Republican Congress to Use “Inside Baseball” and Courts to Maim ObamaCare
Blowing in like a flu outbreak as year-end approaches, ObamaCare Derangement Syndrome has enveloped the Capital. Republican leaders in Congress are plotting to use arcane parliamentary procedures and the courts to do further violence to ObamaCare, and by extension, to the millions who have gained insurance through it. While it’s red meat for the conservative base, the strategy presents a huge political problem for the GOP: they have nothing to replace it with.
Since the midterms last month, Republican Congressional leaders have been locked in a furious, behind-closed-doors planning effort to gut ObamaCare once and for all. While the GOP has finally awakened to the fact that repealing the Affordable Care Act ain’t gonna happen on Obama’s watch, Republicans are licking their chops to use an obscure fast-track budget process called reconciliation to deal it a mortal wound with only a simple majority. It’s a longshot with many difficult parliamentary steps, but if successful, could deal a fatal blow to the marketplace subsidies, the Medicaid expansion, and/or the individual mandate. But I’ve consistently underestimated the effects of ObamaCare Derangement Syndrome, so I’m making no bets this time around.
Barring that, plans are also being laid to craft a bipartisan bill that would strip out more minor provisions like the device tax, the Independent Payment Advisory Board (IPAB), and restoring a 40-hour workweek. That seems to have a better shot, assuming the reconciliation effort doesn’t poison the already toxic well on the Hill.
The second prong of the Republican attack is through the courts, with a goal of “repeal by Justices.” GOP leaders are convinced that where repeal may fail legislatively because the President won’t kill his signature domestic achievement, the Supreme Court just might do the dirty work for them.
The first test, of course, is King v. Burwell, the challenge to the Federal marketplace subsidies the Court accepted in a surprise move last month. The case hinges on payment of Federal subsidies to people who enroll in insurance marketplaces run by CMS, and not by states. It was basically a drafting error that now threatens to put ObamaCare into a death spiral if the plaintiffs win.
The Court has acted to hear the case early in its session in March, but we won’t know their ruling until June 2015. I put it at 50/50, because four Justices don’t vote to hear a case unless they’re confident they can get a fifth for a majority ruling. That fifth vote, of course, is Chief Justice John Roberts, and he’s a total wild card. He has voted for both sides of the Court, and is very mindful of his legacy and the institution’s legitimacy. He said recently that the partisanship shouldn’t penetrate the walls of SCOTUS, and that’s encouraging for ObamaCare supporters.
Most Constitutional scholars here in DC seem to think the merits of the case favor the Administration, but there’s a whole lot of liberal hand-wringing going on here. A win for the plaintiffs and the end of Federal subsidies to 4.5-7 million Americans would of course be lethal to the marketplaces, and there’s little activity underway at the state level for that contingency. It would effectively wipe ObamaCare off the map entirely in Red States with no exchange and no Medicaid expansion. If it fails and the ACA’s subsidies are upheld, Republicans are lining up multiple other challenges to the Affordable Care Act, all with a goal of getting them to SCOTUS.
I think a win for Republicans in King creates a huge political problem: they will tear health insurance away from millions of Americans, with no alternative or replacement in sight. Not even Medicaid expansion. And that would take some “splainin'” to do in 2016, when Hillary gets her second act on health reform.
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