Hillary Clinton has outlined a fairly predictable series of domestic policies so far in her presidential campaign: campaign-finance reform, a minimum-wage hike, and free access to community college. But she will be gifted a golden opportunity to define her agenda if the Supreme Court, in its King v. Burwell ruling, overturns a critical element of Obamacare: the billions in subsidies that are dispersed through the federal health care exchange.
As unpopular as the president's health care reforms have been, a ruling that would make it difficult for middle-class Americans to pay for health care coverage would put Republicans in a political pickle. It would risk alienating voters who are no fans of Obamacare, but care more about their own bottom lines than the ideological food fights that have surrounded the law. They just want to pay lower costs for higher quality health care, and fear that the president's health care reforms accomplish neither. But if Republicans insist on withholding the restoration of subsidies in exchange for other Obamacare concessions—and Democrats resist—the blowback of any ensuing gridlock could be serious.
Do Republicans celebrate that a central pillar of Obamacare is overturned, even if it makes them appear insensitive to the plight of the newly uninsured? Do they offer one of the many legislative alternatives being prepared, but settle for the status quo if Democrats aren't willing to play ball?
If they can't, the ruling's consequences will lie heavy on the GOP's shoulders. When your party has been relentlessly calling for the law's repeal, but you can't coalesce around an alternative, it's hard to see voters giving Republicans the benefit of the doubt. And President Obama and Hillary Clinton won't waste any time in exploiting GOP divisions for political gain.
Republicans are keenly aware of the blowback potential. Sen. Ron Johnson of Wisconsin, an outspoken conservative up for reelection in 2016, warned his party of the political consequences in a Wall Street Journal op-ed this week: "If Republicans wait [to coalesce behind a solution], we will have no chance of countering Mr. Obama's response." Johnson also touted his own legislation, which would repeal the individual and employer mandates in exchange for maintaining subsidies until 2017.
Good luck getting that—or any of the other alternatives being discussed on Capitol Hill—through a divided Senate. If the law is rolled back, the White House is expected to propose legislation fixing the language to allow funding to resume for a federal exchange. On paper, a ruling theoretically could give Republicans leverage to draw concessions from the White House to restore funding for the exchanges, a deal along the lines of what Johnson proposed.
But the likelier scenario is one we've seen so often on Capitol Hill, when Republicans will have trouble getting unified behind any one proposal. As in budget battles of the recent past, conservative maximalists looking to stand on principle would be up against the GOP pragmatists worried that anyone losing benefits is political poison. And the high-stakes showdown will be taking place just as the 2016 presidential campaign is ramping up.
"There will be a blame game, it'll force a conversation, and if everyone's smart, they'll make adjustments," said former GOP Rep. Tom Davis. "I don't know if our guys are capable of doing that, and that's what makes this so radioactive."
A former GOP congressional operative now involved in health care policy argued that Republicans could find themselves in the opposite situation they did in 2013, when they offered legislation allowing consumers who lost plans because of Obamacare to keep their old coverage. This time, it will be Democrats making a similar argument, calling on Congress to restore funding so the 8.8 million affected by any ruling will be able to pay for their health insurance.
"The polling on health care is divided into thirds—one-third hates the law, one-third is indifferent to it or doesn't feel too strongly, and one-third thinks it's great. The trap the Republicans will fall into is that while there's a plurality that dislikes the law, when you take away people's benefits, that's a much different proposition," said the operative.
It's particularly risky because it threatens to impact the views of voters who aren't necessarily fans of the law in the first place. While public opinion about the health care law is polarized along racial lines—whites view the law very unfavorably, while minorities are more positive about it—nearly two-thirds of those who signed up on the federal exchanges are white, according to government statistics. So while many Obamacare skeptics view the law as a redistributive scheme, there's no guarantee Democrats will shoulder all the blame if these voters lose their coverage as a result of any judicially-created morass. Republicans have been making inroads in traditionally-Democratic Rust Belt states like Pennsylvania and Wisconsin, but these states also have many white working-class voters who aren't all instinctively against government benefits. And every Midwestern presidential battleground state is currently using the federal health care exchange.
The biggest winner in a potential skirmish would be Hillary Clinton, for whom health care has always been a major liability. Her involvement in the Clinton administration's failed attempt at health care reform was one of the low points in her husband's presidency. It's not an issue she was hoping to talk about, given how much of a vulnerability it has been for President Obama. In Iowa this week, she gave an anodyne answer arguing that she'll maintain the law but fix the parts that are broken: "Part of what I'll be doing during the campaign is looking for ways that we keep what works and what's lowering costs."
But a ruling that guts an essential part of the law gives Clinton a political escape hatch. She'll be able to talk about restoring affordable coverage to those affected without having to embrace the other unpopular details of the law. She'd be able to distance herself from Obama's unpopular record on the subject, while being able to slam Republicans for intransigence. It would jibe with the theme she's test-driving for her campaign, that she's more willing to take a pragmatic approach to polarizing issues.
The most-sustainable path to rolling back Obama's health care law has always been through the legislative process, not the courts. Public opinion has consistently been critical of Obamacare, and with the possibility of a Republican president, the GOP could have the upper hand in making changes after 2016. At minimum, some of the least popular mandates could get overturned. But a favorable judicial ruling for Obamacare opponents would make the political element of replacing Obamacare significantly harder for Republicans. And if Republicans don't present a unified front, such a ruling could end up solidifying a law the GOP had so hoped to erase.
This article is from the archive of our partner National Journal.
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