Greg Sargent doesn't sugar-coat what it means for SCOTUS to even take up King v Burwell. It means Obamacare could be in big trouble, and millions of Americans on federal exchange states could find their insurance too expensive to afford, which could wipe out the entire system.
To get caught up on the legal ins and outs of this challenge, read Jonathan Cohn’s piece. It turns on the claim that the plain wording of the law’s text shows Congress never intended subsidies to go to people in the three dozen states where governors refused to set up exchanges, requiring the feds to do so. If the subsidies are invalidated in these states, it could deprive millions of coverage, posing a dire threat to the law.
Multiple Democratic lawmakers who participated in the creation of the Affordable Care Act have explained that making subsidies available to people in all 50 states, regardless of who set up the exchanges, was always the intention. Staff members involved in the drafting of the law have said the same, and have carefully explained how the faulty language ended up as it did.
But SCOTUS could still rule against the administrative rule, anyway. Nicholas Bagley explains how the fact that SCOTUS has agreed to hear the case at all doesn’t bode well, and even increases the odds that the government will lose it.
So what if next June SCOTUS trashes the subsidies? There's already four justices on record (Scalia, Thomas, Alito and Kennedy) who have gone on record as saying the entire law needs to be thrown out, so there's already four votes there I would think to scuttle it. That would put pressure on Congress to fix the law, Sargent says.
So let’s say SCOTUS does strike down the subsidies. If so, it will create an interesting situation for Republican lawmakers. It will make it impossible for them to get away with the clever game they’ve been playing for some time on their true intentions toward the law.
As the Kaiser Family Foundation’s Larry Levitt explains it, a SCOTUS ruling gutting the subsidies could easily be rendered “moot” in one of two ways: Either Congress fixes the law, or governors in those states set up state exchanges to keep the subsidies flowing to their constituents. “A simple fix from either Congress or Republican governors would allow people to keep their benefits,” Levitt says.
As Brian Beutler has explained, the prospect of so many of each of these governors’ constituents losing insurance would theoretically put pressure on them to make things right. The same might be the case for GOP lawmakers in Congress. One possibility might be that the two parties use this as an occasion to enter into negotiations over the law’s future, in which Republicans try to leverage the need for the fix to get other changes to it they want — which could be dicey for the law but perhaps not too much of a threat to it.
Of course, these lawmakers would also face intense pressure from the right not to fix it. And for all I know, they might let the law’s subsidies disappear for millions.
Why wouldn't they? Republicans aren't going to lift a finger to fix the law, they're going to say "this is your punishment for electing Democrats" and to blame Obama and company. And judging from Tuesday's election results, that's an entirely viable plan heading into 2016.
Now, GOP governors *might* want to not be blamed for a massive premium hike on their constituents, especially those running in 2016 or considered veep prospects (Christie, Jindal, Walker, Martinez, Haley, etc) Some of them may try to find a way to strike deals, and if they do, they will be the "heroes" that fixed what "Obama and the Democrats" messed up. That could go a long way in 2016, but how would the national GOP base take it?
Answer: however FOX News tells them to. Watch.
This will destroy Obamacare and Republicans know it. If SCOTUS ulls the trigger, what will rise from the ashes? What it will be replaced with? Who knows? But millions of Americans will suffer as a result, and they'll all blame the black guy.