Last month, Republican überstrategist Karl Rove offered a warning to his party in a Wall Street Journal op-ed: if the Supreme Court takes away health care from millions of Americans in a case asking the justices to do exactly that, “Republicans better be ready to say what to do next.” Though Rove acknowledged that “congressional Republicans have been thinking about the GOP’s response” to a victory for the plaintiffs in King v. Burwell, “[t]he challenge will be to build consensus for one bill, choosing from the many ideas now being discussed.”
Rove’s column largely recited a belief that’s become conventional wisdom among Republicans — that the GOP’s best chance to convince the Supreme Court to stick a knife in the law, as well as its best chance to emerge on top in the political chaos that would ensue if the Supreme Court does so, is to coalesce around a single legislative response to a decision against the law in King. On Monday, however, the second-ranking Republican in the House admitted that the GOP will be unable to meet Rove’s challenge. In the Wall Street Journal’s words, House Majority Leader Kevin McCarthy said that House Republicans will “not unveil a proposal before a ruling.”
The King plaintiffs ask the Supreme Court to read a single sentence of the Affordable Care Act out of context to cut off tax credits that enable millions of Americans to afford health insurance, even though the plaintiffs’ reading of the act is inconsistent with the entire law’s text. Should these plaintiffs prevail, close to 10,000 Americans are expected to die who otherwise would have lived.
The strategy behind having a Republican proposal ready to go in case the Supreme Court guts the law is twofold. As Randy Barnett, a law professor who is influential in conservative legal circles, explained in USA Today, “Supreme Court justices are reluctant to invalidate a law on which many relied.” Thus, Barnett claimed, the justices will be more likely to work violence to the law if they believe “there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling.”
Additionally, several Republicans have argued that they will be more likely to win the post-King political fight if they have legislation ready. Sen. Ron Johnson (R-WI), the lead sponsor of the dominant proposal by Senate Republicans, articulated this viewpoint in the Wall Street Journal. President Obama, Johnson predicted, “will ask Congress to pass a one-sentence bill” restoring the Affordable Care Act if the Supreme Court strips millions of Americans of their health care. “If Republicans wait” to offer an alternative, Johnson claimed, “we will have no chance of countering Mr. Obama’s response.”
McCarthy’s admission that House Republicans will not unveil a proposal until after the decision thwarts Barnett’s objective of convincing the Supreme Court that everything will be fine if the justices take health care away from millions of people. Similarly, Johnson’s objective of having a proposal ready to go on decision day is likely to be thwarted by the GOP’s inability to reach agreement among themselves. While Johnson’s legislation would temporarily restore tax credits for some Americans, many Republicans insist that the party’s response to King may not provide even a temporary restoration to the people who stand to lose their health insurance.
Johnson claims that his willingness to “temporarily fix[] the mess” that would result from a decision against the Affordable Care Act is a “concession,” but the reality is that Johnson’s proposal is likely to force even more people to lose their health insurance in the long run than if Congress did absolutely nothing in response to an anti-Obamacare decision in King. That’s because the Johnson bill repeals the Affordable Care Act’s individual mandate, an unpopular but necessary provision that prevents the individual health insurance market from collapsing.
Prior to Obamacare, several states enacted laws similar to the Affordable Care Act in that they prohibited insurance companies from denying coverage to people with preexisting conditions. Unlike Obamacare, however, these laws did not also contain an individual mandate requiring healthy individuals to carry insurance or pay higher taxes. The result was a disaster because these laws did not prevent healthy people from delaying the purchase of insurance until they were sick.
If health insurers cannot deny coverage to people with preexisting conditions, then sick people will rush into the health insurance market. Yet, if healthy people are also permitted to delay buying insurance, they are likely to do so, depriving the health insurance pools of the money they need in order to pay claims by sick customers. Worse, as insurers are overwhelmed by the new claims from sick customers, they will be forced to raise premiums. Which will cause even more healthy people to drop their coverage. Which will cause premiums to go up even more. The result is a “death spiral” than can collapse an entire insurance market, leaving no one with coverage.
In the worst case scenario, King v. Burwell would cut off tax credits in just over three dozen states. Johnson’s bill, by contrast, could trigger a death spiral in all 50 states.
The bottom line, in other words, is that the Supreme Court cannot expect Congress to clean up the mess it would create by ruling in favor of the King plaintiffs. Republicans cannot agree on a proposal to respond to King, and the only Republican proposal to gain momentum in one house of Congress would actually exacerbate the problems caused by a decision against the Affordable Care Act.