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Obamacare in peril

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The GOP electoral rout this Tuesday does not pose a serious threat to Obamacare. The real remaining threat to the law comes from the courts. Today we learned this threat is very much alive, when the Supreme Court announced that it will hear a challenge to the administrative rule making the law’s subsidies available to people in all 50 states.

To get caught up on the legal ins and outs of this challenge, read Jonathan Cohn’s piece. It turns on the claim that the plain wording of the law’s text shows Congress never intended subsidies to go to people in the three dozen states where governors refused to set up exchanges, requiring the feds to do so. If the subsidies are invalidated in these states, it could deprive millions of coverage, posing a dire threat to the law.

Multiple Democratic lawmakers who participated in the creation of the Affordable Care Act have explained that making subsidies available to people in all 50 states, regardless of who set up the exchanges, was always the intention. Staff members involved in the drafting of the law have said the same, and have carefully explained how the faulty language ended up as it did.

But SCOTUS could still rule against the administrative rule, anyway. Nicholas Bagley explains how the fact that SCOTUS has agreed to hear the case at all doesn’t bode well, and even increases the odds that the government will lose it.

So let’s say SCOTUS does strike down the subsidies. If so, it will create an interesting situation for Republican lawmakers. It will make it impossible for them to get away with the clever game they’ve been playing for some time on their true intentions toward the law.

As the Kaiser Family Foundation’s Larry Levitt explains it, a SCOTUS ruling gutting the subsidies could easily be rendered “moot” in one of two ways: Either Congress fixes the law, or governors in those states set up state exchanges to keep the subsidies flowing to their constituents. “A simple fix from either Congress or Republican governors would allow people to keep their benefits,” Levitt says.

As Brian Beutler has explained, the prospect of so many of each of these governors’ constituents losing insurance would theoretically put pressure on them to make things right. The same might be the case for GOP lawmakers in Congress. One possibility might be that the two parties use this as an occasion to enter into negotiations over the law’s future, in which Republicans try to leverage the need for the fix to get other changes to it they want — which could be dicey for the law but perhaps not too much of a threat to it.

Of course, these lawmakers would also face intense pressure from the right not to fix it. And for all I know, they might let the law’s subsidies disappear for millions.

But at that point, we would at least gain real clarity from these lawmakers as to their true intentions to the law and its beneficiaries.

Republicans — including some of those who were just elected to the Senate — have long engaged in a little dance that goes like this. They tell the GOP base that really, truly, they are committed to doing all they can to destroy Obamacare. But, they say, their hands are tied: The President will veto whatever they try to do. They are right about that. But the question is, do GOP lawmakers actually want to be in a position where they could successfully take the law’s benefits away from people?

When asked directly whether they would actually roll back the law’s benefits for their constituents, Republicans have tended to fudge endlessly. They fulminate against that monstrosity the base calls “Obamacare.” But they carefully leave the impression that they don’t really favor returning to a place where people would lose coverage or protections against insurance industry abuse — whether through invocations of some phantom “replace” plan or through straight up evasions on what they think should happen to those benefits. The status quo works for them: They can claim to be for repeal without owning the political consequences of that actually happening.

A SCOTUS decision nixing the subsidies would present these lawmakers with a straight choice: Either restore subsidies for millions, or let all these people’s coverage lapse. No more games.

“Repeal until now has been symbolic,” Levitt tells me. “If SCOTUS were to disallow the subsidies, the Republican decision in response would all of a sudden have serious consequences.”

And there are other reasons this might not be so easy. If SCOTUS does this, Levitt adds, “the insurance market would collapse in these states. Congress couldn’t possibly do nothing at that point. There would be tremendous pressure from the insurance industry, and the health care industry generally, to fix this.”

Now, it’s very possible Republican members of Congress — and GOP governors — would not fix it. But at least the true consequences of their health care stance would now be nakedly apparent.

And by the way, that could have interesting ramifications for 2016, suddenly thrusting the question of what to do about all of these millions of suddenly-uncovered people into the presidential race.