Before we get to the substance, can we pause for a moment to acknowledge that the big A totally called this three days ago on Twitter?
Getting my King v. Burwell prediction in now, just in case: 6-3 to uphold federal subsidies
— Allahpundit (@allahpundit) June 22, 2015
That was an easy call if you were willing to assume the most cynical motives for each justice. The four liberals would vote like good lockstep liberals, as they always do. The three conservatives would vote like lockstep conservatives as they usually do. Kennedy, the centrist, would naturally be more reluctant to torpedo the law after two years of implementation and millions of enrollments than he was in 2012, when it was still on the launch pad. And Roberts, having staked his judicial legacy on his decisive vote in the mandate case three years ago, wasn’t about to pull an Emily Litella now and undo the new health-care regime that he enabled. In fact, if either Roberts or Kennedy persuaded the other on this, I’d bet it was the former who persuaded the latter. Another 5-4 decision would have only underscored the 5-4 frailty of ObamaCare after the mandate decision in 2012. A 6-3 decision signals that the law’s here to stay. “Why not provide some certainty by voting with us,” Roberts could have said to Kennedy, “if the subsidies are going to be upheld anyway?” Maybe that’s what cinched Kennedy. ObamaCare is here to stay. Might as well get onboard.
But here’s the thing to remember as you punch your computer screen: It was already here to stay no matter how the Court ruled today. If Roberts and Kennedy had come down the other way and punted the subsidies back to Congress, there’s not a whisper of a doubt about what would have happened. You know it, I know it, Ramesh Ponnuru knows it. If it was left to the GOP to decide whether to save O-Care, writes Ponnuru, the caucus would have quickly broken into three groups. Group one: Hell no, we won’t reinstate the subsidies. Group two: Maybe we could reinstate them in return for some concessions? Group three: YES WE MUST REINSTATE THEM OR WE’LL LOSE THE ELECTION. Ponnuru:
Republicans won’t be able to muster a majority of the House for Group 1’s preference: Too many Congress members want to protect people from losing their insurance, or at least don’t want to be blamed if they do. Group 2’s preference won’t get a majority either: Group 1 won’t vote for it because it keeps the subsidies, and Democrats won’t vote for it because it weakens Obamacare.
In the end, I predict that Republican leaders will end up going with Group 3’s favored extension of the subsidies with little in the way of change to the Affordable Care Act.
Nobody in Group 1 will vote for this option. Group 2 will split: Some of its members will say they want to keep the subsidies but that they can’t vote for them without reforming Obamacare, while others will say they want reform but will extend the subsidies without it if that’s the only way to protect people.
Passing legislation to this effect will require Democratic votes, and Democrats will be able to extract concessions as a result — for example, on the law’s requirements that larger employers must offer coverage and that individuals must be insured.
A “clean” restoration of ObamaCare’s subsidies was a fait accompli. The only concession the GOP might have gotten was Democrats agreeing to make the subsidies “temporary,” set to expire in 2017 or whatever unless Congress chose to renew them again. Which, of course, it would have — there’s always a new election to worry about and Dems would have relished the periodic opportunities to hammer the GOP about its ambivalence on subsidies. The point of Republican “failure theater,” though, is to make a pretense of putting up a fight in hopes that conservative voters will be impressed and to obtain some sort of mostly meaningless concession to wave at them when the inevitable, and predestined, cave finally happens. A “temporary” extension of subsidies would have been the concession. “See? We can let the subsidies expire in a few years, when we have the White House and total control of Congress!” Spoiler alert: There’s not a prayer that President Bush or President Walker or President Rubio would have allowed the subsidies to expire then either. All Roberts and Kennedy did today was agree to take the burden of recurring Republican futility onto themselves instead of hoisting it onto McConnell and Boehner. And don’t think GOPers on the Hill don’t know it:
I’ll leave you with three thoughts. First, Sean Davis is quite right about this. You’ll hear a lot next fall, especially if Jeb Bush is the nominee, that it’s worth turning out for him if only to make sure that Republican appointees fill vacancies on the Supreme Court. The two Roberts rulings on ObamaCare are a wonderful reminder that, when push comes to shove, that doesn’t matter as much as we’d like to think. Vote accordingly. Second, on a more positive note, Ben Domenech reminds us that sparing the GOP Congress from having to rescue O-Care’s subsidies means the law will remain entirely a Democratic political creation, with all of the headaches that entails for them going forward. The worse things get, the better the GOP’s leverage will be in repealing and replacing the law. Fair enough, but that assumes there’s some point in the future where ObamaCare might be so politically toxic that Republicans really might develop the balls to end it rather than mend it. I don’t believe that. I don’t think any student of failure theater really can.
And finally, it’s rare that I say a DNC press release is right on the money, but this is pretty much on the money (well, except for the part about what the Court actually ruled today). The debate will go on online, but on the Hill, it’s over.
— The Democrats (@TheDemocrats) June 25, 2015