Gum Will Be on Democrats' Shoe if Court Upends Health Law

Gum Will Be on Democrats' Shoe if Court Upends Health Law
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Much ink has been spilled over what Republicans must do if the Supreme Court decides, in the upcoming case of King v. Burwell, that the Affordable Care Act does not authorize the government to provide subsidies to people enrolled on federal healthcare exchanges. Such a decision would cripple ACA implementation, imperil health coverage for millions and, so the thinking goes, put pressure on state and congressional Republicans to save the subsidies and the statute.

But conventional wisdom has it backwards — as long as Democrats remain unwilling to consider ACA alternatives, they are the ones who face fallout from such a decision.

While the ACA directs states to set up health insurance exchanges, a separate section of the statute directs the federal government to establish and run an exchange for states that choose not to create their own marketplaces. More than 7 million Americans in the 37 states that have not established an exchange have enrolled in the federal exchange; 87 percent of them are receiving subsidies.

A Supreme Court ruling against subsidies for federal enrollees would most likely result in many enrollees being unable to afford their health insurance. The subsidies are also important because receipt of subsidies triggers the ACA’s mandates — “no subsidies” translates into no employer mandates and a dramatically weakened individual mandate in the 37 states using the federal exchange and a hollowed-out ACA.

So whom will the public blame if the court knocks out subsidies on the federal exchange? As this past election made clear, the public associates the ACA with the Obama administration and the Democratic Party. They know it passed without a single Republican vote and blame Democrats for its deficiencies. The ACA has been enduringly unpopular from its passage in 2010 to the present. The Kaiser Family Foundation tracking poll reports that over the past four years, 42 percent is the highest favorability rate the act has received. Unfavorable opinions have been consistently higher.

Many Americans are still seething over the loss of insurance plans they liked and could afford. Everyone remembers the chaotic rollout of the healthcare.gov website and many report continued problems signing up. They know that the drafting of the law was sloppy and that it was passed in a rush, skirting normal congressional procedures.

While most Americans may not understand the legal subtleties, they realize that Obamacare only survived the earlier Supreme Court challenge to the individual mandate because Chief Justice John Roberts was willing to manipulate the statutory language in order to save it. They will not be surprised or disappointed if this time the court refuses to rewrite the seemingly clear statutory language limiting subsidies to exchanges created by states and not exchanges created by the federal government.

Remarkably, the Obama administration has refused to discuss contingency plans and Democratic senators have said they don’t believe Democrats need to prepare for a potential adverse decision. Any administration regulatory fix will be limited by the language of the court’s decision, and it is unlikely the subsidy issue could be corrected without legislative action. Congress could amend the ACA to allow subsidies on federal exchanges, but Republicans who have spent the last five years opposing the ACA won’t let that happen. State governments could act to establish exchanges, but they have already shown they are unwilling (red states) or unable (Oregon, a blue state, ditched its malfunctioning exchange and went federal) to do so. It is not easy to set up an exchange, and an ACA provision providing money to do so has expired.

Democrats seem content to sit on their hands in the belief that the public will blame Republicans for challenging the ACA and for not having an alternative. But contrary to the Democrats’ narrative, Republicans have proposed ACA replacements which were dead on arrival in the previous Democratic-controlled Senate.

The newest proposal by Republican Sens. Orrin Hatch and Richard Burr and Rep. Fred Upton repeals the ACA, including the unpopular mandates, but preserves popular ACA features such as the ability to purchase insurance regardless of medical history and allowing children to stay on their parents’ policies up to age 26. It provides means-tested tax credits to make insurance more affordable and increases patient choice and lowers costs by allowing the purchase of insurance across state lines. Other proposals are also in the works.

If, as they have threatened to do, Democratic senators stonewall Republican legislation or if Republican legislation passes, only to be vetoed by the president, it will be clear to Americans that Democratic intransigence is the problem. Democrats may finally be forced to engage in a bipartisan legislative process to replace the ACA with a plan that is acceptable to both parties and the American public.

Joel Zinberg, M.D., J.D., F.A.C.S., a visiting scholar at the American Enterprise Institute, is a practicing surgeon at Mount Sinai Hospital and an associate clinical professor of surgery at the Icahn School of Medicine. 

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