If the Supreme Court rules against the government in King v. Burwell, what would happen next? Many states without their own exchanges may not be able to move quickly enough to establish exchanges for 2016, as I explained at the New England Journal of Medicine. But what about Congress? It has the power to fix the problem with a stroke of the pen. Would it do so?
You could try to tell an optimistic story. The Republicans in Congress will come under considerable pressure from constituents who’ve lost their tax credits. And, in exchange for a fix, the White House might cave to some Republican demands: axing the employer mandate, lifting the medical-device tax, relaxing some exchange rules, or whatever. Maybe there’s room for a deal.
But any suggestion Congress will just clean up the mess should be taken with a huge grain of salt. As Randy Barnett has said, the Supreme Court is more likely to rule against the government if it believes that Congress has a replacement bill in hand. So it’s no surprise that congressional supporters of the lawsuit claim that they’re “working on possible legislation to respond to the verdict, along with the relevant Senate committees, the Republican Policy Committee, and House Ways and Means Chairman Rep. Paul Ryan.”
It ain’t gonna happen. Ace reporting from Sahil Kapur over at Talking Points Memo gives the lie to the view that congressional Republicans have any kind of plan in the works. You should read the whole thing, but here’s a taste:
[C]onversations with more than a dozen GOP lawmakers and aides indicate that the party is nowhere close to a solution. Outside health policy experts consulted by the Republicans are also at odds on how the party should respond.
The party that has failed to unify behind an alternative to Obamacare for many years now has five months to reach an agreement. It’s an unenviable predicament, especially for the congressional Republicans leading the effort to devise a response — all of whom hail from states that could lose their subsidies. …
One big challenge, the Republican aide said, is that a GOP plan would be unlikely to cover as many people, making it an easy piñata for Democrats to pound. “That’s the brutal truth. We have a problem with that for very specific reasons. We don’t have good responses,” the aide said. “Show me the constituent in a town hall meeting who you can tell it’s OK for them to lose their health insurance.”
It gets worse, as Loren Adler noted on Twitter: after King, CBO’s new baseline would be a world without tax credits in 34 states. Any fix would be sure to cost a lot, complicating the politics for the Republican Congress. Combine that with the fact that negotiations over a fix would be taking place against the backdrop of a presidential primary, and it’s really hard to see how Congress reaches a grand compromise with the White House.
The posturing around a post-King fix reminded me of this terrific column from Ezra Klein, where he explained “the central problem for conservative health reformers” who are pushing to get the Republican Party to coalesce around an alternative to the ACA:
[B]ecause Republicans don’t care that much about health reform and because so much of what health reform demands offends conservative sensibilities or constituencies, the party doesn’t want to make the sacrifices necessary to unite behind an alternative to Obamacare, much less actually pass and implement it.
Which is to say, if the government loses King, Congress probably won’t lift a finger to help pick up the pieces.
