This post first appeared at The American Prospect.
On Friday, the Supreme Court agreed to hear the case of King v. Burwell, perhaps the last gasp in the Republican attempt to use the courts to destroy the Affordable Care Act. The reaction to this news among liberals was, to put it mildly, shock and dismay. Simply put, the lawsuit is a joke, and the fact that any judge, let alone a justice of the Supreme Court (not to mention five of them) would do anything but laugh it out of court is a testament to just how shamelessly partisan Republican judges have become. At least four justices have to consent to hear a case, so it’s possible that there will still be five votes to turn back this stink bomb of a case. That will probably depend on the good will of John Roberts, something I wouldn’t exactly want to stake my life on. But lives are indeed at stake.
There are a couple of optimistic scenarios for how this could all turn out, and I’ll explain why I suspect they’re wrong. But in case you haven’t been following, this case rests on what is essentially a typo in the ACA, where it refers in one spot to subsidies provided to Americans in health insurance exchanges “established by the state.” The conservative activists who brought the suit contend that these three words prove that Congress did not intend subsidies to be available in states that declined to set up their own exchange and therefore defaulted to the federal exchange. (There are 36 such states.) They manage to argue this with a straight face — or perhaps a cruel smirk might be a better description — despite the fact that every member of Congress, congressional aide, journalist and everyone else who was there at the time agrees that no one ever contemplated the insane idea that Americans in states using the federal exchange would be ineligible for subsidies.
According to the Department of Health and Human Services, eight million Americans got private insurance through all the exchanges in their first open enrollment period, and 5.4 million of those were in the federal exchange. Of those, 86 percent, or 4.7 million, received subsidies to make their insurance affordable. If this lawsuit is successful, those millions would all lose their subsidies. Many, if not most, would probably be unable to purchase insurance and would rejoin the ranks of the uninsured. Then premiums for the remaining people in the exchanges would skyrocket, insurers would drop out and the result would be a death spiral that not only destroys the exchange altogether but also undermines, perhaps fatally, the other two legs of the “three-legged stool” that comprises the ACA: the requirement that insurers accept all customers regardless of pre-existing conditions, and the individual mandate. (If you’d like details on how this would happen, you can read this amicus brief filed by 49 distinguished economists who study health care.)
This is, of course, just what the conservatives wish for. The purpose of their campaign is to destroy the Affordable Care Act; the swath of human misery, stretching from horizon to horizon, to be left in that campaign’s wake is precisely the point. Among all the acts of cynicism and deception that this debate has featured in the last five years, this lawsuit must surely rank near the top for its sheer villainy.
But now it looks like the conservatives on the Supreme Court are ready to sign on. We know already that four of the justices — Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy — were willing to junk the law in the first case in which it was upheld, with Chief Justice Roberts siding with the liberals to sustain it (albeit while undermining its expansion of Medicaid). So any optimism on this case rests in large part with the assumption of Roberts’s continued unwillingness to destroy the law.
People who know more about the Court than I do will offer predictions on his decision; frankly, I have no idea what he might do. It’s possible that he has already decided to uphold the subsidies. It’s possible that he has decided the opposite. It’s possible that it was indeed only Scalia, Thomas, Alito and Kennedy who chose to grant cert in this case (the Court doesn’t actually reveal who approved it), and they’re taking the chance on Roberts coming around to their position.
But there’s another layer of optimism I’ve heard, which goes this way: Even if the Court strikes down the subsidies, the typo could be fixed with a piece of legislation that is so simple it could be done in a single sentence, saying that nothing in the ACA will deprive subsidies to those living in states using the federal exchange. That would require Republicans to go along with it, however. In theory, this could happen for a couple of reasons. First, we’re now talking not about depriving people of a future benefit, as was the case with the Medicaid expansion (the Court allowed states to opt out before it had actually gone into effect), but about taking away a benefit millions of people are already enjoying, which is much harder to do without spurring a vicious backlash. Not only that, these aren’t just poor people, but many middle-class people (subsidies are available for those earning up to 400 percent of the poverty level, or $95,400 for a family of four), and that’s a group whose wrath politicians actually fear.
And if the lawsuit succeeds and Republicans decline to make the legislative change, the optimist would hold, it would be a disaster for them. There would be a tsunami of news stories about how people are losing their coverage because of the lawsuit and Congress’s refusal to do the simple thing that would fix the problem.
I find this to be wishful thinking. First of all, if this lawsuit succeeds, there is no way in hell Republicans in Congress are going to vote to make the technical change, no matter how easy it would be. The incoming Congress, as I keep reminding everyone, is even more conservative than the current one. For these people, fighting the Affordable Care Act is a religious crusade. The idea that they would vote to rescue it is laughable; in fact, nothing would give them more pleasure than to have Barack Obama and the Democrats come pleading to them to save Obamacare, so they can whisper, “No.”
It’s possible that Republican governors in some of the many states that don’t have their own exchanges would move to set them up, knowing that so many of their citizens would be losing coverage. But that’s a big job, especially to do quickly, and even though governors have been more pragmatic than their colleagues in Washington (nine GOP governors accepted the Medicaid expansion), they, too, will be under tremendous pressure from the right not to “bail out” Obamacare.
And I don’t even think the Republicans who stand in the way of fixing the problem would suffer much politically. What will happen on the day the Court rules that the subsidies have to go? Republicans will run in triumph to the television cameras and say, “See? We told you this law was unworkable! It’s time to end the nightmare of Obamacare!” They’ll repeat endlessly that Nancy Pelosi said they had to pass the law for everyone to know what was in it (a distortion of what she was actually saying, but whatever), and now we finally know what’s in it! They’ll be giving each other high-fives, the thought of millions of Americans losing their health coverage warming their little hearts.
And will they be punished? Don’t bet on it. This is a country where people shake their fists at their members of Congress and say, “Tell the government to keep its hands off my Medicare!”, where people like their state Obamacare exchange but hate Obamacare, where people approve of almost everything this law does but disapprove of the law itself. You think the public as a whole is going to understand this lawsuit and know who to blame? Don’t bet on it. They’ll only know that now they can’t get insurance anymore. “Obamacare took away my subsidy!” they’ll cry. And Republicans will laugh and laugh.