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“In A Terrible Predicament”: A Victory For Obamacare’s Challengers Will Be A Disaster For Republican Candidates

Once the conservative legal strategy that gave rise to King v. Burwell got off the ground, Republicans in Congress probably had no choice but to become cheerleaders for, or active participants in, the ensuing litigation.

The imminence of the decision in the Obamacare challenge, expected from the Supreme Court sometime this month, is exposing the terrible predicament the entire strategy created for the party.

The problems Republicans will encounter if they win King—eliminating billions of dollars worth of insurance subsidies—are fairly clear and have been detailed at length. But it is also quite conceivable that the whole effort will boomerang on the GOP  even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.

As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.

It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.

King, as Josh Marshall noted recently, “is a wholly-owned subsidiary of the Republican Party.”

That the case was conceived by conservatives and endorsed by Republicans has created an extensive paper trail tying the GOP to the consequences of a decision for the challengers. It has also forced Republicans to playact as if they can and will fix the problems that flow from an adverse King ruling. Initially the idea was to foam the runway for conservative justices eager to void the subsidies; it has become an accession to the reality that the public will hold Republicans to account for the ensuing chaos.

Among the pitfalls of the extended charade is that Republican presidential candidates will reject and condemn proposals to clean up a King mess if they even resemble constructive solutions.

“Things can’t be turned on a dime,” Senate Majority Whip John Cornyn told Politico. “People can run for president, but we’ve actually got to solve a problem.” Cornyn may have been thinking of his fellow Texan Ted Cruz, who wants to use King as a pretext to repeal all of Obamacare. But his discomfort with Cruz’ absolutism carries a whiff of inconsistency: Cornyn signed on to Republican briefs, first urging the justices to hear King and then asking them to void the subsidies. In January he eagerly anticipated that the Court would “render a body blow to Obamacare from which I don’t think it will ever recover.”

The promise of the King challenge has apparently faded since then. Republicans in Congress are quite likely incapable of solving the problem Cornyn was talking about in a way that pleases conservatives, and will be little better equipped if a Republican president discontinues the subsidies on his own. Six months ago, Republicans claimed excitedly that the path to repealing Obamacare outright ran through a victory in King. Now it seems that the best political outcome for Republicans would be to lose the case as conclusively and embarrassingly as possible.


By: Brian Beutler, Senior Editor, The New Republic, June 17, 2015

June 18, 2015 - Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , ,


  1. As mentioned before, while stranger things have happened, I do not see the court ruling in favor of King. They key point against King is why would the government set in motion a national plan of action only to allow some states to lose out. That makes no sense. I also see one of the easy fixes if King wins the decision for the state insurance commissioner to officially outsource the admin to the federal exchange. Some have said there would be additional suits if this occurred, but my guess is things will wind down as too much political capital has been spent and the risk is great.

    The other option would be for Congress to make some needed improvements to the ACA with the codification of the extension of subsidies. Now, the GOP will try to limit the length of time, but it would be wise of them not to be too difficult as they are the ones who clearly took their sand toys home and said I do not want to play with you.

    Yet, we lose sight of the fact the ACA is working pretty well under a variety of measures and to take away coverage for over 6 million people would be harmful to them, the state economies, and other policyholders. I have tried to speak as loudly as I can for the pawns in this terrible political chess game, as they will be the ones who get screwed if King prevails.


    Comment by btg5885 | June 18, 2015 | Reply

    • And to think how much better the ACA could be doing!


      Comment by raemd95 | June 18, 2015 | Reply

      • Agreed. George Mason University did a study showing in addition to helping people, expanding Medicaid would help the state economies and create jobs and save rural hospitals.


        Comment by btg5885 | June 18, 2015

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