The Supreme Court may not rule on the future of Obamacare subsidies until the end of the month, but congressional Republicans are out in force with a unified message: All this uncertainty is President Obama and the Democrats' fault.
GOP lawmakers are taking advantage of the buildup to the decision in King v. Burwell to revive many of their familiar anti-Obamacare talking points: The Affordable Care Act is a poorly written law full of bad ideas passed on a partisan basis by Democrats who didn't read the thing before voting. So if the court eliminates the subsidies from federal exchanges, the blame should lie with the president.
That tweet drew criticism—including some from Republicans—who noted the only reason subsidies may be lost is because of the case brought by conservatives challenging the ACA. But the intention, Thune said Tuesday, was to remind people about the impacts of the law.
"It was probably inartfully worded, but you know, a lot of people have been adversely impacted by Obamacare in the form of higher costs and loss of providers and that sort of thing," Thune said in response to a question about his tweet. "I think the broader point was it's a poorly written, bad law that's had lots of adverse consequences for people across this country and that's the point we're trying to get across."
The King v. Burwell lawsuit challenges the legality of subsidies offered on federal exchanges based on four words ("established by the state") located in the tax code section of the law. If these subsidies are eliminated, some 6 million people who receive subsidies on federal exchanges risk losing their health coverage.
"This is no accident. This is exactly the way the law was written—to coerce states to establish state exchanges," Sen. Ron Johnson, the Wisconsin Republican who has sponsored a bill to address the fallout—and repeal the individual and employer mandates—said in an interview. "And the carrot out there is if you didn't establish it, you're not getting the subsidies. So 37 states decided not to do that, and here's the result."
Obama says he is confident the court will rule in favor of his administration in King v. Burwell, but if it doesn't, Congress could just fix any resulting problem with a single sentence. The Supreme Court and both houses of Congress, of course, have conservative majorities, and Democrats would spend most of the summer pointing the finger across the aisle.
Speaking to the Catholic Health Association on Tuesday, Obama described as "deeply cynical" the continued effort to backtrack on the progress that he praised: Millions of people covered, people with preexisting conditions protected from discrimination, health care costs slowed.
"We're not going to go backwards. There is something, I have to say, just deeply cynical about the ceaseless, endless, partisan attempts to roll back progress," he said. "I understood folks being skeptical or worried before the law passed and there wasn't a reality to examine. But once you see millions of people having health care, once you see that all the bad things that were predicted didn't happen, you'd think that it'd be time to move on."
Both sides, however, are not moving on.
"Republicans aren't interested in a one-sentence fix unless that sentence is, 'Obamacare is repealed,'" Sen. John Barrasso said Tuesday on the Senate floor.
"The president can speak for himself on that, but I expect he's going to say, 'All these things that the Supreme Court said are illegal—just make 'em legal,'" Barrasso added in an interview afterwards. "We're not going to do some fake or phony fix for the president and his actions if the Supreme Court rules they're illegal."
Sen. John McCain had another idea on what a single-sentence solution would look like coming from Obama.
"I guess you can write one sentence that says, 'Everything I do is legal,'" McCain told National Journal, adding that it is "foolishness" to think the law could be fixed so simply.
"Then what's the effect on all the rest of the bill by that? That, in my view, that is a simplistic answer to a very complex issue. Because they're all interconnected," he said. "If it was all that easy, it would have been done originally. It wasn't."
For the most part, Democrats have refused to speak publicly about a fix, instead saying time and again that they are confident the court will rule in favor of the Obama administration.
Senate Minority Leader Harry Reid told National Journal that the discussion is still "nothing but hypotheticals. Let's see what the Court does," he said.
Sen. Ron Wyden, ranking member of the Senate Finance Committee, said there is "overwhelming evidence" that Congress meant for subsidies to be available for all Americans through Obamacare when they wrote the law.
"I understand that conservatives are gearing up. They've been all over the floor today and recent days," Wyden said in an interview. "It reminds me a little bit of the person who sees a small fire alongside the road, and they come along and throw matches on it, kerosene, and then there's a gigantic inferno, and they say, 'Oh my goodness, why did somebody else start the fire?'"
Republicans have put forth several proposals that could be passed in the wake of a King win, some as bills and others floated in op-eds. The most recent was introduced Tuesday by Sen. Bill Cassidy of Louisiana that would allow states to opt into the plan, which repeals the individual, employer, and federal essential benefits mandates while setting up health savings accounts for patients. Sen. Ben Sasse and Johnson have introduced legislation that would extend financial assistance to those whose subsidies were deemed illegal.
Johnson's bill has received the most support. It has 31 cosponsors, including Senate Majority Leader Mitch McConnell, who also cosponsored Cassidy's. Johnson's bill would extend subsidies on federal exchanges until August 2017 and repeal the individual and employer mandates.
"President Obama is being very unrealistic to think that the Congress, where we have so many people, because it's such a partisan bill, that they'd actually support cleaning up that mess with a single-sentence bill," Johnson said. "I don't think that's realistic to pass Congress, or quite honestly, for governors in pretty red states to take his little suggestion, just deeming their exchanges those established by the state."
This story has been corrected to accurately reflect the number of people who could lose coverage under the King v. Burwell decision.
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Caitlin Owens is a health care reporter at National Journal. Her work has previously appeared in the Los Angeles Times, The News & Observer and The Charlotte Observer. She is a graduate of the University of North Carolina at Chapel Hill.