Obamacare

The White House Has No Backup Plan If It Loses on Obamacare at the Supreme Court

GOP Senator says President Obama doesn't believe there's a need for a King v. Burwell contingency plan.

|

Whitehouse.gov

In March, the Supreme Court is set to hear arguments in King v. Burwell, a case challenging the Obama administration's decision to allow subsidies into the 36 health insurance exchanges it runs under the law.

The administration argues that Congress intended for subsidies to be available in both state and federally run exchanges; the challengers argue that text of the law, which says that subsidies can only flow through an "Exchange established by a State," prohibits subsidies in federal exchanges. 

In recent weeks, the administration's supporters have highlighted a number of estimates of how big the effects would be if the Supreme Court ruled against the administration; millions who now get subsidized insurance through the federally run exchanges could lose their subsidies. 

So what happens if the administration loses? This seems like an important question, but publicly, at least, the administration is giving little indication that it has developed any backup. And in a meeting with members of Congress yesterday, President Obama reportedly indicated that the administration was not working on alternatives.

"Sen. John Barrasso (R-Wyo.) says that at a roundtable discussion with congressional leaders he asked Obama why the administration hasn't informed the public that subsidies are an endangered species," reports this morning's Politico Pulse newsletter. "The president replied that he doesn't anticipate the need for a contingency plan."

That's in keeping with the administration's M.O. so far, which prioritizes displays of confidence that they will emerge victorious on the case. But it's a somewhat awkward fit with all the warnings of how disastrous a loss could be. 

The administration's lack of public contingency planning, however, creates an opening of sorts for Republicans in Congress who back the challengers. As Georgetown Law Professor Randy Barnett wrote recently in USA Today, "Supreme Court justices are reluctant to invalidate a law on which many relied. It will be far easier for the justices to enforce the law's existing language if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling."

I have argued that the Supreme Court should consider the legal merits of the administration's decision to authorize subsidies without regard to the impact, but Barnett is almost certainly right that the potential impact will at least be part of the discussion. It will be noted and known, even if it is not exactly determinative.

Given that consideration, the GOP should take the administration's lack of revealed contingency planning as an opportunity to work toward the Obamacare alternative the party has promised for so long. The administration has declined to answer the question of what would happen if it loses; those backing the challengers shouldn't ignore it. 

NEXT: John Stossel on Why Government Always Wins

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This deference crap is killing us. If Congress were worried about its idiotic and poorly crafted laws blowing up completely because of their unconstitutionality, perhaps they’d craft more limited and less illegal laws. After all, if there’s a period of chaos in something like healthcare because Congress acts stupidly, there will be consequences. That’s already happened even without striking down this stupid, evil law.

    1. I’m really really really really hoping that Obamacare demonstrates to the average voter the consequences of meddling with shit that was working just fine before fucking with it.

      I’m not very optimistic, however.

      1. Unfortunately, healthcare wasn’t “working just fine” before Obamacare.

        Of course the main cause of that was the government fucking with shit back when healthcare WAS “just fine”.

        1. Compared to now, it was working, even as big a mess as the government had already made it.

          1. Basic life rule – you can ALWAYS screw things up even more.

            Governments are sadly generous in providing examples.

    2. The Supreme Court said in their opinion in the first Obamacare case that it’s not the responsibility of the Court to protect voters from the consequences of their electoral choices or politicians from the consequences of their bad legislation.

      Considering that it’s the same Supreme Court in place now, hopefully the Court will hold to that rationale in this case. If the law was written to screw states that didn’t go into the exchanges, the Court needs to uphold the law…even if that screws the people of those states who use Obamacare. If the consequences are dire, it’s their own fault for re-electing Obama.

      1. Unfortunately, U, the Court said that in the process of disregarding legislative intent and the language of the statute in order to save OCare.

        So, if the Court holds to that rationale, it will be to disregard legislative intent and the language of the statute in order to save OCare. Again.

        1. WHat was amusing was that in different iterations of the Obamacare bill, the word ‘tax’ was changed to ‘penalty’. IT wasn’t inadvertent; it was willful – the epitome of a signal of legislative intent.

          A similar process was at play here.

    3. “We tried, America, but it was those evil, unelected judges. And pay no attention to the fact that we appointed those judges and are the only ones who can remove them from office.” /Congress

    4. If Congress were worried about its idiotic and poorly crafted laws blowing up completely because of their unconstitutionality, perhaps they’d craft more limited and less illegal laws.

      I suppose the other side of that is that maybe congress would just start to go all Andrew Jackson and just completely ignore the court if they got too into striking down unconstitutional laws. The court needs to give them some defference if they want to maintain any power.

    5. It strikes me that a policy of deference doesn’t work once Congress and the agencies know about it. Once that happens, they can exploit it by passing vague stuff, or passing stuff that appears to say one thing (so the voters are reasonably happy with what was passed) but is just vague enough for the agencies to interpret another way (the way Congress really wanted it to go, although they couldn’t pass a law that said that because they’d get elected out for it), and think “Well, we know SCOTUS will bail us out of this shit.”

      For a bunch of Ivy League law grads, SCOTUS can be sort of stupid like that.

      1. Or genius, depending on which side they’re on.

  2. No point in having a backup plan when you have the NSA.

    1. Yeah, maybe he knows they don’t need a backup plan.

    2. Yeah, it provides another opening for people to wonder what they have on John Roberts if Obamacare stands after this latest challenge…

      1. He didn’t follow the letter of the law when he and his wife adopted one of their daughters and the Obama administration is threatening to have the adoption reversed and the child removed from their custody.

  3. In recent weeks, the administration’s supporters have highlighted a number of estimates of how big the effects would be if the Supreme Court ruled against the administration;

    Which should be utterly irrelevant to the Court, but will be, I believe the real winning argument.

    1. In recent weeks, the administration’s supporters have highlighted a number of estimates of how big the effects would be if the Supreme Court ruled against the administration

      Conspicuously lacking are estimates of “how big the effects would be” if the Supreme Court ruled in favor.

      1. Already filed? By the way, is this actually going to be a hearing held before the SC, or are they simply going to review the existing case in the lower court?

  4. Their backup plan is to probably to ignore the courts.

    1. “He’s made his decision, now let him enforce it”?

    2. No, I think most democrats are praying the court will end this monstrosity. They know it will keep kicking them in the balls for years, long after Obama is out of office. The best would be for the courts to kill it, then the Dems will just blame the black robes and speak lovingly of Obamacare for another century and speak of passing it again.

      1. This.

        Plus they would run the next 5 election cycles based on how Team Red “stole health care.”

      2. Yes – And run on new and innovative ways to destroy healthcare.

      3. Most Democrats, yes. Obama himself, no. That gap seems to be ever widening.

    3. Their back up plan is to wield it as a club to get Republicans to “fix” the law.

    4. Their backup plan is to probably to ignore the courts.

      I bet Obama has a few fiats up his sleeve right now.

  5. What, me worry?!

    1. Evacuate? In our moment of triumph? I think you overestimate their chances.

  6. Come on, he’s Chocolate Jesus – nothing bad can possibly happen to his edicts.

  7. “The president replied that he doesn’t anticipate the need for a contingency plan.”

    If things go wrong, he can always fall back on the classics.

    1. Blame Bush.
    2. Go play golf.
    3. RACISM!
    4. A pen and a phone.

    1. I’d be ecstatic if the President did nothing but play golf from now until the end of time. At least that’s time he’s not spending fucking everything up.

      1. Well, unless you have a wedding planned…

  8. It will be far easier for the justices to enforce the law’s existing language if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling.”

    IOW, the Court is likely to make the correct ruling only if it knows doing so will have no real effect.

    What are the odds that the Repubs will vote to save ObamaCare like this, anyway?

    1. I’d still lay money on 5:1

    2. What are the odds that the Repubs will vote to save ObamaCare like this, anyway?

      The aren’t called ‘The Stupid Party’ for nothing.

    3. Does complete repeal count as a viable alternative?

    4. Awesome logic. SCOTUS won’t overturn an unconstitutional law unless Congress is ready to create a constitutional law that does exactly the same thing. It can be applied in so many other awesome (f’ed up) ways.

      Korematsu vs. US – SCOTUS could rule that internment during WWII was okay. Not because they thought it was constitutional, but just because they didn’t have a better option for dealing with the fear of potential terrorists.

      Kelo vs. New London – SCOTUS could rule that eminent domain was okay. Not because it was kosher with 4th Amendment, but just because they didn’t know a better way to steal that property.

      Dred Scott – SCOTUS ruling wasn’t because they thought slavery was constitutional. They just had to rule that way because Congress wasn’t ready to pass a better law to enforce keeping people as property.

      No… there’s nothing wrong with using that standard. Nothing at all.

  9. After the last OCare SCOTUS debacle, if I were the Prez I wouldn’t be too worried about Roberts leaving the “if Congress did it, it must be Constitutional, and if its not, we’ll make it Constitutional” reservation.

