WASHINGTON -- Phil Kerpen confessed he was getting cold. The president of the conservative group American Commitment and prolific social media presence behind the lawsuit over Obamacare’s subsidy regime had been wandering outside the Supreme Court on Wednesday morning without long sleeves.
The forecast predicted temperatures in the mid-40s. But Kerpen had shunned heavier clothing, wanting to show off a T-shirt he’d received as a gift. On it was the face of Jonathan Gruber, the now-infamous health care economist and adviser to Mitt Romney and President Barack Obama who had provided Kerpen and other Obamacare critics with a huge gift last fall.
It was then that old video footage surfaced of Gruber saying that tax credits to help purchase health care insurance were designed to encourage states to set up their own exchanges. Gruber subsequently disavowed those remarks, noting that in other contemporaneous works he had described subsidies as universal –- available on state and federal insurance exchanges. But that did little to alleviate his status as king goat. On Kerpen's T-shirt were the words, “I’m With Stupid” -– the "I" turned to arrows pointing to Gruber’s picture.
As the fate of Obamacare was being argued inside the Supreme Court, a far more boisterous, unruly demonstration was happening among Obamacare foes and supporters outside. This wasn’t quite the zoo that accompanied the first Supreme Court challenge to the president’s health care law. It was far smaller than that. But it still underscored how, years later, the divide over the Affordable Care Act hasn’t narrowed. Perhaps it’s widened.
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Signs declaring the law a success were countered with accusations of gross, illegal manipulation. Kerpen, now in a coat, accused the administration of using the prospect of state-based health insurance market calamities to “intimidate the court to decide not on legal grounds, but on policy ground and political grounds.” Down the block, pro-Obamacare groups produced in-the-flesh examples of what that calamity would look like.
“There is a joke that us parents of kids with pre-existing conditions say,” said Barbara Kornblau, an Arlington, Virginia, woman whose daughter was only able to get coverage on Obamacare and who would be unable to afford it without the subsidies. “And that’s that my daughter -– the lawyer –- can also work part time at Starbucks. Because Starbucks gives health insurance to part-time employees.”
If the emotional gulf between supporters and opponents was wide, the political one seemed unbridgeable. Asked what he thought about the millions of people who might lose their health care if the subsidies are struck down, Rep. Steve King (R-Iowa) argued that they’d welcome a return to the pre-Obamacare days. This struck several advocates as, well, insane.
“I would ask, who is he talking to?” said Dr. Debra Hatmaker, executive director of the American Nurses Association.
Pressed what could be done to fix the law if the court ruled that such a thing were needed, Rep. Marsha Blackburn (R-Tenn.) suggested that congressional Republicans and the Obama administration would work cooperatively together. Democrats said they assumed this was comedy.
“You mean this Congress?” Rep. Joseph Crowley (D-N.Y.) said, echoing a point made in arguments to the court by Solicitor General Donald Verrilli.
There were, indeed, two opposite universes occupying the same sidewalk on Wednesday, with nothing to keep them apart. And as the court session concluded around 11:30 a.m., one person chiefly responsible for the gathering walked out of the building.
Before she could get to her awaiting car, Kathleen Sebelius, former secretary of Health and Human Services, was hounded by reporters wanting her take on the proceedings. She said she felt good about the case, of course. It would have been odd for her to say otherwise. But how did it compare to the first Obamacare go-around, when the crowds outside were bigger and the constitutionality of the law’s individual mandate was on the line?
“I actually felt pretty confident about that too,” she said.
With reporting By Christine Conetta.