At this point, the only real threat to the Affordable Care Act is one ridiculous Supreme Court case. There’s a phrase in the legislation that suggests, if ripped from context, that subsidies are only supposed to support consumers in states with their own exchange marketplaces – not those who enrolled in insurance plans through healthcare.gov.
Such an interpretation is at odds with literally everything we know about the law. As Ezra Klein recently noted, the argument contradicts the testimony of congressional aides who wrote the bill. It contradicts what Congress told the CBO. It contradicts the debates held in every state that chose to rely on the federal marketplace. It contradicts how the Obama administration understood and implemented the law. It even contradicts the way the Supreme Court itself interpreted the law as recently as 2012 – and the law has not changed since.
And yet, conservative justices may not care – if there’s ambiguity in the phrase, the Supreme Court majority may conclude, then it’s up to Congress to pass a bill to add clarity.
In an interesting twist, a prominent Republican has suggested his former brethren do exactly that.
Former Senate Majority Leader Trent Lott encouraged his fellow Republicans on Thursday to work on a technical fix to the Affordable Care Act to ensure that those purchasing coverage on federally run exchanges would continue receiving subsidies.The Mississippi Republican said that when he was in office, it was routine to make clarifying changes to laws after they passed. It happened, he said, “almost always.”“There was always, on a major bill, we’d have technical corrections, right? Almost immediately [we’d correct them]” Lott said, at a breakfast hosted by the Christian Science Monitor.
Lott was asked specifically whether he would encourage GOP lawmakers to approve a technical fix. “Sure, yeah, I would,” he replied.
This is interesting for all sorts of reasons.
For example, the issue of technical fixes is itself important. John Harwood had a terrific piece on this shortly before Thanksgiving, which didn’t generate nearly as much attention as it deserved. Harwood noted the example of welfare reform, which passed in 1996, and which Congress made dozens of technical changes to a year later.
There was nothing unusual about swift passage for the Welfare Reform Technical Corrections Act of 1997. But in retrospect, it underscores the deteriorating conditions in Washington today, as the Supreme Court has accepted a case threatening the Affordable Care Act over the interpretation of a single ambiguous phrase.The 1997 act passed a year after President Bill Clinton and a Republican-led Congress had struck a broader deal on welfare, a racially charged issue that had roiled politics for two decades. The passage of the 1996 law followed fierce fighting – Mr. Clinton vetoed two welfare bills before signing the third – as well as a bitter budget fight that had temporarily shut down the government the previous winter.By 1997, however, the political guns had fallen silent. Though Democratic leaders of both the House and Senate had opposed the 1996 law, the fight was over. The top House Republican on the issue, Representative E. Clay Shaw Jr. of Florida, quietly consulted Mr. Clinton’s aides about ways the new welfare law needed clarification and adjustment to be implemented more effectively.“We worked with the administration even though we shut down the government – twice,” recalled Ron Haskins, then Mr. Shaw’s top welfare adviser. In August, the numerous “technical corrections” to the 1996 bill were folded into a budget deal and passed into law.
This is how Congress, back when it was a functioning governing institution, used to work for generations. The idea that current Republican have spent four years refusing to even consider technical fixes to “Obamacare” is a reminder of just how far gone the congressional GOP really is.
Indeed, every major piece of legislation in modern American history – Social Security, Medicare, et al – has been subject to multiple technical fixes in the ensuing years. It’s effectively the equivalent of routine governing tune-ups – minor maintenance and tweaks intended to make laws work effectively for the public.
Today’s Republicans, however, have adopted a posture unseen in modern history: the GOP doesn’t want to tweak the ACA to help it function better; it wants to kill the law regardless of the consequences. Full stop.
Indeed, if the Supreme Court ignores its own precedents and norms, guts the health care system, and tells Congress to clarify the language, the entire mess could be resolved with a one-paragraph bill. The whole controversy could end with just a few minutes of legislating.
For Lott, it makes sense to simply do the right thing and prevent families from suffering. One gets the distinct impression that Mitch McConnell and John Boehner disagree.
On Twitter this morning, I noticed my friends Greg Sargent and Benjy Sarlin talking about this, with Sarlin making the case that Trent Lott is no longer a “bellwether of GOP opinion or behavior.”
That’s true. However, Lott is a bellwether of the attitudes embraced by corporations that lobby Republicans, and his comments suggest to me that for Big Businesses with skin in this game – insurers, hospitals, pharmaceutical companies, etc. – Corporate America actually wants the Obama administration to win this court fight.
And why wouldn’t they? The Affordable Care Act is working exceptionally well at this stage, and tearing the law down over a perceived drafting error would not only destroy the health security of millions of families, it would also wreak havoc on the companies invested in the American system.
The question isn’t just whether the Supreme Court wants to complete a partisan vendetta against a Democratic president who disgusts Republicans; the question is whether the high court’s conservatives are also prepared to do real harm to American businesses, many of whom are represented on K Street by a former Senate Majority Leader by the name of Trent Lott.