As Senator Ernst promised in her GOP response to the President’s State of the Union address last week, the Republican-led Congress could vote to repeal the ACA [“Obamacare”] in 2015. As I explained in my last post, the prospect of repealing the ACA through the arcane budgetary procedure called reconciliation is possible — and tempting – to many Republicans (although apparently there is division in the party over whether the new leadership should take that approach).
Regardless, it really does not make any difference how the GOP votes, as President Obama’s guaranteed veto makes the entire debate another heated discussion with no effect. The law is safe from any Congressional repeal for the next two years.
Anyone interested in the future of the ACA should quite literally turn their back on the Capitol building and look across First Street to the U.S. Supreme Court for it is in that building that the ACA faces its greatest challenge in 2015. This term the Court is hearing King v. Burwell, a case based entirely on seven words in the ACA. The clause in question says that federal financial subsidies, which make insurance possible for people without sufficient incomes, are available “through an Exchange established by the State.”
Under a literal translation, as argued by the plaintiffs, that clause means that subsidies are not available for residents in the vast majority of states, which opted not to run their own exchanges. The Court’s decision is expected in late June of this year.
Without getting into the weeds of this argument (which looked like grasping at straws to most when it was first brought up) the impact of a decision in favor of the plaintiffs would be to destroy the ACA’s very core, which makes health care accessible and affordable to all. The law wouldn’t be repealed, but it would be fatally injured.
Surely, what would remain of the law could be fixed, and 64% of Americans want the subsidies returned if the Court strikes them down. But who would have to do any necessary repair? Congress – now led by the same party that has failed to ever come up with a viable alternative to the law. And not only are they unlikely to fix the law, many Republicans believe that the Supreme Court might actually shield them from any political backlash which would come from killing the law legislatively. The Supremes will answer their prayers without Congress (again) having to take responsibility.
This may strike you as a thrilling possibility or the end of sanity in our country yet, either way, all of us should consider what would happen if the Court eviscerates the ACA. Approximately 5 million people will lose the subsidy they received in order to buy insurance, the insurance industry will become destabilized (as premiums are expected to rise as much as 43 percent), and states will lose millions of federal dollars when the federal subsidies stop (for example, Florida could lose up to $3 billion if the plaintiffs win their case). And this does not even begin to consider the implications if the end of the ACA heralds the return of pre-existing conditions, loss of insurance for young adults under their parent’s policy, or the reopening of the infamous “donut hole” in the Medicare Part D program. Perhaps you think that would be going too far?
That is the point. There really is no middle ground here – there is no alternative to the ACA waiting in the wings. For more than five years, Republicans have been vilifying the ACA and blaming the law for all of our health care system’s woes. However, they have never told us how they would deal with the problems we have in this country with access, quality and the cost of healthcare…all of which precipitated the ACA in the first place. If the Supreme Court shoots down a key pillar of the ACA, then the entire law is in jeopardy, including the parts Americans like.
The very fact that moving King v. Burwell up to the Supreme Court required at least four justices (we do not know whom) to grant that appeal has raised the concern that the GOP fervor against this law may have infiltrated the Court. The conservative Justices might now do what their colleagues in Congress can’t: destroy the law. Setting aside the obvious point that the U.S. Supreme Court should not be motivated by the political arguments for this case one way or the other, if that happens, then Republican leaders will be responsible for the aftermath.
Threatening repeatedly to repeal the ACA in Congress with no possibility of follow through (given the President’s veto power) has fed anger against the law with no responsibility placed on those politicians. These shenanigans may have been politically useful to the GOP for stirring up their base and getting votes, but the Republican leadership has been playing with fire. Now we may all get burned.