Obamacare is headed to the Supreme Court again this year in the case of King v. Burwell, which challenges the Obama administration's decision to allow insurance subsidies inside federal exchanges. One of the key differences between the way that Republicans and Democrats are preparing for the case is that Republicans are openly thinking about what comes next if the challengers win.
In an appearance before the Senate Finance Committee yesterday, The Hill reports, Sylvia Matthews Burwell, who runs the Department of Health and Human Services, refused to specify what, if any, contingency plans the administration was making for the possibility that it might lose in court. If the High Court sides with the challengers, the ruling would invalidate insurance subsidies in the 36 states where the federal government operates an exchange under Obamacare.
The administration and its allies have emphasized the disruption such a ruling would cause, but have been less forthcoming about how they would respond. Burwell refused to address those questions again yesterday morning, saying only that "my focus is on completing and implementing the law, which we believe is the law." Her question-dodging was aggressive enough that Sen. John Cornyn (R-Texas) suggested that she was "contemptuous of Congress's responsibilities," according to The Hill.
It's clear enough what the point of all this is; the administration wants the Court to believe that it would be maximally painful to side with the challengers. Any hint of a contingency plan would soften the blow.
Which is why, in contrast, multiple groups of Republicans in Congress are now working on readying health care alternatives should the Supreme Court rule in favor of the challengers.
The first of those, a joint plan from GOP Sens. Burr, Hatch, and Upton, was announced late last night. The proposal, dubbed the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act, is an update of the Burr-Hatch-Coburn plan released last year. It's an Obamacare replacement plan that starts by wiping the Affordable Care Act from the books entirely, ditching its individual mandate and many of its restrictions and regulations.
In its place, the plan would implement a system of tax credits to help low-income individuals purchase coverage, prohibit lifetime limits on insurance plans, adopt looser age-rating restrictions than Obamacare, and seek to protect some individuals with preexisting conditions through a continuous coverage guarantee for individuals shifting between plans in different insurance markets.
It would also begin to limit the preferential tax treatment of employer-sponsored insurance by requiring workers to pay federal income tax, at whatever their rate already is, on health benefits valued at more than $12,000 for an individual or $30,000 for a family. The revenue raised would help offset the plan's tax credits.
The plan is sure to generate controversy. Given the timing, with Obamacare once again up for a high-stakes Supreme Court review, it's sure to generate heated criticism on the left. It also plows into many of the right's competing notions about how to reform health care, particularly in its use of tax credits. Louisiana Gov. Bobby Jindal's op-ed this week warning the GOP against offering "Obamacare lite suggests some of the fault lines here.
It's not a perfect plan, even for Republicans. But here's the thing: It's not intended to be.
Instead, the plan is better understood as an attempt to focus Republicans in Congress on health policy options and alternatives at a critical time. It's a starting point, one that ideally will exist on a continuum of plans and proposals—some more comprehensive, others more narrowly targeted—to be released between now and the Supreme Court's decision, which most observers expect at the end of June. The point of the proposal is not for it to be the plan, but for it to be a plan, hopefully one among many—making it something the administration refuses to say it has.
Read the full Patient CARE blueprint below: