Obama And Republicans Battle As Both Sides Await Another Obamacare Decision

Before the end of the month, the Supreme Court could issue a ruling that ends subsidies for the vast majority of people who bought insurance under the PPACA, and the political battles are already starting.

congress-healthcare

Earlier this week, President Obama spoke publicly about King v. Burwell, the case pending before the Supreme Court that could potentially upend the entire fiscal structure of the Affordable Care Act by ruling that people who purchase insurance on the Federal exchange are not entitled to income-based subsidies due to the way the law is written:

President Barack Obama expressed deep frustration with the U.S. Supreme Court on Monday, questioning why justices even took up a case that imperils his signature health insurance reform plan.

The high court is set to issue a decision on the case, known as King v. Burwell, by the end of the month. A ruling against the government would mean that 6.4 million people in the 34 states relying on the federal Healthcare.gov website would be at risk of losing subsidies that make their insurance affordable.

“This should be an easy case. Frankly, it probably shouldn’t even have been taken up,” Obama said at a news conference after the G-7 summit in Krun, Germany. “Since we’re going to get a ruling pretty quick, I think it’s important to assume that the Supreme Court’s going to do what legal scholars would expect them to do.”

Obama repeated the administration’s contention that there’s no contingency plan or fix to keep insurance markets from going into a tailspin, predicting that the justices would decide in his favor. And in any case, he added, Congress could fix the ambiguous phrasing of the health law “with a one-sentence provision.”

Senate Republicans quickly shot down that possibility. “Let’s be clear: if the Supreme Court rules against the administration, Congress will not pass a so-called ‘one-sentence’ fake fix,” said Sen. John Barrasso (Wyo.), the Senate’s No. 3 Republican.

Barrasso added, in a statement: “Instead of bullying the Supreme Court, the president should spend his time preparing for the reality that the court may soon rule against his decision to illegally issue tax penalties and subsidies on Americans in two-thirds of the country.”

Obama refused to offer states advice about how to prepare for a ruling against the law. “What I can tell state leaders is that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case. It has been well documented: Those who passed this legislation never intended for folks who were going through the federal exchange not to have their citizens get subsidies,” he said.

To decide otherwise, Obama said, would be a “twisted interpretation of four words,” a reference to a line in the law about subsidies being available to exchanges “established by the state.” Opponents of the Affordable Care Act have used those words to argue that subsidies can go only to customers of state-run marketplaces, not to those who use the federal exchange on Healthcare.gov

President Obama’s comments unsurprisingly drew criticism from Republicans and other opponents of the Affordable Care Act, many of whom who accused him of essentially trying to intimidate the Supreme Court Justices in the same way they made similar accusations during the wait for a decision on the 2012 lawsuit challenging the constitutionality of the entire PPACA. For example, Michael Cannon has characterized the President’s remarks as ‘pounding the table,’ and said that the comments were evidence of the same ideological fervor he displayed in pushing the law through Congress five years ago. The responses from Republicans on Capitol Hill were largely similar with, again, many accusing the President of essentially trying to blackmail the court , while the White House has retorted that the President’s comments were directed at Congress, which would be required to consider what to do if the Court does rule in favor of the Plaintiffs in King. 

It is true that a victory for the Plaintiffs in King would likely put Congress in a difficult political position. Unless something is done, the decision will mean that approximately four million people who currently get insurance through Healthcare.gov would likely face massive increases in their out-of-pocket expenses due to the end of subsidies. This, in turn, would likely mean that many people will either be faced with serious cash flow problems or they will drop insurance altogether, a possibility that raises the risk that everyone’s premiums will go up as the risk pool decreases. Polling has generally found that the American public wants the Court to uphold the subsidies and, if there is an adverse ruling, they want Congress to do something about it. Because of this, and the fear that they may actually win this case, many Republicans in the House and Senate have been working in public and behind the scenes to create a contingency plan for legislation that could be passed in the wake of the Court’s decision. At the very least, most forms of this legislation would authorize the subsidies to be continued at least through 2017 to get past the election and allow the new President and Congress to come up with a solution. At the same time, though, the hardcore base of the Republican Party remains strongly opposed to anything that would be perceived as “saving” the PPACA in the event of a win at the Supreme Court. Because of this, many analysts have suggested, persuasively, that the Republican Party stands to lose big if the Court strikes down Federal subsidies.

