Burwell: HHS Cannot 'Undo the Damage' Administratively If SCOTUS Guts Obamacare

By Susan Jones | February 27, 2015 | 10:07am EST

Health and Human Service Secretary Sylvia Mathews Burwell testifies on Capitol Hill in May 2014. (AP File Photo)

(CNSNews.com) - Health and Human Services Secretary Sylvia Mathews Burwell says she believes the U.S. Supreme Court will side with the Obama administration in a case challenging a critical element of Obamacare.

But if it doesn't, she said the Obama administration believes there's nothing it can do.

"If the Court decides, which we don't belive they will, but if the Court decides on behalf of the plaintiffs -- if the Supreme Court of the United States says that the subsidies are not available to the people of Texas (and other states with federal exchanges), we don't have an administrative action that we can take. So the question of having a plan -- we don't have an administrative action that we believe can undo the damage," Burwell told a House Energy and Commerce subcommittee on Thursday.

Burwell said it's important to understand what the damage would be -- including the loss of taxpayer-provided subsidies that help millions of Obamacare subscribers afford their insurance.

She said the people in Texas, who buy insurance on a federally established exchange, "should have the same subsidies as the people in New York," who buy insurance on a state-run exchange.

So if the court strikes down those subsidies, based on the way the law is written, "the administration's just going to hold up your hands, say 'We surrender?'" Rep. Joe Barton (R-Texas) asked Burwell.

"What we believe is -- we believe the law as it stands is how it should be implemented," Burwell responded. "And with regard to when the Supreme Court speaks -- if the Supreme Court speaks to this issue, we do not believe that there is an administrative authority that we have in our power to undo it. And so -- that's something we don't believe we have."

In response to another question -- from a Democrat -- Burwell said she is not aware of any Republican legislation that would reduce the number of uninsured the way the Affordable Care Act does. "I don't see them coming up with any alternative," Rep. Gene Green (D-Texas) told Burwell.

"You know, we haven't," Burwell said. "We have not seen any alternatives."

Rep. Eliot Engel (D-N.Y.) also challenged Republicans for repeatedly trying to repeal or sabotage the Affordable Care Act:

"I think it's somewat ironic that our Republican friends are demanding that this administration fix problems that they themselves created and have shown zero interest in fixing. Should Republicans get what they want, and the Supreme Court rules in favor of King (the plaintiffs), I woud urge my colleagues, if that should happen, to pass legislation to ensure that Americans get continued access to affordable coverage through the federally facilitated exchange, just as Democrats intended."

Burwell made it clear that HHS is willing and eager to work with Congress on "any legislation that would work on affordability, access and quality."

If the court rules against the administration, Democrats will blame Republicans for taking subsidies away from poor people. To avoid the political fallout, some Republicans who oppose Obamacare nevertheless believe the subsidies should not be dropped immediately if the Supreme Court rules against them.

Sen. Ben Sasse (R-Neb.) reportedly plans to introduce legislation next week that would keep the subsidies for 18 months "to provide temporary, transitional assistance to those who are exiting Obamacare so they can do it in an orderly way.”

But other Republicans, Sen. Ted Cruz among them, say the entire law, not just the subsidies, should go away immediately.

Earlier this month, Cruz introduced a bill to repeal Obamacare in its entirety. The bill has 44 Republican co-sponsors.

"This repeal bill is pro-growth, pro-jobs, and pro-liberty," Cruz said. "It provides time for Congress to start over, to pass true market-based reforms that will allow the purchase of insurance across state lines, expand health savings accounts, and make health insurance, personal, portable, and affordable.

"We must send this bill to the President's desk," he continued. "If he vetoes it, the GOP Congress should pass bill after bill to stop Obamacare. Each will have broad support among the American people, and Democrats in both chambers will be hard-pressed not to support them. The President will be faced with a clear choice: either listen to the American people, who have never supported this law, or ignore them, and ignore the disastrous harms to millions of families, young people, and the most vulnerable among us."

The Supreme Court next week will hear oral arguments in King V. Burwell. A ruling on whether the IRS may extend subsidies to people in the federal exchanges by regulation is expected in June.

The plain language of the law specifically authorizes subsidies for health coverage that is purchased through an "Exchange established by the State." As it turns out, 36 states did not set up their own health insurance exchanges. The federal government did it for them.

And now the Supreme Court must decide if the IRS can fix the plain language of the law through a regulation making subsidies available to all qualified consumers, regardless of which exchange they use to buy their insurance.

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