Here’s something to watch for: Republicans claiming in some vague way or other that, if SCOTUS does that, they just might be open to fixing the law. This rhetoric — deliberately or not — might make a SCOTUS decision gutting the law more likely.
National Journal reports that top Senate Republicans claim they are already eying what to do if SCOTUS rules against the law. NJ reports that a Congressional fix — which would require re-writing a few words of statute — would originate in either the Finance or Health committees. The incoming chairmen of both — Orrin Hatch and Lamar Alexander — have begun to discuss ways of responding to a SCOTUS decision gutting the law, suggesting that perhaps a fix can be had in exchange for other changes to the law Republicans want.
We should treat such suggestions with extreme skepticism. It’s hard to imagine Republicans agreeing to any fix to the law that doesn’t require enormous concessions from Democrats in return. (Republicans will be under pressure from stakeholders in the states impacted by a SCOTUS decision to fix the law, but they may argue, perhaps understandably, that Democrats are to blame for faulty drafting, so why should Republicans salvage the law for them?) Beyond this, though, some Democrats closely following the health care debate believe there is a possible consequence — unintended or otherwise — that could follow from such rhetoric.
It all turns on one way Chief Justice John Roberts, the expected swing vote, might decide to gut the law. He might agree with the government’s argument that, read in its larger statutory context, the disputed “exchange established by the state” language doesn’t change the fact that Congress’ obvious intent was to provide subsidies to all 50 states. But he could still say that the language says what it says; that, given its plain meaning, it is obviously a mistake; and that it is not SCOTUS’s job to fix a mistake — that’s on Congress.
Thus, the “maybe we’ll fix it” rhetoric coming from some Republicans might make it easier to entertain the idea that Congress would fix the law in the event of a SCOTUS ruling against it. The problem is that other leading Republicans have already given away the game: GOP Senate leaders Mitch McConnell and John Barrasso have clearly stated that they view a SCOTUS decision gutting the law as accomplishing what Republicans failed to accomplish themselves through the political and legislative process.
As Nicholas Bagley explains, not only is such a SCOTUS ruling very likely to create a huge mess that could all but destroy the law in many, many states, but Republicans have already confirmed they are anticipating this outcome. Whether or not Roberts will care about this is an open question, but it is the reality of the situation.
So no, Republicans aren't going to "fix" Obamacare should SCOTUS rip its spine out, and if they do, the toll the GOP will exact will be devastating. Most likely the GOP will attempt to both exact a high price, then of course the Tea Party will scuttle the deal and the law will be in real trouble of collapsing.
Republicans of course are perfectly okay with that. Fixing it would require actual governance, and that, America, is going to cost you.
Executive action is all the rage in the White House these days, and it's hard to imagine a better candidate for unilateralism than fixing the Affordable Care Act in the wake of a crippling Supreme Court decision. That scenario would check every box: Republican intransigence; a top priority for Obama; and severe disruption in real people's lives.
There's just one problem: A good administrative solution might not exist.
"There are no administrative fixes that are realistic," said Neera Tanden, president of the liberal Center for American Progress. "We don't believe there's any administrative fix."
As the saying goes, now that we've determined what Republicans actually are, the only thing left to negotiate is the price.