Access to quality health insurance for millions of Americans, the future of the most important piece of domestic legislation passed in decades, and the political fortunes of both major parties is in the hands of nine men and women.
Sometime in the next month, the Supreme Court will issue its ruling on King v. Burwell, a case in which its conservative plaintiffs are clearly relying on rewritten history in a last-ditch effort to cripple the Affordable Care Act.
The case centers around a poorly written section of the law dealing with providing subsidies to those who can't afford to buy health insurance through the exchanges created by the ACA. The section states that subsidies will be available for those who purchase insurance through exchanges "established by the state." This is an issue, because three dozen states refused to set up their own exchanges and left it up to the federal government. The plaintiffs argue that this wording makes the more than 7 million Americans who purchased health insurance on the federal exchange ineligible for subsidies.
The plaintiffs claim that the wording was intentional. That those drafting the law intended to only make the subsidies available to state-run exchanges as a way to strong arm states into establishing their own health care marketplaces. As Robert Pear reported this week in The New York Times, this theory is not backed up by the people involved in drafting the law. Former senators and staff from both parties told Pear that it was never the intention of those drafting the law to only make subsidies available on the state-run exchanges:
"I don't ever recall any distinction between federal and state exchanges in terms of the availability of subsidies," said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.
"It was never part of our conversations at any point," said Ms. Snowe, who voted against the final version of the Senate bill. "Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange." The four words, she said, were perhaps "inadvertent language," adding, "I don't know how else to explain it."
Despite the fact that the plaintiff's case lacks merit, both parties must be prepared for the possibility that the Roberts court will not take a pass at a second chance to destroy President Obama's signature domestic policy achievement.
As Politico reports, Senate Republicans are already aggressively pushing a plan authored by Sen. Ron Johnson (R-WI) that would restore the ACA subsidies for two years:
With several Senate Republicans facing tough reelections, and control of the chamber up for grabs, 31 senators have signed on to a bill written by Sen. Ron Johnson (R-Wis.) that would restore the subsidies for current Obamacare enrollees through September 2017.
The fact that the fix is not permanent, and punts the problem until after the 2016 election is alarming, but it gets much worse:
But the administration would have to pay a heavy price -- the bill would also repeal Obamacare's individual and employer mandates and insurance coverage requirements.
So, Johnson's bill isn't a fix at all. It's an opportunistic ploy to take advantage of the post-ruling chaos to prevent Republicans for paying any price in 2016 for millions of Americans losing their health insurance, in exchange for crippling the rest of the ACA.
Johnson's plan may be terrible policy wrapped in a cynical political ploy, but at least he has a plan. For their part, Democrats seem to be sitting back and hoping that either the court does the right thing or that voters will hold Republicans accountable for the fallout of a ruling in favor of the plaintiffs. As Anderson Cooper once said, "hope is not a plan."
Democrats need to make it clear that the only responsible fix would be a simple one-page bill that corrects the drafting error in the original law and allows subsidies for the federal exchange. They need to make sure voters understand that one party believes in achieving universal health coverage and the other wants to take away coverage from millions of Americans who need it most.
As has been the case since 2011, there is a good chance House Republicans will step in and help their party snatch defeat from the jaws of victory. The Politico piece on Johnson's plan reveals Tea Party House members are digging in on their opposition to anything that doesn't totally and immediately repeal the entire ACA:
When asked about Johnson's bill, Rep. Matt Salmon (R-Ariz.) gave a thumbs-down and, imitating a game-show buzzer, said only "Eerrrrrrntt!"
Republican Study Committee Chairman Bill Flores of Texas, who said he is planning to release an Obamacare replacement plan in the coming days, said: "If you're voting for an extension, you're essentially voting for the continuation of Obamacare -- that's a real problem."
While an intra-party battle among Republicans will hurt their chances at a political victory, Salon's Jim Newell warns that this may actually provide Senate Republicans with an opportunity to triangulate:
But there's another more dangerous scenario for Democrats. House Republicans hold out on any concessions whatsoever for a long time, and then they "fold" and agree to the Senate Republicans' plan. This would position Johnson's bill publicly as the supposed "reasonable compromise." And of course it's not that at all. It's a direct plan to render the Affordable Care Act ultimately inoperable.
There are millions of stories waiting to be told about people who will suffer if the court rules for the plaintiffs and Sen. Johnson's "fix" becomes law. Democrats cannot sit back and let Republicans dictate the terms of this debate. They need to be telling those stories now.
For six years, Democrats have spent virtually all of their political capital to enact, implement and defend a law that has covered nearly 17 million Americans and vastly reduced the rate of health care spending in the U.S. During that same time, Republicans have stood for nothing more than undoing this progress. Seeing this major achievement crumble at the 11th hour would be devastating.
King v. Burwell and its potential aftermath represent the last stand for those looking to kill the ACA. Democrats must go on offense to shut down those efforts, and that offensive must begin immediately.