Ed Kilgore is worried about the newest court challenge to Obamacare, The Gift to the GOP That May Keep on Giving. But I’m not worried. It is a very clever challenge, however. The law says that people qualify for federal subsidies through each healthcare exchange “established by the state.” But what if the state didn’t set up an exchange and the federal government was forced to do it as is the case in 36 states? The intent of the law is clear, but the letter of the law indicates that the federal government can not subsidize low and moderate income health insurance purchasers in those states.
I don’t see the problem with this case. There is no doubt that just like with Medicare, all states will eventually accept government funding. And disallowing the federal government to give subsidies to the middle class would create a political firestorm. I’m sure that those 36 states would very quickly set up their own exchanges so that their people could get the money. It’s a different thing with the Medicaid expansion. That only affects the working poor. Politicians never listen to them. But a bunch of middle class people will be listened to.
I can’t imagine that there aren’t a fair number of conservatives who understand this. So I doubt that this case will get the broccoli treatment. It was one thing when a case could destroy the law with a single decision. It is quite another when it only weakens it in the states where it is already weak. If I were a conservative, I would think of it as, “The Give Money to Blue States” law. Because that’s what they’d be turning it into.
Now as a liberal, I don’t want this. Depriving support from low and moderate income people is a bad thing. But it isn’t any worse than all the poor who are being screwed by the spiteful refusal of the Medicaid expansion. But the main thing is that I just don’t think this will happen. There are two ways that the case could affect the law going forward. The people effected would either get mad at their state level politicians or at Obamacare. But they won’t be any worse off than they were before. They’ll just see that their states are not allowing them to get thousands of dollars from the federal government.
Who would you blame?
 It will be interesting if the case makes it to the Supreme Court. Supposed originalists like Scalia and Thomas ought to throw out the challenge because they are so hung up on “original intent.” But I doubt they would. Maybe Thomas would, because frankly, he’s been more consistent. But Scalia is all over the board. The whole thing just shines a light on the absurdity of originalism. It is such a slippery concept that it could mean anything. In practice, it is just an excuse to accept the most conservative reading on a case.