The case of King v. Burwell, as Josh Marshall noted recently, is owned by the Republican Party. They paid for it; they pushed it. They will pay negative consequences if they win the case – and they could pay negative consequences if they lose the case.
The Republicans will encounter problems if they win King v. Burwell – eliminating billions of dollars worth of insurance subsidies for 8.5 million people will boomerang on the GOP. In fact, even if the government wins in King and the federal subsidies survive for those states using federally facilitated exchanges, the GOP will suffer losses.
A number of persuasive legal arguments point to a probable victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous – that both parties’ readings of the law are plausible – and that deference should go to the government. As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies. If that knowledge becomes public, even if the government wins, people will begin to understand that if a Republican wins the presidency, they will lose their subsidies and, therefore, their health insurance. So even if the GOP wins the court case, they lose.
How will the 8.5 million people with subsidies become more aware that they may lose their insurance if a Republican wins the presidency? If the government wins the Supreme Court case, it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely Republican-created policy fiasco.
That the case was conceived by conservatives and endorsed by Republicans has created an extensive paper trail tying the GOP to the consequences of a decision for the challengers. It has also forced Republicans to publicly pretend as if they can and will fix the problems that flow from a King v. Burwell ruling for the plaintiffs. Initially the idea was to foam the runway for conservative justices eager to void the subsidies; it has now become knowledge that the public will hold Republicans accountable for the ensuing chaos.
Among the pitfalls of the extended charade is that Republican presidential candidates will reject and condemn proposals to clean up a King v. Burwell mess – especially if they seem to be real solutions.
“Things can’t be turned on a dime,” Senate Majority Whip John Cornyn told Politico. “People can run for president, but we’ve actually got to solve a problem.” Cornyn may have been thinking of his fellow Texan Ted Cruz, who wants to use King v. Burwell as a pretext to repeal all of Obamacare. But Cornyn’s discomfort carries a whiff of inconsistency: Cornyn signed on to Republican briefs, first urging the justices to hear King and then asking them to void the subsidies. In January he eagerly anticipated that the Court would “render a body blow to Obamacare from which I don’t think it will ever recover.”
Now Cornyn is realizing the consequences that the Republican Party may have to pay.
The promise for the Republicans of the King v. Burwell challenge has apparently faded. Republicans in Congress are quite likely incapable of solving the problem in a way that pleases conservatives, and will be little better equipped if a Republican president discontinues the subsidies on his own. Six months ago, Republicans claimed excitedly that the path to repealing Obamacare outright ran through a victory in King v. Burwell. Now they realize a ruling in their favor is likely a death knell for them in the 2016 presidential race.
As Rick Perry would say: Oops.
From TheWeek.com: “Republicans are very good at propaganda. But there are limits to such strategies. Southern Democrats attempted such a maneuver before the Civil War, when they attempted to simultaneously threaten secession and blame Republicans for breaking up the country. Abraham Lincoln famously skewered this logic:
“But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, "Stand and deliver, or I shall kill you, and then you will be a murderer!" [Cooper Union Address]
It seems that the best political outcome for Republicans would be to lose the case as conclusively and embarrassingly as possible.
But if they win, I hope the angry populace, after being adversely affected by the ruling, votes a landslide victory for Hillary and the Democrats, leaving the GOP high and dry. I think they will.