Americans might finally have their say in the debate over genuine bipartisan health-care reform, an opportunity that they missed when Democrats steamrolled Obamacare through Congress in 2009 without a single Republican vote.
The occasion presents itself as the Supreme Court announces that it will hear a significant statutory dispute against the technically titled Affordable Care Act (ACA). The case, King v. Burwell, challenges the authority of the federal government to provide subsidies in states that have not created their own health-insurance exchanges.
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A partisan logjam in the discussion over the future of health care could break wide open should the high court determine that the administration acted illegally.
The text of the ACA explicitly asserts that the feds can only offer subsidies in states that have established their own exchanges, which are government-regulated marketplaces of plans offered on the Internet. The authors of the bill wrote the language to specifically create an incentive for the states to take initiative.
The problem is that only 14 have done so. The Obama administration created default federal exchanges with the accompanying subsidies in the remaining 36.
The outcome of the case is important because Republicans winning the Senate — and thus controlling all of Congress — has not diminished the rhetoric in Washington over the ACA. Congressional Republican leaders vow to kill the law, but the president says that he will veto any effort to weaken it.
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A Supreme Court ruling that strikes down subsidies in the 36 states would force everybody to the negotiating table. It is similar to a 2012 challenge against the requirement that individuals buy coverage or pay a penalty. Chief Justice John Roberts memorably saved the day for the administration by ruling that the penalty represented a tax.
Senate Republicans do not have the votes for eliminating the ACA entirely — they don't now nor will they after the 2016 presidential election — and Democrats need to finally admit that the law is devastatingly flawed and needs improvement.
Democrats haven't had the votes to pass simple technical corrections to the ACA since 2009, even corrections as minor as clarifying the definition of a Native American.
The administration instead unconstitutionally rewrites the law when it becomes politically necessary. It has unilaterally delayed a mandate that employers with a certain number of employees offer government-approved insurance; allowed insurance companies to sell plans outlawed by the ACA; and delayed the tax on individuals who lost their insurance because the ACA forced the cancellation of their plans.
The tragedy is that all of this transpires incrementally, and the political fights have been lingering for years. American businesses, citizens and the healthcare industry have been navigating a sea of uncertainty, which has greatly damaged the economy.
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A Supreme Court ruling in favor of a challenge to the legality of the law's implementation would create the perfect storm for opening a dialogue on reform that should have happened in 2009.
It could be seismic in its implications with both parties finally having a framework through which they could work with one another.
Democrats could finally fix mistakes such as jamming a partisan bill down the throats of Americans with virtually no debate. Republicans would have a window in which to negotiate injecting marketplace dynamics back into health care.
Members of all stripes can support bipartisan legislation that provides certainty as to the role of the federal government in U.S. health care for the foreseeable future.
A consensus reform bill would attract enough Republican and Democratic votes to pass, and that the president can sign into law.
Nobody will get everything that they want, but that's how politics work in the real world.
American businesses, citizens and the health-care industry on the other hand would all have a say in the debate and enjoy a level of confidence moving forward. That would be the best outcome for which anybody could hope.
Commentary by Pete Hoekstra, who represented Michigan's second Congressional District from 1993 to 2011 in the U.S. House of Representatives. He is the former chairman of the House Permanent Select Committee on Intelligence. Follow him on Twitter @petehoekstra.