Republicans who have been hoping that the Supreme Court will upend President Obama’s health care law are now confronting an urgent and uncomfortable question: What if they win?
Republicans in Congress would face an enormously complicated challenge to fashion an alternative, and they fear the fallout could lead to election losses if millions of Americans abruptly found themselves without health insurance.
If the court voids a federal rule allowing subsidies in states that use the federal insurance marketplace, many Republicans said, they would support a temporary continuation of subsidies for people with low or moderate incomes.
Nearly two-thirds of Americans want Congress to ensure that residents in every state can receive insurance subsidies though the Affordable Care Act, according to a new national poll conducted as the Supreme Court prepares to decide a legal challenge that could strip away the subsidies in more than 30 states.
Asked whether lawmakers should pass a law “so that people in all states can be eligible for financial help,” just one-quarter of those surveyed said no, according to the poll by the nonprofit Kaiser Family Foundation.
With a Supreme Court decision looming that could lead to the loss of health insurance for millions of Americans, supporters and opponents of President Obama’s health-care law already are mobilizing for the next stage of the battle: influencing policy alternatives if the court upends a key component of the law.
The Bush administration health policy band is getting back together — to tell states they will probably have to think about setting up their own insurance exchanges under the health law if the Supreme Court rules that is a condition of their residents continuing to get tax credits to help pay premiums.
Former Health and Human Services Secretary Mike Leavitt, acting general counsel Thomas Barker, chief of staff Rich McKeown, assistant secretary for legislation Vince Ventimiglia, deputy secretary Tevi Troy and the former acting Centers for Medicare and Medicaid Services administrator Kerry Weems have signed an open letter to governors telling them there’s a good chance this will fall to the states to decide, and that they should get ready.
Reuters reported recently that, “Despite the promise of coverage through the U.S. Affordable Care Act (ACA), the number of people applying for non-compliant, short-term health insurance policies was up more than 100 percent in 2014.”
It’s true – more people than ever before are buying short-term, limited coverage health insurance.
But one part of the Reuters report was wrong: the word “despite.”
Senior Republicans who are worried they’ll be blamed for killing health insurance for millions of Americans have been busy assembling a range of options if the Supreme Court strikes down the law’s subsidies in 34 states.
But the GOP senators running for president — starting but not ending with firebrand Ted Cruz — threaten to stymie their leaders’ carefully hatched plans. Any whiff that the GOP’s Plan B is a continuation of Obamacare is bound to spark furious protests from the conservative base, putting pressure on the presidential hopefuls to respond. Cruz, for one, would press for a wholesale repeal of the law — or to allow states to opt out of Obamacare — if the high court provides the opening.
Regardless of how the U.S. Supreme Court decides King v. Burwell — a case regarding the Obama administration’s issuance of health insurance subsidies in violation of their own law — the negative consequences for patients and taxpayers will continue absent thoughtful, patient-centered reform.
Later this month, the Supreme Court will likely announce its decision on King v. Burwell, the lawsuit which asserts tax credits currently being paid to health insurers in 34 to 37 states that use the federal health insurance exchange are illegal. If the Supreme Court stops these tax credits, over six million people will be required to pay the full premiums for their Obamacare policies. This will cause a crisis, which will demand a response by Congress and the president.
King v. Burwell and three other cases before the Supreme Court concern whether individuals purchasing health insurance under the Affordable Care Act in states with no state insurance exchange should receive subsidies from the federal government.
If the Supreme Court overturns the subsidies, Congress will be under pressure to protect Americans who signed up for coverage on the assumption that it would be subsidized from the cost increases associated with this withdrawal of the federal funds.
Congress should enact a short-term subsidy plan to ease the transition and solve the problems created under the ACA by granting states the ability to opt into a better approach to reform.
This article will assess the legality of executive actions that the Administration may take after King v. Burwell to continue paying subsidies in these thirty-four states. I will not discuss the merits of the case, predict how the Court should construe the statute or IRS rule, or propose congressional modifications to the ACA. Rather, this analysis is premised on potential administrative fixes HHS could employ following an adverse ruling in King v. Burwell.