Why the Halbig Decision Is Nothing for Republicans to Celebrate

It’s actually incredibly dangerous.

Pro-Obamacare supporters shout slogans in front of the U.S. Supreme Court on March 27, 2012 in Washington, D.C.
Unfortunately for Republicans, the Halbig decision comes amid an upswing in Obamacare.

Photo by Alex Wong/Getty Images

At the end of her excellent column on the practical consequences of the anti-Obamacare ruling in Halbig v. Burwell—in short, liberals shouldn’t worry—my colleague Emily Bazelon makes a quick point on the politics of the decision:

One more reason I feel confident that the D.C. Circuit’s three-judge panel is on the losing end of this tug of war: Obamacare is increasingly popular. … Do all those governors who refused to set up state exchanges want the people in their state to be stripped of subsidies now? Does the Supreme Court want to pick up this ax and throw it? Surely the answer is no.

Bazelon is right, and the point is worth elaborating. If Halbig had come last October, after the disastrous rollout of healthcare.gov, or at the beginning of the year—when it was still unclear whether the Obama administration would meet its enrollment goals—Democrats would have had a serious problem in the form of a skeptical political establishment. Maybe governors would have backed away from establishing exchanges, and maybe other courts would have read the political winds and moved against the law.

Instead, Halbig came at an upswing for the Affordable Care Act. Millions have signed up on the exchanges, with more than 5 million people in 36 states participating in the federal exchange, receiving subsidies, and paying premiums. In other words, a huge constituency of beneficiaries—many of whom are middle-class—who receive and enjoy subsidized health insurance.

Which is another way to say that Republicans celebrating the decision should hold their tongues because—whether they realize it or not—they’ve opened themselves to serious political danger.

In Arkansas, where Republican Rep. Tom Cotton is running a tight race against the Democratic incumbent Sen. Mark Pryor, 40,000 people have paid premiums for health insurance on the federal exchange. If Halbig went into effect today, about 34,000 of those Arkansans would face huge increases in their premiums, given a national average increase of 76 percent, according to one study. That’s an unlikely outcome, but it shouldn’t (and likely won’t) stop Pryor from hitting Cotton as hostile to middle-class families and anyone else who needs health insurance.

The same is true in North Carolina, where more than 357,000 residents have selected a plan on the federally facilitated exchange and a large percentage—upward of 85 percent—have paid premiums. Absent any other information, it’s impossible to know whether they’re Democrats or Republicans, but either way, it wouldn’t be hard for Sen. Kay Hagan—the Democratic incumbent—to corner her Republican challenger Thom Tillis with questions about Halbig. Does he support the ruling? Would he raise premiums for hundreds of thousands of North Carolinians, just to prove a point?

You could run the same play in Georgia—where Republicans are defending an open seat against Democratic Senate candidate Michelle Nunn, and where more than 316,000 people have selected a plan on the federal exchange—Louisiana (more than 101,000), or Alaska (more than 12,800). The simple point is that, right now, Halbig opens Republicans to the accurate claim that they want to dramatically raise insurance premiums for millions of Americans and yank health insurance from millions more. And given the close fight for control of the Senate—Republicans need to win six seats and beat at least three incumbents to score control—an ideological win like this might not be worth the political cost.

Of course, what is bad could become catastrophic if the unlikely happens and conservatives prevail at the D.C. Circuit and the Supreme Court. There have been tweaks and changes, but in the nearly eight decades we’ve had a welfare state, middle-class Americans have never lost an entitlement. And indeed, our largest and most popular programs—Social Security and Medicare—are nearly untouchable. Even anti-entitlement crusaders like Wisconsin Rep. Paul Ryan have been forced to pose as protectors when appealing to the public.

Simply put, a Republican Party that demolishes Obamacare isn’t one that regains a governing majority—it’s one that throws the health care system into chaos and destroys itself as a viable national party.