Why else would the Supreme Court announce it’s going to hear that Obamacare challenge other than to try to kill the law? There is no other reason. Now, true: Reality is a little more complicated than Scalia and Alito and Thomas and Kennedy (presumably, the four who voted to hear the case) would wish it to be, and they probably can’t “kill” it. But with regard to their intent, it’s close to impossible to conclude anything else.
The main reason to reach this conclusion, as you may have read by now, is this; Usually, the Court hears cases like this only when two federal circuit courts have issued conflicting rulings, and the Supreme Court needs to step in and clarify things. Right now, there is no such conflict at the circuit-court level. Moreover, the D.C. Circuit has announced that it’s about to rule on a case related to the one the Supreme Court took. It’s widely expected that the D.C. Circuit is going to issue a pro-Obamacare decision, which will, in fact, create a conflict with the Fourth Circuit. But D.C. hasn’t even ruled yet. So the fact that the Supreme Court decided to hear the Fourth Circuit case, King v. Burwell, even before the D.C. court issues its ruling, seems a clear tip-off that the conservatives on the Court are just itching to take up the law, and it’s pretty unlikely they’re itching to say, “Hey, Obamacare is just great.”
At issue, as you also should have read by now, is whether Congress intended for people buying insurance through federal as well as the state insurance exchanges to qualify for subsidies. Under the law, states were encouraged to create their own exchanges, but in those states that chose not to, citizens could sign up for care through the federal exchange.
Obviously, no serious person can think that a federal legislature writing a federal law creating a federal exchange meant for citizens seeking health coverage through that exchange not to qualify for one of the law’s key features (the subsidy to buy insurance). But there was a typo in the law that didn’t make that expressly clear, and so the door has been flung wide open for the Scalia-type “textualists” to say: Hey, it doesn’t even matter what Congress intended, or what everybody thought they were voting on. All that matters is what it says there in black and white.
And so, everyone who bought subsidized insurance on the federal marketplace in the 34 states that didn’t set up their own exchanges will lose those subsidies. Presumably, without those subsidies, most will just cancel their policies. The bulk of those who won’t will be the people who really need them—i.e., who are really sick. In other words, healthy, low-cost people will remove themselves from the coverage pool, while the sick, expensive ones will stay, and premiums will shoot up in those 34 states, and it’ll be a disaster. The law will unravel.
Now here’s where things get cynical and Kafkaesque. In addition to the above, the Court will next say something like: There is a very simple remedy here. If this is what Congress intended, all that is needed is for Congress to clarify that expressly. That sounds logical on its face and even kind of jurisprudentially high-minded -- just the judicial branch performing its proper and necessary oversight role over the other branches.
But of course, the majority will say this knowing that this Congress will never in a jillion years write that sentence. Such is the difference between life in the civic textbooks and life in tea-party America.
Or wouldn’t it? White House—please read these next couple of paragraphs. I’d assume that this has already occurred to you, but in case it hasn’t, check out this scenario.
Rather than not pass a legislative fix, Congress in fact does so. What, you say? This conservative Republican Congress, riding to the rescue of Obamacare? Yes, but in this way. The House and Senate write up the fix the White House wants, but they attach it to something Obama hates. A set of meat-cleaver cuts to the domestic discretionary budget. Social Security and/or Medicare “reform” along Paul Ryan-esque lines. Severe curtailment of the powers of the EPA. You name it. Something Obama can’t possibly sign, and something that would eviscerate a benchmark liberal accomplishment.
In which case, Obama would be forced to veto his own fix. Thus, the perfect crime: They’d have committed the murder, put the smoking gun in the President’s hand in full view of everyone—and they’d get away with it. Because it’s too complicated for most people to follow, because the law isn’t popular anyway, and because while the few million people who would be losing their subsidies are a lot of people, in terms of the whole health care universe they would still constitute a small minority not worth fretting much about in most Americans’ eyes.
I’ve read all the arguments over the weekend about how maybe this isn’t such an impending disaster, and they might be right. First, we still don’t know how John Roberts would vote; does he want to rip health insurance out of the hands of a few million Americans? We can be sure the aforementioned four do. But Roberts is the chief justice, and maybe he doesn’t want “took health care away from millions” to be in the first paragraph of his Times obituary. So there’s that.
And second, even if Roberts rules with the other four, there’s the question of whether the law would truly unravel as conservatives wish. In the states that have set up exchanges—a roster that includes most of the larger states—the subsidies would continue. It’s arguably conceivable that if the federal subsidies were struck down, governors in some states that didn’t set up exchanges would now move to do so, rather than see their newly insured citizens lose their coverage. Pennsylvania, which just elected a Democratic governor, seems the likeliest candidate here. Not sure there are many others. Theoretically New Jersey, if Chris Christie somehow decides not to run for president, but that’s a big if. In Virginia, Terry McAuliffe is still pushing, though it’s an uphill battle.
And remember, pressure will be brought to bear on these governors (and state legislatures) not just by nosy liberal types, but by their own hospital groups and especially their insurance providers, who won’t want to lose all these new enrollees. So maybe capitalism will save Obamacare, which would actually be fitting because it wasn’t socialism in the first place.
So there are scenarios that, while not good, aren’t cataclysmic. But if you’ve been paying attention, I think you’ll agree: prepare for the worst.
