A Republican House subcommittee chairman is accusing the Obama administration of secretly preparing a fallback strategy if the Supreme Court strikes down a major piece of its healthcare reform law later this year, even as officials publicly maintain that no plan exists.
Rep. Joe Pitts (R-Pa.), chairman of the House Energy and Commerce Health Subcommittee, says federal officials are hiding a roughly 100-page document on the looming court case. The case, King v. Burwell, could cut off ObamaCare subsidies in three-quarters of states and potentially collapse the national marketplace.
Pitts confronted the head of the Department of Health and Human Services (HHS) about the plan, which he says is being circulated among senior officials, for the first time on Wednesday.
"This is a document I'm not aware of," she said in response to Pitts's questions, before moving on to outlining the negative affects of a ruling against the law. "We believe we do not have any administrative actions," she reiterated.
Rep. Joe Barton (R-Texas) pressed Burwell further.
"I take you at your word that you haven't seen the plan, but don't you think it's prudent that there should be a plan?" he said. "I hope I don't have a primary opponent, I hope I don't have a general election opponent, but I have a plan in case I do."
Burwell held her line.
"We don't have an administrative action that we could take so the question of having a plan, we don't have any administrative action that we believe could undo the damage," Burwell replied.
"The administration is just going to hold up your hands and say we surrender?" Barton added.
"We believe the law as it stands is how it should be implemented," Burwell replied.
Rep. Leonard Lance (R-N.J.) repeatedly also pressed Burwell on whether she knew of the planning document. Burwell did not categorically deny its existence, saying only that she does not know of it.
"If there is this document, and you know it, I would certainly like to know about a document, because I don't have knowledge of a 100-page document," Burwell said.
When Burwell again dove into the negative affects of a Supreme Court ruling against the law, Lance interrupted, "That's filibustering."
"I'm not familiar with the document you're referring to," Burwell replied.
Democratic Rep. Eliot Engel (D-N.Y.) came to Burwell's defense, noting that Republicans are supporting the high court challenge.
"It's somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created," Engel said.
"As the Secretary said at the hearing, we have no plans that would undo the massive damage to our health care system that would be caused by an adverse decision, and we are not aware of a document that meets Chairman Pitts' description," an HHS spokesperson said in an email.
A White House spokesperson declined to comment and deferred to HHS.
Burwell this week wrote a letter sent to several GOP offices, including Pitts’s, warning that the administration has no plan to "undo the massive damage to our health care system that would be caused by an adverse decision" in the high court case.
With such high stakes, Republicans say the administration is surely preparing some way 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," Pitts wrote in a statement Wednesday ahead of the hearing.
"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.
The administration has already faced strong pressure from Republicans to show its hand ahead of the Supreme Court case.
Burwell’s appearance before the Senate Finance Committee earlier this month erupted into a contentious back-and-forth in which she refused to answer any questions about the court challenge. By the end of the two-hour exchange, Senate Majority Whip John CornynJohn CornynSenate confirms first nominees of Trump era The new Washington elite schmoozes over lunch Top GOP senator warns of weekend work on Trump nominees MORE (R-Texas) had accused Burwell of acting in contempt of Congress.
Republicans have seized on the administration’s refusal to discuss the case as further evidence against ObamaCare.
"By admitting they have no contingency plan to assist the millions that may lose subsidies, the administration confirms how the misguided law is unworkable for the American people," Senate Finance Committee Chairman Orrin HatchOrrin HatchOvernight Defense: Senate to vote on defense picks Friday | 41 detainees left at Gitmo | North Korea may be prepping missile launch Congressional leaders unite to protect consumers Mnuchin weathers stormy confirmation hearing MORE (R-Utah) wrote in a recent statement.
The administration’s silence is likely part of its strategy to influence the court ahead of the March 4 arguments.
Two former HHS officials have previously said they are confident the administration is preparing a backup plan.
“Of course they have one, they should all resign if they don’t,” said Tom Scully, an HHS official under former President George W. Bush. “And they certainly should not discuss it either.”
But the former officials said the administration could appear in a weak position if it admitted that it was making plans. And if the administration insists there is no “plan B,” it tells the justices that the country cannot afford a ruling in favor of the plaintiffs.
Republicans have tried to gain points by preparing their own backup plans for the billions of dollars in subsidies that could be lost. This week, Hatch and Sen. Ben Sasse (R-Neb.) became the latest Republicans to say they are crafting fallbacks.
The GOP largely agrees that Congress should not simply rewrite the text to make the subsidies legal. But the party lacks a consensus about how to deal with the fallout, both in the short term and long term, and which area of government should be responsible for those fixes.
“Unless those of us who oppose ObamaCare unite behind an approach that offers Americans a better alternative, we could lose the whole war,” Sasse wrote in a Wall Street Journal op-ed published late Wednesday.
--Peter Sullivan contributed to this report, which was updated at 12:23 p.m.