It is time to talk about President Obama’s contingency plan for health care. The Supreme Court heard oral arguments earlier this month in King v. Burwell, a case challenging the provision of tax credits on federal insurance exchanges. While the legal issues are dry lawyers’ fare — how to interpret several interconnected phrases of the Affordable Care Act — the practical stakes are high. The government estimates that millions of Americans will be left without affordable health insurance if it loses.
While the administration may well prevail, it has expressed remarkable pessimism about its options if it does lose. The secretary of health and human services, Sylvia Mathews Burwell, wrote to Congress last month about the administration’s lack of a contingency plan: “We know of no administrative actions 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.”
But luckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit.