Health and Human Services Secretary Sylvia Burwell is the lead defendant in King v. Burwell, in which the plaintiffs claim the Obama administration is taxing millions of employers and individuals and subsidizing millions of HealthCare.gov enrollees contrary to the plain language of the Patient Protection and Affordable Care Act (a.k.a., ObamaCare). The Supreme Court will hear oral arguments in the case on March 4, and will likely rule by late June. If the Court rules against Burwell, 57 million individuals and employers will be freed from those illegal taxes and maybe four million HealthCare.gov enrollees will lose subsidies that the administration never had the authority to issue in the first place. Those four million people could see their insurance bills quadruple, face an unexpected tax liability of up to $5,000, and lose their health insurance. You might think they have a right to know about that risk. You might think a responsible public servant like Secretary Burwell would inform them of that risk.
You would be wrong.
Today, Burwell appeared before the Senate Finance Committee. Though HHS has already deployed its contingency plan for HealthCare.gov-participating insurers, she refused to answer whether HHS has a contingency plan for HealthCare.gov enrollees:
Right now, my focus is on completing and implementing the law, which we believe is the law. Right now, what we’re focused on is the open enrollment.
“HHS Head Ducks Questions On ACA Tax Credit Backup Plan,” wrote Law360. Modern Healthcare wrote, “HHS Stonewalls on King v. Burwell,” while The Hill seemed to laud Burwell because she “did not back down” from her firm stand against transparency and consumer information. Sen. John Cornyn (R-TX) fumed, “to come here and repeatedly refuse to answer the questions strikes me as nothing less than contempt of our oversight responsibility.”
Burwell refused to answer because any answer could be politically costly. Answering yes would lend credence to the King plaintiffs’ case. It would also spur requests for specifics about HHS’s contingency plans, an examination of whether HHS has the authority to execute its plan, and examinations of whether the plan would work. All that unwanted attention could scare off a lot of current and prospective HealthCare.gov enrollees. Answering no could increase the likelihood that the administration loses King, because it would signal to the Supreme Court that HHS doesn’t think a ruling for the plaintiffs would be all that big of deal. So Burwell chose the least politically costly option: stonewalling.
Stonewalling is also the most irresponsible option. Burwell is literally refusing to inform consumers about the risks of HealthCare.gov coverage, and how HHS would respond if those risks materialize. You may have noticed that President Obama also failed to mention those risks in his recent State of the Union address.
It is hard to believe this is an accident. Misleading consumers seems to be a conscious part of the administration’s litigation strategy.
When Burwell said she is focused on enrolling as many people as she can in HealthCare.gov, though, I’m sure she meant it. The more people she enrolls, (1) the more disruptive a ruling for the plaintiffs in King v. Burwell would be, (2) the less likely the justices will issue such a ruling, and (3) the more voters the administration can hope to mobilize to lobby Congress if the Court strikes down the subsidies anyway.
At today’s hearing, Burwell boasted 7.5 million HealthCare.gov enrollees. But she isn’t enrolling people in health insurance. She’s taking hostages. And she’ll inform them of their hostage status when she’s good and ready.