Remember the issue in Halbig? There’s a section in the ObamaCare statute that says federal subsidies to pay premiums are available to anyone who buys their insurance through “an Exchange established by the State.” But that phrase is vaguely worded. Is the federal ObamaCare exchange, Healthcare.gov, an exchange established by the state? Or was the idea that subsidies should apply only to exchanges created by the individual states, as an economic incentive to encourage state governments to create their own insurance marketplaces? You know what Jonathan Gruber thinks, or thought, about that. By this summer, we’ll know what John Roberts and the gang think too. If subsidies for federal consumers are suddenly illegal, people who can’t afford the unsubsidized premiums will begin dropping their plans and bailing out of the program. The whole scheme could collapse.
Which puts Mitch McConnell and John Boehner in a spot. If SCOTUS sides with conservatives and ends up nuking subsidies for millions of federal exchange consumers, this hot potato will land squarely in their laps. Here’s what the Kaiser Family Foundation found when it asked people whether Congress should fix the O-Care statute to extend subsidies to those federal consumers if the Supremes rule in favor of ObamaCare’s opponents. Gulp:
Support for a legislative fix is running above 60 percent among independents. Among the GOP, a party which treats opposition to ObamaCare as one of its core issues, support is at a surprising 40 percent. The Halbig case is a simple matter of statutory construction, not a constitutional case, so if SCOTUS concludes that the federal exchange is not “an Exchange established by the State,” there’s nothing stopping Congress from amending the statute to make clear that it is. That would restore all of the subsidies to federal consumers that the Court had stripped. And since both chambers of Congress are now controlled by Republicans, that means it’ll be up to Boehner and McConnell to decide how to proceed. If they restore the subsidies, the party will fracture; it’ll be the ultimate betrayal of conservatives, an ObamaCare-destroying gift from the Supreme Court that our RINO leadership decided to hand back. If they don’t restore the subsidies, well, look again at those poll numbers. How do you think the millions of voters who’ve just lost their subsidies will react to the GOP giving thumbs down to bringing them back, especially with Obama and other Democratic leaders hammering Republicans over this on the campaign trail?
Luckily, there’s another solution available: Congress could pass the hot potato to the state governments. Why do you need Congress to restore federal subsidies, Boehner and McConnell will say, when the individual states could just build their own exchanges and secure federal subsidies for their residents that way? Problem is, thanks to November’s epic red wave, most of the states (especially the states that haven’t already built their own exchanges) are controlled by Republicans too. So all we’re doing is passing this problem from one tier of the party to the other. And the numbers there aren’t great either. Here’s the result when KFF asked people who live in states without their own exchange whether the local government should create one if the Halbig case comes out the wrong way. Note the last line at the bottom.
Even among Republicans, there’s a clear majority who want to keep their subsidies flowing even if that means buying into O-Care by having the state government build its own marketplace. Think GOP governors are looking forward to SCOTUS ruling “their” way?
The mystery in all of this is how Obama will react to an adverse decision. The obvious play to maximize Republican political pain is to shrug, do nothing, and say that it’s out of his hands now. Only the GOP Congress can solve this problem by fixing the statute, and if they refuse, then, well, perhaps subsidy-hungry Americans should just elect a Democratic Congress in 2016 instead. It could be, though, that His Majesty won’t be able to resist issuing a new royal edict that presumes to fix the statute’s language unilaterally. Lefties have been chirping lately that there’s not much room for executive action to solve this problem, but they always say that before he does something brazen in stepping on Congress’s prerogatives. It happened with amnesty too: First he spends a few months insisting there’s nothing he can do legally, then the politics change in a way that makes him think he can get away with action, and then suddenly he’s on TV insisting that we’ve reached a crisis point that leaves him with no choice but to act. He’ll be tempted to do the same thing after Halbig. If SCOTUS says that the statute as written isn’t clear enough in treating the federal exchange as “an Exchange established by the State,” O could try issuing some dubious order “temporarily” designating the federal exchange an “Exchange established by the State” to minimize disruption to consumers while Congress and the states figure out what to do. Would that be legal? Probably not. But it’d take years, probably, for that suit to wind its way back to the Supreme Court, and in the meantime plenty of legislators in both parties would be grateful that the lame duck had spared them from a knotty political problem. In the end, that executive order would be as “temporary” as his executive amnesty is. I’ll be surprised if he doesn’t try it.