Fist bumps at the White House. Cries of outrage from Republicans.
After the Supreme Court last week rejected the most recent challenge to the Affordable Care Act, partisans on both sides of the Obamacare debate agreed: The law’s supporters had won and its detractors had lost.
They were mostly right. Had the lawsuit succeeded, 6.4 million people scattered across two-thirds of the states would have lost the financial assistance enabling them to get health coverage, disrupting insurance markets and substantially weakening President Barack Obama’s signature domestic policy accomplishment. Instead, the court turned away the lawsuit with a bipartisan, 6-3 majority. Chief Justice John Roberts, who wrote the opinion, seemed to be suggesting that he was exasperated with Republican attempts to undermine the law via litigation instead of legislation.
But the activists, attorneys, and partisans who conceived of and then brought the King lawsuit to court still managed to achieve something. By pushing the case as far through the legal process as they did, and sending the political world into a tizzy over it, they were able to freeze the political debate in place -- to maintain the fevered, highly polarized argument over whether the health care program should even exist.
That’s worked out pretty well for Republicans, because it’s meant they can keep using Obamacare to rally their activist supporters. It’s worked out poorly for Democrats, because it’s meant they can’t get serious about fixing the law’s very real shortcomings.
"The partisan litigation strategy ended up wasting a lot of resources," said Neera Tanden, an Obama administration veteran who is now president of the Center for American Progress, a progressive think tank.
It’s easy to forget now, but in November 2012, House Speaker John Boehner (R-Ohio) declared that Obama’s re-election meant that the Affordable Care Act was “law of the land.” He said it in response to questions from ABC’s Diane Sawyer, who asked whether Republicans would continue their crusade to repeal the law. “The election changes that,” Boehner said, expressing a sentiment widely shared among leaders of the GOP establishment at the time. It was time to move on, if only because the repeal effort seemed futile.
Conservative activists, both in and out of Congress, didn’t agree. They wanted to keep the debate focused on repeal -- and they succeeded, in part, thanks to a pair of developments.
One was the tumultuous introduction of insurance exchanges and insurance plans in the fall of 2013, as the law’s coverage expansion began. The second was a decision from a federal appeals court in the summer of 2014, when the exchanges were finally operating normally and millions had signed up for coverage. A three-judge panel in July ruled in favor of a lawsuit challenging the legality of tax credits in states where federal officials, rather than their state counterparts, were in charge of the new marketplaces for buying insurance plans.
Suddenly, a case that Affordable Care Act supporters had dismissed as frivolous looked very serious. That fueled conservative hopes that, just maybe, they’d have one more shot at wiping out part of the law -- or using the leverage from a court decision to extract major concessions from the Obama administration.
Those hopes grew in November, when the Supreme Court unexpectedly announced it would take up the issue. A debate over the intent of the law’s architects, already underway, became even more intense -- as the infamous videos of economist Jonathan Gruber, a former adviser to the Obama administration, played over and over again on Fox News.
It’s impossible to know how the arguments about King v. Burwell affected perceptions of the Affordable Care Act. But the case certainly inflamed partisan hatred of the law, giving Republican leaders new opportunities to attack it and the president's management of health care reform. (The lawsuit contended that the Internal Revenue Service, perhaps at Obama’s behest, lawlessly misinterpreted what the statute actually says.)
On a more practical level, the debate about King v. Burwell soaked up time and resources that progressives might otherwise have expended on efforts to improve the law. Just last month, for example, the advocacy and consumer support organization FamiliesUSA issued a report about the high out-of-pocket costs that affect many people who now have insurance, including those who bought coverage through the Affordable Care Act exchanges.
The report highlighted an issue that has worried progressives for years -- really, going all the way back to 2009 and 2010, when Congress wrote the Affordable Care Act. But it didn’t get much attention, partly because the organizations that typically make a big deal about these things (including FamiliesUSA) were so busy publicizing the potentially dire consequences of King v. Burwell.
It’s the same story with the Affordable Care Act’s so-called family glitch. Because of the way the law defines “affordability,” some people with access to insurance through employers won’t qualify for financial assistance, even though the premiums for a family policy will be far more costly than they could possibly pay. Progressives have been complaining about this for at least two years. But they’ve never been able to focus public attention on the issue, let alone get Congress to act.
"There's no question that with the law effectively on the line in 34 states, crucial issues either went unaddressed or were handled less-well than they might have been," Sara Rosenbaum, a health policy expert and law professor at George Washington University, told The Huffington Post.
Tanden, from the Center for American Progress, expressed similar sentiments. “The ultimately pointless King v. Burwell litigation took up resources that could have been devoted to making more people aware of the ACA's benefits, particularly from advocates. While CAP and others worked to make clear what the consequences of an adverse ruling was, we couldn't work on Medicaid expansion or other ideas to lower cost. That's true for the full spectrum of advocates.”
Of course, opposition to the law isn’t going to stop, just because King v. Burwell is history. Most of the Republican presidential contenders are falling all over themselves to promise that repeal will be a cornerstone of their governing agendas. Since a Republican president in 2017 would almost certainly be working with a Republican Congress, the threat to repeal the law is real. There are also more lawsuits in the works.
But if, in the wake of King, the intensity of opposition to the Affordable Care Act fades even a little, then the law’s supporters may have a chance to lay the groundwork for reforms they’ve had in mind all along -- like using government negotiation to bring down the price of prescription drugs, requiring that insurers beef up doctor networks, and bolstering the financial assistance for low- and middle-income people buying insurance. They might also have more success at lobbying for state-level expansions of Medicaid programs, so that low-income people in states like Florida, Georgia, and Texas can finally have the same coverage their counterparts in California, Minnesota, and Ohio do.
Such reforms wouldn’t sit well with Republicans, who have their own, more conservative agenda for amending the law -- an agenda that includes repeal of taxes on the medical device industry and loosening regulations that make coverage more expensive for younger and healthier insurance buyers. But Democrats and Republicans could probably find ways to at least make deals, with benefits for each side, if only they could have a constructive conversation about piecemeal changes to the law. The ruling in King v. Burwell makes it possible to imagine such a conversation taking place, even if it’s still a long way off.
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