We are so close – less than two weeks! – from the Affordable Care Act’s next Supreme Court date. Next Wednesday, the high court will hear oral arguments in King v. Burwell and, shortly thereafter, decide the fate of the ACA’s health insurance subsidies in the vast majority of states, potentially setting in motion the catastrophic collapse of President Obama’s healthcare reform. This means that Republicans who want to convince the court’s conservatives that they can handle the fallout of that collapse are facing down an all-but impossible task: uniting around a viable Obamacare “replacement” with time quickly running out.
TPM’s Sahil Kapur spelled it out clearly:
So Republican leaders are eager to convey to the chief justice, who is protective of the Supreme Court's institutional legitimacy, that they will be ready to act. There's virtually no chance Republicans will have a contingency plan ready by March 6, when the justices will meet privately to decide the case, and doubtful that they'll be able to rally around a solution by the end of June, when a ruling is expected.
Ever since the court agreed to hear King v. Burwell, the Republican strategy has been to finally get around to firming up their plans for the “replace” part of “repeal and replace Obamacare.” Or, at the very least, to make it look like they were making progress toward that goal. Instead, Republicans have made a lot of promises but no actual progress. John Boehner pledged at the end of January that a Republican healthcare bill would be voted on during this session of Congress (he’s made the same promise before and broken it). Paul Ryan said two weeks ago that he’ll be working on an Obamacare backup plan – a plan that will presumably build off the plan he was supposedly working on last year.
The House GOP voted to repeal Obamacare (again) last month, but this time they wrote in language directing committee chairs to craft an impossible piece of healthcare legislation that covers everyone, deregulates the insurance market, and costs nothing. Notably, three Republicans voted “no” on the repeal measure because, they explained, the party doesn’t have a serious plan to replace the law. A trio of Republican legislators released a healthcare “framework” at the beginning of this month that was very similar to the “framework” they released last year which found little support in Congress. Meanwhile, Republicans outside DC, like Gov. Bobby Jindal, are trying to sabotage GOP healthcare proposals that they feel are insufficiently conservative. Some Republicans are even saying it’s not their obligation to handle the fallout from King. “As far as I’m concerned, if King v. Burwell is struck down, the White House is the one responsible to say what they’re going to do next,” Sen. Richard Burr said earlier this month.
On top of all this, the people actually bringing the suit before the court are contradicting themselves and can’t keep their arguments straight for why the law should be crippled. The guy who first dreamed up the legal theory at the heart of King is out there telling everyone that a ruling against the law will create an irreconcilable “standoff” between the states and the federal government – he sees it as a good thing, but it runs counter to the whole “don’t worry, we got this” messaging effort.
The picture that emerges from all of this is chaos lightly papered over with vague pledges that action will be taken. That’s precisely the opposite of what conservatives and the GOP wanted to convey to the court, but it was largely inevitable given that chaos and infighting has dominated the Republican healthcare policy debate for the last half-decade.
On the other side of the coin, the White House and other supporters of the law have been largely consistent in their political approach to King v. Burwell. Nobody on the Democratic side is willing to even entertain the notion that Congress will be able to patch the giant hole SCOTUS may rip in the ACA, but they’re loudly vocal about the dire health and financial consequences for the millions of people who would lose their insurance subsidies.
What could ultimately redeem the bag-of-cats Republican messaging is the same hope upon which the entire case rests: the willingness of the Supreme Court’s five conservatives to rule based on ideological tribalism. This case is entirely political, and the whole idea behind the GOP’s messaging efforts is to convince the conservative justices that they’ll have the political cover they need to accomplish the shared goal of destroying Obamacare. The fact that they’re making a hash of the messaging may be moot if the justices themselves don’t need much convincing. We already know there are four staunch opponents of the law on the court and the one “swing” justice – Chief Justice John Roberts – “saved” Obamacare the last time around by doing grievous injury to it. Who’s to say he won’t opt for a more activist posture this time around?