The National Journal‘s Sam Baker, writing today, notes that the Supreme Court “will hear oral arguments March 4 in a lawsuit that threatens to cripple the health care law.” If I were being unusually churlish, I would say no, it’s not. What it “threatens” to do is enforce the law as written, limiting subsidies to exchanges “established by a state.” But in the lingering spirit of Christmas I will refrain from being churlish and let that pass (sort of).
Baker goes on to write that “Obamacare’s supporters are nervous about this case, King v. Burwell,” perhaps revealing his own fears since the link is to an earlier article of his. In this article, however, Baker makes assertions about Obamacare’s critics that should not be allowed to pass:
The suit argues that the subsidies — which roughly 80 percent of Obamacare enrollees received — should only be available in a handful of states….Here’s the issue in King, and why it’s such a grave threat to Obamacare: The Affordable Care Act set up a new insurance marketplace, called an exchange, in every state. The states could run their own, or they could punt the job to the federal government. To get customers into the exchanges, the law set up a stick — the individual mandate — as well as a carrot, subsidies to help low-income people pay for their premiums.
The challengers in King say the Internal Revenue Service has broken the law by making those subsidies available to people in all 50 states. They should actually be limited to states that set up their own exchanges, the lawsuit argues; people shouldn’t be receiving financial assistance if their state deferred to the federal government to run its marketplace.
If the Supreme Court ultimately agrees with that logic, more than 4 million people—over half of all Obamacare enrollees—would lose their financial assistance and likely their insurance. [Emphasis added]
Once again, and most emphatically this time, No! Forget “should.” The suit argues that the law, as written, limited subsidies to exchanges created by a state in order to induce the states to create exchanges, not in the “drafting error” argued by the White House and other defenders. Thus the suit does not argue from the “logic” of who “should” and “shouldn’t” receive subsidies. It argues from the text as informed by the legislative history of the law.
Thus the title of Baker’s first article, “The Supreme Court Might Really Destroy Obamacare This Time,” is a classic example of blaming the messenger. Insofar as Obamacare as we know it is threatened, it is by the way it was written, not by the Supreme Court. What Baker and other Obamacare want the Supreme Court to do in King v. Burwell is what Chief Justice Roberts did in its Obamacare decision three years ago, NFIB v. Sebelius — rewrite the law to save it from itself.
The liberal hope and conservative fear is that the Court will repeat its past performance.
