First, Last, and Always, Obamacare is About Politics


With the Obamacare website slowly but surely becoming more usable, attention is now turning toward other challenges standing in the way of the law. In particular, there are two significant legal challenges now working their way through the courts: one about the contraception mandate and another one arguing that subsidies can be offered only in states that run their own exchanges. The contraception case is important in its own right, but doesn’t really pose an existential problem to the law itself. The subsidy case might.

Here’s the nickel summary: The text of the Affordable Care Act states that taxpayers are eligible for subsidies if they buy a health plan via “an Exchange established by the State under section 1311.” But Section 1311 is the one that sets up state exchanges, and there’s no similar language for the federal exchange, which is set up under Section 1321. So conservatives are now arguing that this means subsidies aren’t available to anyone in the states which are served by the federal exchange. The IRS doesn’t agree, and has issued a rule saying that subsidies (actually tax credits) will be available to anyone who buys a plan from any exchange.

The legal arguments about this are extensive, and I’m going to skip them for now. If you’re interested in more detail, you might check out this post from Tim Jost making the case that Congress clearly intended subsidies to be available everywhere, and this rebuttal from Michael Cannon and Jonathan Adler. They’re a year old, but nothing much has changed since then.

Instead, I want to muse a bit about a few aspects of this issue that aren’t narrowly legal in nature:

  • The Supreme Court has always been a politicized body, but my take is that over the past decade it’s become almost completely politicized. In big cases, the justices simply decide what result they want and then write language justifying it. For that reason, I suspect that the purely legal arguments here don’t matter very much. (Yes, this is a very cynical position. But I think it’s pretty close to true.)
  • There’s a sense in which Chief Justice John Roberts “owns” Obamacare, since he was the swing vote that ruled it constitutional last year. Given this, how likely is it that a mere year or two later, he’ll be willing to cast a vote that cripples the law? Sure, this time around the legal case is different, but it still boils down to the same basic question: will the law go forward? Having already ruled once that it can, I’m not sure he’ll be open to letting opponents take a second bite at the same apple. Stripped to its core, conservative lawyers are pressuring Roberts to admit that he was wrong in 2012, and I’m not sure he’ll be willing to cave in to that pressure.
  • This case won’t be heard by the Court until at least 2015. This means that Obamacare will already be in effect and people will already be receiving subsidies. I think this makes it even less likely that Roberts will vote to essentially overturn the law.
  • Still, suppose he does. Would it, in fact, cripple the law? Or would we end up with Obamacare being available only to about half the country? This is a trickier question than it seems. In the non-subsidy states, a couple of things would be going on. First, a lot of the provisions of Obamacare would still be in effect: community rating, guaranteed issue, the individual mandate, etc. Having all these in place without the subsidies might be bad news for insurers, which means the insurance industry could start putting real pressure on holdout states to set up their own exchanges. Second, there would be a whole lot of people who had gotten subsidies the year before and were now having them yanked away. Taking existing benefits away generates far more passion than refusing to approve benefits in the first place, and eliminating the subsidies could end up generating irresistible public pressure to set up state exchanges in order to put them back in place. Put these two things together and you have a lot of pressure to set up state exchanges in the states that don’t have them.
  • There’s another moving part here too: if Obamacare were available to some states but not others, it means that lots of citizens would be barred from receiving a government benefit even though they’re paying some of the taxes for it. How long will they put up with this? This question also applies to all the states that have refused the Medicaid expansion—but, to put it bluntly, it’s a bigger issue with the subsidies because a lot of people getting subsidies are middle-class. And the plain fact is that legislators pay a whole lot more attention to pissed-off members of the middle class than they do to pissed-off poor people.

I’m tossing all this out for conversation more than anything else. I’m not committed to any of it, though they all seem like reasonable positions to take. Mostly, though, I just want to point out that even in court cases, politics probably plays at least as big a role as legal wrangling does. It would be a mistake to think of this solely in narrow legal terms without acknowledging the real-world pressures that provide the ultimate context for its resolution.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate