Members of Congress often take the view that inaction is less dangerous to their political futures than action, but the moment is approaching that doing nothing could cost millions of Americans a cumulative billions of dollars. Unsurprisingly, several recent polls show that the public wants the lawmakers to get off their duffs.
The issue is the lawsuit known as King vs.Burwell, which is expected to yield a decision from the Supreme Court before the end of this month. The court could rule to invalidate Affordable Care Act premium subsidies for as many as 6.5 million people. If that happens, the polls show, a majority of respondents want Congress or the states to restore them.
The lawsuit's conservative plaintiffs assert that, according to a plain reading of the Affordable Care Act, residents of the three dozen states that allowed the federal government to operate their individual health insurance exchanges shouldn't be eligible for federal insurance subsidies. The government, most credible healthcare legal experts, and the drafters of the ACA itself all argue that the law called for subsidies to be distributed strictly by income, not by where someone lived. The plaintiffs' argument, they say, is merely a ploy to undermine the law.
A plaintiffs' victory would deprive people in the affected states of subsidies totaling $21 billion a year. Since their unsubsidized premiums would nearly triple, according to figures from the Kaiser Family Foundation, it's expected that many would drop their coverage. That would return those states to a pre-ACA landscape of widely unattainable insurance, especially for low- and moderate-income residents.
The latest opinion surveys are the Washington Post-ABC News poll and a survey conducted by Public Policy Polling for the progressive group Americans United for Change. The first finds that Americans are opposed to the court's invalidating subsidies by 55% to 38%.The strongest responses against invalidation come from Democrats (65% say the court shouldn't gut the law) and independents (57%). Republicans are in favor of invalidating subsidies, by 55% to 34%.
The PPP survey finds that 61% of all voters think everyone at similar income levels should be eligible for subsidies "no matter what state they live in." Democrats and independents show solid majorities for the concept; the split among Republicans is a narrow 49% in favor, 41% opposed.
The poll also found that a majority of voters want Congress to fix the law if the court rules out subsidies--62%, with even Republicans favoring action 50%-38%. About 62% of voters say they’d be more likely to cast their ballot for a politician who voted to preserve subsidies, while 28% say they’d be less likely to vote for someone who supported the fix.
These results match earlier surveys. A poll in May by the Associated Press found that 56% of respondents would prefer that the Court allow the subsidies to stand. The Kaiser Family Foundation's monthly tracking poll on ACA sentiment found that a large majority in the affected states, including 58% of Republicans, would favor state action to save the subsidies. In practical terms, that means those states would have to hurriedly set up their own exchanges rather than relying on the federal healthcare.org.
Those findings underscore the dilemma facing the GOP, which has made opposition to Obamacare a litmus test at the federal and state levels. As my colleague Noam Levey reported Monday, few contingencies are in place in the affected states, most of which have Republican governors or Republican legislatures, or both.
Only Delaware and Pennsylvania have even outlined possible responses. In most of the others, political obstinacy, legislative calendars and other obstacles stand in the way of quickly establishing state exchanges to keep on the right side of a negative court ruling. Congress could resolve the issue simply by passing a routine fix specifying that subsidies are available to buyers on the federal and state exchanges alike. "Congress could fix this whole thing with a one-sentence provision," President Obama has said.
As Levey reports, however, congressional Republicans have refused to consider this technical amendment unless it's paired with repealing major provisions of the ACA, including the mandate requiring people to have coverage and minimum insurance standards.
The most dire situation faces Florida, home of more than 1.3 million potential victims--more than 20% of the nationwide total. They face a quadrupling of premiums, according to the Kaiser Family Foundation. "Opposition to the ACA, and to the exchanges, runs deep" in the Florida GOP, five leading health insurance experts say in the blog Health Affairs.
Plainly, a Supreme Court ruling against the ACA will cast an enormous shadow over national politics. Greg Sargent in the Washington Post notes that the states with the largest number of potential subsidy losers are all possible presidential battleground states--Florida, North Carolina, Pennsylvania, Virginia, Wisconsin and Ohio. Those are key presidential battlegrounds, and Republicans are defending Senate seats in all but Virginia. "That overlap could increase the political stakes in the battle that will follow any court ruling against the ACA," he writes.