The right's Obamacare strike: If SCOTUS wounds it, here's why GOP will finish it off

Will Republicans fix Obamacare if the Supreme Court blows it apart? Hah! No

Published December 16, 2014 8:24PM (EST)

John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005              (Reuters/Kevin Lamarque)
John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005 (Reuters/Kevin Lamarque)

In the month-or-so since the midterm elections, three states have signaled that they’re ready to get on board with the Affordable Care Act’s Medicaid expansion – Utah, Wyoming, and, most recently, Tennessee. All three states are governed by Republicans, and those governors have all come to the conclusion that the inflexible opposition to the healthcare law, while ideologically satisfying, is not in the best interest of their states or the unfortunate people within them who fall into the Medicaid coverage gap. The crumbling of state-level resistance to the law combined with strong enrollment figures for the ACA’s second open enrollment period are pretty good news for Obamacare, which continues to succeed despite all the conservative predictions that it would crash and burn.

And yet, no amount of good news can completely obscure the fact that the Affordable Care Act is facing down another Supreme Court case that threatens to blow the law to smithereens. Sometime in the middle of 2015, SCOTUS will weigh in King v. Burwell and decide whether or not health insurance customers in 36 states can legally receive federal tax credits. The case itself is based on a contentious reading of the statute and relies in great part on the willingness of the court’s conservative justices to behave like mindless partisans – which is to say that there’s a greater-than-zero chance the court will gut the ACA.

Should that happen, people will lose their insurance, the state exchanges will collapse, and there will be chaos in the insurance market. All of this could be avoided with a simple legislative tweak – a task that would fall to the Republican-controlled Congress. Some people are wondering if the GOP will actually ride to Obamacare’s rescue, and a few Republicans are hinting that cooperation with the administration is at least possible. “We've got to consider everything,” Sen. Orrin Hatch told National Journal, “from a substitution for the bill to amending the bill to working with President Obama to try to get him to work in good faith with us.”

That sounds nice, but I don’t buy it for a moment. Republicans will undoubtedly face pressure to get something done, but try and imagine a scenario – any scenario – in which a potentially fatal blow is delivered to Obamacare and the Republican Party passes up the chance to deliver the coup-de-grace. It’s difficult to do, especially when you consider that the Republican leaders of both the House and Senate are openly advocating for the court to rule against the ACA so they can step in and kill it once and for all.

“I would assume that you could have a mulligan here,” Mitch McConnell said recently, “a major do-over of the whole thing — that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.” When a three-judge panel of the DC Circuit Court ruled against the ACA in a similar case, John Boehner came right out and said that the law is beyond legislative repair. “Today’s ruling is also further proof that President Obama’s health care law is completely unworkable.  It cannot be fixed.”

But let’s assume the Republican congressional leadership wasn’t on record expressing their hope that the courts will facilitate their efforts to kill the ACA dead. Let’s even assume that there might be some interest from moderate Republicans in repairing the law in order to avert the disaster that would attend its abrupt demise. Even with those factors, you still have to think about Ted Cruz and the rest of the hardliners in Congress who would raise an unholy stink over this and do everything in their power to impose gridlock and ensure the law’s demise. With the 2016 elections looming and several Republicans in the Senate thinking about running for president (and worrying about alienating conservatives), it’s hard to imagine the pro-repeal forces not carrying the day.

Ironically, what may save the ACA is the fact that the Republicans have already laid their cards on the table. They’ve left little doubt that they have no intention of fixing the ACA, which should (in theory) make it difficult for Chief Justice John Roberts (widely considered to be the swing vote in this case) to rule against the law and argue that it’s Congress’ responsibility to fix it. But, of course, that’s no guarantee the ACA still won’t get nuked by SCOTUS. “Whether or not Roberts will care about this is an open question,” Greg Sargent writes at the Washington Post, “but it is the reality of the situation.”

By Simon Maloy

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