The Politics Of King v. Burwell

As early as tomorrow, the Supreme Court could issue its ruling in the latest Obamacare case. Depending on the ruling, Republicans could find themselves in a political firestorm.


Sometime in the next two weeks, possibly but not likely tomorrow, the Supreme Court will issue its ruling in King v. Burwellthe case that deals with the subsidies provided to low income Americans who purchase health insurance through one of the exchanges established under the Affordable Care Act. If the Court rules in favor of the Plaintiffs in that case, then somewhere between four and six million Americans who have purchased insurance through the Federal exchanges established in those states that did not set up an exchange on their own will face the dilemma of finding a way to pay premiums that are probably outside of their ability to pay or going without health insurance. That type of outcome is likely to present Republican candidates for President with the dilemma of having to chose between satisfying their party’s base and dealing with a rather immediate problem for millions of Americans:

Around the corner from Sen. Marco Rubio’s house and a few miles from former Florida governor Jeb Bush’s, an insurance agency at a strip mall advertises the Affordable Care Act.

Banners with a logo reminiscent of the one President Obama used during his campaign hang on the exterior of the Eli Insurance Agency. An ad above a window display touting trips to Punta Cana in the Dominican Republic says in Spanish that Obamacare could be available for $0 a month. “Obamacare $0 mensual,” it reads. “Centro de aplicaciones aqui” — Application center here!

Those signs may not last much longer. Depending on how the Supreme Court rules in King v. Burwell this month, they might disappear — replaced by a major political dilemma for Eli Insurance’s presidential-contender neighbors.

The pressing problem for the 2016 Republican field falls into the “dog catches car” category: It’s one thing to call for the Affordable Care Act to be repealed or to promise an Oval Office signing ceremony for its repeal. It’s another to endorse pulling insurance subsidies used by more than 6 million people in 34 states, including at least 1.3 million Florida residents.

A ruling that subsidies provided to consumers to help them purchase health insurance are not legal could spark chaos in the insurance marketplace and help shape the electoral landscape in several key swing states. Beyond those voters directly affected, many more could see their premiums increase if the law unravels, driving up the number of uninsured.

The administration has said it has no Plan B if the court rules against it. The sitting governors and senators in the GOP presidential field would be among those who need to implement an emergency fix that helps people remain insured. The rest of the candidates would be called upon to offer policy alternatives. All of them would need to balance demands that they support an emergency restoration of benefits with the demands of a conservative base that wants to seize any opportunity to gut Obama’s signature domestic policy achievement.

“The politics of this for Republicans are extremely tricky and treacherous, and most Republicans privately would like to see the Supreme Court take a pass on this one,” said John Ullyot, a Republican strategist.


The 2016 contenders currently in Congress will be the ones “in the crucible,” he said — they will have to take votes or make proposals “that might not be as politically pure as needed during a Republican primary.”

On the other side of the spectrum, the Democratic presidential contenders lie in wait. “Hillary Clinton can immediately pivot not to defending the ACA,” said Republican strategist Rich Galen, but “can immediately begin saying, ‘The Republicans won’t fix this; I will’ — and I think that’s a big, big bow that the Republicans shouldn’t hand to her.”

Most of the major plans congressional Republicans and conservative think tanks have proposed to address a hypothetical loss of subsidies would offer some temporary relief — but only in exchange for a repeal of the requirement that most Americans have insurance, the linchpin of the law.

“Republicans need to unify around a specific set of constructive, longer-term solutions and then turn the 2016 presidential election into a referendum on two competing visions of health care,” Sen. Ben Sasse (R-Neb.), who proposed one of the plans, wrote in the Wall Street Journal in February.

Although most states are considering their options, even talking about them publicly before the decision is risky.

“The Republican governors have very little reason to put themselves at political risk if they don’t have to,” said Caroline Pearson, a vice president at Avalere Health, a consulting firm.

The issue of what will happen if the Justices rule in favor of the Plaintiffs has been hanging over politics both in Washington and in the Presidential field for some time now. Polling that has shown that the vast majority of Americans believe that Congress should fix the PPACA if the Justices rule for the Plaintiffs in King and that a narrow majority of Americans had an over all positive opinion of the PPACA. Because of this, and because, well, they aren’t insane, some Republicans on Capitol Hill have been talking publicly about addressing the subsidy issue in the wake of a Supreme Court opinion and working behind the scenes to try to come up with some legislative solution. Additionally, the issue has already become a subject of heated political debate between President Obama and Congressional Republicans. At the same time, though, there remain many in the GOP, both in Capitol Hill and nationally, who are already resisting the idea of doing anything to fix the problems that would be created by a “win” at the Supreme Court, and that means that both Republicans on Capitol Hill and the Republicans running for President will likely have a narrow path to walk, and some hard choices to be made.

