An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with Healthcare.gov states setting up their own exchanges. If you're a Republican senator from a purple Healthcare.gov state -- Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others -- you'll be under tremendous pressure to pass the legislative fix. If you're a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.
The closer one looks at the D.C. Circuit's ruling yesterday on ACA subsidies, the harder it is to defend. Two conservative jurists not only want to destroy the health care system over an out-of-context drafting error, they also based their reasoning on a farcical foundation. Scott Lemieux explained that the far-right judges effectively said Congress consciously decided to give states veto power over the law's implementation.
Why would the ACA's architects do that? They wouldn't -- and they didn't. The argument is a sham, which is why so many are so confident that yesterday's truly absurd decision simply cannot stand. Ezra Klein called the argument "plainly ridiculous."
But while the legal process plays out, there's a political angle worth watching. After the Halbig v. Burwell decision came down, House Speaker John Boehner (R-Ohio) said in a statement that the ruling proves that the Affordable Care Act is "completely unworkable" and "cannot be fixed."
As it happens, it's funny that Boehner would use those particular words.
I rather doubt that Boehner actually believes his own rhetoric on this. Indeed, the talking points are pretty silly -- a system that was working well is "unworkable" because of a lawsuit intended to sabotage the American health care system? Please.
But it's the notion that the ACA "cannot be fixed" that's especially important. The Republican Speaker may have been thrilled by yesterday's news that millions may lose access to medical care, but whether he realizes it or not, if Halbig continues to go his way, this mess may very well land with a thud on Boehner's desk -- and the Speaker will be ill-equipped to respond.
I alluded to this briefly yesterday, but Brian Beutler fleshed it out in more detail, noting the policymaking prospects if this "shamelessly dishonest" ruling stands.
I'm reasonably confident sanity will prevail in the courts, but if it doesn't, congressional Republicans, ostensibly led by John Boehner, will be confronted with a dilemma for which they're wholly unprepared. Indeed, they will have a choice between two scenarios: (1) doing nothing but celebrate as millions of lower- and middle-income families get hit with higher taxes, soaring premiums, and lost health care coverage; or (2) approving an easy, one-page fix that prevents lower- and middle-income families from getting hit with higher taxes, soaring premiums, and lost health care coverage.
If this fight gets to this point, it'd be easy to imagine President Obama holding up a single piece of paper and saying, "I'm asking Congress to pass this one-page bill to prevent struggling families from being punished for no reason. The whole thing can be done in a half-hour. After that, we can go right back to fighting over health care again, but in the meantime, I'm asking lawmakers in both parties: don't let these families suffer over an easy-to-fix drafting error."
At that point, Boehner would say ... what exactly? "Screw 'em, Republicans have decided we want red-state families to pay higher premiums"?
The Speaker's statement said yesterday the system "cannot be fixed." But therein lies the point: a one-page fix is incredibly simple. Congress could do it today, remove uncertainty, and reassure millions of families nationwide.
Or they can wait until the courts force lawmakers' hands (if the courts force lawmakers' hands). If Boehner & Co. still refused to act, it'd push the issue to Republican governors, who'd face a similar dilemma: create state-based exchange or punish their constituents for no reason.
Republicans thought yesterday's ruling was terrific news. I'd remind them of an old cliche: be careful what you wish for.