WASHINGTON – The party that wins the impending Supreme Court decision on President Barack Obama’s health care law could be the political loser.
If the Republican-backed challenge to the law’s subsidies for lower-earning Americans prevails, the GOP would have achieved a paramount goal of severely damaging “Obamacare.”
But Republican lawmakers would be pressured to help the millions of Americans who could suddenly find government-mandated medical coverage unaffordable – and they’d face blame from many voters if they failed to provide assistance.
“If you win the case you actually have people who lost their insurance. You now share the responsibility for fixing it,” said former Rep. Tom Davis, R-Va., who once led the House GOP campaign committee. “And you’ve got a lot of pissed off people. That hurts you.”
Should the Obama administration win, relieved Democrats would crow that Obama’s foremost domestic achievement had stood unscathed.
But some say they’d have lost a potentially powerful cudgel for the 2016 campaigns: Being able to accuse Republicans of ending the assistance and disrupting health coverage for many.
If Democrats lose in court, “It completely reverses the issue and puts us back on offense on health care,” said Rep. Steve Israel, D-N.Y., one of his party’s chief message crafters.
Democrats have frequently been forced to defend the 2010 law, including over Obama’s promise that people could keep policies they liked and the snafu-plagued startup of the federal HealthCare.gov website.
Not everyone thinks their party will lose politically should they win in court.
Many Republicans say if the Supreme Court rules that subsidies were provided illegally, it would be the Democratic administration’s fault for doing so, not the GOP’s.
“That’s a win for us,” said conservative Rep. Jim Jordan, R-Ohio.
One staunch defender of the law, Sen. Chris Murphy, D-Conn., said a plaintiff’s victory would hurt both parties “because people across the country don’t always distinguish between the two sides.”
The Supreme Court decision is expected by late June or early July.
Conservatives and Republicans say the law’s wording limits subsidies to people buying coverage in states running their own insurance marketplaces. Thirty-seven states rely on HealthCare.gov, including 34 that would be most directly impacted if the court overturns the subsidies.
Democrats say the law was always intended to offer subsidies for all Americans who qualify.
According to government figures, about 8.8 million people have selected coverage from HealthCare.gov for this year. That includes 7.7 million who have qualified for subsidies, paid as tax credits, averaging $263 monthly.
The private Robert Wood Johnson Foundation and Urban Institute have estimated that a plaintiffs’ victory would increase the number of uninsured people in 2016 by 8.2 million.
The most heavily affected states are overwhelmingly run by GOP governors and are home to 22 of the 24 Republican senators facing re-election next year.
“If we’re not prepared with a transition plan, it could be difficult to sustain the pressure that would come to cover people who all of a sudden lost their subsidy,” said Sen. John Cornyn, R-Texas, the No. 2 Senate GOP leader.
Other damage could ripple through insurance markets, experts warn.
People who buy coverage privately are in the same insurance pool as those buying from government-run networks. Many of the healthiest low-earning patients who lose subsidies would stop buying policies while many of the sickest would remain, boosting everyone’s premiums and potentially threatening entire insurance markets.
“You can just see the press on this and the events on this, people saying, ‘I had insurance yesterday and now I don’t,’ ” said Rob Jesmer, a Republican strategist.
Cornyn and other Republicans say the GOP is moving toward a joint House-Senate proposal to provide assistance to people losing subsidies.
It is also likely to weaken some of the law’s requirements, perhaps eliminating required coverage for individuals or giving states more flexibility to decide the scope of required medical coverage, Republicans say.
They say the bill will be ready when the court announces its decision. But first, Republicans have to unite behind a single plan, which so far they’ve not done.
They also have to avoid alienating conservatives who’d view any steps to ease the sting of the court’s decision as abetting a president and program they loathe. Failure to pass legislation temporarily aiding those who lost subsidies is not an option, many Republicans say, though there’s debate over whether an Obama veto might inoculate them from blame.
“The question is, can Republicans thread the needle, can they put together a bill that gets most of their caucus on board,” said Dean Rosen, a health policy expert and former Senate GOP aide. “The risk for them is they can’t do that, they can’t be unified.”
In a parallel attack on the health care law, the District of Columbia federal district court scheduled a Thursday hearing on a lawsuit the GOP-run House filed against the Obama administration. The law suit challenges the administration’s postponement of requirements that companies insure workers and its use of funds not approved by Congress to reimburse insurers who subsidize lower-income customers.