The Halbig case, which will be decided by the Supreme Court this summer, would eliminate all federal subsidies for ObamaCare premiums bought on the federal exchange if it goes the way of the plaintiffs. Conservatives have been licking their chops at this possibility because, without those subsidies, the whole ObamaCare fiscal scheme essentially collapses. There would seemingly be no way at that point that President Obama can just sit there and refuse any changes to the law.
But a poll out this week from the Kaiser Familiy Foundation is inspiring some minor panic on the right, as it suggests that 64 percent of Americans would want to see Congress simply restore the subsidies in the event this happens:
If the Supreme Court rules that financial assistance is only available in states with state-run marketplaces, nearly two-thirds of the public says that Congress should take action so that people in all states can be eligible for financial help to purchase health insurance. Majorities of Democrats and independents say they would support Congressional action, while Republicans are more divided. And, although the Supreme Court’s decision would have significant implications for many people in states using the federal exchange, their views are similar to those of people living in states with their own marketplace.
Before you ask, no, it would not be unconstitutional for Congress to do this. The Halbig case is strictly a matter of statutory language and Congress absolutely has the power to change the statute. Given the apparent public preference for them to do that, you can now envision a scenario in which Obama sits back and demands a "clean" bill restoring the subsidies, and only restoring the subsidies, and he refuses to deal on any other part of the law.
And you can envision John Boehner and Mitch McConnell wilting under media criticism that they are "playing political games" or "jeopardizing the health of America" or whatever by demanding any conditions whatsoever for the subsidy fix.
They can't give in to that pressure. They will never get another opportunity where Obama simply has to deal because he can't accept the status quo. He will act like he's above it all and it's all on the GOP to focus solely on the subsidy fix, but in the end Obama can't afford to walk away with no deal. ObamaCare is his legacy and if the Halbig ruling takes down the subsidy scheme without Congress making any fix, then his legacy will prove to be an even bigger disaster than it already is.
What Boehner and McConnell have to do is take the occasion to make common-sense changes to the law that the public will get behind. That would include:
Eliminating the medical device tax.
Eliminating the individual mandate.
Eliminating the employer mandate.
Changing the definition of a full-time employee to those working a 40-hour work week, not the current 30 (although that ceases to mean as much if the employer mandate is eliminated).
None of this obviates the future repeal of ObamaCare given a future president who's willing to sign the repeal, but for the time being it would make sense to restore the federal subsidies if Obama agrees to the above conditions.
Yes, the Republicans will get beaten up by the media. It doesn't matter. This is their job and they have to do it. None of this will matter, of course, if the Supremes rule that the subsidies to those who bought on the federal exchange are legal. But if they don't, the GOP Congress can't look at that situation with fear because of what the polls say the public wants them to do. They need to take the occasion to dismantle ObamaCare. Above all else, that is what the public elected them to do.