All of this will be moot, of course, if the Court upholds the subsidies by interpreting the PPACA’s language in a way that allows it. Indeed, most of the Federal Court’s that have heard this issue have done just that, the exceptions being a panel of the Circuit Court of Appeals for the District of Columbia, but that decision was nullified when the full Circuit Court accepted the case for an en banc appeal just before the Supreme Court accepted the King case for review. In that regard it’s worth noting that the Justices seemed divided during oral argument in this case, but most observers seemed to conclude that the Federal Government’s prospects looked rather good at the end of the day. If the Justices rule the other way, though, and the subsidies die for Federal exchange customers, then the political battle over Obamacare will heat up yet again.

FILED UNDER: 2016 Election, Congress, Law and the Courts, Public Opinion Polls, US Politics, , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.

Comments

  1. John Cole says:

    And then since Roberts has set the precedent, Democrats can go through and file suit to invalidate every single law they dislike that has a typo or minor drafting error. Should be fun.

    Personally, I’d start with every ALEC sponsored bill and all the reactionary restrictions on choice.

  2. Ron Beasley says:

    Most of the Republicans are praying that the SCOTUS does not overthrow the subsidizes because they have no plan they can agree to to fix it.

  3. gVOR08 says:

    Like abortion, killing Obamacare is way more valuable to Republicans as an issue than it would be as an accomplishment.

  4. Stan says:

    Hialeah, a city in Florida, leads the nation in Affordable Care Act enrollment. See

    http://tinyurl.com/nm3fyhd

    Yet the city is firmly Republican, and the local member of Congress, a Republican, is a strong opponent of the Affordable Care Act. My guess is that if the Supreme Court disallows health insurance subsidies in Florida and other states without a state health insurance exchange, the locals will blame it on Obama and go back to using ER’s as their primary care providers. And they’ll continue to vote Republican.

    I know I’m boring everybody about this, but I find the whole thing amazing.

  5. Grumpy Realist says:

    No, dearies, President Obama commenting on a case before the Supreme Court isn’t blackmail. What Brownback is trying to do in Kansas—THAT’S blackmail…

  6. Scott says:

    My understanding of these court rulings is that they Court has already voted and the ruling is already written. So for the President to say anything direct or indirect cannot be any sort of bullying or coercion. The bleating of the pundits is based on nonsense and very disingenuous.

  7. Just 'nutha ig'rant cracker says:

    @Ron Beasley: Now you see, I thought this would be a perfect opportunity for the GOP to reveal their “repeal and replace” plans so that we could have the health care plan that they had wanted the nation to have until Obama excluded them from the discussion.

    What…there’s no “repeal and replace” plan? Well… never mind…

  8. Thomas Weaver says:

    I would much enjoy seeing the dimmowatts, B.O,, and the ObamaCare get flushed. What a wonderful feeling, seeing the yammering, desk beating, threatening, vile, usual liberal crap getting their just desserts after ramming ACA through congress. Yes, I’m much enjoying this. So much for ANY legacy for this past community organizer.

  9. Scott says:

    @Thomas Weaver: Thank you for your valuable and insightful contribution to the conversation.

  10. Davebo says:

    Unless something is done, the decision will mean that approximately four million people who currently get insurance through Healthcare.gov would likely face massive increases in their out-of-pocket expenses due to the end of subsidies.

    Actually about 6.4 million people are in limbo awaiting this decision.

    But hey, out of a country with over 325 million residents who cares about a lousy 6.4 million right?

  11. Davebo says:

    @Thomas Weaver:

    Shorter Thom.. I love judicial fiat so long as they don’t let queers get married.

    What is bliss again?

  12. Ken says:

    @Thomas Weaver: Good talk, dude

  13. David M says:

    @Thomas Weaver:

    And yet the GOP hasn’t come up with a better alternative in the five years since it was passed. I understand that Obamacare isn’t perfect, but I don’t understand the malevolent excitement over the idea of destroying it.

  14. gVOR08 says:

    @Thomas Weaver: One notes that your comment, like virtually all anti-Obamacare comments, is long on hatred and short on offering any actual reason for the hatred.

  15. al-Ameda says:

    Senate Republicans quickly shot down that possibility. “Let’s be clear: if the Supreme Court rules against the administration, Congress will not pass a so-called ‘one-sentence’ fake fix,” said Sen. John Barrasso (Wyo.), the Senate’s No. 3 Republican.

    Let’s be clear, Republicans are not now, nor have they ever been, interested in seeing that ACA is implemented and maintained successfully.

  16. al-Ameda says:

    @Thomas Weaver:

    I would much enjoy seeing the dimmowatts, B.O,, and the ObamaCare get flushed.

    “dimmowatts”?
    It’s okay to admit it: your mommy and daddy helped you with that.

