Whatever the Decision, Congress Isn't Ready for King v. Burwell Fallout

On a recent conference call with Senate Majority Leader Mitch McConnell, I asked him what Congress’ plans were in the event that the Supreme Court held for King–and therefore against the Obama administration’s lapdog IRS–in the King v. Burwell case.

Case Summary

At issue is whether the law should be implemented as written or as modified by the IRS. If the actual law stands, if the Court decides for King, then subsidies provided by the federal government through healthcare.gov are illegal andthe IRS ruling is vacated and must cease. Given the extremely high cost of health insurance due to Obamacare mandates, it is likely that most of the seven plus million subsidy-recipients will be unable to pay their premiums and will lose their insurance.

Sen. McConnell’s reply to my query was disturbing. He said, “We have had several discussions about how to handle a decision for King. At the present time, I am not ready to discuss this with the public.”

Translation: Trust us.

A view of the Supreme Court, January 16, 2015 in Washington, D.C. (Drew Angerer/Getty Images) 

I have unpleasant but presumably not surprising news for Sen. McConnell. With the 2014 Congressional job approval rating reaching an all-time low of 15 percent, there is one thing that the American people are in total agreement about: We don’t trust you!

Sen. McConnell did say something that might, just might, be mildly encouraging. He indicated that John Barrasso in the Senate and Tom Price in the House are leading the discussions. Both are physicians and orthopedic surgeons. Both understand how poisonous Obamacare is and why our healthcare system in general is so sick. Unfortunately, I fear that any wise counsel these two might offer will be drowned out by partisan bickering and political maneuvering.

Consequences Of The Court’s Decision

Alan Fram of Associated Press recently wrote, “The party that wins the impending Supreme Court decision on President Barack Obama’s health law could be the political loser.”

This is true for two reasons.

A decision for Burwell preserves Obamacare, which is bad for the public as it makes health care less available, increases national spending and takes more out of our wallets. Democrats will suffer at the poles in 2016 because voters experience increasing wait times to see a doctor, no job, and an exploding national debt.

A decision for King will cause over 7 million Americans to lose their health insurance. They will want to blame someone, and that someone will be the Republican-led Congress unless there is a plan in place to prevent this instant pain suffered by millions of voters. Never mind that in the long-term, 320 million Americans will benefit from elimination of federal subsidies. The short-term is all people see and feel. Given the extreme dysfunction in Congress, I strongly doubt that Sen. McConnell’s “discussions” will produce the legislation that we need.

(Source: Shutterstock) 

Nonetheless, I had to try to help. I wrote an e-letter to Sen. Barrasso and Rep. Price urging them to convince Congress to do what is right, not what is expedient; to legislate what we need, not what you know is best for us. Keep it simple. Tell us what you are doing and why in declarative sentences with no weasel words, legal parsing, or pointing the flying fickle finger of blame.

What we don’t want are grandiose predictions that never come true or some politically acceptable compromise. My personal definition of a Congressional compromise is where the two parties each get some of what they want and We The People get nothing of what we need.

What Congress Should Do

What Congress should do is simplicity itself. Do it on the same day as the Supreme Court releases its decision. Have it ready to go.

(1) Make federal subsidies legal (by passing a law so stating) but only for two years after which subsidies automatically cease.

(2) Undo the insurance mandates and complex bureaucracy enshrined in Obamacare. That will restore control to the consumers and release free market forces. Consumers – We The Patients – can pick and choose. Sellers can compete without being forced to sell only what the government says they must for a price decided by Washington. The cost of insurance will plummet to a truly affordable level, without the need for subsidies. Consumers will be able to buy what they want when they want it and not buy what they don’t want. At present, that is illegal under Obamacare.

(3) Keep the requirement to sell insurance to those with a pre-existing condition – the one part of Obamacare that everyone likes.

That’s it. Nothing extraneous. Don’t try to solve all the woes of healthcare in one day. Handle the immediate problem. No riders or add-ons. No high-sounding promises of a “chicken in every pot ... a car in every garage,” and free health care for everyone. No complex structure of costly rules and regulations. No Omnibus Bill that takes two weeks to read and no one understands.

If the president threatens to veto, ignore him. Pass it anyway. If he vetoes your rescue of the American people, then he owns the problem. Let him explain why he graciously but illegally bestowed subsidized health insurance on 7.7 million loyal subjects in 2014 and then took it away in 2015 by “using his veto pen.”

And whatever you do, Congress, DO NOT say, “Trust us!”

Dr. Deane Waldman MD MBA is author of “The Cancer in the American Healthcare System;” Professor Emeritus of Pediatrics, Pathology and Decision Science; and Adjunct Scholar (Healthcare) for the Rio Grande Foundation, a public policy think tank. Dr. Deane also sits on the Board of Directors of the New Mexico Health Insurance Exchange, as Consumer Advocate. Opinions expressed here are solely his and do not necessarily reflect the opinions of the Board.

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