With each passing day of Supreme Court suspense, the image of the dog catching the bus has come more warily into focus for congressional Republicans.
The wait could end as soon as Thursday, when the justices are expected to announce rulings in a few of the 17 cases remaining on this year’s docket. If there’s still no decision on the fate of the landmark health care law, many GOP members will indulge in a collective sigh of relief — because they will have been given a little more time to cobble together plans for a moment they’ve spent five years dreaming about. There has been a striking disconnect between the overriding Republican policy wish for this decade, which is to see President Barack Obama’s signature domestic policy achievement eviscerated, and the party’s preparations for the very real possibility that wish could be granted. The volume and passion of their relentless Obamacare criticism has been inversely proportional to their public level of coordination and precision about what they’d do differently.
Their longstanding “repeal and replace” mantra has been all about the former until recently, although the political imperative to come up with a replacement has advanced from the theoretical to the potentially imminent as King v. Burwell has progressed to one step from ultimate resolution.
The Supreme Court has the power to take away a central tent pole of the law, the medical coverage subsidies now being provided to about 6.4 million people in the 34 states where the federal government runs the insurance marketplaces. The plaintiffs in the lawsuit argue the wording of the law only permits those subsidies for people buying coverage from health exchanges run by states. The Obama administration says some sloppy legislative drafting should not be allowed to countermand the statute’s universally understood intent.
But if the court calls a halt to the federal marketplace subsidies, the economic pain will be immediate for millions of potential 2016 voters, many of them in presidential and congressional battleground states.
The subsidies, delivered as a tax credit to people with lower incomes, average $272 a month, meaning without them many will no longer be able to afford any coverage.
The biggest population affected would be in Florida, where 1 in 12 people younger than 65, or 1.3 million, are now getting federal help. The same is true for 3 percent or more of the adults in the likely presidential swing states of Michigan, Virginia, New Hampshire, North Carolina, Pennsylvania and Wisconsin.
The final four states on that roster also have GOP senators anticipating competitive re-election contests . Altogether, 22 of the 24 Senate seats the GOP is defending next year are in states relying on the federal exchanges.
It seems obvious that, if the court takes their payments away, consumers in those states will look for Congress to move rapidly to give them back before they become uninsured.
That’s precisely the sort of test of governing competence Republicans asserted they were ready and eager for as they campaigned successfully last fall to take control of the Hill. And they have known the test might be coming since three days after they won the midterm election, when the court agreed to decide the case.
But only in recent days has it sounded like anything close to a sense of urgency from top Republicans about settling on a plan of action should they win — and doing so in time for unveiling soon after the decision day.
GOP leaders in both the House and Senate were reportedly getting close to their own consensus Wednesday, and were preparing to test-market their concept with the rank and file at a series of closed-door briefings.
Under the emerging plan, subsidies for current Obamacare enrollees that get swept away by the Supreme Court would be revived — but only for two years, avoiding chaos until after the next election but making a longer-term resolution an assignment for a new president and the next Congress. And that carrot for consumers would be accompanied by some mighty sticks: The mandate that most people purchase policies would be repealed. So would the requirements that most businesses provide coverage for their workers. And many of the federal minimum standards for insurance policies would be lifted or relaxed.
A similar proposal has gained 30 GOP sponsors in the Senate. It’s by Ron Johnson of Wisconsin, whose bid for a second term against comeback-seeking Democrat Russ Feingold now looks like a tossup.
The rationale is that a critical mass of Republicans won’t be able to stomach a vote in favor of reviving any portion of Obamacare unless they also get to make much of the law go away. But the White House has made clear the president would veto a bill embodying such a tradeoff, which he views as tantamount to repeal.
If he loses at the Supreme Court, Obama will presumably propose straightforward legislation declaring the federal subsidy available in all states, which even opponents of the 2010 law agree was the bill’s intent. Still, many Republicans will refuse to acquiesce in what, under politically neutral circumstances, would be labeled a “technical correction” that reverses an unintended consequence.
The circumstances now, of course, are the opposite of politically neutral. That’s one reason few people familiar with the rhythms of the Supreme Court are expecting a decision this week.
The justices have a solid record of unveiling many of their most consequential and politically charged rulings just before adjourning for the summer — because for them, like so many lawmakers, only a looming recess applies the requisite pressure to get the toughest jobs done. Joining King v. Burwell as the last headline makers of the year are cases that could create a constitutional right to same-sex marriage , curb the death penalty and limit the use of independent panels to draw congressional boundaries.
The court’s next decision day is Monday. The final scheduled day of the term is the Monday after, June 29. But the court, like Congress, can always give itself an extension.
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