WASHINGTON (AP) — If the Supreme Court rules the way most Republicans want in the latest health overhaul case, GOP lawmakers who now have insurance coverage under President Barack Obama’s law might have some explaining to do.
Members of Congress, staffers and dependents actually get their health insurance under a little-known provision of “Obamacare.” But if the Supreme Court strikes down government health care subsidies for millions of people in more than 30 states, legal and benefits experts say coverage for lawmakers from those states won’t be affected.
It could be a politically painful unintended consequence.
“That won’t look good, will it?” said Walt Francis, author of an annual guide to the federal employee health benefits program.
“People will react very negatively to the double standard,” said former Sen. Tom Daschle, D-S.D. He said that could become a catalyst for Congress to address the loss of coverage by constituents in states from Arizona to Maine.
About 15,000 congressional staffers, lawmakers and dependents in the capital and around the country get their health insurance through the Washington small business exchange, an online market created by the District of Columbia government under the federal health care law.
The members of Congress and staffers get coverage through DC Health Link because the Affordable Care Act requires them to use the same kind of channels as do regular folks.
However, instead of the tax credits at issue in the Supreme Court case, lawmakers and staffers receive the usual government contribution for employee health insurance.
In the court challenge, known as King v. Burwell, opponents argue that the literal wording of the health law prevents the government from providing tax credits to residents of states that failed to set up insurance exchanges. Most states fall into that category, relying instead on the federal government’s HealthCare.gov website.
The tax credits and the government employee contribution serve the same purpose: to help people pay premiums. But experts say legal differences between a tax credit and an employer contribution would insulate Congress from any fallout if the Supreme Court invalidates tax credits in states that aren’t running their own insurance markets.
“Congress is covered under a completely different section of the Affordable Care Act,” said Tim Jost, a law professor at Washington and Lee University in Virginia. “The provision for covering Congress is completely unrelated to income-based tax credits.”
And there’s a second reason why congressional coverage would be safe: The District of Columbia health insurance exchange that lawmakers and staff use is considered a state-run marketplace. The court case only threatens the subsidies for states using the federal exchange.
Congress got shifted from the federal employee plan to the health care law’s insurance exchanges because of an amendment by Republican Sen. Chuck Grassley of Iowa back when the law was being debated. The tortuous path the law has since followed was unforeseen at that time.
Grassley reasoned that what’s good enough for the public should be good enough for lawmakers. If regular folks had to use health insurance exchanges, so should lawmakers and staff.
In practice, important differences remained between congressional coverage and the kind that their constituents are getting. A court ruling in favor of the health care law’s opponents would strip away the veil.
“If King v. Burwell goes for the plaintiffs, 8 to 9 million people will lose coverage in 34 states, and their congressmen will continue to get coverage through the D.C. exchange,” added Jost, who is a supporter of the health care law.
A Supreme Court ruling is expected late in June.
The administration has argued that the law, when read in context, makes it clear that residents of all 50 states are entitled to health insurance tax credits, regardless of the actions of their state leaders. Most of the states that have not set up insurance exchanges are led by Republicans, among them Texas, Florida, Georgia and Ohio.
If the court overturns the subsidies, senior Republicans in Congress say they would step in to prevent consumers from losing coverage. But they haven’t said how they would do that. And the White House is likely to resist the kinds of major changes to the health care law that Republicans might demand in exchange for continuing the subsidies.
Contacted by The Associated Press, GOP congressional leadership offices would not comment. Neither would the Obama administration. Grassley’s office also would not comment.