Later this year, the Supreme Court will hear arguments in King v. Burwell, and if the Republican plaintiffs are successful in their "moops" argument, approximately 6 million middle-class people in the 37 states using the federal health insurance exchange will lose the subsidies that allowed them to afford health insurance. As gleeful as Republicans are about this prospect—and it should be noted that virtually every elected Republican and every conservative pundit supports this lawsuit—some of them have at least given a moment or two of thought to the possibility that yanking insurance away from so many people (in mostly red states, by the way) might not play so well politically for them. They don't have a moral problem with it, mind you, but the politics are a little worrisome.
The solution is obvious: you could pass a bill that's literally one sentence long that would clarify the contradictory language in the Affordable Care Act, and the subsidies would be intact. But that would amount to helping the ACA, which is unacceptable. For years now, congressional Republicans have been saying that any day now, they're going to debut their replacement for the ACA, and the King lawsuit gives it some extra urgency. Yesterday, Sahil Kapur talked to a bunch of Republicans about it, and nobody had any answer about what they might come up with, or when:
Avik Roy, a conservative health care adviser, laid out the party's options at the strategy meeting in Hershey: do nothing, work with Democrats to fix the law, or seize what he calls "their best opportunity to reform the health care system" and propose a serious conservative alternative.
Republicans don't view the first two options as viable.
Republican aides to the four committees of jurisdiction in the House and Senate didn't have any news to report about the way forward.
Privately there is concern among GOP health policy aides that—contrary to Senate Majority Leader Mitch McConnell's (R-KY) contention that the Supreme Court could create an "opportunity" for a "major do-over" on health care reform if it rules against the government in King—the party won't be ready with a viable solution in time.
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."
However, they did decide to have have a vote on yet another bill to repeal the ACA—I don't know what the current count is, but it's more than 50—and this time it will include a provision instructing congressional committees to come up with a GOP alternative to the ACA. I believe it also includes the appropriation of money to outfit a team of explorers who will locate and capture a genie, then use their first wish the create an ACA alternative. The GOP caucus is currently split on whether wishing for more wishes will produce infinite wishes, with Tea Partiers insisting that no one has ever thought of that before, and members of the leadership trying to make them understand that it doesn't work that way and they should just be practical and work with the three wishes they'll have.
But seriously, there are some factors that will make it impossible for the Republicans to come up with a fix that would address the chaos and misery that their hoped-for ruling in King would cause. All of their ideas about health care are meant to work gradually and indirectly. They don't want to just give anyone insurance or give them the money that will help them buy it, because that's socialism. They prefer to create the market conditions that might let you eventually be able to find insurance.
But those kinds of solutions take time to work. And if they win in King, millions of people will have just lost their insurance and need help immediately (and it gets worse: as Ian Millhiser explains, the words "Exchange established by the State" on which the King plaintiffs hang their argument also appear in a section referring to funding for the Children's Health Insurance Program, which means that if they're successful, up to 5 million poor children could lose their insurance as well). Nothing in the existing conservative health care ideas would help them in the short run; indeed, they're ideologically opposed to just about anything that would.
There's yet another constraint on Republicans: their own constituencies. Ed Kilgore describes what would happen the day the King ruling comes down:
No one at this point in the GOP is addressing how they deal with the ecstatic reaction of their party's conservative activist base if and when the news blares out on Fox that SCOTUS has landed a lethal spear in the hide of the Great White Whale. Just yesterday polling data came out showing Republican rank-and-file opposed the idea of Congress doing anything to "repair" Obamacare. Ya think maybe the already difficult process of agreeing on a "fix" might be complicated a bit more by the shrieks of "NO! NO! NO!" from every Republican who has been told again and again that the Affordable Care Act is the worst thing to happen to America in living memory? Is it possible a Republican presidential candidate or three would exploit the situation by starting a crusade to destroy any GOP member of Congress who even thinks about "fixing" Obamacare?
It's more than possible; you could almost guarantee it, and Ted Cruz would be the first one to volunteer. It would be interesting to see if one of the other candidates would say, "Let's just pass the one-sentence fix, then when I'm elected we'll do our magical repeal and replace." The one who did that would actually get a lot of credit from the general electorate, but the risk in the primary might be too high.
All of which brings us to this report in today's Wall Street Journal:
Congressional Republicans say they won't move to preserve consumers' health insurance tax credits if the Supreme Court strikes them down, raising the stakes in the latest legal challenge to the Affordable Care Act.
The high court is set to consider in March whether the wording of the 2010 health law means people can only get tax credits to lower their health premiums if they live in one of the handful of states running its own insurance exchange. A decision is expected by June.
Leaders in the GOP-controlled House and Senate see the court challenge as their best hope for tearing apart a law they have long opposed. If the court strikes down the subsidies, Democrats are expected to clamor for lawmakers to pass a measure correcting the language in the law to revive them. Congressional Republicans say there is no possibility they would allow that.
Well there you go. They're not going to fix it, and the chances of them coming up with a viable alternative that would actually help the millions of people who would be screwed by a Supreme Court decision are somewhere between zilch and zero. Glad we've gotten that all cleared up.