(NATIONAL JOURNAL)
By Sam Baker
If the Supreme Court tears apart Obamacare this summer, the president won't be able to put it back together all by himself.
Executive action is all the rage in the White House these days, and it's hard to imagine a better candidate for unilateralism than fixing the Affordable Care Act in the wake of a crippling Supreme Court decision. That scenario would check every box: Republican intransigence; a top priority for Obama; and severe disruption in real people's lives.
There's just one problem: A good administrative solution might not exist.
"There are no administrative fixes that are realistic," said Neera Tanden, president of the liberal Center for American Progress. "We don't believe there's any administrative fix."
The high court is expected to rule this summer in a lawsuit over Obamacare's insurance subsidies, which more than 80 percent of enrollees are receiving. The challengers argue that the Affordable Care Act authorizes subsidies only in states that set up their own insurance exchanges, not in the 36 states that punted the task to the federal government.
A ruling in the challengers' favor would devastate Obamacare—millions of people could lose their coverage—and could wreak havoc on the non-Obamacare insurance markets in those 36 states. The repercussions would be severe enough to demand a fix. But a fix would be hard to come by.
The goal for the White House would be to simply and cleanly restore the law's subsidies, nationwide. But Congress wouldn't be willing to do that, and the White House wouldn't be able to on its own, health care and legal experts said.
"If the government loses this case, there will be considerable pain, and theres no easy, clean, quick fix," said Nichols Bagley, a law professor at the University of Michigan who has written extensively about the case.
Without a fix in Congress or a good administrative option, the only solution would be to convince the states to set up their own exchanges. That would involve convincing Republican governors and Republican-controlled state legislatures, all of whom have already refused to set up their own exchanges once, to cooperate.
"Given the political composition of most of the states that are not operating their exchanges, that's going to be a problem," said Timothy Jost, a law professor at Washington & Lee University and an Obamacare supporter. "There's nothing the administration can do to change that dynamic."
What the administration could do, though, is make it easier for states to take control of their own exchanges.