The GOP may finally get the chance to overhaul Obamacare…because of a drafting error

Supporters of the Affordable Care Act gather in front of the U.S Supreme Court during a rally March 4, 2015 in Washington, D.C. (Alex Wong/Getty Images)

Congressional Republicans are searching to solve a Supreme Court ruling which could scrap the Affordable Care Act once and for all. A decision which may leave millions of Americans without health insurance.

President Obama’s defining piece of legislation, offering subsidized private insurance to people who have no access to it on the job, has been revealed to hold a significant drafting error.

Opponents of the law argue the literal meaning of one four-word phrase, ‘established by the state’, demands the federal government may only subsidize coverage in states that have their own health insurance markets.

The plaintiffs, including Virginia limousine driver David King, sued the Secretary of Health and Human Services, Sylvia Burwell, arguing their having to pay for health insurance they did not want and would have been exempt from given its high expense.

Obama’s administration however insists Congress intended the law to help all citizens, whether they benefitted from state or federal subsidies.

Partisan retribution

Thirty-four states will be affected by any ruling, expected at the end of June, which goes in favor of the plaintiffs. Why so many? Given the partisanship over “Obamacare”, as well as some enrollment difficulties, many state legislatures declined to establish their own in-state health insurance markets. Of the 34, 26 have Republican governors, whereas GOP representatives in these states hold 22 Senate seats up for re-election next year.

If the Court scraps the subsidies in those states, up to ten million people could be affected. Republicans have since been trying to come up with a resolution, while the White House believes the law, when read in context, holds true and does not need to be adjusted.

Getting ugly

Former Republican and Kansas insurance commissioner, Sandy Praeger, said the outcome would be “ugly” in the worst-case scenario. “Only the unhealthy would keep buying health care,” as those in relatively good health would likely drop their coverage, pushing up premiums. She fears the result will “exacerbate the problem of the cost of health insurance.”

If the literal reading of the clause is upheld, Senior Republicans said they would intervene to prevent consumers from losing coverage but have not yet revealed how.

“The bigger issue here is whether Congress would come up with something as a stopgap to help those people,” said Walt Francis, author of an annual guide to the federal employee health benefits program.

With the White House likely to point the finger at Republicans in the Capitol for encouraging the suit, and only six weeks or so before the ruling, the GOP are trying to resolve any potential fallout with a list of plans that so far have failed to garner a consensus. The administration, on the other hand, will likely resist any changes demanded by Republicans as a trade off to continue delivering the subsidies as the Democrats would hope.

Looking bad

Congressional staffers and dependents – amounting to around 15,000 people – who get their health care covered by a provision under the ACA will not be affected by any ruling as their coverage comes through DC Health Link. This digital market, created by the District of Columbia, falls under a state-based initiative and federal.

“That won’t look good, will it?” said Mr. Francis, referring to the fast approaching election cycle next year. Should the ruling go the way many Republicans would prefer, they may have to explain to their constituencies why they’re still covered by a plan they not only don’t want but would now be unavailable to millions of Americans.

Repealing mandates

The individual mandate, an unpopular provision, requires all citizens to have insurance regardless of their health. While working well for those who have ongoing medical conditions, as insurers are not allowed to turn them away, those who are medically sound are required to contribute with the government subsidizing most of the premiums for low-to-middle income households.

Should the subsidies be removed then the whole system is likely to collapse.

Former Senator Tom Daschle (D- South Dakota), who advised President Obama on health care, said there would be “overwhelming political support for the elimination of the [mandate] if people can’t afford the premiums.” And if healthy people walk out of the law en-masse not only would premiums skyrocket but many wouldn’t be able to afford the difference.

President Obama with Health & Human Services Secretary Sylvia Mathews Burwell (Photo: Pete Souza/White House)


Before the ruling is given, both sides need to prepare for a fix. The Democrats, led by Obama, continue to believe the law is sound but would ask for a continuation of the subsidies until any immediate disaster could be rectified.

The Republicans will try and create either a permanent alternative or a stopgap until they win back the White House and overhaul health care altogether.

Either way, both sides will carry on blaming the other for ineptitude while waiting on a decision Obama hopes will see the Affordable Care Act finalized for good.


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