GOP Has the Fear: King vs. Burwell

Republicans have raged against Obamacare for six years now. But do they really want to see it crash?

We are rapidly approaching the day when the Supreme Court announces its decision in King v. Burwell. The case found a four-word phrase in the 900-page law that says that the tax subsidies are available to people who get insurance through exchanges “established by the state.” Both Republicans and Democrats who actually put the law together, as well as their staffs, say that was a mistake, that no one meant to exclude people on the federal exchange, it is just an artifact of the drafting process that contravenes the whole sense of the law.

The result, if the course found for the plaintiffs, could be rapid and dire: Some 7.5 million would suddenly be paying full freight for healthcare insurance, most would probably stop paying and be force off the plans, and both healthcare and the insurance industry would face a sudden large drop in the revenue streams they need to stay afloat.

But what do Republicans really think?

Republican office holders and candidates continue to rail against the ACA, but they are not making much noise about this case — and I think we can all see why. If I were one of them, I would secretly hope that the Court lets the law stand as it is now practiced, rather than removing the subsidy from those millions of people. If the Court removes the subsidy, while the Republicans control both Houses of Congress, it will put Congressional Republicans in the uncomfortable position of either letting millions lose their health insurance after they have already gotten it — or actually vote to amend that one line in the law they have campaigned against for so long with such vitriol. And every presidential candidate will feel forced to loudly proclaim a position on which way Congress should go — let the law crash and throw those people off their insurance, or amend the hated law to help it work better. They often demonize the poor, but they also know that the part of the law that is really about the poor is the expansion of Medicare. The subsidies start well above the poverty line, and extend to households making nearly $100,000 per year. The subsidies are really helping working Americans, and that help shows up right there in the monthly budget.

So whichever way Republicans choose to respond, it will be hard for them to mine a King v. Burwell “victory” for votes or donations. They can’t be awaiting the announcement with anything but abject fear.

Joe Flower is a futurist and author. He is a contributing editor with THCB.

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  1. The case found a four-word phrase in the 900-page law that says that the tax subsidies are available to people who get insurance through exchanges “established by the state.”

    That’s Section 1311(d), precisely.

    It is irrelevant. Section 1311 is trumped by and superceded by Section 1321. The feds clearly have full backup HIX authority where a state fails to act. The most plain of English.


    I’m betting 5-4 to uphold the ACA on this point. Maybe even 6-3, which would send the message “take this POS back to The Hill if you want to keep bashing it. Amend it, repeal it, whatever…”