Yesterday, Stuart Butler doubted that “a Republican Senate, in tandem with the House, will rip out the vital organs of the ACA”:
[T]hat’s an unlikely scenario, mainly because these organs aren’t so vital anymore. For one thing, the Administration recognizes that the mandates will likely have to be watered down to maintain much public support. But as individuals and businesses adapt to the law, and more Americans obtain often-subsidized insurance, the mandate stick is less necessary to achieve enough coverage for the ACA to be viable. Meanwhile expect worried insurers to pressure the GOP enough to prevent adjustments to the risk corridors from causing a collapse.
A lethal blow is unlikely to come from the Republican Congress. Rather a more likely threat is from the Supreme Court’s Halbig case. If the Court does strike down federal insurance subsidies in states with federal rather than state-run exchanges, that would be quite a body blow. At the very least it would eliminate a central plank of the ACA in over 30 states.
That threat to Obamacare just became reality. Earlier today, SCOTUS announced that it will hear a case challenging Obamacare’s subsidies:
The case, King v. Burwell, contests the financial help available to some enrollees on the federal insurance exchanges in 36 states. It makes a similar argument as a better-known case, Halbig v. Burwell. Without subsidies, health reform starts to fall apart.
Lyle Denniston explains what’s at stake:
Since the health care exchanges have been in operation, nearly five million individuals have received federal subsidies to help them afford health insurance on an exchange run by the federal government. The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act. In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.”
The challengers to subsidies for those who shop for insurance on a federal exchanges have argued that those words limit the availability to the tax benefits solely to state-run exchanges. That argument failed in the U.S. Court of Appeals for the Fourth Circuit, in the ruling now under review. It was accepted in the U.S. Court of Appeals for the District of Columbia Circuit, but that ruling has now been set aside while the full D.C. Circuit reconsiders the issue.
Allahpundit is shocked:
The big mystery: Which four justices voted to grant cert? There’s no way to know since the Court doesn’t release that information so we have to guess. It stands to reason that it wasn’t any of the Court’s liberals: With the D.C. Circuit set to overrule the three-judge panel, why would they tempt fate by voting to give the Supremes’ five conservatives a chance to wreck ObamaCare? It had to be four justices from the conservative wing. And I agree with Benjy Sarlin: It seems highly unlikely that John Roberts, having taken withering fire from the right in finding the mandate constitutional two years ago before O-Care launched, would now turn around and nuke the law a year after implementation based on a dispute over statutory construction, with millions of people’s coverage hanging in the balance. Roberts probably wanted no part of this. So odds are it was Scalia, Thomas, Alito, and Kennedy(!) who pulled the trigger, and now Roberts is in the hot seat again. Will he double down by saving ObamaCare a second time? Or will he effectively destroy the law by ruling the subsidies for federal consumers are illegal?
Nicholas Bagley reads tea leaves:
None of this bodes well for the government. That’s not to say the government can’t win. It might. As I’ve said many times, the statutory arguments cut in its favor. But the Court’s decision to grant King substantially increases the odds that the government will lose this case. The states that refused to set up their own exchange need to start thinking—now—about what to do if the Court releases a decision in June 2015 withdrawing tax credits from their citizens.
The Dish 