Alec MacGillis examines the other big Obamacare case:
As readers may recall from our previous coverage of this challenge, it revolves around an argument put forward in 2011 by Jonathan Adler, a law professor at Case Western University, and Michael Cannon, a health care analyst at the libertarian Cato Institute and a committed Obamacare foe. They argue that the law is being carried out in contravention with its text: The section decreeing that people will get federal subsidies to help them pay for private insurance plans says that the subsidies are available for those buying plans on new exchanges established by the states – and makes no explicit provision for subsidies for those buying plans in states where governors and state legislators left the creation of the exchange up to the federal government. …
The stakes in the challenge are enormous – 36 states have chosen not to set up their own exchanges, which means that if the courts side with the challengers, the millions of people who have bought coverage in those states (the vast majority of whom have receives subsidies to do so) would lose their subsidies and be left unable to afford coverage. This would in turn throw the individual insurance market into disarray as many of these people dropped their coverage – except, presumably, the sickest of people with the most incentive to keep it.
Adam Serwer says that case hasn’t been going well for the administration:
While a majority on the Supreme Court appeared sympathetic to a challenge to the Affordable Care Act’s mandate that insurance companies provide birth control, blocks away, two out of three judges on the D.C. Circuit Court seemed willing to gut the rest of the law based on what supporters say is, at worst, a mere drafting error. “If the legislation is just stupid, I don’t think it’s up to the court to save it,” said Judge A. Raymond Randoph Tuesday. Randolph had other choice words for the law, calling the law “Janus-faced,” “cobbled together” and “poorly written,” later describing its launch as an “unmitigated disaster.”
Jason Millman worries that Obamacare subsidies are in danger after yesterday’s oral arguments:
The subsidy question is central to the future survival of the law. … About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what’s known as an insurance “death spiral.”
Of course, oral arguments aren’t always a reliable indicator of how a judge will decide on a case. But it’s safe to call Randolph’s and Edwards’s respective votes here, making Judge Thomas Griffith as the panel’s apparent swing vote. Griffith, a President George W. Bush appointee, was the only judge who didn’t seem to have his mind already made up, and he challenged the Obama administration on some key points.
Philip Klein considers the stakes:
Were the case to succeed, it would mean that dozens of state governments opposed to Obamacare could significantly narrow its scope by refusing set up exchanges, thus preventing residents from claiming subsidies. In those states, employers wouldn’t be penalized for failing to offer qualifying insurance (which is triggered by workers seeking federal subsidies), meaning that anti-Obamacare states could become more attractive to businesses trying to get around the employer mandate. It would also increase pressure on Congress to undo the individual mandate.
On the flip side, such a ruling would also place pressure on anti-Obamacare governors, who would be forced to decide whether to stand firm in opposition to Obamacare or to set up their own exchanges so residents can apply for subsidies.
Kilgore tries to looks on the bright side:
As MacGillis [notes], an adverse decision by this panel could be appealed by the government to the full D.C. Circuit, and the disposition of similar cases in other Circuits could differ enough that the whole case winds up before the Supremes. This will all take time, which means the Affordable Care Act would continue to operate for a good while, becoming part of people’s lives – a fact no court could completely ignore. That, along with the absurdity of stipulating that Congress passed a gigantic landmark piece of legislation designed not to work at all, is probably the best defense for ACA against this particular attack.
The Dish 