    1. ^^Unfortunately, this.

  10. Maybe they know something no one else does?

  11. Now that we know Roberts is capable of ruling on ObamaCare based on how he thinks it will make the American people perceive the Court, doesn’t it behoove the Obama Administration not to have a backup plan?

    There not being a backup plan may be the center of their strategy to Roberts: Don’t you know what’s going to happen if your rule against us, Mr. Roberts?

    We’re talking about a disaster of biblical proportions.

    Old Testament, real wrath of God type stuff. Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes…The dead rising from the grave!

    Human sacrifice, dogs and cats living together… mass hysteria!

    And all because you decided that Congress controls the purse strings, Mr. Roberts. Who do you think you are?!

    1. They want a disaster if the law is repealed. And they’ll blame the Republicans the whole way, all the time taking steps to make the chaos worse.

      1. never forget, it is always all about Obama. Neither he nor the people around him give a shit about the country.

    2. I think you are right Ken. They don’t have a plan because they want the pain associated with losing to be as great as possible. They figure they can bully the court with the threat of it and if they don’t, they will just blame the court for all of the resulting problems.

    3. We’re talking about a disaster of biblical proportions.

      Old Testament, real wrath of God type stuff. Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes…The dead rising from the grave!

      If I’m wrong, nothing happens! We go to jail – peacefully, quietly. We’ll enjoy it! But if I’m *right*, and we *can* stop this thing… Johnny, you will have saved the lives of millions of registered voters.

      If someone asks you if you’re a God, you say, “Yes!”.

      Damn that movie was awesome.

  12. I say Obama will use his overinflated sense of Executive Privilege and cause a Constitutional Crisis. He is lame duck and just egotistical enough to do it. An EO or some other force down the throat thing. I am not very good at predicting this stuff but I feel good about it.

    1. So do I. Interesting times!

  13. This is the back-up plan. I think they realize over the long run O-Care isn’t going to work for a myriad of reasons and that it’s just a means to an end. They just want the illusion of giving people health care so when it’s inevitably taken away (either by a court decision, congressional action, or bankruptcy) they can then move to single payer.

    1. A bold plan; to bet on Government *losing* power.

  14. my neighbor’s ex-wife makes $77 hourly on the internet . She has been out of a job for nine months but last month her check was $18454 just working on the internet for a few hours. read………….
    ????? http://www.cashbuzz80.com

  15. I don’t think Obamacare was ever supposed to ‘work’ even as explained. This administration is one of the more brazenly politically and short term focused I can think of. They love to propose things not so they can become law and work but to divide and cause controversy, and try to take short term political advantage of it. If Obamacare gets struck down he’ll just turn it into a talking point, and he won’t have to deal with the ongoing disaster that the law was producing.

    1. One of the charming things about people with narcissistic personality disorder is that their conception of what constitutes a policy that ‘works’ often has no overlap with the conception held by non-disordered people.

      It’s not uncommon for a narcissist to make claims or to do things that give them adulation in the short term that are utterly untenable or disastrous in the longer term – even if the short term is between now and fifteen minutes and the disaster strikes twenty minutest from now.

      That is because what works is the adulation and attention they get now. In fifteen minutes the actions that get them the adulation they want will be different, and they will then do those. The wreckage is of no more consequence than wrapping paper that needs tossing into a dustbin. What we view as catastrophe is to them a mere annoyance. Conversely, a good idea that accomplishes the organization’s goals well and cheaply will not be perceived as one that ‘works’ if it results in no adulation for the NPD sufferer.

      1. This is quite accurate. See the works of my childhood friend, Professor Seth Spain, for proof.

      2. There is no adulation for the NPD sufferer because the sufferer is not the one who has NPD.

      3. “dustbin” tarran…is this poetic choice or are you actually a limey and the mask is slipping?

        1. I learned English in Turkey – most of the books came from blighty old England.

          I defiantly used British spelling into eight grade after we immigrated to the US.

          Shit, I still have a bunch of Enid Blyton books in a box somewhere.

    2. I think you are right. It was supposed to have a public option. Without that, it can’t work. They just felt they had to pass something and passed it anyway.

  16. Considering John “PenalTax” Roberts, Obama is probably right not to be worried.

    1. I’m not sure. Considering the heat he took for that case it’s hard for me to imagine Roberts being on the side of the four liberal justices against the other four conservatives on an Ocare case.

