In other words, if SCOTUS rules in King v. Burwell, a.k.a. the Halbig case, that the text of the law makes federal subsidies available only to people who bought their plans on a state exchange, the GOP’s going to offer to pass a bill reinstating subsidies for the people who bought their plans on the federal exchange too — for a price.
To which I say: Whatever. To borrow one of Ace’s favorite terms, this is more “failure theater.”
Sen. John Barrasso (R-Wyo.), who is leading the Senate GOP’s response to King v. Burwell, said Republicans will be willing to strike a deal with Obama to ensure that the 7.5 million people who stand to lose their subsidies are protected, at least until the 2016 elections.
But in return, they would demand that Obama to do something he has long resisted: nix the employer and individual mandates for insurance coverage.
“Is the president going to say, ‘Tough, I’m going to veto that?’ ” Barrasso said in an interview in his Dirksen office.
Why … yes, the president is indeed going to say, “Tough, I’m going to veto that,” just like he threatens to veto GOP demands every time we’re threatening him with a shutdown or a debt-ceiling technical default to try to extract some concession. Because, see, the president isn’t a dummy. He understands that the media will side with him wholeheartedly in framing the aftermath of the Halbig ruling as a matter of Republicans dragging their feet on restoring subsidies while millions of Americans risk losing their insurance. That’s especially true this time, in fact, since it’ll be a conservative-controlled Supreme Court that will have struck down the subsidies in the first place. “This is a mess created by the right wing,” Obama will say, ignoring the fact that the text of the statute at issue was written and enacted exclusively by Democrats. “It should be the right wing that cleans it up.” Bobby Jindal knows what’s coming:
“The president’s going to stand up and say, ‘Meet so-and-so who’s got cancer. Meet so-and-so who’s got diabetes,” Jindal, a longtime foe of the healthcare law, said. “And he’ll say, ‘These mean, stingy Republicans simply won’t make a one-page change in the law [to restore the federal subsidies].”
Precisely. Obama will refuse a deal with congressional Republicans, at least at first, and instead demand that they pass a permanent reinstatement of subsidies for federal consumers. No compromises, no bargains. This isn’t Iran, after all; this is his archenemy, the conservative movement. So he’s going to tell Barrasso and McConnell to get bent, and they’re going to counter with … what? Are they going to stand firm and refuse to withdraw any demands, knowing that they’ll take the full force of the blame if federal consumers start seeing their policies canceled because they can’t pay the premiums anymore? This is a party, remember, that took control of the Senate in January vowing that they’d never again allow something as irresponsible as a shutdown or a default on their watch. We’re all about showing that we can govern responsibly, said McConnell. How’s that message going to look if the subsidies vanish, eliminated by George W. Bush’s conservative Supreme Court, and the GOP refuses to reinstate them with no questions asked? And the punchline is, the Senate Republican leadership has already signaled that they want to restore the subsidies so that they don’t suffer any terrible political damage from this. They’d be entering negotiations with Obama having already showed that their hand is weak. What do you think’s going to happen?
The best-case scenario here is that Senate Dems will seize this as an opportunity to jettison parts of ObamaCare that have been giving them headaches for the past five years and aren’t essential to making the law work. There’s no way they’ll budge on the individual mandate: That’s been a headache for them but it is, in fact, essential to preserving the law. Without it, as Greg Sargent notes, insurers would need to come up with a way to pay for expensive treatments for the sick without a guaranteed revenue stream from healthy young adults who are legally required to buy coverage. Obama will never give in on the individual mandate, especially after going to the mat to defend it in the Supreme Court three years ago. The employer mandate is a different story, though. Democrats have been trying to figure out what to do with that since the day the law passed. Obama delayed it twice and liberal wonks have increasingly come around to the view that the exchanges would do fine without it. Even Jon Gruber thinks it’s expendable. Obama and Harry Reid could decide that a deal with the GOP is their chance to be rid of the mandate forever. If lefties complain, hey — those darned Republicans hostage-takers twisted their arms by threatening not to restore federal subsidies. Another obvious target for a “compromise” is repealing the medical device tax. That’s stalled in Congress but it’s had bipartisan support before. Senate Republicans would welcome adding it to the pot here, since it would give them a bit more to show conservatives when they inevitably decide to reinstate all of the subsidies canceled by SCOTUS. That’s what “failure theater” is all about. “We tried hard. And we got a little something! Just not the thing you really wanted.”
Exit question: When, not if, the subsidies are reinstated by the GOP, will the reinstatement be temporary or permanent? A temporary deal would in theory allow Republicans to demand new concessions whenever the subsidies come up for renewal. But who wants to go through “failure theater” every few years? Might as well bite the bullet and get this off the table permanently.