May 5, 2015 -- President Barack Obama could enjoy a political advantage over a fractious Congress if the Supreme Court upends the health care law's system for distributing insurance subsidies, according to a former top health official in the George W. Bush administration.
Justices may decide next month in King v. Burwell, in which the interpretation of a sentence in the Affordable Care Act will decide whether roughly 9 million people could lose access to federal insurance subsidies. At issue is whether the assistance can be provided only in state-run marketplaces and not in the federal one, healthcare.gov.
Former Health and Human Services (HHS) Secretary Michael O. Leavitt said Obama could respond to a decision limiting subsidies by leaning on Congress to change the law and allow the existing system to continue. Leavitt said he believes that HHS officials may not be heavily involved in preparing administrative steps in such an event, with the White House focused on a political response.
The White House response is "going to be 'Just fix the law. There's five words there'," Leavitt said last week at the American Hospital Association's annual membership meeting. "They are not poorly positioned here. They are just going to be able to continue to drive that message."
If the Republican-controlled Congress doesn't deliver a legislative fix that Obama finds acceptable, the administration could turn to its executive powers and act as if it has unilateral power, said Leavitt, who now runs a health consulting business.
"Congress will say, 'Wait a minute, you don't have it,'" and they will say 'Sue us' and they'll take another two years in which to operate and by that time it will be 2017," Leavitt said. "This is the reality that we're dealing with."
According to Leavitt, who also is a former three-time governor of Utah, the leaders of executive branches at state and federal levels enjoy a natural advantage over legislators in that they can stick to a single message or demand, while lawmakers represent more varied agendas.
"I dined out for a very long time getting the House and the Senate to argue with each other," Leavitt said of his own experience as a governor. "You speak with one voice and they speak with multiple voices."
Looking at the state of the GOP-controlled Congress, Leavitt predicted that Republicans may split into three camps if the high court rules against the subsidies in the federal marketplace.
"The first will be those that would say 'This is our chance. Let's blow it up.' The second would be 'This is a good thing. Let's get something and move on.' And the third will be 'Let's get a lot and move on'," Leavitt said, adding that this will complicate efforts to enact health legislation.
Still, the efforts to address the health law in the conference agreement on the fiscal 2016 budget resolution (S Con Res 11) are an encouraging sign, he said. It's possible that Republicans could pass a health bill in response to the King v. Burwell decision, but then the question becomes how Obama chooses to respond.
"The president has got a good hand," Leavitt said. "He knows it."