Red states' SCOTUS reckoning: Oklahoma governor suddenly terrified of losing subsidies

OK Gov. Mary Fallin was all about gutting Obamacare, but now she wants a temporary extension

Published March 10, 2015 5:56PM (EDT)

Mary Fallin          (AP/Cliff Owen)
Mary Fallin (AP/Cliff Owen)

Oklahoma is an extremely red state governed by the reddest Republicans alive who hate the concept of helping lower-income people get access to health care. The state, led by Gov. Mary Fallin, did not expand Medicaid or create its own health care exchange, meaning many Oklahomans who enrolled in health plans through the ACA's federally facilitated exchange are in danger of losing their subsidies if the Supreme Court rules for the plaintiffs in King v. Burwell. 

Like a valuable red-state team player, Oklahoma has played a significant role in getting the subsidies challenge to the Supreme Court. In 2012, Oklahoma's attorney general, Scott Pruitt, filed one of the suits against the government arguing that the IRS cannot offer premium subsidies to those who enroll on federally facilitated exchanges. Last fall, Oklahoma won that case, with the help of a friendly George W. Bush-appointed district court judge. "The court holds that the IRS rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” wrote judge Ronald A. White.

Gov. Fallin was ecstatic to see her state help jolt the challenge towards the Supreme Court:

“For years, I have argued that Obamacare represents bad policy, irresponsible spending, an outrageous expansion of federal authority into the private sector, and unconstitutional law. Since 2012, the state of Oklahoma has been fighting the implementation of the ACA, both to protect our citizens from the negative effects of this law – including devastating cuts to Medicare -- and to stand up for Constitutional principles.

“Today, Oklahomans won a major victory, as a United States District Court ruled in favor of Oklahoma’s lawsuit challenging the implementation of Obamacare. My thanks go out to Attorney General Scott Pruitt and his team who have relentlessly continued the fight to defend Oklahomans from federal overreach and unconstitutional mandates.”

Fallin, Pruitt, and the state got their wish, and SCOTUS picked up the case in the form of King v. Burwell. Oklahoma joined several other red states in submitting an amicus brief on behalf of the challengers.

SCOTUS heard oral arguments for the case last week, and the justices presumably made their decision in private last Friday, one that we'll have to wait until June to hear. Even though the consensus out of oral arguments was that either Justice Roberts, Kennedy or both could side with the government, that "consensus" is still pretty much a reading of tea leaves, and it's not hard to imagine that Roberts and Kennedy could blow up the Affordable Care Act simply because they dislike it.

And you know who's terrified of SCOTUS ruling in favor of the challengers? Oklahoma Gov. Mary Fallin! Yes, the same Mary Fallin who refused to expand Medicaid or set up a state health insurance exchange but did support her AG's challenge to the subsidies and the petitioners in King.

In a Monday op-ed for the Tulsa World (via TPM), Fallin establishes that it's great that the ACA is on the ropes. "Many of our citizens," she writes, "have had no other option but to purchase the expensive, mandate-heavy, federally-regulated insurance required by the ACA."

Fallin then acknowledges, awkwardly, that those people who "have had no other option" to purchase this devil-care... may be very upset to suddenly lose it! And so she urges Congress to pass a temporary extension of those subsidies in the event that King et al. prevail, until the magical unicorn known as an adequate "free-market, consumer-friendly" replacement plan for Obamacare that makes everyone happy is developed.

We understand that Congress is working on legislative solutions to provide other options to the states should the Court decide the IRS acted illegally in allowing health insurance subsidies in the federal exchanges. We are eager to have other options. We want to make sure people are able to keep their health insurance, but many governors do not want to be forced to create a state exchange or see our citizens lose coverage. We hope that Congress would offer targeted, temporary relief for people to maintain their current coverage while we work together on free-market, consumer-friendly solutions for the future.

The GOP is split right now. On the one side there are -- and this is a very generous term -- the "realists" who recognize that an immediate cessation of subsidies for those enrolled in plans purchased on federally facilitated exchanges could be something of a political disaster for the party. Sens. Hatch, Alexander and Barasso have introduced a still-hazy replacement "plan" that acknowledges the need to temporarily extend subsidies in the event of a SCOTUS ruling that strikes them down. On the other side there are people like Bobby Jindal who know that you're not going to win over many Real Conservatives by arguing that any part of Obamacare should be extended, even temporarily.

Which side has the advantage? Here's an easy way to think of it: Do you think this House of Representatives would ever vote for a bill extending a critical aspect of Obamacare, even for another hour?

Exactly. And that's going to be a serious political problem for red-state Republicans who will either have to endure serious criticism from those who've just lost their health coverage or, should they choose to relent and set up state-based exchanges, from their political base. Mary Fallin is one of them. Perhaps she should have gamed this out in her head before throwing her support behind the challengers.

By Jim Newell

Jim Newell covers politics and media for Salon.

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Aca Courts Editor's Picks King V. Burwell Law Mary Fallin Obamacare Oklahoma Red States Scotus The Right