The Washington PostDemocracy Dies in Darkness

Morning Plum: A GOP bait-and-switch on Obamacare

The governor of Tennessee has announced that he will try to move forward with a “conservative” version of the Medicaid expansion in his state. While he faces a GOP legislature hostile to using Obamacare to expand health care to poor people, there is now talk of accepting the expansion in states like Utah, Wyoming, and Idaho.

In other words, Obamacare continues to move forward. Which should renew attention to the fact that the Supreme Court could still gut the law’s subsidies in the three dozen states on the federal exchange. How will Republicans respond if that happens?

Here’s something to watch for: Republicans claiming in some vague way or other that, if SCOTUS does that, they just might be open to fixing the law. This rhetoric — deliberately or not — might make a SCOTUS decision gutting the law more likely.

National Journal reports that top Senate Republicans claim they are already eying what to do if SCOTUS rules against the law. NJ reports that a Congressional fix — which would require re-writing a few words of statute — would originate in either the Finance or Health committees. The incoming chairmen of both — Orrin Hatch and Lamar Alexander — have begun to discuss ways of responding to a SCOTUS decision gutting the law, suggesting that perhaps a fix can be had in exchange for other changes to the law Republicans want.

We should treat such suggestions with extreme skepticism. It’s hard to imagine Republicans agreeing to any fix to the law that doesn’t require enormous concessions from Democrats in return. (Republicans will be under pressure from stakeholders in the states impacted by a SCOTUS decision to fix the law, but they may argue, perhaps understandably, that Democrats are to blame for faulty drafting, so why should Republicans salvage the law for them?) Beyond this, though, some Democrats closely following the health care debate believe there is a possible consequence — unintended or otherwise — that could follow from such rhetoric.

It all turns on one way Chief Justice John Roberts, the expected swing vote, might decide to gut the law. He might agree with the government’s argument that, read in its larger statutory context, the disputed “exchange established by the state” language doesn’t change the fact that Congress’ obvious intent was to provide subsidies to all 50 states. But he could still say that the language says what it says; that, given its plain meaning, it is obviously a mistake; and that it is not SCOTUS’s job to fix a mistake — that’s on Congress.

Thus, the “maybe we’ll fix it” rhetoric coming from some Republicans might make it easier to entertain the idea that Congress would fix the law in the event of a SCOTUS ruling against it. The problem is that other leading Republicans have already given away the game: GOP Senate leaders Mitch McConnell and John Barrasso have clearly stated that they view a SCOTUS decision gutting the law as accomplishing what Republicans failed to accomplish themselves through the political and legislative process.

As Nicholas Bagley explains, not only is such a SCOTUS ruling very likely to create a huge mess that could all but destroy the law in many, many states, but Republicans have already confirmed they are anticipating this outcome. Whether or not Roberts will care about this is an open question, but it is the reality of the situation.


* TED CRUZ BACKERS THREATEN GOP PRIMARIES: As you know, Ted Cruz demanded a vote on a point of order to block the big budget deal, because it didn’t fight Obama’s executive action on deportations. It failed, with more than 20 Republican Senators voting against it. Now Politico reports that conservatives are beginning to threaten primaries against all of these Senators, on the grounds that they didn’t fight Obama’s “amnesty” hard enough.

Cruz is demanding another showdown against Obama’s action next year, and once again, GOP lawmakers who balk at destructive tactics will be threatened with primaries. Remember, Ted Cruz’s strategy can never fail; it can only be failed by feckless GOP leaders who aren’t willing to see it through to the end.

 * OBAMA FACES BIG BATTLE OVER IMMIGRATION: Even as Republicans criticize Obama as lawless for acting to shield millions from deportation, David Nakamura reports that immigration advocates are still angry with him for not doing more to ease deportations and will continue to demand that he do just that.

This could matter going forward. There will be an epic battle over Obama’s action next year, whose outcome is anything but assured, and the question is whether still-unhappy advocates will fight to defend the actions he has taken.

* IS TED CRUZ THE SECOND COMING OF RONALD REAGAN? National Journal reports that Cruz, apparently aware that his destructive tactics have raised concerns among GOP elites, is meeting with top GOP donors in hopes of cleaning up his image and getting them to help finance a presidential campaign. As an attendee at one meeting put it, Cruz is trying to shake the idea that nominating him could be as disastrous as the 1964 Barry Goldwater effort:

“He’s in the process of proving to people that he’s more Reagan than Goldwater. Opponents of his want to stick the Goldwater tag on him, so his challenge is proving that he’s more Reagan than Goldwater.”

I’m shocked, shocked, to learn that Ted Cruz looks in the mirror and sees Ronald Reagan gazing back.

* DEMS DIVIDED ON HOW TO TALK ABOUT ECONOMY: Jackie Calmes reports that Democrats are locked into a debate over how, or whether, to take credit for the recovery. The dilemma: If they don’t take credit for the economic progress we’re seeing, voters won’t give them any for it, but if they do tout that progress, they risk looking out of touch with those still struggling.

The problem, as I’ve reported, is that even if the recovery is gaining steam, wages remain stagnant and the recovery’s gains are going mostly to the top, and there are real divisions among Dems over what to do about those problems.

* AMERICAN PEOPLE: YES, IT’S TORTURE, BUT THAT’S OKAY: A new Washington Post/ABC News poll finds that a plurality of Americans (49-38) think Bush interrogation techniques revealed in the Senate report were “torture.” But by 59-31 they say the techniques were “justified,” and crucially, 58 percent say such techniques will sometimes be justified looking ahead.

Oh, and 52 percent say it was wrong to release the report because it could increase the risk of terrorism, while only 43 percent say it was right to expose the tactics to prevent them from ever happening again.

* AND NONSTOP DISSEMBLING ABOUT TORTURE FROM CHENEY: Glenn Kessler does a nice job taking apart Dick Cheney’s cavalier dismissal of U.S. prosecutions of Japanese soldiers for waterboarding Americans. As Kessler concludes:

Contrary to Cheney’s assertion, waterboarding was an important charge in a number of the lesser-profile cases. Moreover, waterboarding also resulted in at least one court martial during the Vietnam War. In other words, such techniques in different circumstances have been subject of U.S. military prosecutions in the past.

I’m sure Cheney will refrain from making this argument in his next dozen Sunday show torture-tour appearances.