The Supreme Court is busy considering weighty questions. Do laws mean what their plain language say they mean or can the government rewrite them at a whim?
The rest of Washington was concerned with more important matters: how quickly can we blame the Republicans for whatever happens in the court case King v. Burwell?
For the uninitiated, the justices are weighing whether the authors of Obamacare intended to provide taxpayer subsidies to people who bought their health insurance from the federal exchange, or did they mean to confine such subsidies to state-created exchanges as the text suggests?
Hanging in the balance is 7.5 million to 9.6 million consumers whose Obamacare-mandated health insurance would suddenly become too expensive if they had to foot the entire bill themselves.
When the law was drafted, at least some Obamacare supporters thought state exchanges would be the norm and only a few Republican outliers would need carrots and sticks like the potential loss of subsidies.
But what ended up happening instead is that most states did not create their own exchanges and lots of people wound up getting their health insurance from HealthCare.gov. By “most” I mean 34 states out of 50 don’t have their own exchanges.
Obamacare defenders insist this was a typographical error at best and at worst a complete misreading of the law by opponents. But if the plaintiffs are right, you do have to grant what’s good for Obamacare changes based on how common it is for states to reject exchanges.
If only a few reluctant Republicans refused to sign on for exchanges, a subsidy cutoff could have been a good way to make them change their minds. But if subsidies for people on the federal exchange become essential to the basic functioning of the law, what’s convenient for Obamacare partisans looks rather different.
In a just world, a Supreme Court decision invalidating these subsidies would be blamed on the Democrats. After all, they were the ones who rushed through a poorly written law without much thought to the consequences. That law is the Democratic president’s main domestic policy legacy.
Why, it’s almost as if the Democrats filibustered Department of Homeland Security funding in order to protect the president’s legally dubious unilateral amnesty for illegal immigrants. Surely, the Democrats would be blamed for doing that. Right?
If you’ve paid attention to politics at any time since the government shutdowns of 1995-96, you’ll note that Republicans always get blamed in these situations. This will likely be no different.
It is mostly Republicans who are challenging the subsidies under the federal Obamacare exchange. It’s Republican officials who don’t want to create state Obamacare exchanges.
If the subsidies are struck down, it will be because a Republican-appointed Supreme Court voted for that outcome, probably in a 5-4 decision. Then the people hurt by Obamacare will look to a Republican-controlled Congress to fix these problems, which they could conceivably try to do by making everything worse.
And if state individual health insurance markets go into a death spiral because lots of people drop out of the newly expensive Obamacare, it will make it even more difficult to replace the Affordable Care Act with a genuine free-market alternative.
None of this should be interpreted as a plea for John Roberts or Anthony Kennedy to save us from the bad law Congress wrote, as Kennedy in particular may be inclined to do.
The Supreme Court should have gotten the constitutionality of Obamacare right the first time. Getting at least this narrow legal question right would be a real, if costly, consolation prize.
But it won’t be a consolation prize for people living in mostly reddish states relying on the federal Obamacare exchange. And for that reason, Republicans shouldn’t expect a victory celebration either way.
W. James Antle III is managing editor of The Daily Caller and author of the book Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter.