King v. Burwell and Congress v. P5 + 1

Reading friend-of-the-hawks reporter Josh Rogin's account of the difficulties Obama may have getting Iran to agree to a deal that bypasses the U.S. Congress, and so could be overturned by a future (GOP) president, I was reminded of GOP demands that the administration float "contingency" plans in case  the Supreme Court destroys the Affordable Care Act by ruling for the plaintiffs in King v. Burwell.

In both cases, bad-faith opposition to vital and viable policy, the product of immense collective effort and years in the making, may well succeed. In both cases, the saboteurs are demanding a collaboration they've rendered impossible.

The Iranian deal that appears to be within reach is being negotiated in concert with basically all the world's major powers, all of whom are party to an extraordinary international effort that put the sanctions regime in place. The alternatives to such a deal are either allowing Iran to proceed with its nuclear program less impeded or to  launch preemptive strikes that, it's almost universally agreed, would set back Iran's nuclear program only briefly.  Yet the chances of an accord being approved by a Congress in pawn to AIPAC are less than zero, rendering concern trolling like Bob Corker's laughable:

Corker said he thinks the administration will likely make the case that by the time Obama is gone, the momentum of the deal will have set in and the international sanctions regime will have crumbled beyond repair, tying the next administration’s hands"....

While it's unclear whether the Iranians will buy that argument, Corker certainly doesn't: “If they went through this process where they actually brought it to Congress and Congress passed muster on it, it really would be a much more settled issue.”

It's true that negotiating a deal that bypasses the U.S. Congress is the worst plan -- except for all the alternatives.

Similarly, a GOP Congress that refuses to pass a five-word fix to the Affordable Care Act that would render moot the tendentious King suit, based on a manifestly fraudulent account of Congressional intent, has demanded that HHS Secretary Burwell put forward a plan to put Humpty together again should the King plaintiffs succeed.  In a letter to Congress, Burwell delivered the only appropriate response:

While we are confident in our position, a decision against the Administration in the King case would cause massive damage: first, millions of people would lose their health insurance subsidies and therefore would no longer be able to afford health insurance; second, without tax subsidies healthy individuals would be far less likely to purchase health insurance, leaving a disproportionate number of sick individuals in the individual insurance market, which would raise the costs for everyone else; and, third, states that did not establish a state marketplace would return to a time when the recourse for those without insurance was to seek care in hospital emergency rooms, further driving up insurance costs for everyone.

We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.

The proof of Republican bad faith on this front is that they have no "contingency plan": after six years of dead-end opposition to the Affordable Care Act they have no legislative replacement. That's because there's no alternative way to achieve the ACA's goals while retaining a for-profit insurance market other than tinkering at the margins -- giving states more leeway, say, to shape Essential Health Benefits or mandated actuarial values, or making it even easier to create "private option" alternatives to the Medicaid expansion. Republicans have not been interested in negotiations that would exchange a fix to the "established by a state" language for reforms in these directions because they're not interested in reforming or even remolding or meaningfully replacing the law.

Should the Supreme Court rule for the King plaintiffs and invalidate the flow of subsidies through the federal exchange, both sides may forced to negotiate along the lines sketched out to me by Michael Leavitt, George W. Bush's pragmatic HHS Secretary. Minus that brutal imperative, which would place intense political pressure on both sides, negotiation with today's Republican Party is impossible.

And that's the case with the Iran negotiations as well. In a two party system, if one party is wholly bent on obstruction and sabotage, it can be hard to circumvent.