The Aftermath if King Is Decided CorrectlyComments
We’ve discussed the politics of the Supreme Court announcing that the card says “Moops!” extensively. But what if the Court correctly interprets the statute? Here, I agree with Brian Beutler that things will get very messy for Republicans:
But it is also quite conceivable that the whole effort will boomerang on the GOP even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.
As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.
It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.
I would guess that if the government wins in King — not what I’d bet on, but certainly possible — it will indeed be on Chevron deference grounds. (Let me pause here to concur with Stephenson and Vermeule that for all intents and purposes Chevron is a one-step test.) Roberts is right that this would allow President Trump to order the IRS to stop issuing the subsidies to free up money for his proposed solid gold toilet tax credit. My guess is that whatever they say during the primaries, a Republican president would not unilaterally stop the subsidies. I wouldn’t put anything past a contemporary Republican, but I think it’s more likely that the president won’t act without congressional collaboration.
But, certainly, the politics of this are genuinely bad for the Republicans. Clinton should by all rights be able to make a big deal of this in the debates, and any candidate who survives the Republican primaries will presumably have had to make some kind of promise to wreck the federally established exchanges. And while the Court upholding King on Chevron grounds won’t make the federally established exchanges invulnerable to future interference from a Republican president, it would at least pretty much ensure that political responsibility is apportioned correctly. The Republicans might be able to evade accountability if the Court does their dirty work, but a Republican president unilaterally ending the subsidies is a different story. They would own it fully.
I’m skeptical of the idea that the Republican Party would lose for winning King. But they would definitely lose big by losing, barring the unlikely event that five justices find that the ACA unambiguously provides tax credits for the federal exchanges.