  17. gVOR08 says:

    @David M: The GOPs always have an Obamacare alternative. But as one lefty blogger explained, they’re subject to a Healthcare Heisenberg Principle. If any Republican healthcare proposal approaches being introduced as legislation, it ceases to exist.

  18. Surreal American says:

    @Thomas Weaver:

    getting their just desserts after ramming ACA through congress.

    Points deducted for not phrasing it as “ramming ACA down our throats.”

  19. MikeSJ says:

    Now if the court throws the case and rules against the ACA doesn’t that mean states that set up their own exchanges are OK?

    States that didn’t – mostly Republican – would be screwed but oh well. Sucks to be them I guess.

    Blue states will have health care for their citizens and Red states will have closed hospitals and sick citizens.

    I can live with that.

  20. David M says:

    @MikeSJ:

    Unfortunately a lot of the country is infected with “no one gets the good benefits disease**”,. So like in the case of public-sector unions, upon hearing someone else has a decent working-class job, the reaction is push for those benefits to be taken away, rather than seeing those higher benefits as the baseline for what should be provided by good jobs everywhere.

    So blue state only Obamacare is probably on much less secure footing long-term.

    **Doesn’t apply to the 1%

  21. MikeSJ says:

    @David M:

    I agree that overall this is not a good situation for everyone involved if the ACA loses.

    I’m just tired of having to carry the load for these retrograde states.

    They don’t want “Obamacare”? Fine. Let them get rid of it. Go ahead and close the hospitals. Shut everything down and turn the lights off.

    At a certain point you have to realize you can’t help people if they don’t want to be helped.

  22. OzarkHillbilly says:
  23. Tony W says:

    @MikeSJ: You’re right. The bleating republicans have no clue what they are arguing for. They have forgotten, like the citizens of Florida above, what life was like before Obamacare. I pray they will continue to forget.

  24. Stan says:

    @gVOR08: Actually, ACA subsidies in the red states are like Schroedinger’s cat. They’re simultaneously alive and dead until a random event occurs, namely the Supreme Court decision.

  25. David M says:

    @Thomas Weaver:

    I would much enjoy seeing the dimmowatts, B.O,, and the ObamaCare get flushed.

    You misspelled Obummercare and forgot to mention BHO’s middle name.

  26. teve tory says:

    If the conservatards get their way, my health insurance, first i’ve had in 10+ years, is over.

  27. teve tory says:

    Stan says:
    Thursday, June 11, 2015 at 16:59
    Hialeah, a city in Florida, leads the nation in Affordable Care Act enrollment. See

    http://tinyurl.com/nm3fyhd

    Yet the city is firmly Republican, and the local member of Congress, a Republican, is a strong opponent of the Affordable Care Act. My guess is that if the Supreme Court disallows health insurance subsidies in Florida and other states without a state health insurance exchange, the locals will blame it on Obama and go back to using ER’s as their primary care providers. And they’ll continue to vote Republican.

    I know I’m boring everybody about this, but I find the whole thing amazing.

    it’s simple to understand. I live in florida. For every educated, intelligent person in this state, many of whom finally have health insurance, we have 3 dimwitted 80 year old FoxNews addicts who hate taxes for any and all reasons, despise gays, barely tolerate The Negroes, look down on basically everyone, spend my social security payments like they grow on trees, and have nothing better to do than vote.

  28. teve tory says:

    @Scott: I think people like thomas do contribute to the discussion. If our opponents were insightful, well-spoken, and made serious criticisms, we’d have work to do, analyzing our positions, looking for errors, fretting that we might be blinded by a cognitive bias.

    When our opponents are people like thomas, we’re left with free time instead!

  29. Tyrell says:

    It seems to me that sensible thing to do is for the leaders, and that includes Democrats, Republicans, independents, business, health, and insurance need to get together and come up with a fix, a solution. The AHA needs a lot of fixes, tune ups, tweaks, adjustments, and corrections. And lets not wait on Judge Roberts to fix it. No telling what he is liable to do.
    “Doctors and their laptops”: a topic for another day.

  30. Kylopod says:

    @MikeSJ:

    Blue states will have health care for their citizens and Red states will have closed hospitals and sick citizens.

    I can live with that.

    Now how am I able to guess that you don’t live or know anyone who lives in a red state (or even a purple state like Pennsylvania or Virginia)? I must be psychic or something.

  31. michael reynolds says:

    @Thomas Weaver:

    So, did you happen to attend the London School of Economics? Because there’s a familiar smell emanating from you.

