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What Is the Interaction of the Supreme Court's Forthcoming King v. Burwell Decision with Health Policy?

Over at Equitable Growth: For the first time, we have a clue as to what Republican plans are for what to do with respect to health policy in the event of an anti-government Supreme Court decision in King v. Burwell. And the Republican plan of Nebraska Senator Ben Sasse is the same as the Democratic plan--override the Supreme Court. The difference is that the Democratic override would be permanent, while Sass is only proposing a temporary override. For now. READ MOAR

Now the obvious way for the Supreme Court to decide this year's ObamaCare case--King v. Burwell--would be to dismiss the case because it is a political football, and the plaintiffs lack standing because they have not suffered the kind of injury from government policy necessary for this to be a real case rather than a judicial intrusion into political questions.

If the Supreme Court does not take that road, the obvious way for it to decide King v. Burwell would be to note that the absence of a technical-corrections amendment bill makes the ObamaCare statute more than usually ambiguous, and that fifty years of unanimous Supreme Court administrative-law precedent says that agencies have broad discretion to interpret ambiguous statutes in ways that seem sensible to them.

If the Supreme Court does not take that road, the obvious way for it to decide King v. Burwell would be to note that when the federal government attempts to coerce states into acting as it wishes by withholding funds the state must be put on clear notice as to what will happen, when, and why; that ObamaCare did not do that; and that federalism concerns thus require the provision of subsidies to ObamaCare insurance purchasers whether they buy on the federal or the state exchange.

Supreme Court justices are cranky beasts, impelled more often by their beliefs about what the law should be or what their political party wishes than by logic, reason, and precedent. So odds are about one-in-five that a justice will decide the other way even on a question where there is no genuine split in logic, reason, and precedent. We would thus expect--given the three considerations that weigh heavily for the government in King v. Burwell--that the decision for the government would be 9-0 or 8-1, because each justice would have only a 1-in-125 chance of rejecting all of the government's standing, administrative law, and federalism arguments.

But we all know that if the government wins in King v. Burwell the decision is highly likely to be 6-3, and that the government may lose.

And the question is what to do if, this spring, five rather than three Republican Supreme Court justices are willing to reject standing arguments designed to prevent judicial intrusion into politics, overrule the unanimous Burger Court Chevron decision and throw half a century of administrative law into chaos, and disrupt federalism jurisprudence as well--all to promote the partisan end of removing ObamaCare exchange insurance coverage from states that rely on the federal exchange?

The Republican view is that then the Republican House and Senate majorities will pass their preferred ObamaCare replacement, and Obama will have to sign it to avoid total collapse. The Democratic view is that the Republicans have to come up with a plan and an offer, and then we will see what the future of health policy is.

But what is the preferred ObamaCare replacement? What is the plan and the offer?

Now, for the first time, there is a Republican legislator putting forward a proposal--but it is only a proposal that we pretend that King v. Burwell had not been decided, for a while.

For Nebraska Republican Senator Ben Sasse says that Republicans in Congress should immediately blink: rather than allow the Supreme Court's decision to go into effect, they should immediately pass a bill overruling the Supreme Court--but only for the next eighteen months:

Ben Sasse: A First Step on the Way Out of ObamaCare: "In the event that the [five Republican justices on the Supreme] Court...

...strike down the [federal-exchange health insurance] subsidies... Congress must... offer immediate, targeted protection.... Congress should offer individuals losing insurance the ability to keep the coverage... with financial assistance for 18 transitional months... [to] protect suffering patients entangled in the court’s decision to strike down... subsidy payments...

A game theorist--or even an experienced politician--would ask: and what will have changed in eighteen months to make the situation look any different?

Extending federal-exchange ObamaCare subsidies then becomes just another one of the must-do extenders, like postponing implementation of the SGR or raising the debt ceiling, that takes up Congress's time and occasionally threatens to disrupt the country's economic life for no good purpose. So why not just overrule the five Republican justices once and for all?

