If the court holds that the ACA means what it plainly says, then billions of dollars have been disbursed through federal exchanges contrary to the law. The ACA will be crippled until Barack Obama negotiates help from a Republican-controlled Congress.The key word here is "until." Will appears to acknowledge that stripping millions of their healthcare subsidies is a surefire political loser (especially if you demand that they refund all payments). Republicans, he seems to acknowledge, will have no choice but to correct this little error in the law. The only question will be how large a ransom they can extort in exchange.
The future is hard to predict, but this should be reassuring to people like me. It means that stripping people their health insurance is politically unviable, and that even Republicans will be forced to mend Obamacare. This, in turn, means that Obamacare is here to stay, and that even if they win their Supreme Court lawsuit, Republicans will have their noses painfully rubbed in that fact.
Will tries to salvage a silver lining. At least Republicans will be able to extort some kind of ransom in exchange. Maybe. But I stand by my previous statements. Seizing hostages for ransom is unpopular. Trying to extort unpopular policies for ransom is also unpopular. These two things tend to go together because anyone wanting to pass a popular measure has no need to take hostages to get it through.
Look, my ideal preference would be some sort of deal to fix this glitch before the Supreme Court gets the chance to rule on it. It is my opinion that this should be doable if enough pressure is brought to bear. The nearer the threat of people losing health insurance, the greater the pressure. That undoubtedly means that the right time is from March (when the Supreme Court hears argument) to June (when it makes up its mind). But Will is probably right -- if the Supreme Court actually decides to strip millions of their subsidies, the pressure will skyrocket and probably become irresistible. I would still rather make the change before the Supreme Court makes up its mind, though, because if the change is made after, there will be an indeterminate gap in which millions of people (some presumably with medical problems that make health insurance essential) will either go uninsured or in terror of losing their insurance and having to refund any subsidies they have paid. This is an outcome I would prefer to avoid.
As for a deal, I have no objection to giving Republicans something in exchange for fixing this mess. That is how the game of politics is played. Something like repeal of the employer mandate of the medical devices tax is reasonable. For the most part, I think Republicans have the best chance for a good deal if they act before the pressure massively ratchets up as loss of insurance goes from abstract threat to immediate reality to millions. Certainly, if they try to use millions losing their health insurance to extort something substantively unpopular, it will look very much like hostage taking. And any deal that allows the subsidies to be saved will be unacceptable to the Tea Party wing.
But Republicans do have one card up their sleeve that can do Democrats and Obamacare immense harm. Agree to fix this glitch and allow millions to keep their subsidies -- for now. But in exchange, demand repeal of the individual mandate. Save Obamacare for now, in exchange for inducing the death spiral that will destroy it in the long run. Since this provision is substantively unpopular, if President Obama makes clear that he will veto any such deal, he will look like the one taking hostages. If they play their cards right, the Republicans can bring pressure to bear on Democrats to agree to a measure that will destroy Obamacare in the long run in exchange for saving it in the short run. That, I think, is what we should fear most.**
*And don't tell me it should be Attorneys General. Technically your are right, but I don't care.
**And what we should hope for is a replay of a familiar script -- the Tea Party faction refuses to pass any provision that could save Obamacare, even if millions lose their health insurance. Republicans are therefore forced to pass the measure with the strong support of Democrats and have to make something acceptable to Democrats. Although many moderate Democrats would probably agree to restore subsidies in exchange for repealing the individual mandate. Thing could get rough.