Thanks to the Supreme Court, Republican candidates will be able to continue attacking the Affordable Care Act without having to come up with an alternative. (Or, at least, a plausible alternative.) But a Republican president may find himself in a no-win situation.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” wrote Chief Justice John Roberts, in Thursday’s 6-3 ruling that the federal government may provide tax subsidies to help people buy health insurance even in states that refuse to set up A.C.A. exchanges under the law. “We must respect the role of the Legislature, and take care not to undo what it has done. (This “judicial humility,” as Slate’s Jordan Weissman describes it, is sure to be cited by opponents if the court, as expected, invalidates state bans on same-sex marriage.)
As The New York Times reports, “Some states set up their own exchanges, but about three dozen allowed the federal government to step in to run them…. The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on ‘an exchange established by the state.’”
If the Supreme Court had gone the other way, there would have been chaos, with millions of Americans no longer able to afford health insurance. The Republican-led Congress would have had to fix the A.C.A. to restore the subsidies—or do nothing and hope that voters would blame Obama for the loss of the same subsidies the Republicans have been trying to get rid of since the law passed. A June 8 tweet by South Dakota Sen. John Thune represented the latter strategy, as well as a Mount Rushmore–size example of chutzpah: “Six million people risk losing their health care subsidies, yet @POTUS continues to deny that Obamacare is bad for the American people.”
Roberts, perhaps aspiring to the “no drama” label often applied to President Barack Obama, decided not to go down the road of political nihilism. Writing in CommonWealth magazine, health care expert John McDonough speculated that Roberts didn’t want “to repeat the scandalous ruling in Bush v. Gore, in 2000, that the court’s decision installing George W. Bush as president would represent no precedent for any future case.”
Josh Marshall writes that the chief justice was protecting his own reputation and saving Republicans from themselves: “Had the Supreme Court issued a ruling today that cut off Obamacare subsidies, it would have driven conservative talk radio to a level of thrill and joy that only depriving Americans of health care could possibly bring. But…it would have further discredited what remains of the Court’s reputation, thus undermining the major gains Roberts has achieved. To paraphrase the Rolling Stones, Roberts has done a marvelous job of getting judicial conservatives what they need, just not always what they want. And indeed, he often saves them from things that are really the last thing they should want.”
But Roberts has no such power to give a Republican president what he needs. If the GOP wins the White House and retains Congress in 2016, what will happen if a repeal of the A.C.A. reaches the president’s desk? Will John Thune issue a celebratory tweet at the prospect of “six million people losing their health care subsidies”?
Among Republican presidential candidates, Jeb Bush is put in the most awkward position by the court decision upholding Obamacare. His campaign followed the GOP pack and dutifully tweeted, “I am disappointed in the Burwell decision, but this is not the end of the fight against ObamaCare.” Few Republican primary voters will be reassured by this, not when Jeb’s brother was the one who appointed the chief justice that some conservatives now call “a disgrace.” Jeb Bush is already considered “soft” on immigration; would he hesitate to sign a bill that takes health insurance away from millions of low-wage American households? (The idea that Congress would first pass any kind of A.C.A. alternative that goes beyond allowing healthy young men to buy junk policies is, as Justice Antonin Scalia would put it, “pure applesauce.”)
The court’s preservation of Obamacare will surely come up during the Republican presidential debates later this year. The political imperative will be for the candidates to promise they will never nominate another John Roberts to the bench, but it’s going to be tough to come up with a litmus test here. “I promise to nominate Supreme Court justices who will throw out any law passed by Congress and signed by me that has a confusing phrase in it” sounds too ridiculous even for the TV political satire Veep.