A.B. Stoddard: Don’t expect the Supreme Court to kill Obamacare for you, Republicans

posted at 10:01 am on February 5, 2015 by Noah Rothman

Politico foresees “political peril for the GOP” if the hastily constructed and deeply unpopular Affordable Care Act is gutted by the Supreme Court in the summer. That’s counterintuitive, but they make a strong case for why the Republican coalition could be destabilized by a decision in King v. Burwell that dismantles a key provision of the Affordable Care Act.

“They don’t agree on what alternative, if any, their party should offer to President Barack Obama’s signature health care law,” Politico reported. “But the issue is taking on new urgency for the GOP congressional leaders as the Court takes up a case that could leave more than 5 million people without Obamacare’s crucial subsidies.”

This is not an inaccurate observation. Many in the GOP’s conservative base will be eager to see both their party and their preferred presidential candidate replace Obamacare with nothing at all. While most in the Republican political class do not see this as a viable option, some are supporting replacement proposals that dramatically reduce the scope of the impact of federal health care reform. Louisiana Gov. Bobby Jindal has backed a proposal that does away with offering tax credits to Americans who receive employer-provided insurance. Instead, his plan would offer a deduction that allows everyone to buy health coverage on the individual market.

“The great flaw in Jindal’s plan is that it would cause millions of people to lose their coverage,” Ramesh Ponnuru observed. “Deductions are more valuable to those in high tax brackets, and they wouldn’t provide much help for the lower-income people whom Obamacare allowed to enroll in Medicaid.”

Republicans like Reps. Paul Ryan (R-WI), Fred Upton (R-MI), and John Klein (R-MN) and Sens. Lamar Alexander (R-TN), Orrin Hatch (R-UT), and John Barrasso (R-WY) are all working on a Republican alternative to the ACA and, Time Magazine reported, are expected to oppose restoring federal subsidies to the ACA if the Supreme Court strikes them down.

While there is a lot of disagreement about just how Republicans will go about replacing the ACA, the increased tempo of the debate over the issue suggests that Obamacare has never been more vulnerable. All things considered, a disagreement over just how to repeal and replace the onerous health care reform law is a good problem for Republicans to have. But The Hill’s A.B. Stoddard suggests that the GOP will not have it that easy. She noted that, despite the ACA’s unpopularity, the general public will not be joining with conservatives dancing in the streets if the Supreme Court prevents millions of Americans from accessing subsidized health insurance.

When the high court rules this spring in King v. Burwell, even a decision that would invalidate subsidies to cover health insurance in 37 states where the federal government operates exchanges may not necessarily spell doom for those subsidies or the system at all.

Republicans are already anticipating President Obama’s response would be an executive order directing federal marketplaces to immediately belong to those states or a bill asking Congress to do the same, or at least to extend the subsidies in some form. Somewhere between 5 million and 7 million people, many from Republicans states that refused to start exchanges, will be at risk of price hikes that could eventually torpedo the entire law. The GOP is scrambling for an appropriate response as a new Kaiser Family Foundation poll shows, in the case of a ruling against the law, that 64 percent of Americans want Congress to extend subsidies in affected states — including 40 percent of Republican respondents.

Over time, ObamaCare has morphed into a zombie Republicans cannot extinguish.

It is no doubt a political opportunity for Democrats if the Court guts the law and Republicans refuse to restore access to subsidized care to millions of low-income Americans. Stoddard predicts that congressional Republicans might prefer to extend subsidies that would sunset in 2017 and allow the voters to determine the law’s future at the ballot box in 2016. The voters’ mandate will determine whether or not the law’s subsidies are restored or whether a conservative reform proposal will replace the Affordable Care Act.

In any case, Stoddard suggested that the demands of the GOP’s most conservative elements are at odds with those of the general public. She observed that the fact that three House Republicans refused to join their colleagues in voting to repeal the ACA this week suggests that there will be resistance to doing away with the law altogether from Republicans who represent purple districts or states. A diverse and ideologically heterogeneous coalition is a consequence of having the largest congressional majorities in a half-century.

Ultimately, Stoddard and Ponnuru are correct: The GOP will have to settle on an alternative to the ACA that does not rob millions of the coverage on which they depend. To suggest that low-income Americans will and should lose the coverage they have come to expect would be politically poisonous. That is a position that might generate enthusiasm in the Republican presidential primary but, much like “self-deportation,” it will sap Republicans of public support when it comes time to run a general election campaign.

The ACA is vulnerable, but it will not be the Supreme Court that delivers the final blow. Only a conservative repeal and replacement proposal that enjoys broad, popular support will bury Obamacare forever.

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Ned Pepper on February 5, 2015 at 12:34 PM


All I know is that the possibility of duplicate enrollments has been a topic of discussion in patient billing departments in hospitals. They want to know how to determine which policy is valid.

Inside track info, perhaps.

lineholder on February 5, 2015 at 12:52 PM

So if the subsidies go away, and the low-info voters who make no money will not be able to have as much elective health care, but the rest of the country will get more economic freedom and their high deductibles might be improved.

