Do SCOTUS Plaintiffs Understand the Potential Impact of Their Own Case?

This article is from the archive of our partner

If the Supreme Court rules in favor of the plaintiffs in King v. Burwell, the lawsuit seeking to upend the Affordable Care Act, an estimated 8.2 million Americans will lose their health insurance in 34 states. So why don't all the plaintiffs know that?

The most curious thing to come out of a report by Mother Jones' Stephanie Mencimer earlier this week was a conversation with plaintiff Brenda Levy in which Levy appeared to be unaware that millions of Americans would lose their health coverage if the lawsuit filed in her name succeeds. What's more, when informed that millions could lose their insurance coverage if the Supreme Court ruled in her favor, Levy said she didn't want this to happen. "I don't want things to be more difficult for people," she said. "I don't like the idea of throwing people off their health insurance." (Another plaintiff, David King, said he didn't mind that millions would lose their coverage since "they're probably not paying for it anyway.)

Levy is not a fan of Obamacare by any stretch, telling Mencimer that it caused many Americans to lose their health insurance (in fact, the number of uninsured Americans has dropped by more than four percentage points since the law went into effect). Such comments indicate she may not have a strong command of the law she's seeking to gut, or what winning her case would actually entail.

Yet seen another way, it's entirely understandable she might think people won't actually lose their coverage—Republicans in Congress have worked to signal that very message to Supreme Court justices. They want to communicate, as Senate Republican Conference Chair John Thune told Roll Call recently, that wavering justices needn't worry about any consequences of undermining Obamacare because the GOP will have an alternative ready to go.

The plaintiffs themselves appear to be under the impression that an outside actor will be able to step in and fix any problems that arise, arguing in their brief that if the Court rules in their favor, state lawmakers might be counted on to pick up the pieces. "And, indeed, if the original 'deal' is restored by this Court," they write, "states may well establish exchanges going forward."

Never mind that at this point there's no reliable way for states to step in and fix things. (The Wall Street Journal has a good rundown of the political and practical obstacles to reworking the exchanges.) And never mind that the picture doesn't look any rosier in Congress, where even Sen. Richard Burr of North Carolina, one of the three authors of the GOP's proposed alternative to Obamacare, admits the proposal is going nowhere for the next two years.

The Huffington Post's Jeffrey Young and Jonathan Cohn put the notion in perspective last week, writing that "congressional Republicans want Americans—especially the nine on the Supreme Court—to think the GOP can do in less than five months what it took the Democrats decades to achieve."

That message may have penetrated as far as the plaintiffs themselves, or at least one of them. Levy suggested that if her case prevails at the Supreme Court, the situation will be likely fixed at the local level. "I think [Virginia's Democratic Gov.] Terry McAuliffe wants to expand Medicaid," she told Mother Jones.

In fact, a group of GOP legislators from her state—the same people she's counting on to fix everything if her case is successful—filed their own brief, boasting in a press release of the consequences that a win could have. "Millions of people who would otherwise have gotten the illegal subsidies in a federal exchange would not get them, and many may simply decide to drop out of the exchange," they wrote. "Rates on those remaining in the exchange would rise, causing a 'death spiral,' with increasing numbers of people dropping out and continued rate increases."

Such lawmakers are not people likely to rush in and help with state exchanges. And if that's who Levy's counting on, she may be sorely disappointed. 

If there are any lingering misconceptions about what the Republican operatives who helped envision the legal theory behind the Supreme Court case really want, a quote by Competitive Enterprise Institute Chairman Michael Greve, should dispel it. (It was CEI that went and sought out prospective plaintiffs like Levy—individuals who could reasonably claim to have been negatively affected by Obamacare—to launch its attack.) Greve spoke of gutting Obamacare by any means necessary, calling it "a matter of political hygiene."

He was speaking at the American Enterprise Institute conference where the current approach to dismantling Obamacare was born. And he went on to encourage a litigating strategy that reached beyond the mandate to "concentrate on bits and pieces of this law," as current efforts do.

It's proved to be surprisingly effective strategy.

That Republican operatives with CEI ever explained the likely impact of a judicial victory to the plaintiffs they recruited, however, is looking increasingly dubious. Worse, the larger message of the Republican party, like the one articulated by Thune, is intentionally misleading. What's clear is that at least one plaintiff does not understand the potential results of the case being carried out in her name, and that is one too many.

This article is from the archive of our partner National Journal.