Does the GOP Fear the Fallout from King v. Burwell? (Updated)

SCOTUS will hear the King v. Burwell case on March 4. This is the case in which it is alleged that states that did not set up their own exchanges under the Affordable Care Act cannot offer federal subsidies to people buying insurance through the federal exchange. The New York Times editorial board says of this,

On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity that, if successful, will tear a huge hole in the Affordable Care Act and eliminate health insurance for millions of lower-income Americans — exactly the opposite of what the law was passed to do.

Even an idiot ought to be able to understand that the primary point of the exchanges is to facilitate people buying individual health policies that can be subsidized. I suspect even some Republicans realize this.

The suit is based on one ambiguously worded sentence in the ACA. In a subsection of the law dealing with tax credits, the ACA describes exchanges “established by the states.” The authors of the bill say this was a vestige of the original assumption that the states would set up their own exchanges. It wasn’t anticipated that so many would refuse to do so. But the Burwell challenge hangs on  those four words — established by the states.

The challengers did not innocently happen upon these words; they went all out in search of anything that might be used to gut the law they had failed to kill off once before, on constitutional grounds, in 2012. Soon after the law passed in 2010, Michael Greve, then chairman of the Competitive Enterprise Institute, which is helping to finance the current suit, said, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

After the challengers found the four-word “glitch,” as they initially called it, they worked backward to fabricate a story that would make it sound intentional. Congress, they claimed, sought to induce states to establish exchanges by threatening a loss of subsidies if they did not. (Not coincidentally, the challengers also traveled state to state urging officials not to set up exchanges, thus helping to create the very “crisis” they now decry.) Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law. So it is no surprise that no one involved in passing or interpreting the law — not state or federal lawmakers, not health care journalists covering it at the time, not even the four justices who dissented in the 2012 decision that upheld the Affordable Care Act — thought that the subsidies would not be available on federal exchanges.

So, the purpose of Burwell is to kill Obamacare, and if SCOTUS decides for the plaintiffs, it might very well succeed. The Kaiser Family Foundation estimates that if the states without their own exchanges lose subsidies, 13,402,890 Americans who ought to be insured by 2016 will lose out. And the entire law could quickly unravel for everyone, as the health insurance industry is thrown into chaos. I understand roughly 9 million people would lose their insurance almost immediately.

The immediate fallout from a decision for the ACA challengers would, therefore, be chaos and devastation, and the long-term consequences potentially even worse. The ripple affect could impact just about everybody, and probably not in a good way.

 This past week Republicans in Congress seemed almost frantic in demanding the Obama Administration reveal their “Plan B” to the world. What will they do to save the ACA if the subsidies are struck down in so many states? And the Administration has said, over and over, there is no Plan B. If the subsidies are lost, there’s not a whole lot that can be done to salvage anything.

But rightie media are not accepting this. The Administration is hiding Plan B. HHS denies it is preparing Plan B. The Administration won’t say it is preparing Plan B. (Actually, it plainly says there isn’t one and none are in the works.) But there must be a Plan B! How could there not be a Plan B? Of course there is a Plan B, and congressional Republicans demand to know what it is.

Smart money says all this posturing is trying to signal the Court that the actual fallout of a decision for the challengers wouldn’t really be that bad; the Administration has a Plan B! Also, when the dominoes start crashing and people find themselves cut off from health care again, they are prepared to point to the White House — See? They should have had a Plan B. It’s their fault.

Republicans also have proposed a Plan B, although no one who knows anything about health care insurance thinks it will work. And a whopping majority — 64 percent — of Americans think that if SCOTUS rules against the subsidies, Congress immediately should step up and reinstate them. Which Republicans in Congress have no intention of doing.

Which makes me think that at least a few Republicans are genuinely nervous that a ruling in their favor could bite them, hard. Deep down, a few of the less demented among them may really want the White House to jump in with a Plan B and save their butts.

Update: Here’s something interesting — a GOP senator is proposing that if the subsidies are struck down, Congress should extend them for 18 months.

The loss of subsidies for millions of people would also put the Obama administration on the offense for the first time to protect its signature healthcare law.

A White House crusade against the GOP would mean a firestorm of accusations that the party is taking away care and endangering lives  – building up for the 2016 election.

To avoid that situation, some Republicans are floating a stopgap that would keep the subsidies in place temporarily.

Sen. Ben Sasse (R-Neb.) promised this week that he would introduce legislation that creates a “temporary model to protect those harmed by ObamaCare” in which people could still receive financial help for their healthcare costs for 18 months after a court decision.

Startin’ to sweat a bit there, dude?

Senate Finance Committee Chairman Orrin Hatch (R-Utah) hinted at a similar proposal earlier in the week, promising “a short-term solution” until a Republican can enter the White House.

By some coincidence, 18 months from the likely date of the decision — end of June, 2015 — would possibly take us just past the 2016 elections.

16 thoughts on “Does the GOP Fear the Fallout from King v. Burwell? (Updated)

  1. “Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law.”

    If that was the case, and there really was a suicide clause written in there, the Republicans in both Houses of Congress, the moment after the President’s signature dried on the bill, would have increased NASA’s budget astronomically (pun intended?), to have space ships sky-write this failure by Obama and the Democrats all over the night sky.
    And then hire sky-writing pilots in every Congressional district to trumpet the same thing in the daytime.

    Plus, there’s a long list of GOP House and Senate leaders and members on record who never mentioned this at all – for years – until the conservative ratf*cking sycophants could parse every word, trying to find something to hang the hopes of conservatives on – and dash the hopes of millions of people who finally got health care insurance, on the rocks along the shores of The Conservative Sea of Stupid and F*ckin’ Evil!

    Oh, and GOP:
    Obama and the Democrats provided Plan A.
    YOU MFer’s were supposed to counter with a Plan B!
    Instead, you countered with “Plan 9 From Outer Space” – a plan so far out there, and laughable, that if aliens pee laughing, they would have drowned themselves in their space ships!

    While I hope that for once, the 3 full-time psychopaths, and the 2 parts time sociopaths, don’t go along with this sham of a case – a case where the f’in plaintiff’s may not even have any standing: Which, instead of King v. Burwell, might as well then be Unicorns v. PPACA – but, if the ‘Five Fascists” decide for the plaintiff’s, and if there are serious repercussions, I know that you’re prepared to blame Obama and the Democrats.
    But this time, you may have run out of wool to cover “We the people’s” eyes.

    And what then, GOP?
    Do you expect gratitude from the millions of people who, as a consequence of your own perfidy, will get more ill and/or die from the “freedom” and “Liberty” of illness?
    More likely, they’ll see this as your idea’s of freeDUMB and liberTEA!

    Sadly, here aren’t enough curse words in the English language to describe modern conservatives.
    Not even if we throw in all of the curse words in all of the languages on Earth.

    All of those combined, wouldn’t suffice to describe the “people” in a party who are willing to let millions of their own citizens sicken and die, because in the future, like with Social Security, Medicare, and Medicaid – Democratic programs, one and all – people will associate affordable health care with your opposition party.

    Party over people!
    Party over country!!
    PARTY UBER ALLES!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  2. Not a lawyer, but given the precedents I’ve read about – where the Court managed to see past a “typo” in a law to uphold the law’s original meaning – it’ s hard for me to believe that the SC would rule in favor of the plaintiffs and eliminate the subsidies.

    That said, I completely love how this puts the Republicans in a box. It’s a gift to Obama: There is No Plan B, and if the law is gutted, all the blame will be on the Republicans. I would bet that Congress will eventually come to the law’s rescue. If nothing else, the insurance industry will bribe them / threaten them if they don’t.

  3. A Plan B that could work is individual states deeming the federal exchanges as being established by them for subsidy purposes. It stands as much chance of happening as anything else (fat), but I do think it would stave off disaster.

  4. I’ve actually seen it said that if Congress *did* design such a “suicide clause” and *didn’t* shout it from the rooftops, that in itself would make the clause unenforceable. The Congress can’t make it seem like states are okay if they don’t set up an exchange, and then turn around and make it a big “OMG you didn’t set up an exchange! You lose a lot of funding for your citizenry!”

    Is this true? I don’t know. I’m not a lawyer. But I am afraid, because it sounds like a lot of good, sound precedent will be undermined if this case is won.

    Another annoying thing about this situation is that, if the situation was reversed, you know the Democratic Party would be asked if they’d pass a fix for the signature Republican law as a sign of bipartisanship, and a willingness to reach across the aisle. The problem isn’t that the Republicans won’t so much as no one bothers to point out that they are refusing to fix a typo-equivalent, when doing so would demonstrate good faith and a willingness to let Obamacare “fail on its own merits.”

    (Yeah, you know it won’t fail on its merits, and *I* know it won’t fail on its own merits, but the Republicans have to pretend to believe it will, while knowing damn well it won’t.)

  5. I frequently end up in moderation – I’m curious if I keep using a forbidden word or something. I know it can be something innocuous – on Balloon Juice, “socialism” can get you in the queue because it includes a magical string of letters starting with c and ending with s. I just don’t know how to avoid it.

    • I don’t know what to tell you about the moderation, LHW. I don’t have a lot of control over it. If it makes you feel any better, c u n d gulag ends up in moderation nearly all the time.

  6. It seems symptomatic of some psychopathology that they might fear the political blowback from killing the ACA, but not the real life consequences of killing it. If millions lose health care insurance, the real consequences in terms of shortened lives, broken families and diminished quality of life, mean nothing to them. A threat to their consolidation of power, on the other hand, gives them pause.

  7. goatherd,
    You nailed what I have been trying to say for years!

    People dead from lack of health care?

    We lost X House and X Senate seats?
    OH, THE HUMANITIES!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  8. Nod. I don’t mind hitting moderation – I was just wondering if there was something I could keep in mind to avoid it. Like, if I kept mentioning that famous website, named after an Island where one would expect to find a great Pen, or something. Or the problem some folks have where they don’t realize there are two “i”s in shiitake, and get filtered.

  9. Like, if I kept mentioning that famous website, named after an Island where one would expect to find a great Pen, or something.

    OK, I’m stumped! Maybe Bonnie might know. She’s a Jeopardy aficionado.

    PS. Being put in moderation helps build character. People of my generation didn’t have the need for instant gratification. 🙂

  10. Swami: If they’d bought, they could have made it pen, dot island dot com, but I guess was gone, so they just pre-pended “pen” to the Island. You might notice you can make two different words out of that.

  11. LongHairedWeirdo…Wow, I walked into that one with my eyes closed.It wasn’t until I did a google search that I realized how naive I was. My apologies to Bonnie. I didn’t realize the nature of the comment when I suggested that she might know the answer.I do remember that she mentioned at one time that was a jeopardy fan and I thought I was being social and inclusive.

    But You know what they say about thought though..He shit in his pants because he thought they were down.

  12. ‘Gulag, If you write pen, and then island you’ll realize the first 5 letters form a reproductive organ name. The remaining are the world “land”.

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