The president’s most likely response to an adverse court decision would be to refuse to work with Congress to fix ObamaCare. Instead he will likely mount an effort to force the 37 states now using the federal exchange to set up state exchanges to qualify for the subsidies. His administration could make it easy for states to continue to use the federal exchange while nominally taking ownership through a shell state entity. Ten states already have some form of partnership with the federal exchange.
Absent a strong Republican alternative, the president’s strategy would unleash powerful political pressure on Republican governors and legislators and force them to establish state exchanges. Such a result would saddle Republicans with a partial ownership of ObamaCare, alienating their political base and producing substantial fallout in the 2016 elections.
Republicans need a strategy that is easy to understand, broadly popular and difficult to oppose. It must unite Republicans and divide congressional Democrats, while empowering Republican governors and legislators to resist administration pressure. I believe that strategy is what I would call “the freedom option.” Every American should have the right to decide not to participate in ObamaCare: If you like ObamaCare and its subsidies, you can keep it. If you don’t, you are free to buy the health insurance that fits your needs.
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