Politics & Policy

How a Conservative Victory in King v. Burwell Could Quickly Turn Into a Political Defeat

Congressional Republicans are increasingly worried that a Supreme Court victory in King v. Burwell may prove a Pyrrhic one.

With House and Senate leadership not yet united behind a single plan, congressional Republicans have been forced to contemplate a nightmare scenario: If the Court’s ruling invalidates subsidies for those covered through the federal exchange, GOP governors may set up state-based exchanges that restore the flow of subsidies and make Republicans complicit in Obamacare’s implementation.

To avoid that, most congressional Republicans support providing temporary financial assistance to the people affected by the King ruling. There are several plans to do so, but opposition within the ranks to all of them. Some conservatives consider taking any action tantamount to propping up Obamacare. All of which means that internal bickering may prevent Republicans from capitalizing on their best chance to cripple Obamacare since the Supreme Court upheld the law in 2012.

RELATED: King v. Burwell’s Mere Existence Is Politically Remarkable

A vote in favor of providing Obamacare subsidies, however briefly, would typically be anathema to Republicans, but the King lawsuit has scrambled the political math because that vote would come as the president urges governors to set up state-based exchanges and demands that congressional Republicans pass a bill allowing subsidies to flow through a federal exchange.

A vote in favor of providing Obamacare subsidies, however briefly, would typically be anathema to Republicans, but the King lawsuit has scrambled the political math.

“As soon as the messaging is out there saying, ‘Look, a half-a-sentence fix saves millions of people from either losing their coverage or having massive spikes,’ we as a party won’t be able to sustain that pressure very long — certainly not through the August recess,” says one top Republican aide.

Several Republican lawmakers have developed plans to avoid that outcome. Senator Ron Johnson (R., Wis.) introduced a bill that would extend the Obamacare subsidies until 2017 in exchange for the repeal of the individual mandate, the employer mandate, and other onerous regulations in the law. Most Republican senators cosponsored the bill. House Budget Committee chairman Tom Price (R., Ga.) wants to provide tax credits to those who would lose their coverage, grant states the option of setting their own coverage requirements, and allow the creation of insurance pools that would make it easier for individuals to buy coverage.

RELATED: Congress, Here’s How to Prepare for King v. Burwell

House GOP leadership hasn’t indicated how they plan to react to a King victory, creating the impression that they regard the issue as a hot potato that they hope doesn’t fall in their laps. “That’s clearly where the leadership is,” says one Republican congressman.

It’s a difficult issue for party leaders, given that conservatives, unable to stomach the precedent that such a compromise would set, might refuse to support any proposal that provides temporary subsidies to those affected by the Court’s decision in King.

“If Republicans run scared on effectively repealing part of the law, are they going to run scared if we try to repeal the whole law?” the top aide says.

RELATED: Remember ‘Reconciliation’? The GOP Can Move an Agenda without Democratic Support 

Even conservatives who expect Republican governors to cave hesitate to pass a bill providing the temporary subsidies that might avert the creation of the state exchanges in the first place. “The moment that you put your name on something that extends the subsidies, you’re approving of Obamacare,” says a member of the House Freedom Caucus, a group of more than 30 lawmakers that formed with the goal of pressing party leadership to adopt conservative positions. He allows that a short-term extension of the subsidies might be worth doing if Congress could “get rid of the individual mandate at the same time.”

That proposal bears some resemblance to the Johnson bill that Senate leadership supports, but it would almost certainly face united resistance from Democrats, in a repeat of the fight over DHS funding three months ago. And even if it somehow did manage to reach Obama’s desk, it would be guaranteed to meet with his veto.

Some Republicans, including members of the House Freedom Caucus, haven’t made up their minds about how to proceed in the event that the Supreme Court strikes down the federal-exchange subsidies.

#related#“What I prefer to do is only extend [the Obamacare subsidies] long enough until we can repeal the entire bill, and that’s going to take a new president,” says Representative John Fleming (R., La.), who is chairing a newly formed task force on the issue for the Freedom Caucus. Fleming says he’d also like to expand the use of Health Savings Accounts. “I’m not sure that most conservatives will [support extending subsidies], maybe half, but I think most Republicans will want to do something.”

“The most likely option is that Congress is unable to pass a fix,” another senior Republican aide predicts. “Either Republicans won’t be able to settle on a fix or the president will veto whatever we do come up with. At that point, it will be up to the governors to pass their own laws deeming the national exchange a state exchange. That is the path of least resistance.”

If a Supreme Court ruling against Obama turns into a hollow victory for conservatives, congressional Republicans could be in for a bloodletting.

— Joel Gehrke is a political reporter for National Review.

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