This morning, I posted a bit on how the politics might play out if the plaintiffs win in King v. Burwell, the challenge to Obamacare led by right-wing activists. It would likely immediately become the major issue in the race for president. Not to mention congressional races, state legislative races, gubernatorial races — what to do next would likely dominate national and (in the 34 states potentially losing subsidies) state politics as well.
Over at the New Republic, Brian Beutler explores a scenario in which the government wins the case — and the subsidies continue — but the Court rules in a way that would still amp up the politics and put Republican presidential candidates hoping to tack to the middle in a tricky spot.
A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.
As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.
For the legal nerds, this is known as “Chevron Step 2.” The important point is that in a ruling tailored around this deference standard, the subsidies would continue under President Obama, but the next president could potentially nix the subsidies. (No one knows what will happen, but for what it’s worth, legal experts have told me on background that this is a plausible outcome.)
That would set up a litmus test for GOP candidates, as Beutler points out, since the next administration would then have the power to zap Obamacare subsidies:
It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.
If the plaintiffs win, GOP candidates can defer to the Court, say the law is the law, and bob, weave, and obfuscate. But if the government wins via Chevron Step 2, the politics will be even more stark: candidates will be pressured to take a position themselves, directly choosing to act to take affordable health insurance away from millions of low-to-middle income Americans. That’s probably fine with Sen. Ted Cruz, but not so appealing to frontrunners like Jeb Bush, Sen. Marco Rubio, or Gov. Scott Walker. Walker is already signaling that Congress should act to maintain subsidies if they’re lost; are Bush and Rubio prepared to promise to eliminate subsidies for 1.3 million citizens in their home state of Florida? Cue the commercials!
Same caveats I’ve mentioned before: the politics are almost certainly going to be messy, and Democrats should be cautious about fantasizing that a particular outcome from the Court will turn out to be benefit them in the polls. Ultimately, anyone who cares about access to coverage for millions of Americans should be rooting for the Court to reject the plaintiffs’ arguments in King. The policy stakes for people’s lives are bigger than political prognosticating.