Plenty of Affordable Care Act foes would be thrilled to see the Supreme Court gut Obamacare and then stand back as the law bled out in gruesome fashion before the public. But a number of more strategically adept conservatives understand that soliciting the Court to turn the biggest piece of social policy in 50 years on its head is less likely to succeed if it looks like a cynical power play (which of course it is) with no contingency plan. To enhance their odds, their plan needs a political component—one that telegraphs to squeamish justices that they’re ready to triage.
That’s why Republicans on the Hill are scrambling to reach consensus on an ACA alternative—a consensus that has eluded them for five years—ahead of the Court’s decision. But the obvious truth is that Republicans are nowhere near ready to pass an ACA alternative, let alone any significant ACA revisions that President Barack Obama would sign.
This isn't news to key Republicans, many of whom are now in search of a Plan B. One of those Republicans is North Carolina Senator Richard Burr, who has coauthored a white paper sketching out an ACA alternative. On Fox News Thursday, he acknowledged that this Congress won’t coalesce around his or any other plan before Obama leaves office. But he also suggested Republicans won’t be empty handed when the ruling in King v. Burwell comes down.
“I think that there are going to be a lot of ideas not only in Congress but around the think tanks here in Washington and around the country,” Burr said. “But I do say this, we're going to know a lot more after the Supreme Court hears the King v. Burwell case, and that's going to be a short-term interim response. The long-term is, how do we revamp this in 2017 and after so it works for America's patients?”
The suggestion buried in there is that Republicans will proffer a stopgap of some kind, to patch the law between this summer and the end of Obama’s presidency, and then let the presidential election determine the shape of a permanent solution.
This raises several questions, including most importantly: whether Democrats would accept a temporary fix, whether Republicans would be able to pass one on their own, and whether Obama would sign a bill that essentially leaves his signature achievement in an uneasy limbo. I’ll have some further thoughts in a subsequent article about how an adverse King ruling would shake up 2016 politics. But I think there’s something a little too cute about Burr's idea. Proposing a temporary patch is basically a tacit admission that it'd be extremely straightforward to fix it permanently. If you’re only willing to paper over the problem for a year and a half, you’re implicitly asking the justices to give you legislative leverage—and to meddle in presidential politics—to stack the deck for conservative policies that wouldn’t stand a chance without their intervention.
I’m not sure that provides the Court much cover. And I’m equally unsure that Republican leaders could pass a temporary patch if they wanted to—both because I suspect absolutely livid Democrats would accept nothing less than a complete fix, and because, without Dem participation, Republicans would be unable to convince their own hardliners to spend billions of dollars on a two-year stopgap, during which the law-as-implemented would take deeper and deeper root.
It’s impossible to say how much this kind of shadow communication to the Court really matters, if it matters at all. Democrats for their part have taken the opposite tack of refusing to grapple publicly with the consequences of an adverse ruling, out of fear that conservative justices will treat the existence of a political strategy as an invitation to toss the law back into the political realm. I’m deeply doubtful that either approach is fooling anyone on the Court. These are intelligent people. They surely know that Democrats will react politically if they wipe out the subsidies, and they surely know that even under the best of circumstances, ruling for the King plaintiffs will create a huge substantive mess and an even bigger legitimacy problem for the Court.
But everyone’s playing it safe by hedging. Republicans thus can’t let the absence of a consensus alternative leave them empty-handed. And if for that reason they propose restoring the subsidies for a year and a half, it will change the post-King landscape, and the presidential election, in unpredictable but meaningful ways.