WASHINGTON, February 7, 2015 — Next month the Supreme Court will hear oral arguments in King v. Burwell, a challenge to the federal subsidies paid to Obamacare enrollees who buy their insurance on the federal exchange. If the court sides with the plaintiffs, the law will be gutted.
Republicans are now working on a replacement plan whose outline was recently made public. If they try to pass it with just Republican support, they will be making a terrible mistake.
Prior to the passage of the Affordable Care Act in 2010, President Obama held meetings to seek input from the opposition. He discussed the issues with them, but he expected to do most of the talking and for them to do most of the listening. He didn’t really listen to their concerns. As a result, for the first time in American history, major legislation was passed without a single vote from the opposing party in either chamber of Congress.
Democratic unilateralism on the ACA left the country even more divided than it was under the Bush Administration. From that point on, every major issue was an “us versus them” situation without any compromise positions. This division has hurt the American people and is contrary to the spirit of a Democratic society.
Are the Republicans about to make the same mistake?
No one knows how the Supreme Court will decide King v. Burwell, but one likely outcome is that the Court will interpret the law exactly as it was written: Only people enrolled through state exchanges are eligible for taxpayer-funded subsidies. Since 37 states do not have state exchanges, this will gut the law and Congress will have to come up with an alternative.
Some argue that the justices will recognize the damage that a decision for the plaintiffs would cause to the country, so they will find that it was the “intent” of Congress to have subsidies paid to all enrollees, regardless of whether they got their insurance through a state or federal exchange.
That outcome is unlikely. It might be difficult to judge the intent of Congress, since not one member of Congress read the bill before they voted to pass it, but where there are clear signs of intent, they point to the literal text of the bill. The section under question went through multiple drafts unchanged, and MIT economist Jonathan Gruber, a highly-paid consultant to the Obama Administration on healthcare reform, is on record and on video saying just that: Federal subsidies were supposed to go only to people getting their insurance on state exchanges.
The literal interpretation is probably the correct one; the court will probably rule for the plaintiffs.
Republican Senators Burr, Hatch and Upton have just released what they call the new Obamacare replacement plan. They believe that this will signal to the court that the majority of Congress has a plan in place to avoid any major disruptions in the provision of health insurance if Obamacare is struck down.
The problem with the Republican plan is that it is a Republican plan. After five years of continued divisiveness in Congress which has spread to the entire country, we need an American plan, not a Democratic or a Republican plan.
Any bill should have at least one or two Democratic senators as sponsors. This may prove difficult, but it is not impossible. Indeed, for the plan to pass, at least six Senate Democrats would have to vote in its favor. If the event that the President vetoes it, Republicans will need at least 13 Senate Democrats to support the legislation.
There are competing demands by Republicans and Democrats about what must be included in a healthcare bill, but common ground actually exists. And by now, Democrats are well aware that most Americans do not approve of the current law.
Regardless of the Supreme Court decision, the reality is that the law as written and as haphazardly enforced by the White House is bad for the country. About nine million previously uninsured people now have insurance, but tens of millions of Americans are suffering because their premiums are too high. Their deductibles have substantially increased, they can’t see their preferred family doctor, they can’t go to the hospital of their choice, and many are forced to purchase health insurance policies they do not want or need.
Because the deductibles are now high, many people who have insurance are foregoing health care anyway; their insurance plans paradoxically make it unaffordable.
The law will eventually be changed dramatically, and may be completely repealed, especially if a Republican is elected President in 2016. But the Democrats will insist that whatever changes are made, the new or amended legislation must include insurance coverage for all Americans and assure that every American will have full access to quality health care.
The Republicans need to include Democrats in their replacement plan formulation. That way we end up with a true American plan. If we can do that, it may signal the beginning of the end of the nasty divisiveness of past years. After all, aren’t we all Americans?