With the Supreme Court ready to hear arguments in King v. Burwell, conservatives are once again allowing themselves to dream of an Affordable Care Act crippled by judicial action. To recap what’s at stake here: the plaintiffs in King argue that the wording of a single provision of the ACA prohibits the government from offering subsidies to consumers who purchase health insurance through the 36 state exchanges run by the federal government, and that this was the intention of Congress when it wrote the legislation. (Legal observers and people who aren’t reflexively hostile to the Obama administration tend to view this argument with huge amounts of skepticism.) If the plaintiffs win, the practical effect of the ruling would be to strip millions of people of the ability to pay for their health insurance.
That’s no small consideration, given that these subsidies are saving the lives of people with serious illnesses who otherwise can’t afford insurance. Conservatives tend to dance around this and instead cast their support for King, Halbig, and similar cases as a high-minded commitment to “enforcing the law as written” (or, more precisely, enforcing an absurdist interpretation of one provision of the law, and ignoring the other provisions that contradict it). Getting rid of the Obamacare “cancer” remains the most important consideration, and if a few million people have to lose the ability to pay for coverage … well, let’s just focus on what really matters.
That brings us to the Washington Examiner’s Michael Barone and the column he wrote this morning celebrating SCOTUS’ decision to take up King. In it, Barone practically salivates over the possibility that the Republicans could use the sudden denial of health insurance subsidies as leverage to impose yet more destruction upon the law:
Note that the Supreme Court is not being asked to rule the law unconstitutional. It is just being asked to interpret a statute — in this case, to say that the statute says what it says. Supreme Court justices have generally been more willing to overturn Executive Branch interpretations of statutes than to rule their acts unconstitutional. After all, Congress can, with the approval of the president or over his veto, can rewrite statutes and in fact does it all the time (well, not so often over the last four years, when Reid kept many bills and amendments with majority support off the Senate floor). It would be easy to rewrite the Obamacare statute to make it say what Democrats say they intended to say but somehow didn’t quite do so. Just change a few words. But Republicans will have majorities in both houses in 2015. If there is demand for making the subsidies available in the 36 states where they would be barred by the Halbig ruling, Republicans might demand something in return. Like a major rewriting of Obamacare.
“Demand for making the subsidies available” is a nicely euphemistic way of saying “people fearing for their physical and financial well-being because their health security has been ripped away.” He may couch it in anodyne language, but Barone is rooting for that chaos because he sees in it the chance for Republicans to make progress on a political goal. Millions of people losing their health insurance subsidies and putting their lives at risk? Well, that’s just a bargaining chip for repealing the medical device tax.
And who’s to say this strategy will even work? Barone acknowledges that a simple legislative tweak would be all that is needed to repair the law if SCOTUS rules against the government, and he says there could be “demand” to get the subsidies back up and running. If the Republicans resist that pressure and argue for additional concessions, there’s a good chance they’ll end up looking like hostage takers. The GOP tried once to play Obamacare brinkmanship with the October 2013 government shutdown, and it backfired horribly.
That Barone is willing to entertain this as a plausible political strategy for the Republicans indicates a determination to disregard the moral considerations at play, or at least subordinate them to the politics of the matter. “If Republicans were to sit on their hands, or use the ensuing chaos as leverage to extract unrelated concessions, it will cost people their lives,” the New Republic’s Brian Beutler wrote last week. “That is a cardinal reality facing justices, and the people soliciting their conservative activism.” People like Barone don’t want to acknowledge that reality because it’s unpleasant and reflects poorly on the obstructionist posture conservatives have maintained even as the ACA has helped improve people’s lives.
“Republicans cannot force repeal,” Barone concludes. “But if the Supreme Court early next summer follows standard statutory interpretation, Republicans can get a good start on replace.” That presumes that the GOP actually has something to “replace” the Affordable Care Act with. They’ve been promising for years that they’d get around to laying out exactly what they’d do when they finally get rid of Obamacare, but that still hasn’t happened. That’s because the only thing they can agree upon is that Obamacare must be destroyed, no matter who gets hurt in the process.
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