Of the candidates in the races, the ones who will be presented with the most immediate problem, of course, will be the office holders. In the Senate, Senators Paul, Cruz, Rubio and Graham, will have to chose what position to take on any legislation that may come before them in the wake of a Court ruling, and whether or not to introduce or co-sponsor such legislation themselves. This would seem to be especially true since, other than Paul, they all represent states that did not establish exchanges and thus have constituents who will be directly impacted by the loss of subsidies. The natural inclination, of course, will be to try to dodge the issue as much as possible, but given the fact that Congress could be asked to vote on something, even something as limited as legislation that extends the subsidies for some period to give Congress time to act on broader reform, The sitting Governors in the race or thinking about getting into it, including John Kaisch and Scott Walker in particular since they both live in states that are part of the Federal exchange system, will have to face their own issues. The most obvious solution for the states that would be impacted by a Court ruling striking down Federal exchange subsidies would be to set up a state exchange, but that’s something that is likely to prove politically difficult both in terms of state politics and the broader race for the Republican nomination nationally.

The candidates on the Democratic side don’t face these issues, of course. Whether we’re talking about Hillary Clinton or any of the challengers that have entered the race against her, these are candidates who have all expressed public support for the PPACA virtually from the beginning. If the Supreme Court does rule that subsidies are unavailable for policies purchased on Federal exchanges, then they will obviously join the President and Democrats in Congress in pressuring Republicans to act. To the extent there is political fallout from King v. Burwell, then, it’s going to fall mostly on Republicans. They better be ready for it, or maybe they better hope that the Justices save them from a political firestorm.

FILED UNDER: 2016 Election, Congress, Healthcare Policy, Law and the Courts, Supreme Court, 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.


  1. edmondo says:

    Don’t worry Doug, SCOTUS won’t stop being the best friend Big Business ever had. What better gift to Wall Street could there be than providing financial subsidies for insurance premiums that the holders can’t afford to use?

  2. Mark Ivey says:

    “‘The politics of this for Republicans are extremely tricky and treacherous, and most Republicans privately would like to see the Supreme Court take a pass on this one,’ said John Ullyot, a Republican strategist.”

    To late now.. you betcha.. 🙂

  3. You are aware that “big business” is among the biggest supporters of the PPACA, right? The health care and health insurance industries most especially, but also pretty much every large corporation in the United States.

  4. Mr. Prosser says:

    I’m most interested in Scott Walker’s decision. He’s lost a lot of popularity in Wisconsin lately and if the subsidies are lost he’ll need to decide what to do. Or maybe he’ll just let the subsidized insured flounder.

  5. C. Clavin says:

    Republicans think we should have far more gun deaths, and far lass access to health care, than the rest of the modern world.
    That’s all you really need to know.

  6. PD Shaw says:

    The most obvious solution for the states that would be impacted by a Court ruling striking down Federal exchange subsidies would be to set up a state exchange, but that’s something that is likely to prove politically difficult both in terms of state politics and the broader race for the Republican nomination nationally.

    I think the political projection is wrong here. Illinois didn’t set up a state exchange; a bill to do so couldn’t even get a vote on the floor of the Illinois House last December, when Democrats had super-majorities in the legislature and controlled the Governorship.

    This suggests to me some combination of: the presence of legitimate non-partisan fiscal/policy concerns, and the loss of the subsidies is not that important politically.

  7. OzarkHillbilly says:

    Not to mention the fact that even using the Republicans Magic Math,
    No Matter How You Slice It, Obamacare Reduces the Federal Deficit

  8. Argon says:

    The GOP has an additional problem in that the CBO, which was directed to use a highly questionable accounting strategy by the Republicans in Congress, still found that the program ends up saving money.

  9. edmondo says:

    @Doug Mataconis:

    You are aware that “big business” is among the biggest supporters of the PPACA, right? The health care and health insurance industries most especially,

    Precisely. That’s why the subsidies will be found legal. Health care insurance for everyone. Health care only for some.

  10. steve says:

    PD- More likely a cash strapped state not wanting to spend the money.


  11. anjin-san says:

    @Doug Mataconis:

    You are aware that “big business” is among the biggest supporters of the PPACA, right?

    Yes, it turns out the Obamacare is good for business and it serves the public well.

    Yet Republicans have been trying to kill it for years – and now that they have a shot at doing it grave damage they are in a panic.

