Progressives' dangerous self-delusion: Why SCOTUS gutting Obamacare won't harm the GOP

If SCOTUS kills subsidies, there won't be any quick health care fix from Congress -- and GOP will get away with it

Published June 8, 2015 5:15PM (EDT)

                                                       (AP/Pablo Martinez Monsivais)
(AP/Pablo Martinez Monsivais)

A couple of new polls this morning allegedly augur political danger for the Republican Party should the Supreme Court side with plaintiffs in King v. Burwell and strike down subsidies for health insurance plans purchased on federally facilitated exchanges. The long and the short of it is: healthy majorities want the subsidies to continue should SCOTUS nix them. But we shouldn't quite be ready to jump whole-hog onto the Republicans are screwed if they succeed in gutting Obamacare! bandwagon just yet.

A survey from Public Policy Polling, conducted on behalf of the progressive non-profit Americans United for Change, "finds that 61% of Americans think everyone in the country at similar income levels should be eligible for the same health insurance subsidies no matter what state they live in, rejecting the premise of the ACA lawsuit the Supreme Court will rule on late this month." Yes, well, the outcome of King v. Burwell will not be decided by popular vote. It will most likely come down to what side of the bed a certain Chief Justice woke up on after oral arguments a few months ago. Nevertheless, PPP finds that majorities of voters of all stripes want Congress to restore the subsidies if John Roberts et al. strike them down:

If the Supreme Court rules with the Republicans on the ACA lawsuit, 62% of voters want Congress to fix the law to ensure that all Americans continue to be eligible for the same health insurance subsidies regardless of what state they live in. That’s a bipartisan sentiment- Democrats (76/21), independents (57/33), and Republicans (50/38) all want Congress to act to make sure no one loses their subsidies.

Another poll conducted by ABC News and the Washington Post finds Obamacare's popularity in the toilet, but also shows strong support for maintaining subsidies. "By a margin of 55 percent to 38 percent," the Post writes, "more people say the court should not take action to block federal subsidies in states that didn't set up their own exchanges."

These numbers would suggest that, should SCOTUS side with the plaintiffs, it's in congressional Republicans' interest to quickly ensure the continuation of subsidies for plans purchased on federally facilitated exchanges. The problem is that congressional Republicans -- well, their leaders, at least -- have already internalized this. Most of the plans put forth to varying degrees of specificity would temporarily maintain the availability of subsidies, but at costs that are both actuarially unworkable and politically popular.

Consider the leading "fix" that's been introduced in the Senate and earned the support of Sen. Mitch McConnell: the properly focus-grouped "Preserving Freedom and Choice in Health Care Act" from Sen. Ron Johnson. This is the one that would extend subsidies into 2017 while eliminating other core components of the Affordable Care Act including the individual mandate. This is not a "fix" in any good-faith sense. It would restore the most popular core component of the ACA -- the subsidies -- while eliminating the others that make health insurance markets economically feasible. Here's a plan that would send health insurance markets spiraling out of control if enacted. Fortunately Ron Johnson, Mitch McConnell and their colleagues know that it has no chance of being enacted, so they can run around wielding it as a talking point: The Obama administration and Democratic legislators say they want to restore subsidies, and our plan would do that while getting rid of all these burdensome, freedom-nuking regulations, but they're filibustering/vetoing it. 

Congressional Republicans are covering their asses relatively well here. Democrats, backed by public support, are going to come at them hard demanding that subsidies be restored. Republicans will say Okay, sure! and draw up a plan too economically unsound for negotiation. This lack of movement through the halls of Congress will keep tensions between Republican leaders and rank-and-file Republican lawmakers, who are too concerned about primaries to consider any extension of any part of Obamacare, from rising to an embarrassing public confrontation.

In other words, the congressional response to a SCOTUS ruling for King et al. will be nothing, except for a furious messaging war from which it's difficult to see either side budging. The best hope for Obamacare supporters in the event of an adverse ruling is that the states are compelled to move hastily -- if not to set up their own exchanges, then to contract out to the federal government for their exchange infrastructure. Congress isn't going to do anything about it, premiums will jump, and on the federal level people will blame Obama and his party for "Obamacare" not working. It's wishful thinking to imagine that Republicans getting exactly what they want -- a gutting of Obamacare -- would in some way hurt Republicans more than it would Democrats. Happy Monday.

By Jim Newell

Jim Newell covers politics and media for Salon.

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Aca Editor's Picks Health Care John Roberts King V. Bur Well Obamacare Polls Ron Johnson Subsides Supreme Court