Constitution Check: Does anybody in Washington have a duty to save Obamacare?

Lyle Denniston, the National Constitution Center constitutional literacy adviser, looks at who could be responsible for finding a solution for millions of Americans who face a possible loss of health care insurance if the Supreme Court rules against Obamacare.

THE STATEMENT AT ISSUE:

“We know of no administrative action that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”

– Health and Human Services Secretary Sylvia M. Burwell, in a letter February 24 to a member of Congress who had asked her about the impact on the federal health care law if the Supreme Court were to strike down the law’s system of subsidies to help consumers buy health insurance. The court holds a hearing on that issue next Wednesday in the case of King v. Burwell.

WE CHECKED THE CONSTITUTION, AND…

Much of the American Constitution is about process, not outcomes. So, if the Supreme Court strikes down a federal law, it is not the court’s duty to find a way to ease the impact of such a ruling. Congress or the Executive Branch might react with a remedy, but – if they are willing to pay the political price – they need not cover for what the court has done that may have harmful consequences.

Similarly, if Congress were to let the government go into a shutdown for lack of money, the White House and the Supreme Court don’t need to reopen the doors of government agencies and put them back to work. In fact, they probably don’t have the power to do that.

Indeed, none of the national government’s branches has a roving mandate to clean up after any other branch that causes some disruption of the civic order. If there is a clear public need to do so, the Founders tended to assume that the system they were designing would take care of it, but they generally did not require that as a constitutional duty.

Those thoughts come to mind as official Washington grows increasingly anxious about the prospect that millions of Americans – many of them poor – probably will lose their health insurance if the Supreme Court rules against the government in the new case now before it.

The case of King v. Burwell involves a strong challenge to the system of subsidies that Congress wrote into the Affordable Care Act, to help lower-income consumers afford to buy health insurance. If the court upholds the challenge, subsidies will be ended for consumers in 34 of the 50 states, and there will be a cascading effect on others as premiums for health insurance shoot up. The result will be what sponsors of the Act call the “death spiral” – there won’t be enough healthy people left in the health insurance market to support the ACA’s system of affordable premium policies, the insurance industry will give up on it or jack up premiums, and the system may well collapse.

In late January, the leaders of a House of Representatives committee wrote to Health and Human Services Secretary Sylvia M. Burwell, saying that the panel was “examining the extent to which the Department of Health and Human Services, and other relevant agencies of the federal government, are preparing for the possible consequences of the Supreme Court’s decision in the case of King v. Burwell.”

The lawmakers made no suggestion that the House or Senate would help rescue the health care law if the decision did go against the government. (Indeed, the House has voted some 60 times in recent years to repeal the Affordable Care Act entirely, and the law clearly does not have sturdy majority support in either the current House or current Senate.)

The clear implication of the committee members’ letter was that it would be the job of the Executive Branch to find a remedy if the decision went against the law’s subsidy system.

Secretary Burwell wrote back, declaring flatly that there was no backup plan, and left the clear impression that her department was not even trying to think up a fallback approach. She did express confidence that the court would not rule against the government, but, of course, she cannot depend upon that outcome occurring.

Her response at least implied that, if the government does lose the case, there is going to be mounting political pressure on Congress to step in to rescue the law. She may also have hoped that the Supreme Court would be thinking about “the massive damage” that she perceived a loss for the government would mean to the country, and hoped that such information might influence the court to be more sympathetic to the law.

Even if the court did not see the Burwell letter, and it is most unlikely that it did or that it was even aware of it (it was not part of the record in the King case), the court has been told a good deal about the dire effects of a ruling against the government; that has come in a series of friend-of-the-court briefs filed as part of the record in the case. Whether the court would feel a need to shape its decision to head off such effects cannot be known at this stage.

The court more likely would be inclined to assume that, if the country would be harmed by such a decision, Congress would step up and deal with it. As an institution, the court does seem to have greater faith in the capacity of Congress to do its work that many of the critics of the national legislature now do.

Even so, there is a device available to the court – it has used it at least once before – that could actually put significant pressure on Congress to react to such a decision. In June 1982, the Supreme Court struck down a sweeping new federal bankruptcy law that had completely altered the way federal courts handle debtors’ cases. That was the decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.

But, anticipating that judicial chaos might follow that decision, the court chose to delay the effective date of its ruling for more than three months, to “afford Congress an opportunity to reconstitute the bankruptcy courts” or to adopt other means of correcting the constitutional flaw the court had found. Congress did exactly that, and the bankruptcy system went on, uninterrupted.

In a Congress so often deadlocked, and with so many members who are hostile to the Affordable Care Act, would a three-month delay of an “adverse ruling” by the Supreme Court be enough to stir action?

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