrambling to come up with ways to quell the potential backlash of an adverse ruling—before they get blamed.
The now-infamous case of King v. Burwell was brought on by libertarians who openly admit to coming up with the challenge as a way to take down Obamacare, as Dave Weigel notes in Slate. The whole case centers on a single phrase in the law’s language addressing who is eligible to receive subsidized coverage.
The plaintiffs in the case say the wording only mentions providing subsidized coverage to people in states that set up their own insurance exchanges—meaning that for the last year, millions of people living in the 37 states that rely on the federal exchange received subsidies illegally.
The administration, for it’s part, has written the phrase off as a drafting error—saying it never intended to exclude anyone from access to subsidies.
If the Court sides with the plaintiffs, at least 8 million people will lose their subsidized coverage, and hundreds of thousands more could pay more for their employer-based plans, since fewer people would be in the insurance risk pool, sending costs soaring.
A study by the Rand Corporation estimated that without these subsidies, premiums for existing Obamacare enrollees would increase by nearly 50 percent— an average annual increase of $1,600 for a 40-year-old — and that 70 percent of consumers would cancel their policies, Kaiser Health News noted. Separately, the Urban Institute noted that if fewer people have health coverage, hospitals would see uncompensated care return to pre-Obamacare levels or worse.
From nearly every angle, experts say the ruling would be disastrous for the law, millions of people in danger of losing coverage, the insurance industry losing customers, hospitals losing insured patients, and essentially the entire U.S. health care system.
America’s Health Insurance Plans, the top trade group for the health insurance industry, told The New York Times that if the Court strikes down subsidies for federal exchange enrollees “it would leave consumers in those states with a more unstable market and far higher costs than if the Affordable Care Act had not been enacted.”
Republicans are recognizing the potential fallout. Some, who still oppose the law, are trying to devise temporary fixes to avoid the predicted chaos if the Court rules against the administration.
Sen. Ben Sasse (R-NE) for example, a staunch Obamacare opponent, penned an op-ed in the Wall Street Journal Wednesday night proposing a temporary solution to enroll people who lose their subsidies in COBRA for 18-months until Republicans can create a permanent Obamacare replacement.
For now though, Sasse’s plan is light on the details—it doesn’t mention how much it would cost or if it could even realistically be approved by the gridlocked Congress. And Republicans are far from agreeing on any type of Obamacare alternative.
Sasse’s plan comes a day after the administration announced that it had no contingency plan to deal with the backlash of an adverse court ruling.
Still, many legal experts have serious doubts that the Court will rule in favor of the plaintiff.
Five legal scholars specializing in statuary interpretation, including Yale Law Professor William N. Eskridge filed a brief arguing that context is important when reviewing the law’s language.
“A statutory phrase that has one apparent meaning when read in isolation may have a different meaning when read in the context of the statute as a whole,” Eskridge told The New York Times noting that the law declared its purpose to be providing affordable coverage “for all Americans,” with the emphasis on “all.”
Meanwhile, others think the Justices will interpret the law literally and side with the plaintiff—handing off the responsibility to Congress to amend the law’s language.
“The only question to be asked is, is the language plain or is it not…Right away in Section 13-11 of the law, it starts right out saying ‘states shall establish an exchange,” Mark Rust, the managing partner of the Chicago office of Barnes & Thornburg, LLP told The Fiscal Times earlier this year. “It’s pretty doggone clear.”