How Liberals Can Save Obamacare

The Supreme Court has started sending out its annual puffs of smoke, and not all is lost. Let’s just say that yesterday would have been a pretty lousy day for the Court to decide that Texas was required to make and sell license plates bearing the image of the Confederate battle flag.

Oddly, we can thank Clarence Thomas for that one, since he joined the four liberals in going against the wishes of the Sons of Confederate Veterans. But we’re not going to fare as well with Thomas on the biggest case on the docket—King v. Burwell. Yes, it’s a close call between King and the same-sex marriage case as to which is more historically important. I give the nod to King because one fairly soon day or another, same-sex marriage is inevitable in this country. Universal health coverage is anything but.

To review: This is the case brought by right-wing plaintiffs who found one little phrase in the law that seemed to indicate that only states, not the federal government, could establish health-care exchanges. The legal issue, such as it is, is whether a statute should be interpreted precisely as written or as it was likely intended.

As I and many others have noted, this is surreal. The idea that the federal legislature would pass a federal law that empowered state governments to carry it out but not the federal government is one that no normal, non-Obamacare-obsessed person could take seriously, but here the Supreme Court is, taking it seriously.

Okay. Now let’s get to the speculation. Obviously, the Court can rule against the conservative plaintiffs and say that the broader legislative intent was clearly for the federal government to run insurance marketplaces. That’s an unambiguous win for the administration, and everything stays on course.

Or the Court can say sorry, it’s worded the way it’s worded. That would yank the Medicaid subsidies (also called “tax credits”) away from the 6.4 million people who’ve used them to buy coverage under Obamacare. That would be a disaster for those people, and for the administration. It would also put Republicans in a pickle because they’d have to come up with some way to help those 6.4 million while still keeping the base riled up about Obamacare’s inherent evil.

But here’s the interesting scenario. There’s this thing in jurisprudential circles called the “Chevron deference,” so named because of an old case that involved Chevron. It means that other branches of government should defer to the executive branch on matters of administrative interpretation of law. It’s become a thing in the law, this Chevron deference, and the Court might find it appealing here because what it means is that the Court can get away with not taking a side on the question of legislative intent per se and just say well, under Chevron, it’s up to the sitting administration how to interpret the statute.

I trust you grasp the implications here. This would constitute a short-term win for Obamacare because the Obama administration is not going to reinterpret the statute. But, come a new administration…da dum. Says Samuel Bagenstos of the University of Michigan law school: “If the Court upholds the Obama administration’s rule on Chevron grounds, the next administration will likely be able to flip the result simply by changing the IRS regulation. So if you care about Obamacare, you could see the presidential election, quite properly, as a referendum on it.”

But a referendum on what, exactly? I doubt it’s going to be as simple as keep vs. repeal. Play it out. By then, there might be, what, 8 or 9 million people with subsidized coverage in the 34 states at issue here instead of the current 6.4 million. For Hillary Clinton, it seems straightforward enough. She says of course I’m going to stick with the current administration’s interpretation of the law; I’m not going to take health coverage out of the hands of 9 million people.

And what does the Republican say? On the one hand, he has to stand for the repeal of Obamacare; whoever becomes the nominee will have made that promise 1,372 times during the course of the primary campaign. But on the other, he also can’t say he’s going to take health care away from 9 million people, so he’ll have to find a way to say what Republicans in Congress are saying right now in the event the Court finds with the plaintiffs challenging the law—that he’ll keep the subsidies and fix it.

But those positions completely contradict each other. Repeal means repeal. Keeping the subsidies equals non-repeal. The Republicans can’t have it both ways.

Now let’s zoom in on Florida and its 29 electoral votes. Right now, according to the Kaiser Family Foundation, 1.32 million Floridians would lose their subsidies, and presumably their coverage, if the Court strikes down Obamacare. But say the Court pursues this Chevron angle. By November 2016, that number will be even higher. Florida, as I’ve written before, is a state that the Democrats can afford to lose but the Republicans absolutely cannot. Is a Republican presidential candidate going to tell 1.6 million Floridians—to say nothing of Florida’s hospitals and doctors and pharmaceutical interests, all of which will also be benefiting from the law—that they can kiss their coverage and payments goodbye if he wins? Obviously, he cannot. So he’ll fudge it and hope (undoubtedly correctly) that most people don’t understand how it all works.

So if the Supreme Court issues this kind of ruling, that’s the referendum I would expect we’re going to get. The Democrat saying we’re going to keep Obamacare, while conceding that it needs fixing around the edges; the Republican saying we need to repeal Obamacare, but simultaneously promising to continue a central feature of it. The Republican position is totally untenable. A lie, fundamentally.