King v. Burwell, the court case that will determine if Obamacare’s language about federal subsidies and their availability on exchanges “established by the state”, will be heard in oral arguments at the Supreme Court on March 4, with a decision to come down later this year. The Obama White House is apparently so confident that they’ll win the case that they’re not preparing any back-up plan in case the Supreme Court wrecks the structure of their signature legislation.
As Politico’s health care newsletter wrote this morning:
Sen. John Barrasso (R-Wyo.) says that at a roundtable discussion with congressional leaders he asked Obama why the administration hasn’t informed the public that subsidies are an endangered species. The president replied that he doesn’t anticipate the need for a contingency plan. “Obama’s refusal to acknowledge any contingency planning is no surprise,” writes Pro’s Jennifer Haberkorn. HHS Secretary Sylvia Mathews Burwell and other HHS officials have been tight-lipped on the subject.
This might actually be a play by the White House to dare the Supreme Court to touch the subsidy structure. Public pressure on the Supreme Court reportedly swayed John Roberts’ decision in the mandate case – a situation where people close to Roberts had expected him to rule in conservatives’ favor up until the last minute. Liberals have been very good at pressuring SCOTUS to discard legal doctrine and rule merely on pragmatism. It’s worked in the past.
Peter Suderman writes for Reason that the Obama White House’s refusal to acknowledge the reality that there’s at least a nonzero chance of their signature legislation being dealt a crucial blow gives Republicans an opportunity to craft a real alternative that they could pass and send to the President to prove that they’re serious about fixing the mess – and to send the Supreme Court a signal that ruling in conservatives’ favor this time wouldn’t destroy the American health system.
[T]he GOP should take the administration’s lack of revealed contingency planning as an opportunity to work toward the Obamacare alternative the party has promised for so long. The administration has declined to answer the question of what would happen if it loses; those backing the challengers shouldn’t ignore it.
There are a few progressives who have sketched out a legal defense of why an exchange “established by the state” should mean all exchanges, not just state-based ones. But most of them have relied upon just publicly pressuring SCOTUS not to strike down Obama’s signature legislation based upon the “disruption” it would cause. This would indeed be a massive opportunity for Republicans to craft a real alternative that would minimize disruption while at the same time being able to move at least marginally away from the Obamacare framework.