Responding to dire predictions of “chaos” and “pandemonium,” Republicans in Congress are pledging to extend generous federal subsidies during a transition period to prevent major disruptions to health insurance coverage should the United States Supreme Court rule in favor of those challenging a key provision in the Affordable Care Act.
With the Supreme Court set to hear oral argument on Wednesday in a major challenge to President Obama’s health-care reform law, both supporters and opponents of Obamacare are ramping up their rhetoric.
Supporters of the law are engaged in a campaign to highlight the substantial disruptive effect a high court decision for the challengers could have on millions of Americans.
The Obama administration accelerated this campaign last week when Secretary of Health and Human Services Sylvia Burwell announced that the administration had no plans to protect Obamacare participants from disruptive effects of a high court ruling.
“We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision,” Secretary Burwell said in letter to Sen. Orrin Hatch (R) of Utah.
In addition to the threat of “massive damage,” some commentators appear to be seeking to intimidate Chief Justice John Roberts into joining the court’s liberal wing, which is assumed to be united in favor of the administration’s view of the ACA.
Some analysts are warning that a ruling against the administration would politicize the high court, tarnish the institution’s stature, and undercut Chief Justice Roberts’s legacy.
“It would be the greatest example of judicial overreach in the history of the modern court,” Sen. Chris Murphy (D) of Connecticut told reporters on Tuesday.
“Politically motivated judicial activism,” is how Topher Spiro of the liberal Center for American Progress described a potential high court ruling for the challengers.
Meanwhile, those opposed to the law are offering a counter-narrative designed, in part, to make it easier for the court’s conservative wing – including the chief justice – to rule against the Obama administration. This includes proposals in Congress to ease any disruptive effects of a decision.
“The sky isn’t falling,” said Carrie Severino of the conservative Judicial Crisis Network. “That simply is not the real issue in the case.”
Others see attempts to lobby the chief justice as counterproductive.
“This seems to me unseemly and unlikely to succeed,” said Joshua Hawley, a professor at the University of Missouri School of Law in Columbia, and a former law clerk for Roberts.
The pending ACA case requires the high court to engage in interpreting a statute. Professor Hawley said that judges interpret statutes all the time.
“The best way to avoid becoming ensnared in a political conflict is to follow the usual processes of statutory interpretation and the usual tools of interpretation,” Hawley said in a teleconference with reporters.
Hawley said it’s the court’s job to “uphold the law as written without regard to political implications one way or the other.”
It was Roberts who provided the essential fifth vote to uphold the health-care reform law during a challenge to the law’s constitutionality in 2012.
Now the ACA is once again in serious jeopardy, and supporters of the law are once-again hoping that Roberts provides a critical vote.
The case is King v. Burwell. The challengers argue that a key section of the ACA authorizes tax credits to only those individuals who sign up on a health care exchange that has been established by a state.
The administration argues that the credits must be available through any exchange, regardless of whether it was set up by a state or the federal government.
If the high court rules against the administration, the fallout could be substantial.
More than 7 million of the 11 million individuals who have signed up for Obamacare on an exchange would lose their subsidies if tax credits were no longer available through exchanges established by the federal government.
In that case, health insurance under the Affordable Care Act would likely no longer be affordable, supporters say. They warn that the entire system could collapse in a death spiral.
“If the Supreme Court rules the wrong way it would be devastating to millions of families,” Sen. Chuck Schumer (D) of New York said in a media teleconference on Tuesday. “It would be nothing short of throwing our nation’s health-care system into chaos.”
The comments came as Republicans in both the Senate and the House of Representatives have sought in recent days to reassure members of the public (and members of the high court) that a Supreme Court decision for the challengers doesn’t have to lead to health-care Armageddon.
“What we propose is an off-ramp out of Obamacare toward patient-centered health care,” three Republican congressmen wrote in a Wall Street Journal op-ed article on Tuesday.
The congressmen, John Kline (R) of Minnesota, Paul Ryan (R) of Wisconsin, and Fred Upton (R) of Michigan, said they would allow states to opt out of Obamacare’s individual and employer mandates and permit individuals and companies to shop for coverage across state lines.
In addition, they said, policyholders in states affected by any high court decision would be eligible for an “advanceable” tax credit to help them buy or maintain coverage during a transition period.
On Monday, three Republican senators – Lamar Alexander (R) of Tennessee, John Barrasso (R) of Wyoming, and Mr. Hatch – offered a similar proposal in an op-ed article in The Washington Post.
“First and most important: We would provide financial assistance to help Americans keep the coverage they picked for a transitional period,” the senators wrote. “It would be unfair to allow families to lose their coverage, particularly in the middle of the year.”
The senators said they would also “give states the freedom and flexibility to create, better, more competitive health insurance markets.”
Senator Schumer was not impressed. “An op-ed is not a plan,” he said, dismissing the proposals.
He said it was doubtful that a group of Republicans who struggled to agree on a way to fund the Department of Homeland Security would be able to reach common accord over something as thorny as health-care reform.
The case is set for oral argument at 10 a.m. Wednesday. A decision in the case is expected by late June.