    This is what happens when ideology trumps reason.

  12. JohnMcC says:

    If the Supremes rule for the plaintiffs I foresee a political explosion that will end with single-payer, universal coverage supported by a national health-care bank. But lots of sad stories getting there.

  13. ElizaJane says:

    I think that the Republicans’ hides are going to be saved by the SC and that really, everybody knows it. The case is too insane for Roberts, at least, to rule for the plaintiff. I suspect that all the coverage that “what if” is getting this month is because people in the media too figure the ACA will survive, so this is their best chance to needle the Republicans on it.

    I’m not usually an optimist about American politics or the Supreme Court (who I think could rule against gay marriage) but on this point I’m pretty optimistic.

  14. Ron Beasley says:

    @ElizaJane: I agree, 6-3 in favor of the subsides.

  15. MikeSJ says:

    @Ron Beasley:

    If they vote against the ACA Roberts will ruin the reputation of the court for a generation and he knows it. Just for that reason I expect a 6-3 vote as well.

    If the court goes full monty however and the ACA is gutted, well I’ve read that states with their own exchanges will be fine. They will just chug along as is.

    The real question is in states with the Fed exchanges shut down will the Republican politicians act?

    I don’t think they will. I’ve noticed over and over when the ACA comes up with Republicans that the actual users – the real people using it – are invisible. They simply aren’t a factor at all.

    Indifference at best and with far too many right wingers a real malevolence; almost glee at the chance to hurt poor people, working class people.

    It won’t be until hospitals, Big Medical starts getting impacted negatively that will get them to act.

  16. teve tory says:

    i will be watching the internet all day tomorrow until the decisions are announced. If the decision goes the insane partisan way, I will lose the first insurance policy i’ve had in 15 years.

  17. Ron Beasley says:

    @teve tory: I lost my job due to outsourcing and my insurance when I was 56. The private insurance companies didn’t even want to talk to me. I was uninsured until I reached 65 and eligible for Medicare.

  18. Dave D says:

    @Mr. Prosser: That would require him to actually be in the state long enough to actually act in any way. But with the most recent report that WI has the fastest drop in median income in the country and the recent WEDC revelations of unaccountable funds while creating zero jobs, I’m not sure he can lose more popularity.

  19. Mr. Prosser says:

    @Dave D: I’m sure you are correct but how would dumping on his constituents play outside WI or do you think he will decide not to run for the R nomination?

  20. grumpy realist says:

    @Mr. Prosser: Considering that Walker is considered one of the “likely Presidential candidates” (together with Bush and a few others) I find this amusing.

  21. stonetools says:

    To be honest, I’m sort of done thinking about this decision since it’s so obvious that the plaintiff case is bulls**t cooked up by a couple of sociopathic law professors who in a just world would be dumped onto the coast of Somalia with a canteen and a knife and given a chance to live out their libertarian fantasies there.
    This will most likely be a decision for the government, if for no other reason that Justices Roberts and Kennedy don’t want to screw up the health industry in the stupid half of America that voted for Republican governors and legislators. The Republicans are secretly hoping that SCOTUS votes correctly, because its very plain that they will be blamed for the loss of subsidies and they don’t have the foggiest idea of how to get out of the corner their six year anti Obamacare hate campaign has painted them into.
    Now the media did finally make it clear to the American public that Obamacare is working well, that this case is clearly about an attempt by conservative ideologues to kill Obamacare for no good reason, and that the Republicans , despite their promises, have no idea of how to fix Obamacare of what to replace Obamacare with. Everyone outside the hard core Fox News zombies see this, which is why the Republicans can’t escape blame if the decision goes the wrong way.
    Why I have stopped worrying about this decision is that if the SCOTUS screws this up, it will be plain that we are just a banana republic run by the kind of right wing nuts that used run our client states in Latin America, and that the US has far bigger problems than we think. I’m being optimistic here, and thinking that we are better than Cuba under Batista, or the Dominican Republic under Trujillo.

  22. Tyrell says:

    Whatever the court decides, something needs to be done for those people who do not qualify for a subsidy, but can not afford the cost of any of the AHA plans.
    And the increased information gathering – doctors spending more time on the lap top.than with the patient. 4 -5 pages of data and information seems a bit much. What is all that for ?

  23. Matt says:

    @Tyrell: For what feels like the 20th time.

    Something was done and it’s called the medicare expansion.


    Doctors HAVE ALWAYS SPENT MORE TIME ON PAPER WORK than with the patient. Well technically it’s the nurses that do so. There for a while mom was paid as a full RN to sit at a desk calling insurance providers and filling out paperwork. She quite litterly never saw a patient the entire time she worked there.

