Supreme Court Justice John Roberts infuriated conservatives when he wrote the recent opinion to uphold ObamaCare.
But secretly, many Republicans in Congress are thanking Roberts from saving conservatives from themselves. And if they aren’t sending him balloons and flowers now, they may do so by the end of the year.
The King v. Burwell health care case centered on a four-word phrase: “established by the state.”
The Affordable Care Act (ACA) granted states the opportunity to set up local exchanges to process health care plans. But residents of states that didn’t establish exchanges could receive subsidies to use the federal system instead.
Thus, there was no exchange “established by the state” in those venues. So the question the high court examined was whether it was fair for residents of non-exchange states to score tax credits when the rest of the population was ineligible.
In its decision, the Supreme Court held that Congress “meant for those provisions to apply in every State as well.”
But what would have happened had the high court ruled it was unconstitutional to award people subsidies from non-exchange states?
“Chaos,” muttered one senior congressional Republican aide. “Any solution to the problem is going to have the right howling.”
Why? Because a vote to fix the problem would constitute a vote tacitly endorsing ObamaCare.
The Republican Party has engineered close to 60 congressional votes to repeal the law. Nobody knows the precise number because everyone has actually lost count.
Republicans in both bodies of Congress expressed optimism at constructing a health care fix that would pass. But they knew this could absolutely ignite the embers of the conservative base if they did anything short of scrapping the entire law.
Republicans feared a decision finding the credits unconstitutional would kick 7 million people off the subsidies and strip them of health coverage.
The GOP worried that the public might then turn on Republicans for stoking an effort that cost those people coverage -- even if some are skeptical about the law.
GOP sources said they feared President Obama would have trotted across the country with a simple, one-page fix to the law to include those people. But there was consternation as to whether the Republican-led Congress could approve a “patch” piece of legislation, even though GOP leaders promised to advance a plan.
“We want to give people a bridge from ObamaCare,” House Ways and Means Committee Chairman Rep. Paul Ryan said during an appearance on Fox News Channel before the decision.
But Ryan was circumspect when pressed on the same program about the minutiae of a GOP plan.
“We want to see what the (court’s) ruling is specifically so we can customize our response to the actual ruling,” he said. “That plan will involve making sure people have assistance as we transition to give people freedom from ObamaCare.”
Prior to the high court decision, Ryan spoke privately with members about giving block grant money to states to give them the ability to set up their own system to protect Americans for two years until a possible Republican Congress and Republican president could set up an ACA alternative. Most Republicans liked what they heard.
Ryan summoned Health and Human Services Secretary Sylvia Burwell (the “Burwell” in King v. Burwell) before the Ways and Means Committee in mid-June. The Wisconsin Republican blasted Burwell after the session.
“They (members of the administration) still refuse to entertain the notion that their health care law may be struck down by the Supreme Court. And they refuse to acknowledge they are even thinking about a backup plan. And that's unfortunate,” Ryan said.
A reporter followed up, asking Ryan about crafting his substitute.
“We are putting the final touches on it. Dotting the I's. Crossing the T's,” he replied.
Ryan may not have been willing to cough up the GOP legislative construct to the press corps then. But at the hearing, he insisted that Burwell publicly reveal what the administration would do if the court struck down the subsidies.
“Is the president going to be willing and flexible to work with Congress to fix this mess and negotiate with Congress?” Ryan asked Burwell.
“To solve that problem, the critical decisions are going to sit with the Congress,” Burwell told the chairman.
Ryan later predicted that if the Supreme Court tossed the subsidies, Obama could “put concrete around his ankles and say, ‘It's my law or nothing.’ ”
Rep. Kevin Brady, R-Texas, also tried to pry loose some answers from Burwell.
“Will the president sign legislation other than merely extending the subsidies to federal exchanges?” he queried.
“I think it's very hard for me to answer a question about hypothetical legislation,” responded Burwell.
Michigan Rep. Sander Levin, the top Democrat on the Ways and Means Committee, upbraided Ryan for “never coming up with a single, comprehensive alternative after all of these years.”
He also decried Republicans as “armchair critics” of the ACA.
Many Republicans privately acknowledge that the Supreme Court ruling helped them sidestep an immense fight over health care -- the trickiest parts including the navigation of fissures inside their own party.
But the fight isn’t over.
There’s an important congressional vocabulary term everyone will start to hear a lot about over the next few weeks. It’s called reconciliation -- a very special type of reconciliation, something known on Capitol Hill as “budget reconciliation.”
The congressional budget process is an exclusive bit of parliamentary infrastructure, separate from most other legislation.
Housed inside the annual budget machinery is “reconciliation.”
Reconciliation can be used to sync up spending, revenue and adjust the debt ceiling. Article I, Section 7 of the Constitution dictates that bills with revenue implications must start in the House. So the reconciliation vehicle originates in the lower chamber. But the real impact of reconciliation lies in the Senate.
The Senate’s fundamental glory is an unlimited amendment process and unlimited debate. That’s what gives rise to filibuster. But the budget process limits debate, curbs most amendments and requires but a simple majority to adopt legislative items. Thus, there is no way to filibuster something tucked into a budget reconciliation package.
Republicans now hold 54 seats in the Senate. Under conventional rules, Democrats could filibuster health care legislation. Vanquishing a filibuster would require a coalition of 60 Republicans and Democrats. Republicans know this. But since Obama signed the ACA into law in 2010, Republicans never controlled the Senate until this year.
Republicans would struggle to even put a health care bill on the floor right now. Sixty votes are necessary to hurdle the first filibuster blocking the measure from coming to the floor. Another round of 60 is required to shut off all debate and finish a bill. But that’s not the case with reconciliation.
There’s a lot of chatter now of putting a repeal of the ACA in a reconciliation measure later this year on the floors of the House and then the Senate. And Democrats can’t do anything about it.
Moving a health care bill through the House is simpler than in the Senate. But reconciliation grants the Senate the possibility to approve a repeal bill. That’s happened in the House umpteen times since 2011. But never in the Senate.
Undoubtedly, Obama would veto such a bill. But that’s what Republicans want. A dare. They want to deposit a full repeal bill on the president’s desk and dare him to veto it. And if he doesn’t, what have Republicans accomplished?
Congressional Republicans will have bypassed a catastrophic meltdown in the nation’s health care system because of the Supreme Court ruling in King v. Burwell. Mayhem may have descended on the Capitol had the High Court ruled that the subsidies were unconstitutional.
Republicans will have forced the president to veto a repeal of ObamaCare. But since they know they don’t have the votes to override the veto (a two-thirds vote in both bodies of Congress), Republicans haven’t necessarily had to produce an alternative health care bill. Such legislation remains a unicorn. And even if it does exist, this is a fractious issue in the Republican Party.
Republicans will have made Democrats from swing districts and states who face challenging re-elections to either vote to override the veto or side with the president.
Message masters at the National Republican Congressional Committee and National Republican Senatorial Committee will be more than happy to record those roll call tallies. The NRCC and NRSC will then integrate those votes into campaign ads against those lawmakers next year.
In short, some Republicans may seethe publicly at Chief Justice John Roberts now. But they could be sending him balloons and flowers later.
And here’s the Supreme Court address if they need it: 1 First Street, NE Washington, DC 20543.