Sometime in the next two months, the Supreme Court will hand down it’s ruling in King v. Burwell, the latest challenge to reach its bench concerning the Affordable Care Act. As you will recall, that case deals with the issue of the subsidies provided under the law for the purchase of health insurance. According to the Plaintiffs in this case, and others that have challenged this portion of the PPACA, the language of the law clearly only authorizes the Internal Revenue Service to issue subsidies for insurance purchased on the exchanges that have been established by the state, meaning that the subsidies granted to the millions of Americans who have used the Federal Government’s exchange were given in violation of the law. The Federal Government, on the other hand, has argued that the IRS’s interpretation of the language of the law to include insurance purchased on federal exchanges is reasonable and permitted under the law. To date, only two Courts, a three judge panel of the Court of Appeals for the D.C. Circuit, and a Federal District Court Judge in Oklahoma, have accepted the Plaintiff’s argument. The other courts, including the Fourth Circuit from which the King case originates, have ruled in favor of the Federal Government and the ruling from the D.C. Circuit Court of Appeals was overturned when the full court accepted it for en banc appeal. The King case, though, was appealed to the Supreme Court and the Court heard oral argument in the case last month.
Now, anticipating the possibility that the Court will rule in favor of the Plaintiffs and eliminate PPACA subsidies for millions of Americans, Senate Republicans are moving to draft legislation to fix the law, at least temporarily:
The legislation, offered by Sen. Ron Johnson (R-WI), one of the most politically vulnerable Senate incumbents in 2016, would maintain the federal HealthCare.gov tax credits at stake inKing v. Burwell through the end of August 2017.
The bill was unveiled this week with 29 other cosponsors, including Senate Majority Leader Mitch McConnell (R-KY) and his four top deputies, Sen. John Cornyn (R-TX), John Thune (R-SD), John Barrasso (R-WY) and Roy Blunt (R-MO). Another cosponsor is Sen. Roger Wicker (R-MS), the chairman of the conference’s electoral arm.
Such a move would seek to protect the GOP from political peril in the 2016 elections when Democrats would try to blame the party for stripping subsidies — and maybe insurance coverage — from millions of Americans in three dozen states. A defeat for the Obama administration in aKing ruling would likely create havoc across insurance markets and pose a huge problem for Republicans, many of whom have been pushing the Supreme Court to nix the subsidies.
“This bill is a first step toward reversing the damage that Obamacare has inflicted on the American health care system,” Johnson said.
He recently explained the rationale for the legislation, warning that Democrats would swarm the GOP with attacks and horror stories about “individuals that have benefited from Obamacare” and lost their coverage.
Democrats would probably demand a fix to make the subsidies permanently available if they go down. But they would be hard-pressed to vote down a bill to temporarily extend them if Republicans were to bring it up.
The Johnson bill also contains sweeteners for conservatives which are non-starters for Democrats — it would repeal Obamacare’s individual mandate and employer mandate, and remove federal rules requiring that insurance plans cover a minimum package of “essential health benefits.” If those provisions are ultimately stripped, though, the legislation could have legs.
In addition to the Senators mentioned in the report, Senator Mark Kirk of Illinois, who has perhaps even more politically vulnerable in 2016 than Johnson is, also joined in with the group pushing this legislation. There’s no indication of a similarly advanced effort in the House yet, but there have been reports of several top House Republicans discussing the possibility of some kind of extension of the subsidies at least until after the Presidential election, and one suspects that House Republicans would not resist these efforts by their Senate colleagues to provide at least a temporary solution to a problem that could impact millions of people. In addition to having to deal with the negative press that would generate, Republicans are also no doubt paying attention to surveys that show that Americans broadly support the idea of Congress restoring the subsidies if the Supreme Court strikes them down. For example, in survey released last month by the Kaiser Family Foundation, more than 60% of Americans said that Congress should act to fix the law if the Court issues a ruling. Perhaps more interesting, this month’s Kaiser survey showed that a narrow majority of American survey had a positive opinion of the PPACA for the first time since it was passed, although public opinion remains bitterly divided. Given this political climate, it would be risky to say the least for Republican to leave the subsidies issue unresolved if the Court rules against the Federal Government, and this is especially true given the fact that the GOP’s control of the Senate will be very much on the line in the 2016 elections.
Obviously, this is yet another example of the phenomenon I made note of last week of Republicans essentially giving up on the fight against the Affordable Care Act. While anti-Obamacare rhetoric will most assuredly be a hit on the Presidential campaign trail over the next year, and candidates like Ted Cruz will continue to vow to repeal the law, it’s rather obvious that the GOP as a whole has started to move on from an issue that they had hoped would win them the White House in 2012 and about which public opinion seems to be improving. These plans to address the subsidies issue rather than following the “let it burn” strategy of many pundits on the rights is perhaps the best example of that. Even the health care reform bills that are being advanced by Republicans in the House and Senate adopt parts of the framework of the PPACA, and maintain provisions such as the ban on denial of insurance for pre-existing conditions, which has always been one of the most popular parts of the law. If there is a Republican elected in 2016, then there will most likely be reforms to the PPACA of some kind, it would seem rather inevitable. The basic framework of the law, though, seems as though it’s here to stay for better or worse.
