Justice Scalia boosts Republican hopes in ObamaCare challenge

Getty Images

Supreme Court Justice Antonin Scalia has given Republicans new ammunition in the fight over ObamaCare by endorsing the idea that Congress is certain to act if the court deals a blow to the law.

The conservative justice contended Wednesday that lawmakers would move quickly if the court, in the case of King v. Burwell, were to strike down subsidies that are helping millions of people purchase insurance through the federal exchange, HealthCare.gov.

ADVERTISEMENT
Congressional Republicans had been making that very same argument in the run-up to the case and say Scalia’s remarks should help draw attention to the multiple ObamaCare fixes that they have prepared.

“With all of the fearmongering by the administration that things are going to be disastrous if the Supreme Court rules one way, Justice Scalia said, ‘No, Congress will act,’ ” said Sen. John BarrassoJohn BarrassoGOP senator: Obama ‘believes he is above the law’ Republican senator expects Trump will 'embrace' GOP platform Sunday shows preview: Bernie soldiers on MORE (R-Wyo.), who is working on a Republican ObamaCare plan.

“So I was encouraged by that, because we are committed to doing that.”

On the House side, three chairmen, Reps. Paul RyanPaul RyanThe only common ground between Donald Trump and Paul Ryan is an "R" America isn't afraid of the NRA, and Congress shouldn't be, either Which GOP pols will actually show up at the convention? MORE (R-Wis.), Fred Upton (R-Mich.) and John Kline (R-Minn.), also pointed to their plans after the oral arguments were over.

“The law is clear — and the Supreme Court should order the IRS to enforce the law as it is written,” the three Republicans said in a statement. “If it does, we will be ready to act.”

Scalia waded into the politics surrounding the healthcare case when he asked Solicitor General Donald Verrilli Jr., who was defending the law for the administration, why Congress wouldn’t move to quickly pick up the pieces if the subsidies were struck down. 

“Well, this Congress, your honor,” Verrilli replied before trailing off, to laughter in the courtroom. 

Scalia said he has faith in lawmakers.

“I think this Congress would act,” he replied. 

That was music to the ears of congressional Republicans, who have waged a weeks-long campaign aimed at reassuring the public that they will not leave Affordable Care Act beneficiaries in the lurch.

In the days before the oral arguments, Ryan, Upton and Kline released an ObamaCare backup plan, as did Barrasso, Sen. Ted CruzTed CruzLynch pressured to recuse herself after Clinton tarmac meeting The Trail 2016: Meet and greet and grief Trump to meet with Senate GOP next week MORE (R-Texas) and Sen. Ben Sasse (R-Neb.). 

Democrats say Scalia’s faith in the Republican Congress is misplaced.

“He just is saying what the Republicans were saying in their op-ed, but there’s no there, there. It’s a signal,” said Rep. Sandy Levin (Mich.), the top Democrat on the Ways and Means Committee. 

“They’re trying to wink at the Supreme Court and say, ‘Go ahead, destroy the [Affordable Care Act], because we have an alternative,’ ” Levin said of Republicans.

Even if Republican leaders wanted to pass a plan, Democrats say, they would not be able to find the votes. 

“We have majorities in both the House and Senate that, A, struggle mightily to do even the simplest, most politically popular things like funding the Department of Homeland Security, but, B, we also know that they have fought tooth and nail to try and undermine the Affordable Care Act from the beginning,” White House press secretary Josh Earnest told reporters at the briefing on Wednesday.

The outcome of the court case is anyone’s guess, with Chief Justice John Roberts and Justice Anthony Kennedy widely viewed as the swing votes that will decide whether ObamaCare subsidies are struck down in 37 states.

The ruling in the case is expected in June.

Brendan Buck, a spokesman for Ryan, said Republicans view the court case as providing a new opportunity to push forward with alternatives to the healthcare law.

“I think there is broad consensus through the House,” Buck said. “I think people both understand the need for some type of response, but at the same time, also see it as a chance that hasn't been there before.”

The plan from Ryan, Upton and Kline calls for allowing states to opt out of the Affordable Care Act's mandates that require people to either buy insurance or pay a fine. To soften the blow from losing the law’s subsidies, their plan would create new tax credits to help people afford coverage. 

Republicans have yet to provide details on how big the tax credits would be and how the legislation would be paid for. Buck said details are still being worked out, but by June, when a court decision is expected, “I would believe we would have something at least on paper, if not introduced by then.”

On the Senate side, Barrasso and two other chairmen have proposed a plan that would provide financial assistance for people to temporarily keep their health insurance plans while Congress develops a new coverage model that gives states “freedom and flexibility.” 

Barrasso said the details of the plan might depend on the court’s ruling. The extent of the temporary assistance, for example, could depend on whether the court delays the effect of its ruling to give Congress time to act. 

“We can't really say, ‘This is the definitive answer,’ when we don't know what the Supreme Court's going to do, and they're not going to do anything for another three and a half months, probably,” Barrasso said. 

Realizing the long-held Republican goal of repealing and replacing the healthcare law will also have to wait, he said. 

“The full replacement piece isn't going to be there, because Barack ObamaBarack ObamaSocial Security to run dry three years sooner than expected: study Former CIA chief shuts down Trump's calls for waterboarding Clinton camp: Trump's fundraising 'bragging is total bunk' MORE's not going to sign a full replacement of ObamaCare,” Barrasso said. “That can only be done after a presidential election in 2016.”