I have long viewed Halbig (now King), along with the origination clause challenge, as the opportunity for the Supreme Court, and Chief Justice Roberts in particular, to get a “mulligan” for NFIB v. Sebelius (see here, here, and here). Incoming Senate Majority Leader Mitch McConnell views King in a similar fashion, but from a very different angle.
I think it’s the single worst piece of legislation we’ve passed in at least the last half century and the biggest step to European-ize American health care.
Having said that, it bears the president’s name. The chances of his signing a full repeal are pretty limited. There are parts of it that are extremely toxic with the American people. The elimination of the 40 hour work week. The individual mandate. The medical device tax. The health insurance tax. I think you could anticipate those kinds of things being voted on in the Senate. They’ve not…Such votes have not been allowed in the past.
Who may ultimately take it down is the Supreme Court of the United States. I mean there’s a very significant case that will be decided before June on the question of whether the language of the law means what the language of the law said, which is that subsidies are only available for states that set up state exchanges. Many states have not. If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing, presented– that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.
The confluence of law and politics in King is fascinating. Putting aside the merits of the case for a moment, McConnell is correct about one thing. If the Court invalidates the IRS rule, come summertime, a lot of states will be in a very precarious position. If they do not establish exchanges–and at least Florida and Louisiana said they would not–insurance will quickly become unaffordable for millions. This outcome creates an ultimate game of brinkmanship between the Congress and the President. Forget about the budget and shutdown. This game of chicken will reverberate far beyond barricading monuments in Washington.
Consider the possibilities. The Court invalidates the rule in June. Congress passes a bill to provide subsidies, along with repealing other aspects of Obamacare, for example the unpopular 40-hour work week requirement or various other taxes. If Obama vetoes that, then millions are unable to afford insurance. Would Republicans take the hit there, or the President? What if Congress lumps it in with repealing the individual mandate? Or the requirement that mandates that old plans cannot be grandfathered? You get the gist. It is in this sense that McConnell sees a possible “mulligan.” The Court’s invalidation of the rule would allow Congress the opportunity to revisit portions of the law that are not working.
It is in this sense that I disagree with my friend Nick Bagley who told WaPo:
“McConnell confirms here that the litigation is politics by other means. It sounds like McConnell is treating the Supreme Court as another political institution.”
I don’t think McConnell is treating the Supreme Court as a political institution at all. (If you want to see how politicians treated the Supreme Court as a political institution concerning NFIB v. Sebelius, read Unprecedented). Rather, I think he is seizing the opportunity after the Court acts. There have been many Supreme Court decisions in the past that invalidated acts of Congress, that then gave way to an impetus to legislative overrides. A series of employment decisions in the late 1980s and early 1990s yielded the Civil Rights Act of 1991. Employment Division v. Smith begat the Religious Freedom Restoration Act. Boerne v. Flores resulted in RLUIPA. Hamdan resulted in the Military Commissions Act. Ledbetter v. Goodyear resulted in the aptly named Lilly Ledbetter Fair Pay Act. Etc.
One obvious difference between those cases and King is that members of Congress liked the laws before the Court invalidated them, and took action to override the Court. Unlike Obamacare, there were no clamors to repeal the employment laws prior to the Civil Rights Act of 1991. But I don’t know how much that matters. Politicians in all case seize the moment when the Court invalidates a law, to pass a new law that changes the ex ante status quo.
If the Court invalidates the rule, Congress will have to react in some way. They can either (a) do nothing, and watch people lose coverage, or (b) do something, to provide legal subsidies. Because of the new Republican-controlled Congress, there will be a huge asymmetry between what that “something” is, and what the President wants. And, in light of our separation of powers, there will have to be compromise. Vetoing a bill that eliminates unpopular elements of Obamacare, to save popular elements, will be a risky calculation.
Of course, in the end, pulling at Obamacare, one string at a time, may cause the law to ultimately Unravel.