By Sarah Ferris - 02/25/15 07:22 PM EST
Some Republicans say they simply do not believe that the Obama administration isn’t developing a fallback plan in case the Supreme Court dismantles a piece of the healthcare law this summer.
Sylvia BurwellSylvia Mathews BurwellHHS projects 13.8M ObamaCare signups for 2017 Republicans demand documents from insurers on ObamaCare 'bailout' Top health officials: Funding delay hurt Zika response MORE, the secretary of Health and Human Services (HHS), has repeatedly said there is no plan B if the high court rules that subsidies for insurance cannot be distributed through the federal exchange HealthCare.gov.
"No credible person would believe that," Rep. Andy Harris (R-Md.) told The Hill on Wednesday.
"It would be executive malpractice not to have a plan, a contingency plan, for what happens when that court ruling comes down, and I'm going to assume that this government doesn't practice executive malpractice,” he said.
Burwell’s warning, which was delivered to several GOP offices on Tuesday, dramatically raises the stakes for King V. Burwell. The high court will hear oral arguments in the case on March 4.
Both parties have repeatedly said that a plaintiff victory in the case could cause massive damage to ObamaCare, perhaps even crippling the law.
With such high stakes, Republicans say the administration must be crafting a plan to avert disaster.
"It's hard to fathom that the administration would bury its head in the sand and fail to engage in any contingency planning," said Rep. Joe Pitts (R-Pa.), who chairs the health subcommittee of the House Energy and Commerce Committee.
Pitts plans to grill Burwell on the administration’s claim that it does not have a “back up plan” when she testifies before his panel on Thursday.
One Senate GOP aide who is also skeptical of the White House's lack of planning said the administration is likely looking to influence the court ahead of the March 4 arguments.
“OK, so they say they’re not doing anything. So what? They can show up a week after a King ruling and show they had done something,” the aide said. “Does it influence next Wednesday? I’d like to think that the Supreme Court is not that shallow.”
A growing number of Republicans, including Senate Finance Chairman Orrin HatchOrrin HatchGOP lawmakers ask IRS to explain M wasted on unusable email system GOP senators avoid Trump questions on rigged election Schumer says Pacific trade pact may have enough votes to pass the Senate MORE (R-Utah), say they are preparing backup plans in case the Supreme Court rules against ObamaCare.
Republicans generally agree that Congress should not simply rewrite the text of ObamaCare to make the subsidies legal in states that choose not to set up an exchange.
But the party lacks a consensus about how to deal with the fallout, both in the short-term and long-term, should millions of people be on the hook for new insurance expenses.
Rep. Trent FranksTrent FranksSpeaker Ryan tries new Trump strategy: Ignore him 27 days before elections, GOP at war with itself Five things to watch for at IRS impeachment hearing MORE (R-Ariz.), a fierce opponent of ObamaCare, said the president as well as Congress has a responsibility to create a fallback plan.
“I think it falls on both of us,” he told The Hill on Wednesday. “We’re both obligated to do the best that we can.”
Joel Ario, who helped create state exchanges under HHS, said the administration does have some ability to manage the fallout from a Supreme Court defeat, but only to a point.
“[Federal officials] could make it easier for states to create exchanges. I think they would try to do that,” Ario said. Still, he said it would largely fall on individual states to address the loss of subsidies.
Thirty-seven states are now part of the federal exchange. Should the Supreme Court rule that residents in those states are ineligible for federal aid, their legislatures and governors would likely face pressure to establish their own healthcare exchanges so that people could keep their subsidies.
But given the fierce opposition to ObamaCare in many parts of the country, it’s difficult to predict which states would opt in and which would drop out.
“In today’s climate, there are certain number of states — probably a third of them – are not only opposed but strongly opposed and are unlikely to create a state exchange under any amount of flexibility,” Ario said.
“When I look at the states, I don't see at all likely that all … federal exchange states are going to quickly change to state-based exchanges,” he said.