There is no guarantee, of course, about how the Court will rule. The language of the statute is clear, and the ever-loquacious Jonathan Gruber has stated that the law was set up that way to entice states into establishing their own exchanges. And the fact that the Court reached down to take this case even before the legal process had fully played out in the lower courts suggests that several justices believe the challenge has merit.
But one never knows whether the justices will twist themselves into John Roberts–like pretzels in their desire to avoid upending a president’s signature legislative accomplishment.
Opponents of Obamacare should also realize that even if the Court upholds the challenge to Obamacare’s subsidies, it would not actually strike down the law. Obamacare’s insurance regulations, for example, would largely remain on the books. In fact, it could truthfully be said that what the Court would actually be doing is ordering Obamacare to be implemented exactly as written.
Among Obamacare opponents there will be satisfaction and a widespread feeling of vindication. But after the cheering dies down, what happens next?
If the Court upholds the challenge, some 5 million people in 32 states would lose their subsidies, meaning they would suddenly have to pay more, sometimes much more, for insurance. Not surprisingly, supporters of Obamacare have reacted to the possibility with near hysteria. The American Prospect warned of a “swath of human misery, stretching from horizon to horizon.” Salon concurs, arguing that “people will die.” Brian Beutler in The New Republic agrees that this decision is “a matter of life and death” and proclaims that the Supreme Court has become “a death panel.”