Senate Republicans want to send a message to the Supreme Court that it's OK to undermine Obamacare.
They keep asking the Obama administration what it plans to do if the Supreme Court upends health insurance subsidies in the King v. Burwell case. It's a hypothetical question the administration has been reluctant to entertain, leading the GOP to undertake an effort to craft a resolution.
Part of the reason is that Republicans want to try to signal to potentially wavering justices that there would be a path to minimal disruption should the court invalidate tax credits for millions of people in states that didn't create their own health insurance exchanges.
South Dakota Republican John Thune, who is chairman of the Senate Republican Conference, said there is a lot of discussion along those lines.
"If the court thought that there was a viable alternative, that doesn’t create disruption out there, it might" make the court more inclined to rule against the Obama administration's interpretation of the law, he said. "So we are trying to be prepared."
Sen. John Barrasso of Wyoming, the Republican Policy Committee chairman and a doctor by trade, has been spearheading the effort to devise a solution. There have been three meetings on the Barrasso-led effort so far, which have been "well attended," according to one Republican senator involved.
In a brief interview last week, Barrasso criticized the administration for not being clear about its plans, pointing to a letter he sent in December along with the other Senate GOP leaders to Treasury Secretary Jacob J. Lew and Health and Human Services Secretary Sylvia Mathews Burwell about the court case.
"Although the tax credits in federal exchanges may ... be the Administration's preferred policy, they are unambiguously inconsistent with the law," the senators wrote.
Barrasso said Burwell "should level with the American people about what's coming and what your plans are should the Supreme Court rule that the administration acted illegally."
"I raised the issue with the president personally at the White House ... a couple of weeks ago when we were there," he said, referring to a bipartisan meeting of an expanded group of congressional leadership that took place around the State of the Union address.
"What we're going to do is fight for the people who have been harmed by the president's health care law, but not help the law itself," Barrasso said, declining to offer specifics on the discussions. "I think it's harmed many people, and I want to help the people that have been harmed by it."
"If the Supreme Court rules the way that I believe it should, which is that the president acted illegally, I want to help the people that have been harmed by the president's illegal action and help transition for them to something that actually helps lower the cost of care, and helps them with affordable insurance," Barrasso said.
There's a similar effort underway in the House, where a working group announced last week it will work on both a replacement for the entire Affordable Care Act and what a release from House Majority Leader Kevin McCarthy, R-Calif., called "a contingency plan — consistent with an ultimate full replacement plan — to enact in case the Supreme Court rules in King v. Burwell that Obamacare subsidies offered on the federal exchange are illegal."
At a series of Senate hearings, top administration officials demurred on offering a precise response to what they would do in the event of an adverse ruling. But Sen. Orrin G. Hatch, R-Utah, the chairman of the Finance Committee, has a prediction: The president would call for a "clean" bill to fix the issue, granting subsidies for federally based exchanges.
"Let's just be honest about it, you can't just come out and say we'll do a simple bill. There are too many things that are wrong with the Affordable Care Act to do that," Hatch said.
"That's what they're likely to do," Hatch said of the administration. "It's an opportunity to straighten the bill out and replace it. Who knows. Who knows what the Supreme Court's going to do, but I don't see how they can avoid that absolutely unambiguous language, but the Fourth Circuit did."
The Richmond-based appeals court upheld the IRS regulation, while a panel of the D.C. Circuit had said the opposite.
On a parallel track, Republicans have continued to talk up efforts to repeal the Affordable Care Act, as well as offering broad outlines of an alternative that's already being bashed by Democrats.
Sen. Ted Cruz, R-Texas, has reintroduced a repeal bill with support of the majority of the Senate Republican Conference. There's been no move toward a Senate vote on that proposal yet in 2015, however. The House voted to pass an Obamacare repeal bill last week, and McConnell has promised there would be at least a vote to proceed to a repeal bill on his watch.
In addition, Hatch and Richard M. Burr of North Carolina have unveiled a repeal-and-replace proposal, along with House Energy and Commerce Chairman Fred Upton of Michigan, which Thune said is the likely direction for the GOP to move long-term.
"That's kind of where we would like to see this go, eventually," Thune said. "If the court threw this out and we were able to move into a different type of system, that is the kind of model, I think, that a lot of our folks would probably be supportive of. But we won't get there overnight. So we have to figure out how to make that transition."
Related: The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.