WINNERS AND LOSERS
What King v. Burwell Means for 2016
Now that the Court has once again upheld the ACA, let’s game out what all the major political players will do next.
Fantastic and amazing, this Supreme Court decision on Obamacare. Although is it really amazing? This challenge was a joke from jump street: No one could seriously believe that Congress intended this law not to include the granting of subsidies (“tax credits”) to people who bought insurance through federal health-care exchanges.
Chief Justice John Roberts and the 6-3 majority laughed the notion out of the park. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” Correct. Congress often writes laws that fail, but it doesn’t write laws that it intends to fail.
So will they give up now? Czarist-court enemies of Grigory Rasputin shot him, poisoned him, you name it. Eventually, finally, they got him. But Obamacare has survived all attempts on its life. It lives.
But no, they won’t give up! So let’s take a Rashomon-like look at the various impacted parties and imagine how this decision will play out politically.
1. The Republican presidential candidates. Obviously, the decision ratchets up the pressure on the GOP candidates to start howling even louder for the repeal of Obamacare. This is the reddest of red meats, and they’re going to be falling over each other to come up with the most perfectly worded denunciations of the Court and the law that they can.
However, this comes with big risks for them. Think of it like this. If the Court had ruled against the administration, 6.4 million people would have lost their subsidies, but the GOP hopefuls would have been able to say, “Hey, don’t look at me, the Court did it!” But now the Court has ruled that those people will keep their subsidies. And, now, the Republican candidates will be campaigning, at least during the primary season, on taking them away. And by November 2016, it won’t be 6.4 million. It’ll be a couple million more at least.
But the mantra on the right will become, already has become on Twitter: OK. The only way to do this is to win the presidency and control Congress and do away with it. Jeb Bush will find a softer way to say it than the others, but this decision commits the GOP nominee to making repeal a central plank of his campaign.
2. Hillary Clinton (or some other theoretical Democratic nominee). The Republicans will be in a pickle, but this will still be war, and Clinton will have to defend the law unflinchingly. Yes, she can and will say it needs fixed here and there, but she’s going to own it as nominee, so she has no choice but to embrace it.
She’ll face a dilemma if the law is still unpopular come election time. And it is still unpopular, although much less so than a couple of years ago. But what’s really unpopular is the idea of taking subsidized health coverage away from people who have it. Look at this new poll by Hart Associates for SEIU. By 63-29, respondents said they’d disapprove of a decision that took away subsidies. That’s the brass ring Clinton needs to grab onto. She can be the candidate who tells people she’s not going to take away their health care and the other guy is—and now she has the cover of being able to add that John Roberts and Anthony Kennedy agree with her. And now she won’t have to take the messy position of explaining to people how she’s going to work with Republicans to pass a compromise that could pass Court muster.
3. Republicans in Congress. Here are today’s biggest losers. First of all, their repeal efforts are dead. They’ll pass more, but they’ll be vetoed, and Obama, like Clinton, can invoke Roberts and Kennedy gleefully while doing it.
But more than that, the decision puts an end for all practical purposes to their always-empty promises about having better ways to do this. Remember on Let’s Make a Deal, how host Monte Hall would say to the contestant, “OK, you can have this new dining-room set...or you can take what’s in the mystery box”? The mystery box might have something better than the furniture—a new car! But it also might have a year’s supply of Dr. Scholl’s bunion cream.
The Republicans in Congress are offering bunion cream. They always have been, but now this is going to become more clear to more people. The most interesting thing about Roberts’s decision to me was the way it dug into the policy reality of the law. See his decision starting on page four. He explains that health care is a three-legged stool involving guaranteed coverage, a mandate on individuals to buy insurance, and subsidies. He acknowledges that the stool can’t stand if any of those legs is removed. As such, the majority has precisely bought into the whole theory of the law and is clearly saying that the congressional GOP “fixes” that don’t include all three legs—and they don’t—are bogus. A very bad day in Boehner-land.
4. The states that haven’t opted in. This is the most interesting question to me: Will some red or purple states that have so far refrained from taking the Medicaid money now throw in the towel and start doing so?
Technically, there’s no direct connection between today’s decision and the Medicaid opt-in. But people and the systems they operate aren’t rational actors who think in terms of technical reality. This decision is going to signal to people across the country: Conservatives took every shot at this thing they knew how to take, and they’ve lost. Over and over. It’s reality now. Accept it. Live with it.
So I think pressure will now start to build in states that have resisted playing ball to do so. And the pressure won’t come just from the uninsured, who have no political power. It will come from hospital associations that stand to benefit financially from the law, which is withdrawing other kinds of Medicaid support from states on the expectation that they’ll take Medicaid money to set up exchanges. It will come from doctors’ groups. It will come from business interests. And I believe a few electorally important states—maybe Virginia, where Democratic Governor Terry McAuliffe really wants to opt in and the legislature resists; possibly even Florida—will start looking at this more seriously now.
They might still keep their powder dry until after the 2016 elections, and then run up the white flag only if Clinton wins, because a GOP presidential victory next time is now truly the last hope of the resistance faction. But the thing about the scope of today’s decision is that even then, the law might be hard to repeal in a way that today’s six majority justices would support. Policymakers in the states will know this.
So thank you, plaintiffs, for bringing this flimsy challenge in the first place. You’ve advanced a cause today all right, even if it’s one you didn’t want to advance. But it’s one more and more Americans are going to start embracing as of now.