Justices hold fate of Obama’s health care reforms in their hands

So it turns out there is an Obamacare death panel after all.

It has nine members and it operates out of a marble building directly across the street from the Capitol.

When the Supreme Court on Friday announced that it would take up another challenge to the Affordable Care Act in March, it delivered the threat of two mortal blows to the signature achievement of the Obama presidency.

First, it raised the possibility that the justices, who narrowly spared the law in 2012, will in June come out with a new ruling that would dismantle the law on different grounds. But even if the justices make no such ruling, the very act of taking up the challenge will itself undermine the law. The justices announced their decision just a week before the open-enrollment period for 2015 begins — and the looming possibility that the high court will strike down the law will probably deter those who are considering signing up for its coverage.

Thus did Sylvia Mathews Burwell, the new secretary of Health and Human Services, find herself in a defensive posture Monday afternoon, even though she was in the friendly environs of the liberal Center for American Progress. An event had been scheduled to generate enthusiasm for the new open-enrollment season, but the host, former Ohio Gov. Ted Strickland, had little choice but to acknowledge the elephant in the room.

“What do you want consumers to know and should they be concerned, as we head into this open-enrollment period, about this Supreme Court decision?” he asked gingerly.

Burwell’s practiced reply: Nothing to see here.

“The most important thing for consumers to know is that nothing has changed,” she said, assuring all that the law’s tax credits would continue. “And so as we go into open enrollment, nothing has changed,” she repeated. She kept her face determinedly in a smile, though nothing about the gesture indicated pleasure.

Strickland coached her further, asking whether she expects that “the court will ultimately make the correct decision and this will no longer be a problem?”

“That’s correct,” the secretary replied. “And I think what’s most important is that nothing has changed. And as we go into this open enrollment, which we’ll be starting this Saturday … nothing has changed.”

For those keeping score, Burwell managed to say “nothing has changed” four times in 90 seconds.

And she’s right, technically. Nothing has changed, and nothing will, at least until the Supreme Court rules. The trouble is the doubt among potential enrollees the Supreme Court has created by raising the possibility that the law will be eliminated — just like the doubt created when HealthCare.gov initially flopped a year ago, and the doubt Republicans have tried to create with incessant talk of repealing the law.

Further complicating Burwell’s don’t-worry message to the liberal think tank: The administration had just cut its forecasts for Obamacare enrollment in 2015 — an effort to lower expectations. Previously, the Congressional Budget Office had forecast enrollment of 13 million by the end of the year.

If Burwell was having a rough time even among friends, foes of the law were delighted by the Supreme Court’s unexpected move. Before the American Progress event, I dropped by a session at the U.S. Chamber of Commerce, a major victor in the 2014 midterms, to hear a presentation by Douglas Holtz-Eakin and other conservative economists. It had been a subdued affair, full of charts and statistics, but the economists became animated when I asked about the Obamacare case.

Holtz-Eakin said the justices could strike down “the heart of the transfer program” that is the underpinning of Obamacare and would “accelerate the process” toward the program’s demise.

Marty Regalia, the chamber’s chief economist, agreed that if the court goes his way, it’s just a matter of the “semantics of whether you’ve repealed the act and replaced it, or changed it fundamentally.”

Even the Center for American Progress blog, Think Progress, explained how, under an adverse ruling, premiums would soar, millions would lose coverage, and “Obamacare will face a death spiral.”

Strickland, now an official at the center, proved a gentle questioner, touting the law’s successes and suggesting to Burwell that there should be “a greater cheerleader section” for the law. Burwell kept smiling and offering assurances. But when Strickland asked whether relentless opposition to the law was “creating doubt” in the minds of potential Obamacare enrollees about whether “the ACA is here to stay,” Burwell replied: “I will not say anything other than that is extremely difficult.”

Particularly when the opponents wear black robes.

Dana Milbank is a Washington Post columnist.

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