Obamacare opponents return to the Supreme Court on March 4 with a potentially lethal argument: that the law does not permit Obamacare subsidies to be paid in the 34 states that did not establish state healthcare exchanges. If they win, millions of Americans could lose subsidies that enable them to buy health insurance.
That outcome would shake the healthcare system established by the Affordable Care Act. Bad news for the Obama administration—but also potentially risky news for Republicans. Joshua Green hypothesized earlier this week at Bloomberg BusinessWeek that "voters with skyrocketing premiums may not blame Obama, as Republicans assume. They’ll expect the party hell-bent on destroying the law to have a solution—and react badly if none is forthcoming.” At least some Republicans share this fear. At the Washington Examiner, Byron York detailed Senate Republicans’ increasingly frantic political calculations:
Republicans are going to find a way to continue paying subsidies to the estimated 7.5 million Americans who receive taxpayer-funded help to pay their insurance premiums through the federal Obamacare exchange.
The prospect of seeing those people lose their subsidies—even though some have received them for a short period of time, and even though Obamacare has imposed burdensome costs on many other Americans—is just too much for Republican lawmakers to risk.
"We're worried about ads saying cancer patients are being thrown out of treatment, and Obama will be saying all Congress has to do is fix a typo," said one senior GOP aide involved in the work.
Precisely because the outcome of a successful challenge to the ACA will unleash such operatic chaos, it seems more likely that the Court will flinch. The Supreme Court has upheld every social program enacted by Congress since Social Security in 1937—and it would take five very bold justices to disembowel the Affordable Care Act less than three years after they upheld the constitutionality of its most controversial feature, the individual mandate.*
Even this less operatic outcome would, however, create drama enough. If the King v. Burwell challenge fails, Obamacare remains in place until at least the spring of 2017. That’s two more years for the law to institutionalize itself, confer benefits, and create constituencies. Those constituencies will have a question for the politicians running for office in 2016: What happens to us if you repeal the law? The last time Americans voted for president, Obamacare remained a theoretical proposition. Neither the program’s new taxes nor its new subsidies were being paid. By 2016, Americans will feel keenly whether the program has benefited them or hurt them. If the courts don’t settle the matter for the politicians in 2015, Obamacare will top the list of ballot questions in 2016.