The Obamacare Lawsuit Is a Government Shutdown, But for Health Care

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Supreme Court Hears Arguments On The Affordable Care Act
Demonstrators opposed to U.S. President Barack Obama's health-care law, Obamacare, hold signs in front of the U.S. Supreme Court.Photo: Andrew Harrer/© 2015 Bloomberg Finance LP

Congressional Republicans have spent months frantically planning for what to do if five Supreme Court justices decide to endorse a bizarre right-wing lawsuit designed to cripple Obamacare. The argument has played out in an unusually public fashion, with advocates of various strategies hashing out their proposals in competing op-eds and public comments. But the debate has also been conducted mostly in the language of partisan cant, which has tended to obscure the actual choices involved. What follows is an explanation of the Republican dilemma rendered in plain English.

1. The first question Republicans have to decide is, should the Court decide in their favor, do they need to do anything at all? The lawsuit would eliminate tax credits for residents of some 34 states, depending on what definition is used, whose health-care exchange is run by the federal government. This would, for the first time, bring Republicans face to face with the political fallout of taking away actual health care from current, rather than prospective, beneficiaries of Obamacare.

The most ideologically hard-core elements of the party have tried to make the case that Republicans should do nothing at all. One libertarian organization commissioned a poll designed to show that voters would not blame Republicans for doing nothing in the face of massive suffering. The poll has an unusually blunt method for producing this result. It asks, in the event the lawsuit is successful, whom voters would blame. The choices are:

Congress, for poorly writing the law”

“The IRS, for giving out illegal subsidies in the first place”

“States, for refusing to establish Obamacare exchanges”

“Unsure”

Notice that, even aside from the loaded terms (“poorly writing,” “illegal”), none of those choices allows voters to blame the current, Republican-run Congress for failing to fix the law. The only “Congress” voters can blame is the old Democratic one that wrote the law in 2009–10. The poll does prove that the public will not blame Republicans in Congress if it is given a fixed menu of choices, of which blaming the Republican Congress is not one.

Most actual Republicans in Congress realize, however, that this is not how political debates really work. In the real world, voters are allowed to blame you for stuff if they want to. An Associated Press poll finds that Americans by a 56–39 margin would want the tax credits to continue to be extended to all 50 states, even if the lawsuit prevails. As Republican Senator Ben Sasse warned several months ago, in a column urging his party to unite behind his plan, “Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real.” Obama would be able to urge Congress to simply fix the confusion by passing a law reaffirming that customers in federal exchanges are also eligible for tax credits.

2. Republicans are trying to figure out what to do about this. Sarah Kliff has written an excellent explainer of the various Republican proposals to address a successful lawsuit. They range in their specificity from “skeletal legislation” to “vague op-ed.” All of them would, over various time horizons, unwind the insurance-market regulation that is the heart of the law’s framework. The regulations prevent insurers from excluding sicker customers — that is, they are a vital component to making insurance affordable to people who previously couldn’t obtain it because they either had, or were likely to have, expensive medical conditions.

There is no chance Obama would agree to deregulate the insurance industry, and therefore blow up his own reforms, in order to extend temporary relief. The Republican proposals would all simply extend temporary help to immediate victims of the lawsuit in return for creating many more victims over a much longer period of time.

Indeed, Republicans are aware of this. The purpose of the bills is to give the party a talking point. If Obama blames Congress for failing to extend the tax credits, Congress can say it has voted to do so (with certain conditions that they don’t need to mention and may be too complex to detail in a shorthand summary in the news.) Therefore it’s his fault. These aren’t plans designed to prevent harm to the exchanges. They’re plans to win the message war during the standoff.

3. The win-the-message-war plan runs into two complications. The first is that Republicans probably can’t execute it. The message-war plan requires the House and Senate each to pass a bill that’s unacceptable to Obama, placing the blame on him. Since the bill is part of a Republican message strategy, and will contain provisions unacceptable to any Democrats, it will rely entirely on Republican votes to pass.

But it will have an incredibly hard time getting enough votes from Republicans. First, the Republicans can’t agree on which bill to unify around — a solvable problem, but one they strangely have not yet solved. Second, the tea-party base tends to oppose clever message bills that don’t follow the conservative line to the absolute limits of movement principle. This is why various gambits by John Boehner to create leverage by passing Republican-only message bills through the House have generally dissolved in chaos. And third, the tea-party base especially hates message bills that fail to completely repeal Obamacare. Republicans have thus run into the obstacle that large numbers of ultraconservatives refuse to support anything that falls short of total and immediate repeal. Even provisions that fatally undermine the law’s functioning don’t go far enough.

4. Finally, even if Republicans can somehow get their act together and pass one of the bills, many of them realize that the message strategy will fail. Obama’s message is simpler, and he has a larger megaphone because he’s the president. A Republican Congressional aide tells National Review’s Joel Gehrke, “As soon as the messaging is out there saying, ‘Look, a half-a-sentence fix saves millions of people from either losing their coverage or having massive spikes,’ we as a party won’t be able to sustain that pressure very long — certainly not through the August recess.”

If the lawsuit succeeds, the Republicans in Congress will find themselves in the same position as when they shut down the government. They will be demanding policy concessions in return for doing something they agree has to happen. Holding out for concessions in those circumstances is very hard. The pressure inevitably grows for the House leadership to bring a Democratic bill to the floor and let it pass with a handful of Republican votes.

Alternatively, Congress could remain gridlocked, and leave it to each state to fix the problem by establishing its own exchange, assuming such a course is technically possible. But that would simply replicate at the state level the same dilemma Republicans can’t navigate at the national level: How can Republican elected officials navigate between a public that does not want to throw innocent people off the life-saving care they get through Obamacare, and an activist base demanding they do exactly that?