It’s looking more and more like Tuesday will be a split-screen day: The government will shut down, and Obamacare will open for business.
That’s going to annoy a lot of Republicans —because the ones who are pushing the shutdown are doing so precisely because they want to halt Obamacare.
Barring some last-minute deal, which gets less likely with each passing moment, the federal government will shut down on Tuesday because of the House and Senate’s inability to pass a spending bill that resolves their deep and persistent differences over Obamacare.
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But Tuesday is also the day that Obamacare’s new health insurance marketplaces — some run by the states, many run by the feds — are scheduled to start signing up customers. And President Barack Obama has made it clear that, even if the government closes, the health care show will go on.
“On Tuesday, about 40 million more Americans will be able to finally buy quality, affordable health care, just like anybody else,” Obama said on Friday. The new health insurance exchanges, he said, “will be open for business on Tuesday no matter what — even if there’s a government shutdown. That’s a done deal.”
How is that possible? Here’s a guide to how it will work — and what we might see on Tuesday:
How can Obamacare still be open for business if the government shuts down?
Many pieces of the health care law, officially called the Affordable Care Act, aren’t tied to the annual spending bills. Much of the health law is mandatory spending — a kind of fiscal autopilot that’s not part of the annual appropriations battle that has Congress tied in knots. The mandatory components of the health law include the subsidies to help people buy private health plans as well as the expansion of Medicaid in many states. Both of those functions will be handled through the new health insurance markets or exchanges.
(Also on POLITICO: Hill prediction: Headed for shutdown)
Because those programs are mandatory, the Department of Health and Human Services has a lot of leeway to say that Obamacare activities can continue — and HHS officials have made it clear they’re going to use it.
On Friday, the HHS quietly posted its shutdown contingency plan. The bottom line was clear: Obamacare would continue, including the health exchanges and their coordination with Medicaid. It also said Medicare coverage “will continue largely without disruption.” True, lots of HHS workers would be furloughed — but those who would be told to stay home are concentrated in agencies that are not driving the launch of the health law.
HHS says its plan is consistent with legal advice that allows activities that “do not rely on annual appropriations, and activities that involve the safety of human life and protection of property” can keep running even if much of the government shuts down. And that means the staff that carry out mandatory programs like those in the health law can keep working — even if their positions are funded through the annual spending bills.
There’s plenty of legal precedent. In a report to Sen. Tom Coburn (R-Okla.), the Congressional Research Service predicted that “substantial ACA implementation might continue” during a government shutdown, citing a 1981 opinion by then-Attorney General Benjamin Civiletti. He argued in essence that as mandatory programs march on, they can take some discretionary-funded staff with them.
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In addition, nobody really expected a huge rush to sign up on Day One. Even before the shutdown seemed so likely, the administration has been saying it expected people to spend some time learning more about their new health care options before committing to a health plan. Signup runs from October through March. Benefits kick in Jan. 1.
But at a time when so many Americans still don’t understand the law — and some don’t even realize that it hasn’t been repealed by the House or tossed out by the courts — the shutdown could add yet another layer of confusion. People may not realize they can still sign up when the government is shut down.
Where will they get the money to keep the exchanges open?
The exchanges have two main monetary needs: staff and infrastructure to keep them up and running, and insurance subsidies that will be available to people with low and moderate incomes.
The subsidy question is fairly simple. Like Medicare and Medicaid benefits, the subsidies are benefit payments that will still go out even if the government shuts down.
(WATCH: Obama to Congress: ‘Pay our bills on time’)
And for the exchange operations, HHS has already granted billions of dollars to the states setting up their own exchanges — 16 states plus the District of Columbia.
If the shutdown lasts for only a few days or weeks — the most likely scenario — the state-run exchanges should still be going full steam ahead, equipped with the funding and staffers they’ll need to start enrolling people right away. Some state exchange directors last week voiced some concerns about whether they’ll get everything they need — including data on income and eligibility — from the feds. But they said they are still ready to go.
As shutdown looms, Obamacare exchanges set to go
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