Hershey, Pa. — It’s a bit surprising that Jay Leno showed up last week as the entertainment at the first joint Senate–House Republican congressional retreat in decades. While Leno, the 64-year-old former host of NBC’s Tonight Show, was scrupulously non-partisan in his jibes and jabs, he added a touch of Hollywood flash to the serious discussions on budgets and bills. His favorite jokes involved Obamacare: “I’m telling you this Obamacare is getting serious and painful. I went in for a prostate exam the other day, and it was conducted by a government drone.”
“It’s going to be better than it was, but the House still proposes and the Senate still disposes,” said Representative Daniel Webster, a former speaker of Florida’s state house who recently hoped to replace Boehner as speaker of the House. “You just sort of forget that they’re not going to be able to operate like we operate. But it’s going to be better, that’s the great promise, and I think people will be happy about that.”
Looming over everyone at the congressional retreat was the court case King v. Burwell, which will be argued before the Supreme Court in March and probably decided in June. The case amounts to an attack on the central nervous system of Obamacare: the federal-government exchanges that were set up to subsidize health insurance for low-income consumers. If the Supreme Court ultimately finds that the Obama administration violated the law in issuing subsidies to some 6 million Americans in the 37 states where the federal government (rather than the individual state) runs the health-care exchanges, it could force a wholesale revision of Obamacare. Jonathan Turley, a liberal constitutional-law expert at George Washington Law School, told me recently that a Supreme Court victory for the plaintiffs in King would put the continued existence of Obamacare up for grabs and force President Obama to the negotiating table with Congress and state legislatures.
The message that speaker after speaker rammed home to Republicans at the retreat was that they had better be prepared for a possible Supreme Court decision striking down subsidies in the 37 exchanges. “We should have a plan or framework visible by early March to improve the comfort level of the Supreme Court in striking down the exchanges,” Senator Richard Burr of North Carolina says. “Working speedily to show alternatives will also make it easier for the American people to understand who is standing in the way of a better health-care system.”
The three physicians who are members of the Senate — John Barrasso of Wyoming, Bill Cassidy of Louisiana, and Rand Paul of Kentucky — are working together with members such as Nebraska’s Ben Sasse, who was a health-care analyst when he was in the private sector. There is no lack of ideas to include in a possible Republican alternative to Obamacare. “Medicaid is failed medicine, and it’s cruel that so many people getting new health care under Obamacare are being shunted into it,” Avik Roy, a health-care expert at the Manhattan Institute who spoke at the conference, told me. “We could increase patient choices and improve medical outcomes if we gave tax credits for people to buy their own health-insurance policies not bound by the straitjacket of the Obamacare exchanges.”
Of course, keeping the American people from seeing that there are good alternatives to Obamacare will be President Obama’s precise goal if the Supreme Court strikes down subsidies to the federal government’s exchanges. He will dig in his heels and quickly move to showcase the pain that some Americans could suffer if they lose the subsidies. Republicans at the retreat said they are fully aware of the need to win the “political blame game.” “We have to be able to showcase people who are being hurt by Obamacare today and demonstrate how they would be helped by a different approach,” Senator Barrasso says.
Repealing Obamacare is still the clear and stated goal of Republicans in Congress; it’s become an idée fixe with some members as a way of demonstrating their conservative testicular fortitude. But the reality that Republicans now control both houses of Congress and can actually confront President Obama over his legacy achievement is pushing lawmakers to carefully consider how best to dismantle the law. Piece by piece, if necessary. But an assist from the Supreme Court on the Obamacare exchanges would give a big boost to their efforts, which is why Republicans at the Hershey retreat devoted so much time to mapping out their next moves, after the gavel comes down in June.
— John Fund is national-affairs correspondent for NRO.