BOOM: How Obama Could Skirt SCOTUS And The Lawsuit To Kill Obamacare

[Cali_Democrat]

The specter of the Supreme Court gutting Obamacare and putting health coverage for millions of people at risk is back in a very real way, with the justices taking up the lawsuit that would prohibit tax subsidies from being given to people in the 36 states that use the federal health exchange, HealthCare.gov.

But while the White House has been publicly mum about how it would address that worst-case scenario, policy experts have told TPM that there could be ways for the Obama administration to get around such a ruling.

The specifics would need to be worked out, but the crux is this: States could continue to use HealthCare.gov as their technical backdrop, but they would be considered state-based exchanges. That would allow the law's tax subsidies to keep flowing, even if the Supreme Court were to invalidate them on the federal exchange, as the lawsuit's plaintiffs argue it should.

"I imagine the administration would try to make it as easy as possible for states to set up exchanges, possibly including having the nuts and bolts still operated through HealthCare.gov," Larry Levitt, vice president at the non-partisan Kaiser Family Foundation, told TPM this summer before the case reached the Supreme Court.

Joel Ario, a former Health and Human Services official who nows works at Manatt, Phelps and Phillips, also told TPM back then that the administration "could make it much easier for a second generation of state exchanges to be established now that the federal government has a viable IT platform for both state and federal exchanges to use."

http://talkingpointsmemo.com/dc/obamacare-halbig-king-scotus-workaround

[unblock]

1. doesn't that require the uncooperative states to cooperate?

[gmb92]

2. Except the states would need to agree

Some of those 36 states are blue states, and would probably agree, which is a good thing.

But most are red, and most have already denied the Medicaid expansion. Of course, Medicaid expansion was a benefit denied to people who didn't already have that benefit, and probably didn't know about it (mainstream media has been a joke when it comes to informing the people). In this case, millions of middle income people (voters) would be stripped of subsidies they've been actively receiving. In addition, the health care industry is greatly affected. So Republican partisan leaders would have those pressures to balance with pressures from their radical base who hate anything with "Obama" attached to it.

[maxrandb]

3. I imagine that even the Red States

would seem unlikely to screw their own people over this way, but again, we are talking about Red States.

As far as I'm concerned, the folks in those states elected these asshats...Too bad, too sad. Sorry for the Dems that live there, but we do still have mobility as a right. Move to a place that actually gives a shit about it's citizens.

[Dawgs]

4. This works, not because red states would do it, but because it wouldn't be SCOTUS..

..that gets blamed. It would be the leaders of the red states that would get blamed for taking coverage away.

[Rstrstx]

7. The way to pose it to conservatives...

...is to frame it as a huge tax increase for many of its citizens. The Democrats could have a field day with that in the next election, if they kept bringing it up in the legislature, say, 100 times, then they could say "person X voted for huge tax increases 100 times in the past two years".

[Dawgs]

9. Yep. Like how you think. n/t

[HereSince1628]

10. The red states have been innoculated with a cognitive vaccine called

MANDATE hatred.

I think it would be very hard to get red state supporters to see it as the fault of red state government rather then a consequence of the mandate.

[Hoyt]

5. I can't see even the reddest state denying subsidies under that workaround.

Truthfully, I believe Court is going to fool us on this one and decide in favor of clear intent of the law. But I like Obama's plan if they don't.

[Rstrstx]

6. There's another possibility being floated around

..but it would require Roberts to rule to uphold the subsidies, albeit in a twisted way

http://thinkprogress.org/justice/2014/11/10/3590596/how-chief-justice-roberts-could-score-a-big-victory-for-conservatives-and-save-obamacare/

It would be nice if all the states had to do was just pass a proclamation saying healthcare.gov or some entity that uses that site as the exchange (which they might be able to do since the definition of an exchange is either a government agency or private non-profit entity established by the state, and they'd effectively be hiring a non-profit entity to do the job for them).

But there still may be a few states that wouldn't do it just because, well, just because they're assholes and want the ACA to die no matter what the cost, but if it were free that's a lot more difficult to make the case that, say, rejecting the Medicaid subsidies - it could effectively be framed by Democrats as a MASSIVE tax increase on many that could be used against them in the next election.

Still, the way Roberts rejected the Medicaid requirements the ACA imposed on the states may be the same logic that could be used to keep the subsidies. If you didn't read the article above, it basically states that the court could allow subsidies because Congress wasn't specific enough on what would happen if they didn't accept the funds for establishing exchanges or may not even be entitled to do it at all, which would make the whole technical "established by the State" language moot.

[Boom Sound 416]

8. I said no such thing

[Nye Bevan]

11. Are there any red states that would be callous enough not to implement this simple workaround?

That would prefer to make insurance unaffordable for their own people, just to make a political point against Obama? Even though the subsidies are entirely federal and don't cost the states a penny?

Or am I being hopelessly naive here?