As if Democrats hadn't had a rough enough week. First they lost the Senate and more than a few governorships, not to mention a lot of state legislative chambers. But hey. At least ObamaCare is still the law of the land, right?
The Supreme Court, moving back into the abiding controversy over the new health care law, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by 16 states, and not at federally-run sites in 34 states.
Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference.
By adding the case to its decision docket at this point, without waiting for further action in lower federal courts, as the Obama administration had asked, the Court assured that it would rule on the case during the current Term. If it decides to limit the subsidies to the state-run “exchanges,” it is widely understood that that outcome would crash the Affordable Care Act’s carefully balanced economic arrangements.
This is a bit of a surprise because King v. Burwell is set to be decided shortly by the full D.C. Circuit, and normally the Supremes wouldn't choose to intervene until they wait to see what happens at the circuit level. Apparently in this case they've decided that the issue will never really be settled unless they decide it once and for all, so we can now be assured that decision will come during the Court's current term.
If the Supreme Court agrees with the original three-judge panel of the D.C. Circuit, which ruled that only consumers who bought their policies on state exchanges are eligible for subsidies, it will be an absolute disaster for those in the business of defending ObamaCare. With only 16 states having chosen to run their own exchanges, that means those in the other 34 states will have to cough up the entire cost of their policy premiums, which undermines the whole idea that ObamaCare coverage is "affordable" by virtue of the federal subsidies.
Of course, people could afford their own insurance if they could choose a less generous level of coverage, but ObamaCare doesn't permit that, which is why so many people couldn't keep the plans the liked, and is also why no one can afford their premiums without a federal subsidy.
There's no telling at this point how the Court will rule. Chief Justice Roberts bent over backwards to find a legal interpretation that saved the law when the individual mandate was the question at hand. Is he bound and determined to save it at any cost? Or was he playing a longer game, as some suspected at the time?
One thing we can be sure of is this: If the Court throws out the subsidies on the federal exchange, ObamaCare will have to have a massive fix, and Obama will be in no position to veto what the Republican Congress puts in front of him. Surely it will include a lot more changes than simply the fix to this issue, and Obama won't like that, but ObamaCare with subsidies only for people in 16 states cannot survive.