  32. Surreal American says:

    @michael reynolds:

    Sadly there are no LSE students like Mick Jagger nowadays.

  33. Ron Beasley says:

    Is Thomas Weaver the reincarnation of James P. Dr Joyner you should be able to block IP addresses.

  34. Grewgills says:

    @michael reynolds: @Ron Beasley:
    There are plenty of idiots on the internet. Not all idiots are the same idiots.

  35. Ben Wolf says:

    @Thomas Weaver: Obama won’t be the one hurt, the many millions who lose their small level of health access thanks to the ACA will be.

  36. stonetools says:

    The big problem for the conservatives- including the conservatives on the Supreme Court- is that really there is no clean, easy way to kill Obamacare now. Obamacare has been the law of the land, it has been shown to work well ( if anything, even better than expected) and business and industry have not only adjusted smoothly to it, but are finding that they even like it. It’s noteworthy that not only is that the Chamber Of Commerce sitting this out, but several industry groups have filed amicus briefs in favor of Obamacare.
    All this has led to a split between the rational conservative ideologues and the crazy conservative ideologues. The RCIs realize that the battle over Obamacare is over, that Obamacare has won, and that there is no going back to 2009 just like there is no going back to 1964 with senior health insurance. To attempt to abolish Obamacare would severely hurt Republicans since the red state folks who are benefitting from Obamacare would realize that Republicans have been lying and manipulating them all along and that the ACA really wasn’t just a scheme for the Kenyan Muslim usurper in the White House to take away their hard earned money and give it to those people.
    The CCIs don’t care about this. They just want to wreck the ACA, consequences be d@mned. Six million people losing their benefits and risking death and injury over this? Screw ’em! They should have been rich, like real human beings, and not needed the help.
    On the Supreme Court, this manifests itself in a split between Roberts and Kennedy and Scalitomas- the three headed CCI monster that usually votes as one. Kennedy probably joined Scalitomas to grant certiorari to this abomination of a case, because he thought it was the one last chance to stop Obamacare. Once he got to actually hear the case, though, he learned that there really was no way to break Obamacare without wrecking the health insurance industry in a bunch of red states-and as a conservative, he truly cares about those health insurance corporations. In oral arguments, he showed he understood the dilemma, and was casting about for a way to save the health insurers. Heck, even Scalitomas understood the issue, which is why Scalia and Alito muttered about Congress coming to the rescue.
    Since oral arguments, it’s become very clear that Congress won’t be coming to the rescue-that they have no alternative to Obamacare and also have no intention of fixing Obamacare.Congress has absolutely showed that Verilli knew whereof he spoke when he mocked Congress in oral argument.
    So what will happen? Most likely a 6-3 vote in favor of the Government. The RCIs will join the liberals by voting to save the health insurers. Scalia will write a spittle flecked dissent in which he will repudiate every tenet of statutory interpretation he ever espoused, and arch pyschopaths Cannon and Adler will mutter “Curses, foiled again!” and move on to some other supervillian plot.And millions of Americans will keep their health care.

  37. Moosebreath says:

    @stonetools:

    ” The RCIs realize that the battle over Obamacare is over, that Obamacare has won, and that there is no going back to 2009 just like there is no going back to 1964 with senior health insurance.”

    I will disagree. There may be no direct way to go back to 1964, but that has not stopped supposedly rational conservatives like Paul Ryan from trying to gut Medicare through reduced funding and forcing the beneficiaries to bear the cost risk.

  38. Tyrell says:

    A lot of people got left out and caught in the middle: can’t afford the cost of monthly premiums, yet they don’t qualify for subsidies. A lot of people had good health plans cancelled: “you can keep your health plan if you like it”
    Now they sre saying that the people will be seeing major sticker shock.when the new rate increases take effect.

  39. gVOR08 says:

    @Tyrell: Which are arguments for improving it. As you said

    It seems to me that sensible thing to do is for the leaders, and that includes Democrats, Republicans, independents, business, health, and insurance need to get together and come up with a fix, a solution.

    This is true, that is the sensible thing. And you might as well ask for a pony, too, ’cause it ain’t gonna happen. The Supremes will either honor precedent and common sense and uphold the ACA, or the Republicans on the court will do their best to destroy it, in which case the CCIs in Congress, in @stonetools: formulation, will do nothing to alleviate the chaos and it will be very difficult for the RCIs to do anything about it.

    Obama’s remarks weren’t aimed at the Supremes, who’ve already decided. They were aimed at the GOPs in Congress. He’s telling them that by not passing a one sentence fix they’d be holding the gun to their own heads again, and once again he’s not going to step in and save their stupid arses.

