Who’s to blame if ‘Obamacare’ loses Supreme Court case?

The King v. Burwell blame game is well under way even though the Supreme Court has yet to rule on the major “Obamacare” case. Any day now, a decision will come down that will jeopardize the insurance coverage of more than 6.4 million Americans. This is the second time the Supreme Court has dealt with the Affordable Care Act (ACA) since the landmark law was passed in 2010. The difference this time is that the question is not whether the law is constitutional, but whether the White House’s implementation is consistent with what the law actually says.

Both sides say this is a simple case that should be decided in their favor. The issue is whether the text of one section should be read to mean that people cannot receive government help to purchase insurance unless their state pro-actively created a health-insurance exchange. The Barack Obama administration argues that this section should be read in the broader context of the statute which makes it clear that everyone who qualifies can receive government help, regardless of what state they live in.

Critics and supporters of the law are working aggressively to spin what a ruling against the Obama administration would mean and who is to blame. Supporters of the law point out that we would not be in this mess if Republican state leaders had cooperated by establishing a state-based health insurance exchange in the early stages of the ACA’s implementation. Opponents argue that if anyone loses coverage as a result of King v. Burwell, the blame lies with President Barack Obama and congressional Democrats for passing what they consider to be a bad law.

Ironically, Democrats initially thought exchanges would win bipartisan support in Congress and in the states because it expands coverage by allowing consumers to shop for private insurance in a competitive marketplace. The idea was supported by prominent Republican governors from Mitt Romney in Massachusetts to Haley Barbour in Mississippi, and was championed by the conservative Heritage Foundation.

Republican support for health-insurance exchanges became complicated after President Obama and Democrats included the idea in the Affordable Care Act. Opponents point out that the exchanges advocated for by conservatives did not include subsidies or mandates, and were primarily focused on helping small businesses. Thirty-four states outright rejected the opportunity to establish an exchange. 

But it is much too simple to attribute this opposition to partisanship. A study of state-level roll call votes on bills proposing an insurance exchange found that 42 percent of Republicans voted in favor. In many states the greatest division over an exchange was not between Republicans and Democrats, but among Republicans. This could be reason for optimism that enough Republicans would support establishing an exchange in their state if the Supreme Court’s ruling meant their constituents lose coverage. It also exemplifies how confusing the attacks will be as both sides try to point fingers after the Court’s ruling.

The political fallout is especially difficult to predict because so few people are aware of King v. Burwell. In a recent survey, 72 percent of respondents said they had heard “only a little” or “nothing at all” about the case. When asked how Congress should respond if the Supreme Court ruling results in people losing coverage, 63 percent say Congress should pass a law allowing people in every state to receive financial assistance to purchase insurance. A recent study found that states are ill-prepared to act if Congress does not restore the subsidies.

The blame game is so intense right now because each side hopes the court of public opinion will give them leverage to push for their preferred solution. President Obama wants Congress to pass a one-sentence fix extending the financial assistance to residents of all states. Republicans worry about being blamed for people losing coverage, but say they are willing to give states an extension if Democrats agree to overhaul major portions of the law. Their proposals include eliminating the requirement that everyone purchase insurance, the employer mandate, the bans on pre-existing conditions, and the requirement allowing young adults to stay on their parents’ plan until age 26. Paul Ryan’s (R-Wis.) plan allows states to opt out of Obamacare and receive a block grant to cover their residents.

Other Republicans do not agree with even a temporary extension of the subsidies in order to allow people in the 34 affected states to retain coverage while their governments decide whether or not to participate. Senator Ted Cruz (R-Texas) believes it would be a mistake to even temporarily fix what he considers a train wreck. Republican Louisiana Governor and expected presidential contender Bobby Jindal calls restoring subsidies a “case of apostasy” on the level of George H.W. Bush’s infamous pledge “Read my lips: no new taxes.”

Of course, it is possible that the Obama administration wins the case and nobody loses coverage. Such a decision might include hints from conservative justices that future presidents could interpret the ACA differently and invalidate the subsidies in states refusing to establish an exchange.

Either way, the focus will quickly shift to 2016. Democrats will hope for someone willing to protect the reform. Republicans will be hungry for a new president who will work with a Republican-controlled Congress to repeal Obamacare. Candidates will face enormous pressure to propose subsidies in states that do not want them. Regardless of the outcome in King v. Burwell, the ripple effects will be felt in the upcoming presidential, congressional and state races. The blame game is sure to continue.