Can Congress Fix Healthcare Reform if SCOTUS Removes Federal Subsidies?

A discussion on last week’s Supreme Court oral arguments for King v. Burwell got very heated as America’s Health Insurance Plans kicked off its National Health Policy Conference in Washington, DC, on March 11.

On one side of the argument, siding with the defendants and in favor of keeping subsidies in the federal marketplace, was Neera Tanden, president of the Center for American Progress, and Nicholas Bagley, assistant professor of law at the University of Michigan School of Law. In agreement with the petitioners was the plaintiffs’ own lawyer, Michael A. Carvin, a partner with Jones Day, and Lanhee J. Chen, PhD, David and Diane Steffy Research Fellow at the Hoover Institution, and director of domestic policy studies and lecturer at Standard University and Stanford Law School.

The majority of the panel discussion centered on discussing the potential effects if the Court sides with the plaintiffs when it delivers its decision, which is expected to come in June.

Ms Tanden and Mr Bagley both seemed to believe that even if Congress is able to get its act together and present a bill to the president to fix the chaos that will likely ensue if subsidies are removed from the federal marketplace that President Obama will not want to sign the bill into law.

“I think the challenge here is the president is not up for election at the end and he’s going to say … I can see him saying, ‘You broke it you fix it,’” Ms Tanden said with Mr Bagley echoing the sentiment.

Dr Chen expressed his belief that Congress will likely try to fashion some sort of solution because Republicans recognize that a failure to act will cause policy and political consequences that could jeopardize their standing not just in the Congressional election, but also in the presidential election in 2016.

Republicans, he added, see a ruling that removes subsidies in the federal marketplace as an opportunity to craft an “off ramp” that can put an alternative in place. However, he expressed strong disappointment in HHS and Secretary Sylvia M. Burwell, who spoke shortly after the panel, for not working to prepare for the contingency that the plaintiffs win.

Mr Carvin particularly took offense at the idea that the president would place the burden on Congress and Republicans to fix what Mr Carvin views as a problem the president created. He pointed out that the president passed this law without a single Republican vote and the IRS was responsible for altering the law.

Ms Tanden and Mr Carvin got into a hot debate over the topic of who was to blame.

“This is the type of finger pointing you’ll likely see” if Congress puts a bill together and gets it in front of the president, Mr Bagley finally said.