Justice Alito, seen here doing something else besides shamelessly finagling on King v. Burwell
Let's be honest. I'm tired of writing about
King v. Burwell. By now, you're even more tired of my writing about
King v. Burwell. But every single development in the case that threatens to bring down the Affordable Care Act serves to either demonstrate the amoral hypocrisy of the conservatives who brought the suit, or show just how little other Republicans care about the millions of people who would be affected by an adverse ruling.
For those unfamiliar with the case, here's the simplest of recaps: one particular phrase in the Affordable Care Act refers the subsidies that help lower-income people afford insurance as being available to plans purchased on "exchanges established by the State." The plaintiffs in the case are arguing that since individual states don't actively establish the federally facilitated exchange that operates in states that haven't yet set up their own, subsidies for participants on the federal exchange are unlawful. Millions of people are currently receiving subsidized insurance on the federal exchange. If the Supreme Court rules in favor of the plaintiffs, those subsidies will be illegal, and those millions of people will quite possibly not be able to afford coverage, possibly sending the state's insurance market into a premium death spiral.
The plaintiffs' case has three main problems: First, Congress clearly intended subsidies to be available on the federal exchange, which matters in a case of ambiguous reading. Second, the plaintiffs' own lawyers argued previously that the interpretation they're pushing now would be unconstitutional, and most of the time it's a legal no-no to side with an interpretation that raises constitutional questions. But third is the politics: Even if the case were a true toss-up from a legal perspective, there's still the thorny issue of taking away insurance subsidies from well over 7 million people. A new Republican solution? Yes, take the subsidies away and don't replace them. Just, do it more slowly to lessen the immediacy of the crisis. More on that below the fold.
The idea of kicking millions of people off of their health insurance doesn't just pose a problem for the conservative justices on the Supreme Court who are looking to deal a death blow to the Affordable Care Act—it also poses a problem for Republican politicians. Maintaining a good reputation in conservative circles requires being unwaveringly doctrinaire about repeal, even as the stark realities of what that would mean in practice become increasingly clear. Because of this, conservatives are having to play a game where they pretend not to intend on doing what they're clearly trying to do: take people's insurance away. And the result would be comical if it weren't so pernicious.
If both Justices Kennedy and Roberts side with the three staunch conservatives on the court and vote against all precedent and common sense to ban federal exchange subsidies, it seems likely that neither Congress nor the states will simply let most of the nation's insurance markets spiral out of control. The simplest thing would be for Congress to pass a technical tweak to obviate the case altogether, but that won't happen. From the conservative point of view, the entire point of the case isn't to assert a correct reading of the Affordable Care Act, but to kill it by having the millions of suddenly uninsured people force a dismantling of the law's regulatory structure. In fact, when Justice Scalia theorized in oral arguments that Congress could simply step in, he was essentially laughed out of court.
The second option, and the only practical one given the likelihood of federal inaction, is for states without their own exchanges to step in and create one. The fact that states would feel compelled to do this to save their insurance marketplaces all but proves the unconstitutionality of the plaintiffs' argument, but let's put that aside for now. The governors of Michigan and Pennsylvania are on board with this idea because they don't want to face the drastic consequences that would follow if they didn't. The problem, though, is that the conservative legislatures of those states (and likely most others without federal exchanges) would never let the state opt in to the Affordable Care Act because being opposed to it as a matter of political life and death.
So herein lies the charade: We have Supreme Court justices saying with a straight face that ruling for the plaintiffs in the case wouldn't be a big deal because Congress or the states could step in, all while knowing full well that neither of those are likely to happen and the only remaining unsaid solution is to use the millions of former recipients of subsidies as hostages to get President Obama to undo the signature achievement of his administration.
Unfortunately for Republicans, there's still the tricky problem of what to do with the millions of people who will no longer have insurance. Despite plenty of time to come up with an "alternative" to the Affordable Care Act specifically designed to make it easier for Chief Justice Roberts to gut the law, congressional Republicans have had very little success in actually coming up with workable specifics. This shouldn't be a surprise—it's difficult to develop a plan to cover millions of people who will lose health insurance when your base ideology is that people shouldn't have health insurance if they can't afford it out of pocket.
But that is where newly minted Nebraska Senator Ben Sasse comes into play. His idea? Yes, strip the subsidies, but give a tax credit to offset the loss that gradually diminishes over time. That way, the subsidies disappear, just more slowly:
Under Sasse's proposal, those policyholders would receive a tax credit offsetting 65 percent of the costs of an individual's current plan for six months. That credit would decrease gradually each month, ending after 18 months.
"The six-month clock will put pressure on Congress to consider alternative proposals" to replace ObamaCare, Sasse wrote in an op-ed in National Review.
"Complete repeal is our goal," Nebraska's new Republican senator stated.
See? Republican solutions for those threatened by
King v. Burwell are totally humane. They're not doing to throw you into the ocean with your feet in cement blocks. Instead, they'll lock you in a slowly flooding room. They're so compassionate, aren't they?