Today the United States Supreme Court will hear oral arguments in the case of King v. Burwell, the outcome of which could, according to some analysts, result in the end of Federal subsidies for recipients of health insurance under Obamacare, which in turn may cause the legislative foundation of the system to collapse. Regardless of where you fall on the political spectrum, that millions of people—around 9 million, according to government estimates—may suddenly find themselves unable to afford health insurance should give you pause.
If you find the tortuous legal arguments for and against Obamacare brain-rattling, you’re not alone. The best summation I've found of what’s at stake in the case comes courtesy of Emily Bazelon in today’s New York Times. Money quote:
If the plaintiffs prevail, the federal government will not be able to provide subsidies to anyone buying health insurance through a federally-run exchange. Many of those nine million people would presumably pull out of the exchanges, driving up the prices for whomever is left, and the exchanges could collapse. That’s what is concretely at stake in this case.
The crux of the case rests on whether the court decides that the IRS is allowed to grant health insurance subsidies through the Federal exchanges, which are currently insuring citizens in those 34 states that opted out of setting up state-run exchanges, or only in states that are already operating their own exchanges. The justices’ interpretation of the wording in the Affordable Care Act is key; if they interpret the language literally, then they may rule that the Federal exchanges are disallowed under the law as written; if they interpret the language broadly, then the court will effectively endorse the IRS interpretation of the law.
Whether your reaction is "OMG!" or “Good riddance,” you should care about the outcome. How will the court decide? Reading SCOTUS tea leaves is generally as easy as predicting the phases of the moon, particularly since the Court has become a political battleground, with the Antonin Scalia-led wing typically squaring off against the wing led by progressive hero Ruth Bader Ginsberg. Reporting on today’s oral arguments, Slate’s Mark Joseph Stern argues that Justice Anthony Kennedy, so often the swing vote in the Court’s liberal-versus-conservative seesaw, once again finds himself the fulcrum:
“If the Supreme Court struck down the federally facilitated exchanges, Kennedy mused, that would put extreme pressure on the states to set up their own, raising a ‘serious constitutional problem. In order to avoid such a problem, Kennedy seemed to suggest, the court should side with the government and permit the federally facilitated exchanges to continue. Alternatively, Kennedy implied that even if Congress did intend to force states to set up their own exchanges, the court should strike down that provision to protect the federally facilitated exchanges. Finally, Kennedy mused that Congress could not have intended to coerce state legislators to set up their own exchanges, knowing such coercion would be unconstitutional.
Other analysts, meanwhile, think Kennedy is more likely to vote against the ACA, which leaves Chief Justice John Roberts as the swing vote. Will the Chief Justice save Obamacare's bacon once again? Only Roberts's conscience knows for sure. Meanwhile, conservatives who hope for a plaintiff outcome may find themselves in “Careful what you wish for” territory. As the Atlantic’s Olga Khazan points out, should the plaintiffs prevail, those 9 million people who will suddenly find themselves without health insurance may blame those Republican governors who refused to set up state-run exchanges:
“Most people who will be affected by this case do not realize they will be. According to a January poll by the Kaiser Family Foundation, 56 percent of Americans say they have heard 'nothing at all' about King v. Burwell. In fact, most people do not know what kind of exchange their state uses, which suggests that these people might be blindsided by the ruling.”
Polls repeatedly show that, even as a majority of citizens disapprove of Obamacare in toto, individual provisions of the law enjoy broad popularity. Political fallout from a government defeat in the SCOTUS ruling may, in fact, find GOP representatives in red states scrambling to pass legislation to save Obamacare for those millions of voters affected by a plaintiff’s ruling—thereby ensuring that Obama’s signature legislative achievement remains the law of the land. This, friends, is the definition of irony.
The Court is set to issue a ruling on the case in June. Stay tuned.
Rick Ferguson is the author of The Chronicles of Elberon fantasy trilogy. Rick is also a globally recognized marketing expert with appearances in the New York Times, Wall Street Journal, Advertising Age, Fast Company, the Globe & Mail Canada, the Guardian UK, the Financial Times India, MSNBC, and the Fox Business Channel. He has delivered keynote speeches on marketing principles and best practices on six continents. He is also master of time, space, and dimension.