Republicans are under pressure to prove they can avert a massive healthcare meltdown if the party wins its latest ObamaCare battle in the Supreme Court this spring.
Some of that pressure is being brought to bear, at least implicitly, by the justices themselves, who appear concerned over whether Congress can create a fully baked alternative plan if the court strikes down ObamaCare subsidies for 8 million people.
Skepticism has also been growing within the GOP itself.
"This is just going to be ugly no matter what we do," GOP strategist Rick Wilson said.
"If the consequences are as disastrous as you say, then yes, I think this Congress will act," Associate Justice Antonin Scalia told the Obama administration’s lawyer, Donald Verrilli Jr., during Wednesday’s arguments.
The conservative justice’s nod to Congress sends a strong signal that the court will be paying attention to the GOP’s moves before June, raising the stakes for action.
While top Republicans in the House and Senate said this week that they are nearing a consensus on their efforts to create a back-up plan for the subsidies, almost no details have been shared about the half-dozen plans unveiled in the last two weeks. Most of the proposals are drawing criticism from their fellow conservatives behind the scenes.
“It’s a couple lines in an op-ed. Who knows what it really means? In some of those, they may not know, frankly,” said one conservative strategist and former Hill healthcare staffer.
Creating even a temporary solution for ObamaCare subsidies is a huge dilemma for the GOP-controlled Congress.
Some Republicans have even said, albeit quietly, that the party could be better off if the administration’s policy survives the Supreme Court challenge.
“Then we won’t be put into a really difficult spot and can move on. There is something really appealing about that,” one GOP Senate aide said.
As a matter of political reality, no GOP fallback plan can appear to extend — or even sign off on — ObamaCare in any way. Any bill that would put Republicans on the record upholding the Affordable Care Act would be untenable.
Instead, many in the party believe their best hope is in finding a temporary “bridge” away from ObamaCare.
Sen. Ben Sasse (R-Neb.) pitched a plan this week that would create 18 months of tax credits under a Reagan-era law called COBRA, intended for people who unexpectedly lose their jobs.
The credits would not be called “subsidies” but would serve much the same purpose.
Sasse said the debate over ObamaCare subsidies should not turn into a debate over how to replace the whole law. He said such an overall approach would have to wait until at least after the 2016 elections.
“I absolutely think there’s an imperative that we would act,” Sasse said in an interview. “The national conversation of replacement needs to happen, but we need a Republican nominee to carry the mantle.”
The debate over subsidies is even more complex because so many unknowns still surround the court’s decision.
In its last decision on ObamaCare, the Supreme Court created a whole new set of rules that neither party had expected. Many believe the same thing could happen again.
“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,” Sen. John Barrasso (R-Wyo.) said.
Democrats have dismissed any new GOP strategies as attempts to sway the court. But that’s a strategy that their members are also trying.
This week, several Democratic members, as well as White House press secretary Josh Earnest, have tried to highlight Congress's recent logjams, such the near-shutdown of the Department of Homeland Security this month, as proof that any decision that depended upon subsequent action on Capitol Hill would be fraught with danger.
Republicans have answered the criticism with more attacks against the Obama administration, which continues to argue that it has "no plans" that could address the massive disruption if the subsidies are erased.
"While the administration has no alternative, Republicans are discussing thoughtful solutions to help middle-class families and give them more control over their health care. We owe that to all those who have been hurt by this nightmare of a law,” Speaker John Boehner (R-Ohio) wrote in a statement after the arguments.