Who has the better case? Remembering, of course, that the court could decide against the King plaintiffs.
Toobin’s argument is straightforward. Most people don’t pay attention to the details of politics. They only know enough to be aware that President Barack Obama and the Democrats reformed health care. That means that if they can’t get health insurance (or the price suddenly skyrockets), it must be Obama’s fault.
There’s some truth to Toobin’s take, but it’s not the entire story. It might be more useful to look at the legislative logic: Do Republicans in Congress see their constituents demanding a solution if Obamacare starts to disappear?
If so, Republicans will attempt to find one. And they will rapidly discover the only fix they can deliver — that they can pass and that the president will sign — is a patch that restores subsidies until 2017. They might be able to add a little window dressing to it make it appear as though they are changing the Affordable Care Act, but the president would veto anything significant.
For Republicans in Congress to be in the hot seat doesn’t depend on whether their constituents follow the Supreme Court, or even whether they blame Republicans for the loss of subsidies. It only requires voters to feel they have been injured and to demand that their elected representatives do something!
Whether that will happen is an open question. When people are personally affected by a government policy, they sometimes become very active — and even quite well-informed. They’ll know that a one-page (or so) bill could restore the subsidies. Moreover, in this case, these aren’t just middle-class citizens who now receive subsidies via the exchanges, but also wealthier people using the individual market; taking away subsidies would destabilize the entire individual insurance market in the affected states. These are people who Republicans in Congress are likely to listen to.
Politicians are paranoid; the only question is what they’ll be paranoid about. It wouldn’t take much to convince Republicans that some kind of fix is essential to their electoral well-being. And yet tea partyers will be gloating over their historic triumph in the Supreme Court and the supposed opportunity to repeal all of Obamacare. Republicans in Congress may also be scared of crossing them. If you can figure out the fear that will triumph, you’ll know the outcome of post-King politics.
The same is basically true at the state level. Congress could pass a King fix that would solve the (potential) problem for every state, or affected states could solve the problem by running their own Obamacare exchanges. Indeed, the pressure to implement a state-level fix (at the cost of earning the wrath of tea partyers and risking bureaucratic bungling in implementing new exchanges) will likely mean Republican governors will push Congress to provide a fix.
Jonathan Bernstein is a Bloomberg View columnist.
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