Sounds like a win for Republican voters and a loss for Obama voters. It’s what used to be called justice.

widget on February 5, 2015 at 1:23 PM

I don’t think anyone expected the scotus to find in favor of the law and the Constitution. The last time the court rewrote the law for the liberals so they could claim it was OK. So we all know that the government can in fact force you to eat broccoli. But then you have five anti Constitutional American hating liberal jurist on the court and only four jurist that actually believe in the Constitution. So how in the world did Stoddard and the rest of her hate American liberals think that the court would rule against their own political party after knowing they disregard the Constitution and the facts of any case.

pwb on February 5, 2015 at 1:46 PM

Obamacare must be attacked, beaten, flogged or torn down piece by piece until a future Republican administration and Congress has the stones to outright repeal it. The seething hatred my wife and I have for this law cannot be expressed in polite conversation.

I’m sure my story reflects that of many. The wife and I had BCBS HSA plans, 5K deductibles. Grand total for both of us was $280 a month. Not bad I thought. Coverage was excellent for major medical issues, 100% after the 5K. One hospital visit will get you to 5K easy. Normal office visits we paid for out of pocket. Doctor loved it. Several years ago we did a cost analysis and decided it was MUCH cheaper for us to buy our own insurance rather than use our employer sponsored PPO coverage.

Fast forward to 2015 – Old plans made “illegal” last year. I went back to my employer plan – now costing me $75 more a month than my old HSA and covers nothing. Wife is in a worse situation. Her company offered everyone “Bronze” plans. Talk about a joke. $375 a month just for her, fortunately 100% paid for by her employer but absolutely useless. Nearest “in network” doctor is 120 miles away. Because her employer picks up 100%, we are actually paying less, but THE COVERAGE IS USELESS.

We will simply continue to pay our local hometown primary care doc cash. He likes that. The big worry for us now, which was NOT a worry in the past is catastrophic coverage costs because of the silly “in network” issues – which was why we maintained our own policies in the first place! The insurance the wife gets from her employer keeps her Ocare compliant as does mine.

If one of these liberal trolls ever confronts me in person telling me how great Obamacare has made things, I guarantee they WILL get a chance to test their medical coverage under Obamacare.

SanJacinto on February 5, 2015 at 2:00 PM

I have a buddy here in Houston that runs a growing earthwork construction company. He has about 100 employees and told several of us over lunch what dealing with Obamacare is doing to him this year. He subsidizes half of their premiums so he pays $415/month and they pay $415/month. That is $40,000/month this year that he didn’t pay last year.

He knows some of his competitors are stunting by breaking their companies into 3 separate entities on paper so their employees show less than 30 hrs/wk on their various paychecks.
He says very few of his employees will ever use the insurance because the deductibles are too high (I think he told me $7,500 individual and $10,000 family).

He HATES Obama and Obamacare. He said he will shut down before he plays the game his competitors do or goes broke. And he is black.

DanMan on February 5, 2015 at 2:29 PM

a case that could leave more than 5 million people without Obamacare’s crucial subsidies.

tough. we won.

WaldoTJ on February 5, 2015 at 4:04 PM

If the GOP has to pass a bill to replace the coverage the poor will lose, then effective repeal is an impossibility. So we get to choose how we will die, and the options there are all unappealing.

Better the GOP simply say FedGov has no business doing anything of the sort and simply shut down the welfare state. No matter what they choose, it’s politically poisonous and it’s time they man up.

Quartermaster on February 5, 2015 at 4:06 PM

If SCOTUS strikes down the Federal subsidies for Obamacare policies in states without state-run exchanges, Congress should pass a law restoring the subsidies with the following conditions:

1) The employer mandate will be permanently repealed.

2) The “Cadillac tax” on generous health insurance policies will be repealed.

3) Individuals or employers can purchase health insurance policies in any of the 50 states, not only their own state.

4) A new type of low-cost, catastrophic health-care policy will be made legal under Obamacare, which will be required to cover major health emergencies with low deductibles, but little else. Many low-income people currently paying fines would probably opt for this insurance, even without subsidies.

5) The medical device tax will be repealed.

Steve Z on February 5, 2015 at 5:27 PM

“The ACA is vulnerable, but it will not be the Supreme Court that delivers the final blow. Only a conservative repeal and replacement proposal that enjoys broad, popular support will bury Obamacare forever.”

This has always been the case, and more so with every passing month. January 2017 cannot get here fast enough. Congress needs to have a bill passed and waiting on the new (GOP) president’s desk as his (her?) 1st Order of Business.

NeoCon_1 on February 5, 2015 at 5:40 PM

The ACA is vulnerable, but it will not be the Supreme Court that delivers the final blow. Only a conservative repeal and replacement proposal that enjoys broad, popular support will bury Obamacare forever.

Repeal it. No replacement is needed. Just repeal the beast.

Theophile on February 6, 2015 at 1:49 AM