The Supreme Court could make June the cruelest month for Republicans.
The court will hand down two decisions fraught with political implications. One will decide whether same-sex marriage is protected by the Constitution, and the other whether to throw out a central piece of the Affordable Care Act, the federal subsidies for about 8 million Americans.
Conservative opponents of gay marriage and the health-care act want the high court to sidetrack both. Republican Party leaders, and some of the leading presidential candidates, fear such rulings could backfire.
Both decisions may be 5-4, though smart court watchers predict a decision favoring same-sex marriage, but are genuinely uncertain about the health care verdict.
The politics of gay marriage have changed dramatically since 2004, when George W. Bush and Karl Rove used opposition as a wedge issue. Today, 37 states, containing more than 71 percent of the U.S. population, have marriage equality laws. Such measures are supported by most voters.
Some social conservative candidates vow to fight any court decision they don’t like. Former Arkansas Gov. Mike Huckabee suggests just ignoring a Supreme Court ruling. Former Pennsylvania Sen. Rick Santorum says that if the court deems same-sex marriage to be a right, conservatives should treat the ruling as they do the Roe v. Wade abortion decision and keep fighting it. More mainstream GOP conservatives worry more about an anti-gay marriage decision that would bring pressure on all candidates to call for rolling back current protections, opening the possibility of new litigation in states where such unions are legal.
The Supreme Court watches election returns. It’ll be interesting to see whether the justices are affected by the overwhelming vote in favor of same-sex marriages in Ireland, especially Chief Justice John Roberts. He could see the Irish vote as recognition of the inevitable or could argue it demonstrates the issue is better left to the political arena.
The health care case revolves around a small drafting error, made as Congress rushed to pass the measure in 2010. States can establish exchanges where people can buy insurance with the help of federal subsidies. The subsidies also are available to residents of states that have chosen not to set up an exchange. This provision was discussed repeatedly with no lawmakers disagreeing. It also became part of budget calculations.
Opponents of the health-care act, however, have seized on an erroneous reference to exchanges “established by the state,” which they argue prohibits federal subsidies to people in 34 states that have not set up an exchange, most of them dominated by Republicans and where anything associated with President Barack Obama is a dirty word.
But about 8 million residents in those states now receive these subsidies; even those who hate the health-care act know they would have a problem if they were removed. “We can’t just ignore those people,” acknowledges Sen. Richard Shelby, R-Ala.
If the court sides with the plaintiffs, the Democrats have a simple remedy: Congress should either explicitly clarify those four words or those states could quickly set up exchanges or, as allowed, piggyback on exchanges in other states.
With the health-care act a third rail for many conservatives, Republicans are struggling to find a response. They’ve drafted different proposals that would continue subsidies of some sort in the affected states while eliminating the individual and employer mandates under the law. That’s unacceptable to both the president and the insurance industry. “If you take away universal coverage, the system no longer is operational, there will be a mass exodus,” says former Senate Democratic leader Tom Daschle, a health care expert.
Then the simple solution would be to extend the current benefits until the next Congress, when a new law can be passed by Republicans. There’s even a slight chance that if the court ruled against law, it would delay implementation of its decision to avoid chaos. But anything extending the health-care act, even temporarily, is opposed by hardline conservatives. In the Senate, Republican leaders are lining up behind an extension but, tellingly, presidential contenders Marco Rubio, Ted Cruz and Rand Paul have not signaled their position.
Albert Hunt is a Bloomberg columnist.