By Philip Klein | January 26, 2015

If the U.S. Supreme Court rules in June that health insurance subsidies for millions of Americans are illegal, Republicans better not be caught flat-footed, because President Obama will be ready to pounce, Sen. John Barrasso, R-Wyo., told the Washington Examiner in an interview.

“As the president said to me in the White House [earlier this month], he said, ‘There are five million people [who receive subsidies through the federal exchange] — and I know who they are.’ He spoke like a community organizer who was going to try to use those people that he has actually caused significant damage to by not applying the law,” Barrasso said from his senate office.

The Wyoming senator has of late been something of a Paul Revere of the Republican Senate majority, shouting, “King vs. Burwell is coming! King vs. Burwell is coming!”

King vs. Burwell is a case with major implications for the future of Obamacare that will be argued before the Supreme Court on March 4 and likely decided by the end of June. At issue are the subsidies that the federal government provides for individuals purchasing insurance through Obamacare. Though the text of the law says the subsidies were to go to individuals obtaining insurance through an “exchange established by the state,” a rule released by the Internal Revenue Service subsequently instructed that subsidies would also apply to exchanges set up on behalf of states by the federal government.
If justices invalidate the IRS rule, then it would mean that millions of Americans in up to 37 states that did not set up their own exchanges would lose their insurance subsidies and be exposed to the full sticker price of Obamacare plans. On the flip side, taxpayers could stand to save hundreds of billions of dollars of subsidy money that would no longer have to be paid out.

A ruling would also have broader ramifications for the healthcare law. For instance, Obamacare’s fines against employers that do not offer health insurance coverage are triggered when a worker claims government subsidies to purchase insurance on an exchange — but in states where workers can no longer legally receive those subsidies, then there are no fines. The employer mandate, thus, is effectively dead in those states.

Additionally, the individual mandate exempts those who can’t find health insurance options for less than 8 percent of their income — thus, if the subsidies are eliminated, more people will be able to claim this exemption.

“The King decision is going to force the president’s hand to sign legislation and it’s going to give us an opportunity to work on ways of trying to eliminate some of the most damaging parts of the healthcare law,” Barrasso said.

Should the justices rule this way, Barrasso expects that Obama and his allies in the media would focus on those who would be stripped of insurance subsidies – people who he argued were thrown into turmoil by Obama’s misapplication of the law. Obama would likely push Republicans to pass a simple technical “fix” that would change the language of the statute to allow for subsidies to be used toward purchasing coverage on the federal exchange.
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Randy Barnett, the Georgetown University law professor who was the intellectual architect behind the 2012 Supreme Court challenge to Obamacare’s individual mandate, has argued that by advancing an alternative health care plan, Republicans would make it more likely that the justices would declare the subsidies illegal.

“As a rule, Supreme Court justices are reluctant to invalidate a law on which many relied,” Barnett wrote in a USA Today op-ed. “It will be far easier for the justices to enforce the law's existing language if they know there is a viable alternative that can be enacted by both houses of Congress and signed by the president within a week of their ruling.”

Asked about this calculation, Barrasso said, “I think between now and the time the Court rules, we need to show the American people that we want to limit the damage done by the healthcare law and prevent future damage. There are a number of people who have gotten subsidies. We want to make sure that there is a transition for them as we try to transition the entire healthcare law to a more free market system.”

http://www.washingtonexaminer.com/here-c...article/2559144