Conservatives are very hopeful that the Supreme Court will rule in the King v. Burwell case that the Obama Administration is violating its own law by granting ObamaCare subsidies to those buying policies on the federal exchange. The statute's language says you can only get a subsidy if you buy on an exchange established "by the State," and while the left is trying to cast doubt about what the word "State" means in this context, the clear and simple language suggests that buyers on the federal exchange aren't eligible for subsidies.
If the Supremes agree, that would kick ObamaCare's very foundation out from under it, and clearly that's something conservatives want. But we often don't do so well with our victories, and that's because we're not prepared for what we need to do after we win. Remember, in the real lives of real people, a victory in this case means millions lose their subsidies - and in most cases, their insurance along with it - overnight. That, not the foolishness of the ObamaCare model in the first place, will be the story. And who do you think the left and their media cheerleaders will blame for it?
Nebraska Senator Ben Sasse is one Republican who seems prepared for the likely liberal onslaught, and has a proposal ready. You might not like it at first, because it appears on first glance to be a huge rescue of ObamaCare. But Sasse insists it is nothing of the sort. Rather, it's a temporary transition that holds policyholders harmless while Congress and the administration - quite possibly the next administration, that is - figure out what to implement when ObamaCare is finally gone:
When Team Obama then turns its guns on the holdout states and their 37 governors, the political pressure to adopt ObamaCare will be crippling. I fear that most governors will fold. We’ve already seen some Republican governors finesse their principles to expand Medicaid and secure extra money. The new pressure will be even more acute.
If governors cave, ObamaCare is never going away. ObamaCare’s command-and-control regime will reduce families’ choices, thwart innovation and chart a path of European-style debt and rationed access to health care.
It doesn’t have to be this way.
I propose a two-part strategy to avoid snatching defeat from the jaws of victory: First, in the event that the court strikes down the subsidies as illegal, Congress must be prepared to offer immediate, targeted protection to those hurt by this administration’s reckless disregard for the rule of law. ObamaCare took these patients hostage. Conservatives have a duty to save them.
So within a week I will introduce legislation that uses the 1985 “Cobra” law as a temporary model to protect those harmed by ObamaCare. Cobra offers workers who have lost their jobs the option to keep their health coverage for 18 months—so Congress should offer individuals losing insurance the ability to keep the coverage they picked, with financial assistance, for 18 transitional months. This would simultaneously avert the full-scale implementation of ObamaCare in these 37 suddenly desperate states. It would also help protect suffering patients entangled in the court’s decision to strike down illegal subsidy payments.
Second, Republicans need to unify around a specific set of constructive, longer-term solutions, and then turn the 2016 presidential election into a referendum on two competing visions of health care. Simply opposing ObamaCare isn’t enough. Republicans must address this country’s health-care crises—cost and uninsurance—both of which have been exacerbated chiefly by excessive federal meddling.
Sasse is right that there would be tremendous pressure on those 37 governors to set up exchanges, and he's also right that the federal action he proposes would take the heat off at least temporarily so Congress could figure out a better fix to the larger problem that is ObamaCare itself. By making the COBRA-like coverage extension temporary, you would theoretically put pressure on Washington to solve the problem within a certain timeframe.
I see several potential problems, though. The first is the 18-month timeframe. Assuming the King v. Burwell ruling comes down in June as is typical with these things, you're looking at the temporary coverage ending in December 2016. Who will be president then? Barack Obama. If the whole point is to make the 2016 presidential election a referendum of fixing ObamaCare, it makes more sense to put the expiration date somewhere in 2017 when the new president - hopefully not named Hillary Clinton - can sign the reform bill.
Now, if the current Congress wants to pass a reform bill in 2016 that's popular with the public, they can put it on Obama's desk and let him veto it. Then both presidential candidates can be put on the spot concerning their inclination to sign a similar bill the following year. But you can't let the coverage extension expire while Obama is still president, because then you'd be stuck with a reform that Obama is willing to sign.
You don't want that.
The other problem I envision has to do with how well Republicans can actually fight this battle in the arena of public opinion. You know what's going to happen: The media will beat up the Republicans and accuse them of playing games with people's coverage. As the expiration date approaches, they'll put pressure on those 37 governors to go ahead and create exchanges. You might even see Democrats in Washington refusing to engage in the process of how to fix the bill, arguing that this would all be unnecessary if the states would just set up exchanges.
This is the sort of scenario when the media will blame Republicans, even though it's the Democrats who are being obstinate. And when that happens, Republicans have a tendency fold like a cheap suit because they fear the media more than they trust the public to understand and get behind good ideas.
Sasse is right, though, that the Republican Congress can't just let all these people lose their coverage and do nothing. Because yes, if that happens, those governors will start caving to the pressure and you'll have exchanges set up in almost every state. And if that happens, yes, it becomes exponentially more difficult to get rid of ObamaCare.
Conservative activists have to recognize that getting rid of ObamaCare is not so simple as just repealing it and declaring victory. ObamaCare has sucked a lot of people into a complicated maze of dependent economic relationships and bureaucratic complexities, and it will take hard work and skill to free them from it. I'm glad Sen. Sasse has thought this through and is ready. But I think he needs to think it through a little more.