So why is Sasse proposing this? Is this his game--to permanently overrule the Supreme Court the day after the five Republican justices speak?


Certainly Sasse embeds his legislative proposal in a great deal of verbiage. Some of the verbiage is a very unconvincing claim that his proposal is not, in fact, a temporary-but-renewable ObamaCare fix and extension to overrule the five Republican justices:

This is neither an ObamaCare fix nor an extension of it. This is temporary, transitional relief--completely outside of ObamaCare--to millions of Americans who will suffer because of the administration’s illegal actions...

But it is a fix and an extension--albeit a temporary one!

Some of the verbiage is partisan-squid ink:

King v. Burwell... is... of profound national importance... challenges the legality of 75% of ObamaCare.... I am hopeful about the court’s decision.... ObamaCare’s central planning is unworkable and unpopular.... The court... [could deliver] a mortal blow to ObamaCare.... The Machiavellian fine-print that regulators wrote to protect their bedfellows... big insurers will be allowed to dump ObamaCare patients.... Cynics in the administration.... The administration has no plan to help.... We’ve already seen some Republican governors finesse their principles to expand Medicaid and secure extra money.... ObamaCare’s command-and-control regime will reduce families’ choices, thwart innovation and chart a path of European-style debt and rationed access to health care.... Those hurt by this administration’s reckless disregard for the rule of law. ObamaCare took these patients hostage.... The stakes couldn’t be higher. Either we will continue the march toward a harmful European-style system, or we’ll adopt real, patient-centered solutions...

Some of it is the plea, once again, for Republicans to form a rough consensus and put forward some health care proposal of their own--a thing that they have never done. Recall that even Richard Nixon's health-care proposal's legislative strategy involved combining centrist Democrats with about the one-third of early 1970s Republican legislators who were relatively liberal:

Republicans need to unify around a specific set of constructive, longer-term solutions, and then turn the 2016 presidential election into a referendum on two competing visions of health care. Simply opposing ObamaCare isn’t enough.... In the media’s caricature, Republicans have no ideas on health care. In reality, my colleagues have put forward many ideas. I don’t endorse every approach, but all of them are more humble than ObamaCare’s broken one-size-fits-all regime...

And some of it is simple recognition that if there turn out to be five rather than three Republican justices willing to break administrative law, the consequences are likely to be disastrous for public health:

Big insurers will be allowed to dump ObamaCare patients.... Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real...

Coupled with recognition that responsibility for the public-health disaster is likely to adhere to the Republican judges who overruled half a century of interpretive precedent, and to the Republican state governors and legislators who do not immediately do the state-level fix--that is, pass a short resolution establishing a state ObamaCare exchange and authorizing the governor discretion to delegate the operation of that exchange:

A deluge of attacks on Republicans for supposedly having caused this.... [In] the holdout states and their 37 governors, the political pressure to adopt ObamaCare will be crippling.... Most governors will fold.... If governors cave, ObamaCare is never going away.... Some... believe... winning King means winning.... I... doubt their strategy... inaction... enshrine[s] ObamaCare eternally...

Memo: Exchange Types:

  • State-based: California, Colorado, Connecticut, District of Columbia, Hawaii, Idaho, Kentucky, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Vermont, Washington,

  • State-partnership: Arkansas, Delaware, Illinois, Iowa, Michigan, Nevada, New Hampshire, New Mexico, Oregon, West Virginia.

  • Federal: Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota Tennessee, Texas, Utah, Virginia, Wisconsin, Wyoming.

Memo: Medicaid Non-Expansion:

  • Alabama, Alaska, Florida, Georgia, Idaho, Kansas, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia. Wyoming.

The full nullification states are thus: Alabama, Alaska, Florida, Georgia, Kansas, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wyoming. The full nullification states thus have 113 million people in them compared to 206 million people in the rest of the country.