  24. Facebones says:

    Because of this, and because, well, they aren’t insane

    Citation needed, assumes facts not in evidence.

  25. Dave D says:

    @Mr. Prosser: As with everything else that is going on, he has his entrenched constituents in state that will back him, and as to how it will play… No one cares how Wisconsin is actually doing outside of the state. Do you honestly think it matters to anyone in the middle west or the south that the economy has tanked under Walker? He will have his benefactors running ads about him cutting taxes and busting unions and giving millions in kickbacks to his friends. Do you truly think that a failing economic record will dissuade anyone outside of the state it is happening in from voting for him when his anti-liberal agenda looks great on paper? This is where that party is now, if ruining an economy hampered your chances of being President, Walker, Jindal and Christie shouldn’t even think about running. But that doesn’t actually matter as long as you shit on the right people while in office.

  26. lounsbury says:

    @Tyrell: Without taking a view on your ass-backwards health care system, the effect of paper/electron pushing is one driven generally by excessive complexity.

    There is nothing, in my decade of USA experience, that suggests to me your historical system (pre reform) with overlapping and duplicative private and semi-public systems in any way achieves any kind of informational efficiencies nor actually has an any positives with respect to your new system in this area.

    As a proper rational capitalist, and someone capable of a whit of critical thinking, when I see the national single payer systems across rest-of-high-income-OECD, US ‘conservatives’ daft insistence on a frankly grotesquely poorly designed historical system – due to a mere presumed ‘private sector’ nature – I have to wonder what the bloody hell is wrong with you. Private health care has a role of course, but best if married to a unified back-stop. Better outcomes and better economic efficiencies for the overall market. That’s the clear comparative lesson.

  27. gVOR08 says:

    @ElizaJane: I’m with you. Roberts is a Republican partisan, but he’s an ESTABLISHMENT Republican partisan. I fail to see anything establishment GOPs have to gain by repealing Obamacare, especially over such an obviously flimsy issue. “Repeal and (wink-nod) Replace” is of value to them as a shiny issue to dangle in front of the Tea Party, not one they’ll care to lose by actually repealing Obamacare. Otherwise, what do establishment GOPs care?

    Scalitomas will probably vote against, for 6-3 to uphold. If somehow it hit one of their desks at 4-4, I think the last one left would panic and vote to uphold.

  28. stonetools says:


    As a proper rational capitalist, and someone capable of a whit of critical thinking, when I see the national single payer systems across rest-of-high-income-OECD, US ‘conservatives’ daft insistence on a frankly grotesquely poorly designed historical system – due to a mere presumed ‘private sector’ nature – I have to wonder what the bloody hell is wrong with you

    You don’t understand FREEDOM!, American exceptionalism, and the inevitable sucess of libertarian economics. ( I don’t understand all this either, but then I don’t live in the bubble universe inhabited by conservatives).Maybe you should spend some time watching Fox News,(thanks, England, thanks, Australia!) if you can afford the loss of brain cells.

  29. bill says:

    ironically this isn’t a “republican vs. obamacare” issue yet it’s being made into one for the idiotic masses. for fair measure, was justice roberts a flaming liberal when he cast the deciding vote that made obamacare legit? of course not, and obamacare still isn’t all that functional- maybe helping a minute % of the populace that still couldn’t afford anything anyway. what happened to the “30-40 million” that needed to be rescued from the greedy insurance companies/hospitals? you’d think there were people just dropping like flies in the streets during that hyped up sales pitch.

  30. JohnMcC says:

    @bill: You sound disappointed.

  31. Tyrell says:

    This is interesting: $3 billion dollars missing from the AHA. Seems like they can’t account for what happened to three billion dollars. They don’t know if it went to the wrong people, or in someone’s pocket. Probably in someone’s Swiss bank account by now.
    Your tax dollars at work.

  32. Tony W says:


    $3 billion dollars missing from the AHA

    Cite? My search engine can’t find a source on this.

  33. Rob Prather says:

    When did “chose” become a synonym for “choose”?

  34. Tyrell says:

    @Tony W: Go to
    There are a lot of others. I first heard it this morning on a local am talk radio program.

  35. Matt says:

    I can’t find anything about the American Heart Association losing 3 billion dollars.

  36. Thomas Weaver says:

    What? An erection without a prelude…appears that there are a bunch of provocateurs giving endings to this story before the supremes issue their “ruling”. And, those endings are for the most part are in fantasy land.