      1. Hmmm, I guess it depends on how big his ego is and how big a hit he thinks he can take.

        1. Or whether he rolls a 1 on the day of the ruling.

          1. Susan…healthcare THACO is 2d12.

  17. Of course they don’t.

    A Backup plan would mean that they couldn’t play chicken and dare the court to rule against them

    1. Of course, tbey are in this predicament because they played chicken with the states and lost.

  18. “Supreme Court justices are reluctant to invalidate a law on which many relied. It will be far easier for the justices to enforce the law’s existing language if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling.”

    God dammit. How does the failure to plan for a contingency have any bearing on the constitutionality of the case?

    1. Let me anarchosplain’ it to you. That blindfold that lady justice is shown to wear? Completely a figment of people’s imagination. Doesn’t exist. It does not matter how much we want it to exist. It does not matter how much judges want it to exist. Nothing can conjure it into existence.

    2. “Your honor, shit’s real fucked up and shit, but can we risk the possibility of fucking shit up even worse if you fuck this shit up?”

      1. Is that from Solicitor General Camacho?

      2. The Judge: Order, Order!

        Bob McKenzie: Gimmie a toasted back bacon, hold the toast.

        Doug McKenzie: Don’t make me laugh, eh.

        The Judge: I remind you not to speak, until you are spoken to!

        Bob McKenzie: He’s startin’ to sound like the old man. Soon he’ll be sending me out for beers.

        1. I could crush your head, like a nut!

      3. “Besides, look at that guy! His shit’s all fucked up and he talks retarded!”

        1. And he talks like a fag.

  19. The plain language of the ACA should have gutted it the last time it was before the brought Supreme Court. No reason to think it will make a difference this time with the likes of Roberts weighing in.

    1. which is why Suderman does a disservice by using the truncated “established by the state” clause, playing into the ruse that intent was ambiguous.

      the actual clause was “established by the state under 1311”. congress saw fit to clearly differentiate between state exchanges (1311) and those that the feds created on their behalf (1321). so including 1311 would be redundant, superfluous language if both instances were to be treated the same.

  20. To be fair, it isn’t the responsibility of the White House to come up with a contingency. That would be the job of Congress.

    1. To be equally fair, the White House could be working energetically with Congress right now to come up with a contingency that is satisfactory to both. (Hell, it would probably be a cakewalk with this Congress.)

  21. Wouldn’t it be fantastic that the wording of a law would be what killed this thing, just like these prog’s pretended “regulate” meant to make any law they please. Sweet sweet irony. Suck it, assholes

  22. As someone who had affordable insurance, lost it because of Obamacare, bought a new plan that was twice as expensive and has to take the subsidy to bring the plan back down to what I had been paying, this would suck giant donkey balls since Texas didn’t set up an exchange thus losing the subsidy.

    I still say kill it with fire.

    (What are the chances that the prices are inflated so as to account for people getting the subsidy and they’ll return to a normal price if the SC kills them?)

    1. “What are the chances that the prices are inflated so as to account for people getting the subsidy and they’ll return to a normal price if the SC kills them?”

      Pretty much 100%. Plans are priced based on expected demand, which is based on the assumption that there will be subsidies. No subsidies means less demand which will mean a lower price.

      Funny how Supply and Demand is one area where the party of Truth and Science is willing to ignore them both in favor of putting their hands over their eyes and shouting “Neener, neener, it doesn’t exist if I can’t see it!”.

      1. I’ve always seen Medicare D in just this way. Everyone is still paying pretty much the same out-of-pocket. The govt. subsidy is just welfare for the pharmas.

  23. http://cdn.rt.com/actualidad/p…..8b4639.jpg

    ^ This is the Ukrainian government’s new ‘Adviser on Business Investments.’

    1. Nice, but I still prefer Crimean prosecutor lady, Natalia Poklonskaya. She can cuff me any time.

    2. Ukraine will be experiencing some definite growth. The country will definitely grow because of her.

      1. “Well, my telephone rang it would not stop
        It’s President Kennedy callin’ me up
        He said, “My friend, Bob, what do we need to make the country grow?”
        I said, “My friend, John, Brigitte Bardot.
        Anita Ekberg. Sophia Loren. Country will grow.”

  24. Question: If Elizabeth Warren loses her government coverage, does she qualify for the Native American ACA exemption?

    1. How

      1. lol that took me a second

  25. if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling

    If the Court wants to play political games, here’s my move:

    Congress tees up hearings and marks up a bill to “solve” this “problem” somehow. This process is near the finish line in late June, to lead the Court to believe that Congress is just waiting to clean up the mess.

    Then, when the Court rules against the IRS, the bills all die.

