If the Supreme Court overturns part or all of President Obama’s health care law, House Republicans will find themselves on the horns of a dilemma. They will be implicitly responsible not just for the demise of the individual insurance mandate and other unpopular parts of the Affordable Care Act, but also its popular provisions and the return of some of the insurance industry’s harshest practices, like discriminating against people with pre-existing medical conditions.
Recent reporting by both the New York Times and Politico suggests the GOP congressional leadership might try to mitigate the political liabilities of HCR being overturned by introducing piecemeal legislation to reinstitute popular pieces of the law — provisions banning discrimination, and allowing children to be covered by their parents’ health benefits until they’re 26. But that creates a host of new practical and political problems for the GOP.
The biggest practical problem is that many of the popular provisions of the law are only affordable and effective in conjunction with the unpopular provisions. That leaves Republicans on the wrong side of insurers and other stakeholders — all of whom know that the consumer protections in the ACA are only possible if people are required to carry health insurance.
“Market reforms won’t work without a mandate,” says an insurance industry source.
Trying to mitigate the effects of HCR being overturned also puts GOP leaders them on the wrong side of the right wing of the party, and of the conservative movement, both furious at the notion that the GOP would let even a single letter of the health care law remain on the books.
Republicans have confronted these difficult hypothetical questions in the past — without the pressure of a looming Supreme Court decision forcing them to act. And their past words and actions suggest they may not be planning to simply re-legislate the popular parts of ‘Obamacare.’
House Speaker John Boehner has frequently noted that federally funded, state-run high-risk insurance pools (a piece of the health care law that’s performed underwhelmingly) could on their own solve the problem. Republicans have also supported narrower efforts to extend “continuous coverage” requirements, to protect insured people with pre-existing conditions from being denied insurance when they change jobs or buy new insurance — so long as they haven’t allowed their own coverage to lapse.
Republicans could advance those sorts of measures in an attempt to bridge the yawning chasm between the conservative demand for root-and-branch repeal and stakeholders, like insurance companies, who would revolt if the GOP preserved the coverage guarantee in the law.
That’s a strategy Democrats won’t let them get away with easily.
“They want to take the easy part without paying any price,” House Minority Leader Nancy Pelosi (D-CA) told Capitol reporters Thursday. “It’s all about the guys who brung them to the dance. It’s about the health insurance industry, and that’s the agenda they’ll probably roll out, taking some of the most popular, least transformative parts of the bill.”
Moreover, Democrats see a strategic opening in the basic fact that Republicans recognize the conundrum — an adverse Supreme Court ruling will widen an existing rift in their party, and the insurance industry will press leaders to pick sides.
“I’m pleasantly surprised that [Republicans] actually would admit parts of the health care bill are good,” Sen. Chuck Schumer (D-NY) told TPM in the Capitol Thursday.
This is a danger for Boehner, and his spokesman Michael Steel did his best to defuse it.
“The House has taken 29 votes to entirely or partially repeal, defund, or dismantle the President’s job-killing health care law,” Steel said Thursday. “We will continue to work no matter what the Supreme Court does to entirely repeal Obamacare.”
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at firstname.lastname@example.org.