Republicans to high court: We have ObamaCare plan

Republicans are trying to convince the Supreme Court that their party is nearing a consensus on how to replace about $25 billion of ObamaCare subsidies that the justices could strike down later this year. 

The senators’ last-minute attempt to rally their party is an effort to counter criticism that the party lacks a plan to deal with a victory by plaintiffs challenging the legality of the subsidies.

{mosads}It is also a direct appeal to the Supreme Court justices as they begin arguments on the biggest ObamaCare case in three years.

With the court prepared to hear oral arguments Wednesday, the GOP is sending the message that the sky won’t fall in if the high court rules against the administration, even though it would deprive about 8 million people of financial assistance to buy healthcare insurance.

The effort is intended to make it easier for the court to strike down the subsidies, since Republicans believe the court is more likely to rule in their favor if it believes a plan is in place to limit the fallout. 

It’s the same reason Republicans have seized on statements from the White House and Health and Human Services Secretary Sylvia Matthews Burwell that officials have “no plans” in case of a plaintiff victory.

“What Burwell does not have — any plan — Republicans do have,” Sen. Bill Cassidy (R-La.) told The Hill on Monday.

Senate Republicans have recently tried to unite their party around a fallback plan in which people could receive temporary government help to keep their subsidies.

“I think there is a kind of consensus among Republicans that there would be some transition,” Cassidy told The Hill.

Five Republican senators, including Cassidy, have published three separate op-eds in the last week, each presenting slightly different versions of the temporary assistance programs.

“Republicans have a plan to create a bridge away from Obamacare,” Sens. Orrin Hatch (R-Utah.), Lamar Alexander (R-Tenn.) and John Barrasso (R-Wyo.), wrote in an op-ed published in The Washington Post late Sunday.

They argued their party has achieved “a great deal of consensus” on a plan to provide relief to those who lose the subsidies.

Jonathan Adler, a law professor at Case Western University whose research sparked the case, said it is smart for the GOP to emphasize they have a “plan B,” because it signals to the justices that they are willing to take on responsibility in the wake of the decision.

“The court should decide the case based on the law, but judges are people too,” Adler said in an interview Monday. “Certainly, it’s easier for judges to follow the law when they think the consequences of such a decision are manageable, and it’s harder to follow the law if judges fear that doing so creates big problems.”

It doesn’t appear that House and Senate Republicans have entirely rallied around a plan to replace the subsidies, however.

Senate Majority Leader Mitch McConnell’s spokesman declined to say whether Senate leadership supports the proposals. He added that McConnell plans to address the case in his own floor speech this week.

“Our conference has held multiple meetings on this issue and will continue to meet,” McConnell spokesman Don Stewart said.

House Republicans put out their own plan late Monday, which also promises tax credits in states that could lose them though it does not outline a proposal for transitional assistance for people losing subsidies, as the Senate’s does.

Still, authors of the House plan, led by House Ways and Means Chairman Paul Ryan (R-Wis.), stressed that there is a “great deal of consensus” in both chambers.

The proposal from the three Senate chairmen would prioritize temporary “financial assistance” that they say would help people make the tough transition to a post-ObamaCare system.

The senators do not say how that financial help would differ from tax credits currently offered under the healthcare law or how long the transitional period would be.

The most specific proposal has come from freshman Sen. Ben Sasse (R-Neb.), who last week proposed allowing an 18-month grace period using an existing law known as COBRA.

In the same piece, Sasse warned that the Republican Party could “lose the whole war” against ObamaCare if too many Republicans remain divided on a replacement strategy.

Cassidy, a longtime ObamaCare foe, also published an op-ed Monday calling for some form of tax cuts or subsidies that would allow people to keep their healthcare temporarily — without requiring major legislative changes from Congress.

Cassidy, who said he supported Sasse’s plan, stressed that consensus is growing within the party even if some remain opposed to any action. Some hard-line members, such as Rep. Steve King (R-Iowa), have said they will not support any legislation extending ObamaCare.

“There are those who just understand the negative effects of ObamaCare, and they just hope that if this goes away, then all the rest is taken care of,” Cassidy said. “I wish we could go back … but it is gone. ObamaCare has scorched the Earth.”

This story was updated at 8:54 a.m.