Sen. Mitch McConnell (R-KY) — the Senate’s incoming majority leader — admitted on Monday that Republicans are banking on the Supreme Court to invalidate a key portion of the Affordable Care Act in order to completely undo the law.
Speaking at The Wall Street Journal CEO Council annual meeting, McConnell conceded that the new Republican Congressional majority will be unable to significantly alter President Barack Obama’s signature legislation. But he added that should the Supreme Court strike down the subsidies available to individuals who receive their health care coverage through the law’s federally run exchange, it would constitute “a major do-over of the whole thing.”
“[Obamacare] bears the President’s name, the chances of his signing a full repeal are pretty limited,” he said. “Who may ultimately take it down is the Supreme Court of the United States… if that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing, that opportunity presented to us by the Supreme Court as opposed to getting the President to sign a full repeal which is not likely to happen.” Watch:
Indeed, the Supreme Court surprised many last month when it took up King v. Burwell, a case challenging the government’s authority to provide tax credits in states that have chosen not to establish a health care marketplace and left that task to the federal government.
The plaintiffs in this case — mostly Republican operatives or conservative ideologues seeking to gut the law — are arguing that the ACA never authorized the distribution of subsidies to federally-run exchanges in order to cajole states to establish their own marketplaces. They highlight two places in Obamacare where the subsidies appear to be tied to “an Exchange established by the State under 1311” and not the federal government. Thus, according to McConnell, this is merely a case about “whether the language of the law means what the language of the law says.”
Yet Supreme Court precedent dictates that courts are to read federal statutes holistically and that individual provisions should not be read out of context. “[A] reviewing court should not confine itself to examining a particular statutory provision in isolation,” the Court explained in 2007, as the “meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.”
Though one provision of the law, if read in isolation, does appear to suggest that only exchanges “established by the State” are permitted to provide subsidized insurance plans, another provision of the law provides that any exchange, whether state or federal, “shall be” deemed to be an “entity that is established by a State.” Many other sections contradict the plaintiffs’ assertion. Indeed, the law is explicit that it is intended to provide “Affordable Coverage Choices for All Americans,” not just for those Americans who are fortunate enough to live in the right state.
McConnell’s admission also contradicts one of the central premises of the plaintiffs’ legal argument. They claim that that a Court ruling in their favor would restore the true intent of the law and encourage states to establish their own exchanges. But McConnell argues that the lawsuit would actually “take” the law “down.”
Ultimately, if the Supreme Court sides with the plaintiffs, economists estimate that 7.3 million people could lose out on $36.1 billion in subsidies by 2016, leading to higher health care premiums and the dreaded “death spiral” effect. Under that scenario, the sharp premium increases will push healthy people out of the marketplace, leading to even higher premium increases and a very expensive risk pool full of sicker — and by definition more expensive — beneficiaries. The same economists explain that, if five justices decide to gut Obamacare, the resulting premium spikes will render insurance “unaffordable for more than 99 percent of the families and individuals eligible for subsidies” in the states with federally-run exchanges.