Republicans May Have Already Missed Their Chance to Influence King v. Burwell

A lot of the coverage of King v. Burwell revolves around a sort of “race” in which congressional Republicans are trying to convince a majority of Supreme Court Justices that siding with the plaintiffs in this case won’t produce “chaos.” The race ends, according to most accounts, at some point in late June, when SCOTUS announces decisions.

Perhaps I’ve missed something, but TPM’s Sahil Kapur has the first story of this sort to take notice of the fact that the actual decision in the case will probably be made not in late June but in early March:

For Republicans, winning the potentially decisive vote of Chief Justice John Roberts to gut a centerpiece of Obamacare could hinge on persuading him that the health care system won’t descend into chaos if he grants them their wish.

So Republican leaders are eager to convey to the chief justice, who is protective of the Supreme Court’s institutional legitimacy, that they will be ready to act. There’s virtually no chance Republicans will have a contingency plan ready by March 4, when the justices will meet privately to decide the case, and doubtful that they’ll be able to rally around a solution by the end of June, when a ruling is expected.

Actually, March 4 is the date on which oral arguments are scheduled to be held on King v. Burwell. The Court’s normal practice is to hold a Friday conference where preliminary votes are taken and opinion-writing assignments are made on cases heard earlier in the week. So that would make the D-Day Friday, March 6. And as Kapur notes, there’s approximately zero chance congressional Republicans will have their act together on an Obamacare replacement by then.

I suppose it’s possible the Chief Justice or some other Supreme could say on March 6: “We don’t know yet if or how Congress will respond; I refuse to vote until we’ve given them more time to react to the thinly veiled signals we sent out during oral arguments.” That would be more than a little unusual, however. The Court could obviously still strike down Obamacare subsidies in the states that did not set up their own insurance purchasing exchanges. But if a decision in that direction depends on assurances of a seamless transition to a new system set up by Congress, it just ain’t happening.

UPDATE: On Twitter, in response to my argument, Ian Millhiser and Scott Lemieux, who follow SCOTUS a lot more carefully than I do, note the credible (though not undisputed) reporting from at least two sources that Roberts pulled a post-conference flip-flop in NFIB v. Sebelius, the main challenge to Obamacare’s constitutionality. Conservatives, already infuriated by Roberts’ position, jumped on this reporting to suggest the Chief Justice had been intimidated by liberal pressure in the interim. So there’s precedent for a big change after the preliminary vote is held.

In this case, however, the impetus for a flip-flop would presumably be some late GOP deal to enact an Obamacare replacement or some sort of temporary “fix.” Republicans have been tripping over each other to deny the possibility of the latter, and it’s hard to imagine a scenario where GOPers agreed on a replacement and Obama agreed to sign it in time for Roberts or anyone else on the Court to pull off a flip-flop. So I stand with my original assessment that the gig’s up.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.