  26. Or, perhaps a miracle happens, and the Repubs figure out that the lack of subsidies can be offset by removing the individual mandate entirely and stripping all the benefits and minimum coverage mandates.

    “Hey, not getting a subsidy is only a problem if (a) you are required to buy insurance and (b) that insurance is too expensive. We can solve that problem by not requiring you to buy insurance, and getting rid of federal mandates that drive up the price. Your move, Roberts.”

    1. That is just it. I hate it when people say it is too late to repeal this. Bullshit. Do what you describe and you would undo 90% of the damage this thing caused and effectively gut it.

      1. Honestly, the only damage done is to the millions of people who already had their employer provided health insurance dropped and probably have no hope of it coming back if the law is fixed/repealed.

      2. The other problem still remains- that the law mandates Pre-Existing conditions be covered. This will have the very bad impact of millions of people not getting insurance until they need it.

        There are a lot of little bits in this bill that need to die.

        1. Agreed. Even with the mandate and penaltax, I’m gaming the system. The penaltax is a fraction of what I would need to put out in monthly premiums.

    2. the individual mandate is only in force for states with subsidies. subsidies go out the window and that problem is automatically solved.

      look for blue states to get much more broker soon as the middle/upper middle class continues their migration from blue states – red states because of this.

  27. “The president replied that he doesn’t anticipate the need for a contingency plan.”

    The fix is in.

  28. “The White House Has No Backup Plan If It Loses on Obamacare at the Supreme Court”

    “Blame Republicans for taking away your Free Shit” isn’t a plan?

  29. I just got paid USD 6784 working off my laptop this month. And if you think that’s cool, my divorced friend has twin toddlers and made over USD 9k her first month. It feels so good making so much money when other people have to work for so much less. This is what I do
    ===================
    w??w??w.?u?s?a?-?r?e?v?i?e?w??.?????
    ===================

  30. Obama could care less he has implemented plans sufficient to bankrupt this nation all for the dreams of his daddy!

  31. Backup plan? Single payer, socialized health care. Obviously the answer, since “nothing else was fair”.

  32. There’s always martial law.

  33. It has occurred to me that if the administration loses, that might actually be politically beneficial to them.

    The reason is that the political cost of clawing back subsidies from people who obtained health insurance would be a massive firebomb, and they could wield it effectively against the Republicans to force the Republicans to make “fixes” to the health care law without fully repealing it.

    Obviously, If the case wins the first order of business will be to pass legislation making the subsidies available in federal exchanges. There will be ENORMOUS pressure to do this. So much that it may be a bargaining chip that the Democrats can use to not only make the Republicans pass a fix, but make them pass something that would be more favorable to the Democrats.

    1. To elaborate. The Democrats can play chicken and refuse to pass anything that doesn’t include a “fix” for the subsidies. They can then scream bloody murder if the Republicans try to include a bunch of other stuff like watering down the exchanges or repealing the individual mandate. The mainstream media will lap it up and portray it as those twisted Republicans trying to hold subsidies for desperate cancer patients “hostage” to their political games.

      They will demand, loudly, that the Republicans pass a “clean bill” that only includes the subsidy “fix” and a few other things – like the repeal of the medicla device tax. The media will again, cover it in the most favorable way possible for the Democrats and try to make the Republicans look like big meanies.

      You see what I’m saying? It would be very easy for the Ds to play it very much to their advantage politically.

      So, if you ask me, the R’s better be prepared to win in court, and they better have a playbook of their own ready.

      1. their playbook should consist of a single play, one that’s been an Edelman-to-Amendola ace in the hole for years: remove the state/local tax deduction from your fed taxes.

  34. Please wake up folks here are reason. The text of the law is not consistent with the intent and forbidding the subsidies for the 36 states who thumbed-their-nose at the ACA made the 36 federal exchanges be “established by a State” via State disobedience or State failures.

    1 + 1 + 1 + 1 = 4
    2 + 1 + 1 + 0 = 4
    2 + 2 + 0 + 0 = 4
    3 + 1 + 0 + 0 = 4
    4 + 0 + 0 + 0 = 4

    Five different ways to do the same exact thing.
    Oh gosh the GOP lawyers are too/to/two/2 busy…

    2^0 + 2^0 + 2^0 + 2^0 = 4
    2^0 + 2^1 + 2^0 + 0.0 = 4
    2^2 + 0.0 + 0.0 + 0.0 = 4

    The SCOTUS oligarchs are “culturally senile” but are not the idiots the twenty amici who filed exactly the same thing were.
    http://westlegaledcenter.com/p…..seId=42898

Please to post comments

Comments are closed.