The Washington Post’s Greg Sargent has a good post up today highlighting some new data from the Kaiser Family Foundation on how a ruling against the Affordable Care Act in King v. Burwell would play out at the state level. If the Supreme Court sides with the plaintiffs and rules that the government can’t pay out health insurance subsidies to states that use federally facilitated marketplaces, 34 states will see huge spikes in insurance premiums and millions of people will be at risk of losing their insurance. Sargent notes that some of the states with the most to lose are also “key presidential battlegrounds and home to some of the most contested Senate races of the cycle.” That’s going to put some Republicans in the hot seat as they try to balance their political ambitions with the need to mitigate the chaos the high court could unleash.
There’s not much reason to believe the individual states will be much more capable of sorting out the mess than the Republicans in Congress will. Most of the states are governed by Republicans, and unshakeable political opposition to the ACA is what got them into this fix in the first place. The Wall Street Journal reported this week that representatives from a bunch of the threatened states met secretly in Chicago to go over their post-King options, and they came away in general agreement that they’re pretty much screwed. But the toxic politics surrounding all this could be especially troublesome for two governors in particular: John Kasich and Chris Christie.
Both Kasich and Christie have presidential ambitions, and both opted for a split-the-baby approach to Obamacare in their states. The two men expanded Medicaid under the Affordable Care Act, but rejected the opportunity to create their own healthcare exchanges. At the time, you could argue that this was smart politics. Accepting the Medicaid money made financial sense and expanded coverage to some of the most vulnerable populations within their states, while refusing to set up an exchange would allow them to chest-thump about opposing Obamacare without any real damage being done – the state would just default to the federal exchange and people could still take advantage of the subsidies.
If the court strikes down the subsidies, they (like many other Republican lawmakers) will be under intense pressure from constituents, insurance companies, and hospitals to do something to fix it. They’ll also be under pressure from fellow 2016 Republicans, conservative activist groups, and Tea Party types to do nothing. But doing nothing really isn’t an option, especially since both Christie and Kasich have already embraced another part of the ACA. If they were willing to work within Obamacare to help out the poor, why couldn’t they work out a deal to help out the middle-income people whose lives were just upended?
Kasich has at least thought about this problem, but it remains unclear what, exactly, he has in mind. Bloomberg’s Dave Weigel asked Kasich about what he’d do in post-King environment back in March, and the governor spun off a rambling answer that boiled down to “something, I hope.”
"If we ended up in a situation—and again, I don't like to get ahead of ourselves on what a Supreme Court might do—but if it threw half a million people [off] insurance, we'd have to look at it," said Kasich. "And we haven't made any determination on that, but—I'm gonna try to avoid your question—I've got good people working on this. We've chatted about this. If the court makes a decision that these exchanges get shut down, then we're gonna have to figure something out in Ohio."
He refused to rule out the possibility that the state could set up its own exchange to keep the subsidies flowing, but he’d have to get the idea past Ohio’s Republican-controlled state legislature, which “has been in no mood to go near the Affordable Care Act.” There’s also the matter of Ohio’s state constitution, which (according to conservative Obamacare opponents) prohibits the state from operating an Obamacare exchange.
Christie, meanwhile, has been pretty tight-lipped about King v. Burwell, but he’s already vetoed two bills that would have created a New Jersey exchange, citing concerns over costs and the state’s degree of control.
Both Christie and Kasich tried to have it both ways by opposing one part of Obamacare while embracing another. Thanks to the Supreme Court, that strategy could soon blow up in their faces. If they try to work with Obamcare, they’ll poison Republicans and conservatives against them for “bailing out” Obama’s hated healthcare law. If they resist or try to punt responsibility to Congress, people will ask why they’re okay with Obamacare for some but not for others. And the stakes of this political drama are very high. According to Kaiser’s data, over 172,000 New Jersey residents are at risk of losing their subsidies. 161,000 Ohioans could lose theirs. In both states, the loss of subsidies would translate to an average premium increase of nearly 200 percent. That’s what Christie and Kasich are going to have to weigh against their own political futures.