With the Supreme Court set to hear oral arguments this week in the lawsuit that could do severe damage to the Affordable Care Act, some Republican lawmakers are working hard to convey the impression that they have a contingency plan for the millions who will likely lose subsidies — and coverage — if the Court rules with the challengers. Senators Orrin Hatch, Lamar Alexander, and John Barrasso have published a Washington Post op ed with an oh-so-reassuring title: “We have a plan for fixing health care.”
The good Senators, amusingly, cast their “plan” as something that will protect people from “the administration’s” actions and from Obamacare itself, not from the consequences of the legal challenge or a Court decision siding with it. The plan vows to “provide financial assistance” for a “transitional period” to those who lose subsidies, while Republicans create a “bridge away from Obamacare.” Of course, anyone who watched last week’s chaos in the House knows Congressional Republicans are unlikely to coalesce around any “transitional” relief for those who lose subsidies (that would require spending federal money to cover people) or any permanent long-term alternative. This chatter appears transparently designed to make it easier for conservative Justices to side with the challengers.
Yet even if this game works on the Justices in the short term, any eventual failure to come through with any contingency plan could saddle Republicans with a political problem, perhaps even among GOP voters.
A poll taken by Independent Women’s Voice — a group that favors repealing Obamacare in the name of individual liberty — found that in the nearly three dozen states on the federal exchange, 75 percent of respondents think it’s very (54) or somewhat (21) important to restore subsidies to those who lose them. In the dozen main presidential swing states, 75 percent of respondents say the same.
And guess what: Large majorities of Republican voters agree. A spokesperson for the group tells me that in both those groups of states taken together, 62 percent of Republican respondents say its very (31) or somewhat (31) important to restore the subsidies. Only 31 percent of Republicans in those states think doing this is unimportant.
This raises the possibility that a lot of Republican voters would be harmed by an anti-ACA decision, too. As Politico puts it today: “The people who would be affected by a Supreme Court decision against the Obama administration live disproportionately in GOP-governed states, and an Urban Institute study found that many people fall into a demographic crucial to the GOP base — white, Southern and employed.”
Now, none of this means Republicans will be more likely to step forward with a solution. As Avik Roy (who hopes the Court rules against the ACA) acknowledges, Republicans are so divided that uniting on any response is unlikely:
Republicans are being pulled in two directions. On the one hand, you have dozens of House members from highly ideological districts, for whom a primary challenge is a far bigger political risk than a general election. Many members of this group think that continuing Obamacare’s subsidies, in any form, is problematic.
On the other hand, there is a large group of Republican senators in blue and purple states up for reelection in 2016. These include Mark Kirk (Ill.), Ron Johnson (Wisc.), Pat Toomey (Penn.), Kelly Ayotte (N.H.), Richard Burr (N.C.), Marco Rubio (Fla.), and Rob Portman (Ohio). These senators are much more aligned with Hatch, Alexander, and Barrasso.
Meanwhile, Republican state lawmakers, who could keep the subsidies flowing to their constituents by setting up state exchanges, are all over the place on what might come next, with some already ruling out such a fix. Indeed, in the end, it probably won’t matter that large majorities of Americans — or even large majorities of Republicans — support restoring the subsidies. On this, as on so many other things, GOP lawmakers will probably take their cues from the more conservative minority of Republicans, whatever the political or policy consequences.
* WHY JUSTICES SHOULD WEIGH CONSEQUENCES OF ANTI-ACA RULING: Law professor Nicholas Bagley has a terrific piece explaining why the Supreme Court Justices should factor in the fact that siding with the challengers would take health care from millions: This eventuality shows the challengers are misreading the law.
It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong. As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.
It’s also possible that the real-world implications of an anti-ACA ruling might have legal relevance because they bolster the states’ argument that siding with the challengers would impose unfair retroactive consequences on them without clear warning. Read the whole thing.
* LEGAL CHALLENGE TO THE ACA IS ‘PROVABLE FICTION’: Steven Brill has a must-read in which he documents his close reporting on the creation of the Affordable Care Act, and why that led him to the conclusion that the idea that Congress intended to deny subsidies to those on the federal exchange is nothing but “fiction” and a “fairytale”:
Congressional intent is a fact-based inquiry, not a matter of opinion. Given the unambiguous mountain of facts arrayed for the defense (and well-presented in the briefs submitted by the defense side), it is hard enough to see how the lawyers on the plaintiffs’ side could actually believe in their case…if a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism.
The Justices, however, could simply conclude that the disputed phrase is not ambiguous enough to warrant Chevron deference to the IRS’ interpretation of the law, despite all the evidence of Congressional intent, not to mention the law’s overall structure and purpose.
* DEMOCRATS ANGRY ABOUT NETANYAHU SPEECH: Benjamin Netanyahu is set to address Congress tomorrow, and the New York Times reports that anger and unease are widespread among Congressional Democrats. The latest tally on who will skip the speech:
So far, 30 Democrats — four senators and 26 representatives — have said they will not attend the speech. Nearly half are African-Americans, who say they feel deeply that Mr. Netanyahu is disrespecting the president by challenging his foreign policy. But a half-dozen of those Democrats planning to stay away are Jewish, and represent 21 percent of Congress’s Jewish members.
Given the historic skittishness among Democrats about appearing even slightly out of sync with what Israel wants, that actually represents something new.
* PARTISAN DIVIDE ON VIEWS OF NETANYAHU: A new NBC News poll finds that 66 percent of Democrats say GOP leaders shouldn’t have invited Netanyahu to speak without notifying the president first, while only 28 percent of Republicans say the same. And only 12 percent of Democrats view Netanyahu favorably, versus 49 percent of Republicans. It bears repeating that when it comes to Israel and diplomacy with Iran, Congressional Democrats are well to the right of their base.
* SCOTT WALKER FLIP-FLOPS ON IMMIGRATION: After previously supporting legalization for the 11 million, Scott Walker tried to get right with conservatives on Fox News Sunday:
“I don’t believe in amnesty…my view has changed. I’m flat out saying it…we need to secure the border. We ultimately need to put in place a system that works. A legal immigration system that works.”
However, Walker also said that “there’s a way” to legalize the 11 million if border security is accomplished first. This puts Walker pretty much where Jeb Bush and Marco Rubio have come down on the issue.
* TOP CONSERVATIVE: BOEHNER’S JOB IS SAFE: GOP Rep. Jim Jordan, the chairman of the Freedom Caucus, flatly tells CNN that there won’t be any conservative coup to oust Speaker John Boehner: “That’s not gonna happen.”
Duly noted. So what is stopping Boehner from passing long term funding of the Department of Homeland Security with the help of a lot of Democrats? We were repeatedly told during past showdowns that Boehner couldn’t avert crises with Dem help, because he’d lose his Speakership, and each of those ended in the same way.