http://www.washingtonexaminer.com/alitos-wildcard-could-shape-2016/article/2561143?utm_content=bufferb5ca3&utm_medium=social&utm_source=facebook.com&utm_campaign=bufferAlito's wildcard could shape 2016
BY PHILIP KLEIN | MARCH 5, 2015 | 10:25 PM
Before oral arguments in the latest healthcare case to reach the U.S. Surpreme Court, analysts focused on the instant chaos that would be unleashed if justices invalidated subsidies that millions of Americans have been relying on to help them purchase insurance through President Obama's healthcare law.
But during Wednesday's arguments in King v. Burwell, Justice Samuel Alito floated an idea that would scramble this narrative. In the event that the justices determine that the IRS acted illegally by approving subsidy payments to individuals who purchased insurance through a federal exchange, Alito suggested the Court could issue a "stay" of such ruling. This could trigger a serious debate on healthcare policy and have new ramifications for the 2016 presidential race.
As explained by Jonathan Adler, a Case Western Reserve University law professor who was one of the intellectual architects of the King challenge, a stay could simply be the Court invalidating the subsidies, but declaring that its order wouldn't go into effect until the new tax year.
The thinking would be that individuals, businesses, and states would have made a set of decisions based on the assumption that the subsidies would be flowing, so it would be unfair to change that policy in the middle of the tax year without adequate time to adjust.
Alito mentioned the 1982 case Northern Pipeline Construction Co. v. Marathon Pipe Line Co. as a precedent for this sort of delay. That case involved a Constitutional challenge to the 1978 overhaul of bankruptcy law, which set up an alternate bankruptcy court whose judges were appointed by the president for 14-year terms, taking control away from district court judges. The Supreme Court ruled that this alternative court system arrangement violated Article III of the Constitution, which granted judges lifetime appointments as a way of limiting corruption and influence-peddling.
Having made this decision, the Court faced the question of whether to make the decision retroactive to all cases considered between the passage of the law and the time of the decision. Writing for the majority, Justice William Brennan explained that making the decision retroactive, "would surely visit substantial injustice and hardship upon those litigants who relied upon the Act's vesting of jurisdiction in the bankruptcy courts."
The Court issued a stay to "afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws."
In the event that the Supreme Court strikes down subsidies, what Republicans are deathly afraid of is the political backlash as the airwaves are bombarded with stories of Americans losing their insurance.
"It is going to make the Paul Ryan throws grandma off the cliff ads look like child's play compared to what's going to be happening when they're going to have known identifiable victims," Sen. Ben Sasse, R-Neb, warned in a recent interview.
Democrats would insist on a "simple fix" bill to legalize the subsidies that the justices would have just invalidated. But this would be a non-starter for Republicans, because it would cost hundreds of billions of dollars, restore the employer mandate and strengthen the individual mandate in 37 states (the impletation of both mandates is affected by the subsidies).
Furthermore, though Republican leaders would want to do something to avoid the prospect of individuals who currently have insurance losing it, at the same time, they would want to make sure that any legislative remedy does not allow new people to sign up for insurance and claim subsidies when open enrollment begins later this fall. The more people who receive Obamacare subsidies in 2016, the more disruptive any plan to repeal and replace Obamacare would be were a Republican to get elected president.
If justices were to issue a stay of a ruling striking down the federal exchange subsidies until the next tax year that begins in January, how would it affect the policy and political environment?
On the surface, it would provide Republicans with more breathing room. It would create space for a debate over healthcare alternatives and provide more time to craft policy without the immediate prospect of people being cut off. But Republicans still wouldn't have much time.
The Supreme Court is expected to decide this case by the end of June. The next period of open enrollment for Obamacare (for 2016 plans), begins this Nov. 1. Well before that, insurers have to decide whether to participate in Obamacare and set premiums. They won't have time if Congress waits until Dec. 31 to resolve any uncertainty over the status of the subsidies.
Were Congress to wait until the last minute to act, it would place the battle over Obamacare front and center in the Republican primary fight as the early contests approach. It will mean that Republican candidates would have to be able to explain how they'd handle the situation.
Having the crisis play out in early 2016 rather than the summer of 2015, could mean that Republican members of Congress would take a harder line position. Voters, after all, would be paying more attention to politics given the presidential race. Any Republican who votes to restore the subsidies could risk a primary challenge from an opponent portraying this as a vote to expand Obamacare.
On the other hand, the later timeframe could make the risk-averse Republican Congressional leadership more eager to cut a deal, rather than have a bruising fight spill into a crucial election year for which they have high hopes.
Whatever the case ends up being, for now all we can say is that Alito introduced another wildcard that will keep us guessing until the Court announces its decision.
