Now that the Supreme Court has saved the Affordable Care Act for a second time, what do Republicans do? We already know they won’t tone down their rhetoric and will continue to call for repeal because that’s what Republican primary voters want to hear. The candidates will package together vague alternative proposals that they will pledge to pass and enact as the first act of their presidency.
But they don’t have even a remote chance of repealing the ACA, even if a Republican is elected president in 2016.
“The ruling is the last gasp,” says Chris Jennings, a health policy expert who worked in both the Clinton and Carter administrations. While the presidential contenders will keep alive the hope for their base that if elected they can sweep away Obamacare, Jennings says the issue will be dead and gone by fall 2016. The voters will have moved on.
Conservatives feel betrayed yet again by Chief Justice John Roberts joining with the liberals on the Court to uphold the constitutionality of the ACA, but they should thank Roberts. He saved the GOP from having to bail out 6½ million people, the majority of them in red states, who would have lost their health insurance if the Court had ruled the other way.
Now Republicans can continue to rail against Obamacare without the responsibility of actually coming up with a law to replace it. “This decision gives them a vast canvas on which to write,” says Jack Pitney, a government professor at Claremont McKenna College in California. “There’s no need for immediate replacement, so rhetoric will fill the vacuum of legislation.”
There will be proposals, enough to satisfy the GOP faithful that the presidential candidates are doing something to end the abomination of Obamacare. But these will not be serious efforts because it is not possible to write health-care legislation that leaves in all the goodies everybody supports, like no discrimination for preexisting conditions, and leaves out what people oppose, like the mandate.
A reading of the majority opinion written by Roberts reveals that he paid close attention to the argument put forth by the health insurance industry in an amicus brief. Without the subsidies, millions could not afford coverage and only those with significant medical expenses would apply, sending the ACA into a “death spiral.”
The Roberts Court handed another lifeline to President Obama, but the decision is also a huge victory for the health industry. Asked how difficult it is for the GOP to step in with their own plan to counter Obamacare, Ceci Connolly, a Health Research Institute Leader and a former Washington Post reporter covering politics and health care, countered with some hard numbers. “The 2.9 trillion dollar health sector is exceedingly complex and changing; it takes an enormous amount of time and work,” she said. “Not only has the ACA expanded coverage, it has pumped billions of dollars in revenue to the health industry, and going back would upset a very large and important market.”
If the subsidies were removed or denied, it would have cost the health industry $36 billion in premium revenue next year alone, Connolly told The Daily Beast. Hospitals would have seen their revenue fall about $9 billion. While still a fraction in a huge market, “that’s real money to the industry,” she says. “The legislative process is cumbersome to say the least, and it would be a steep climb to replace the ACA.”
If a Republican president is elected, and the GOP retains the Senate along with the House, “that’s a new ballgame,” Connolly said. “But by 2017 the law would have been implemented for seven years. It’s very hard to take away benefits and significantly restructure a market as big as the health care market.”
Connolly noted that the executives her research group talks to around the country anticipated the decision to come down the way it did. “They could not imagine the subsidies being taken away.”
The phrase that political scientists use is “past dependency.” Once a major policy is entrenched, it’s very difficult to change in a major way. We’ve seen that with social security and Medicare, programs that President Obama invoked in his remarks in the Rose Garden about the ACA’s rite of passage into “the fabric of America.”