  40. Ron Beasley says:

    @stonetools: A pretty good analysis but you did leave out the part where hospitals in red states who didn’t accept Medicade expansion are closing. My gut feeling is it will be a 5-4 decision to keep it intact although Roberts has surprised me before.

  41. stonetools says:

    @Moosebreath:

    Paul Ryan is a bit of a special case. A big part of mainstream media truly wanted Paul Ryan to be a serious conservative policy wonk, to match the liberal policy wonks, because the media wanted to create the narrative of a “debate” between conservative and liberal policy agendas. It later became clear that Paul Ryan was only pretending to be serious about policy-something Paul Krugman nailed immediately.
    I think of Paul Ryan as being a CCI, pretending to be a RCI. But frankly the line between CCIs and RCIs is blurry anyway, and maybe just a matter of style. It may be that a CCI is just someone that says outright , “We want to roll America back to 1962, if not 1932”, whereas a RCI says it sotte voce.

  42. stonetools says:

    @Ron Beasley:

    I have a feeling that if Roberts had to do it again, he would have gone along with Medicaid expansion, since it’s plain that refusal to expand Medicaid hurt important health industry players like the hospital industry and Big Pharma. Yet another reason to think Roberts will vote to uphold Obamacare, because he doesn’t want to hurt the health industry any further.

  43. gVOR08 says:

    @stonetools: The difference is that CCIs want to gut Social Security to please their rabid (and SS dependent) base while RCIs want to gut SS by privatizing it to please Goldman Sachs who can then get their tentacles on that pot of money.

  44. gVOR08 says:

    @stonetools: And what Jedi mind trick unavailable to the press did Dr. K use to see through Ryan’s BS? Arithmetic. Which, as we all know, has a decidedly liberal bias.

  45. Ron Beasley says:

    @stonetools: You may well be correct. He may end up doing the right thing for all the wrong reasons. When I became eligible for Medicare I had to purchase a Medicare Advantage plan because few if any of the doctors around here would accept conventional Medicare.

  46. stonetools says:

    @gVOR08:

    You may have put your finger on the difference between RCI and CCI. The rationals decide issues by asking the question , “How can we serve business better?”. CCIs , on the other hand, want to roll things back to 1932 because they genuinely believe that it is immoral for government to help the poor and unfortunate. (Roberts and Thomas are the clearest examples of the differences in thinking).

    Generally RCIs and CCIs agree on the results, but the reasoning is different . Because of the different reasoning, occassionally they disagree on results. I think this may be one of those times.

  47. Scott says:

    If subsidies on state exchanges on ruled out, I wonder if Obama will direct OPM to pull the subsidies for Congress and their staff. Should make an interesting conversation.

  48. David M says:

    One key difference between the rational and crazy ones is how much pain they are willing to inflict on themselves simply to stop any Democratic proposal. The crazy ones will oppose anything, they really don’t have a limit. The rational ones are sometimes still capable of evaluating policies and then negotiating simply because it’s the right thing to do. Unfortunately that group keeps shrinking.

  49. Onward Christian Soldiers says:

    @Ron Beasley:

    Most of the Republicans are praying that the SCOTUS does not overthrow the subsidizes

    Assuming you actually believe that (and I doubt you do) you are surely the most delusional person here.

    The GOP is praying that SCOTUS flushes the subsidies because that decapitates the entire law.

    We want to get rid of Soetorocare. It someone loses their subsidies that’s their problem – not the GOP’s.

    The GOP does have a solution. If you want health insurance, go buy it. If you don’t want health insurance, don’t buy it.

    It’s not a government concern. If you don’t have health insurance that’s not the government’s concern and it certainly is not the problem of the Republican party.

    No moocher who slops at the government trough is going to vote Republican anyway. Why should the GOP help someone who is never going to vote for them regardless. The GOP should not be in the business of accomodating mooching parasites. Screw them.

  50. Stan says:

    @Onward Christian Soldiers:

    Not everybody agrees; see

    Isaiah 3:15
    “What do you mean by crushing My people And grinding the face of the poor?”

    Matthew 25:40

    “And the King answering shall say to them, Verily, I say to you, Inasmuch as ye have done it to one of the least of these my brethren, ye have done it to me. And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye did it unto one of these my brethren, even these least, ye did it unto me.”

    You might think of changing your screen name.

  51. Grewgills says:

    @Onward Christian Soldiers:
    Shout it from the rooftops and have it blaring from everyone’s radios and tvs from now till the election brother.