HHS Secretary Sylvia Mathews Burwell remained tight-lipped about how the administration might respond to a loss at the U.S. Supreme Court in King v. Burwell during an appearance in Chicago on Tuesday.
“We, as an administration, will do everything. We'll do our best to make sure that we are ready to work with consumers, to work with states, to work with providers and insurers if the decision is made against us,” Burwell said Tuesday. “But the critical decisions, in order to put back a subsidy if the court makes the decision that the federal government can't give subsidies in states with federal marketplaces, those critical decisions … will sit with both the states and the Congress.”
Neither Burwell nor President Barack Obama have said much in recent months about what the administration might do if the Supreme Court rules against them in King v. Burwell, a case in which the justices are weighing whether insurance premium subsidies should be available to Americans in all states or just those states with their own exchanges.
A decision in the case is expected by the end of this month, but could come as soon as Thursday.
If the court rules against the administration, an estimated 6.4 million Americans in states using the federal exchange would lose subsidies, according to the Kaiser Family Foundation, meaning they may no longer be able to afford coverage. Obama has said the Supreme Court should not have taken on the case, and his administration has said it has no contingency plan.
Members of Congress have been equally unsuccessful in getting answers from the administration on next steps should they lose at the Supreme Court.
Last week, Republican members of the House Ways and Means Committee grilled Burwell on the administration's plans in the event of a ruling against the subsidies.
Burwell told committee members, “If the court makes that decision, we're going to do everything we can, and we're working to make sure we are ready to communicate with states and do everything we can … but the critical decisions will sit with the Congress and states and governors.”
But she refused to elaborate.
Rep. Paul Ryan (R-Wis.) asked Burwell several times if the president would be willing to work with Congress following such a ruling to find a solution.
Burwell, however, said only that the decisions would sit with Congress and the states, frustrating Ryan, who at one point said, “You're not going to answer the question, are you?”
Rep. Kevin Brady (R-Texas) then took his turn trying to elicit a commitment from Burwell, asking if the president would be willing to sign legislation that did more than just extend subsidies to Americans using the federal exchange.
Brady asked Burwell that question 14 times, trying to get a yes or a no.
She said, “We will review any legislation we get.”
She also, however, said at that hearing that the president will not sign bills that effectively repeal the law, including a bill introduced by Sen. Ron Johnson (R-Wis.) that would extend subsidies until August 2017 but repeal the individual and employer mandates and eliminate requirements that insurance plans cover a minimum package of essential health benefits.
In the event of a ruling against the administration, most states are unlikely to try to immediately establish their own exchanges, and even those that might will face political, timing and logistical challenges that may make doing so quickly impossible. Burwell was in Chicago on Tuesday discussing the government's early education program Head Start.
