This spring, the Supreme Court will hear King v. Burwell, a case in which the plaintiffs are challenging the federal government’s authority to disburse Obamacare tax credits and charge tax penalties in states that haven’t established an Obamacare exchange — which is about 35 of them. The plaintiffs contend — and have a credible case — that the Affordable Care Act simply doesn’t authorize these actions in states without exchanges of their own. If the Court agrees, and the federal government and states do nothing else, large parts of Obamacare will collapse in a lot of states — coverage would become completely unaffordable, rates would skyrocket, etc.
So if the decision goes against the feds, what can be done? States with Obamacare-friendly governments that didn’t bother to set up an exchange aren’t really setting up plans now, but can probably go through a formality — they just slap the state’s name on the federal exchange.
But what about states — Texas, say — where the the governor and legislature are implacably opposed to Obamacare? A variety of left-leaning health-policy experts tell National Journal the Obama administration can’t do anything if states won’t cooperate:
“There are no administrative fixes that are realistic,” said Neera Tanden, president of the liberal Center for American Progress. “We don’t believe there’s any administrative fix.” . . .
“If the government loses this case, there will be considerable pain, and theres no easy, clean, quick fix,” said Nichols Bagley, a law professor at the University of Michigan who has written extensively about the case. . . .
“Given the political composition of most of the states that are not operating their exchanges, that’s going to be a problem,” said Timothy Jost, a law professor at Washington & Lee University and an Obamacare supporter. “There’s nothing the administration can do to change that dynamic.”
In some sense, they’re right: Obviously there’s no plausible way for the federal government’s executive branch to establish state exchanges without any involvement from the states. Congress would have to pass something in order to keep the subsidies flowing in non-cooperative states, which throws open the law entirely — for it to collapse or for a Republican Congress to rewrite much of it.
But when has the logic of law stopped the Obama administration — and many liberals — from doing what they think necessary for the desirable, socially optimal outcome? Given this administration’s penchant for ignoring or rewriting laws, it’s not hard to imagine the White House coming up with a nonsensical but workable way to keep the subsidies flowing in the event King goes against them.
The authorities quoted in the piece — the two most prominent liberal law commentators on this case and the head of one of the most important, Obama-friendly liberal think tanks — are undermining the Obama administration’s future ability to do whatever it wants to save the law.
It is notable that liberal immigration scholars and activists long maintained that the Obama administration could implement something like the executive amnesty Obama declared last November — it was the president who repeatedly denied he had that legal authority.
Now we’re in the opposite situation. The administration, so far as I can tell, hasn’t really weighed in on post-King possibilities, while some of its outside supporters are saying there’s little they can do. But that hasn’t always quite stopped them, either. Nicholas Bagley, the Michigan law professor quoted in the National Journal story, has argued that the Obama administration’s 2013/2014 delays of the employer mandate are essentially unprecedented as a legal matter and rest on “shaky” legal ground, though he hasn’t called them outright illegal.
So when it comes to protecting the law that bears his name, President Obama is more or less legally shameless. A risky ploy to save the law without state cooperation would probably attract more lawsuits, but it would be years until those are resolved, too — a Democratic Congress could fix the law by then, etc. What’s good or bad news, depending on how you look at it, is that we are still not likely to reach this juncture — I wouldn’t bet on the Supreme Court deciding King v. Burwell in a way that tears Obamacare apart.
But it’s possible they do — and I would bet on the Obama administration’s being ready.