How King v. Burwell Could End the Obamacare Wars Once and For All

In December, 1993 influential GOP operative William Kristol circulated a memorandum to Republican leaders counseling against cooperating with President Bill Clinton on health care. The party, he argued, should work to stop rather than contain the reform effort because once such a new entitlement had been set up, it would be impossible to undo and would in fact "relegitimize" a role for activist government, striking a "punishing blow against Republican claims to defend the middle class by restraining government."

Kristol's memo rallied the forces of obstruction and arguably ignited the modern health care war between the two parties. Indeed, the dependence argument -- that health reform had to be stopped before it went into effect because once instituted it would be impossible to repeal -- echoed on the right and informed the battles against the Affordable Care Act.

I thought of Kristol's famous warning this week when I read President Barack Obama's health care speech Tuesday to the Catholic Hospital Association Conference. "This is now part of the fabric of how we care for one another," the president said. "This is health care in America."

READ: [Obama Challenges King v. Burwell Subsidy Lawsuit, Pundits React]

More than two decades on, he was saying, Kristol's prophesy has finally come to pass: Obamacare and the health care system have become inextricably entwined.

With a decision expected in the King v. Burwell Supreme Court case before the month's end, that proposition could quickly be tested. And if Kristol -- and now Obama -- are proven correct, the idea that inaugurated the health care wars could be the truism that marks their conclusion.

Obama devoted a good chunk of his speech to the litany of good news surrounding the law five years on -- 16 million people covered, the uninsured rate at a record low level, slowing health care cost increases and so on -- and mocked the GOP for the gloomdoggling belied by this absence of a health care apocalypse. "The critics stubbornly ignore reality," he said.

Obama's speech is part of a mounting rhetorical skirmish in apparent anticipation of the King decision. "Sometimes, the divide between the White House and reality can be stark," Senate Majority Leader Mitch McConnell said on the Senate floor Tuesday, citing proposed premium increases.

READ: [Republicans Are Losing the King v. Burwell Obamacare Debate]

This much we know: Someone's lost touch with reality. If the high court finds in favor of the plaintiffs (reminder: a decision which would be intellectually dishonest) and strikes down tax subsidies for people getting insurance on federal exchanges, we'll find out who is living in fantasy land.

A poor King decision would put nearly 6.4 million people at risk of losing more than $1.7 trillion in tax credits and facing an average 287 percent increase in their premiums, according a study released earlier this month by the Kaiser Family Foundation. A February RAND Corporation study found that premiums would increase by 43 percent for those who do not receive subsidies and that all told, a net eight million people would likely lose insurance coverage (the end of subsidies would trigger individual market death spirals that would price insurance out of the reach of individuals not receiving subsidies as well).

Or to put it in political terms, the 12 most vulnerable GOP incumbent senators up for re-election next year represent states that would be affected; and 8 of the 10 most competitive presidential states would also get hit (all these according to the Cook Political Report's ratings).

Neither Obama nor GOP leadership has unveiled an official response to a GOP win in King, but their contours are easily discerned. "Congress could fix this whole thing with a one-sentence provision," Obama said earlier this week; that one sentence need only say that people on federal exchanges are eligible for tax subsidies.

READ: [Paying for Other People's Health Care Is American]

The GOP is not able to give an answer as succinct or coherent. GOP congressional leaders have insisted that when the decision comes down they'll have a plan to deal with any resulting chaos but thus far there has been no indication that either chamber, let alone congressional Republicans as a group, is coalescing behind any of the five -- five! -- different proposals that have been floated. Here's the thing: Having five plans is the same thing as having none since none can muster support for passage. (This is the GOP's Obamacare problem in microcosm; their answer is "repeal-and-replace," but while they're united behind "repeal," five years in they're still nowhere near an answer regarding "replace.")

Vox's Sarah Kliff looked at the five GOP proposals -- most of which aim to temporarily extend the subsidies while knocking out another part of the law -- and concluded that all "try to fix Obamacare and repeal Obamacare at the same time." As a result they would just replace "one type of chaos in the individual market with another." In short, the GOP's solutions to winning the King case are back-door repeal efforts, "fixes" which will inevitably cause more damage. So, for example, Wisconsin Sen. Ron Johnson has offered a plan that would extend the subsidies into 2017 while eliminating the individual mandate. Premiums wouldn't spike, then, because of the subsidies going away but because of the young and healthy leaving individual markets.

(And these solutions leave aside the fact that there's a nontrivial part of the GOP unwilling to fix the problem other than through outright repeal. This is especially true on the House side, as a Washington Examiner article recently noted. "Millions of Americans could lose Obamacare subsidies under a Supreme Court ruling this month, but many in the GOP don't need their votes anyway," the Examiner's Paige Winfield Cunningham put it bluntly. Many conservatives take the view that anything that doesn't kill Obamacare is an implicit endorsement of the law. So a fundraising email the outside group Senate Conservatives Action sent this week characterized proposals like Johnson's as plans to "surrender and snatch defeat from the jaws of victory.")

SEE: [Political Cartoons on Obamacare]

In any case, the odds that Obama could be induced to sign a "solution" that destroys the law in some other predictable way are vanishingly small. So either these proposals are, as the Washington Post's Greg Sargent has argued, veto-bait aimed at giving the GOP political cover or party legislators are laboring severe delusions regarding their own leverage.

We've seen this dynamic before, in Republican posturing surrounding the 2013 government shutdown and the various debt ceiling near-misses -- other crises where they threatened harm to the economy unless Obama blinked. The party had to surrender in those fights because it quickly became clear that they had deliberately manufactured the crises in order to force changes in policy. The extent to which the GOP faces a messaging crisis in the face of a King win was illustrated by the mockery South Dakota Sen. John Thune received this week when he tweeted that 6 million people at risk of losing their subsidies demonstrated Obamacare's flaws, an incoherent argument when you consider that the law itself provides those subsidies. On the other side, meanwhile, the president will argue that the whole mess could be fixed with a one-sentence solution.

The key question, as The New Republic's Brian Beutler has perceptively pointed out, will be whether the political pain reaches shutdown/debt-ceiling levels or is something they feel is manageable, like the blowback for failing to extend unemployment benefits.

READ: [The Republicans' King v. Burwell Problem]

If the political pain is indeed enough to force the GOP to rescue Obamacare from conservative judicial activism -- and given the number of swing presidential and senate states it would affect that is not implausible -- it would be a sign that Obamacare has joined Social Security and Medicare on the third rail of American politics. I somehow doubt that Bill Kristol will derive much satisfaction from his prescience.

Robert Schlesinger is managing editor for opinion at U.S. News & World Report. He is the author of "White House Ghosts: Presidents and Their Speechwriters." Follow him on Twitter or reach him at rschlesinger@usnews.com.