There's few things incoming Senate Majority Leader Mitch McConnell wants more next year than for the Supreme Court to do the GOP's bidding on Obamacare in
King v. Burwell. That's the case that will decide whether the statute actually affords tax credits to residents who buy insurance through the federally run exchange, which covers 36 states and roughly 7 million customers.
But the GOP leadership may already be sabotaging the effort by declaring the law dead on arrival if the Supreme court rules against the subsidies. For instance, McConnell said such a ruling on Obamacare would "take it down" and offer the chance "for a major do-over" on the law, while GOP Sen. John Barrasso said a decision against the White House "alone is enough to bring down the health care law."
Those declarations, however, are at odds with the point of the lawsuit, writes Sahil Kapur at Talking Points Memo.
The problem is that this message — that a ruling against Obamacare would assist Republican efforts to weaken Obamacare — contradicts the message undergirding the lawsuit: that the challengers are simply trying to perfect the law's implementation, not harm it.
In other words, if the Supreme Court says the language does not allow for those taxpayer subsidies in federally run exchanges, in theory, Congress will fix the law so that it works rather than break it.
But as Speaker John Boehner declared after the D.C. Circuit Court struck it down, "It cannot be fixed."
"What's telling about these statements is that the challengers claim they're trying to uphold what Congress always meant to do. And that argument has always been hogwash. But the fact that you've got Republicans now admitting that their hope is not to uphold the law but to put a fork in it — that's no great newsflash, but it does complicate the plaintiffs' litigation story," said Nicholas Bagley, a law professor at the University of Michigan and an expert on the King case.
In fact, Jonathan Adler, a law professor who helped formulate the legal challenge,
argued on SCOTUSblog that "the law clearly says what it says, that it means what it says, and that if Congress made an error, it is up to Congress to fix it."
Fat chance of that.