03/02/2015 06:44 pm ET Updated Dec 06, 2017

Obamacare on the Docket Again

This will be a rather busy week in the political world. We've got the Prime Minister of Israel giving a controversial speech before Congress Tuesday, and then at the end of the week we'll have another round of government shutdown follies, courtesy of the House Republicans. Between these two events, the Supreme Court is going to be busy with a few questions in the political arena. The most prominent of these cases is King v. Burwell, which puts Obamacare back on the docket.

The first time the high court heard a major Obamacare case was in National Federation of Independent Business v. Sebelius, back in 2012. At the time, the constitutionality of the Patient Protection and Affordable Care Act (Obamacare's official name) was upheld by a vote of 5 to 4. This time around will likely be a close decision as well, but neither side should really be counting their chickens in advance of the expected ruling (the court will hear the oral arguments Wednesday, but a decision isn't expected until June, at the latest).

Defenders of Obamacare have two main legal arguments, while opponents have one. This is not determinative in and of itself, of course, because nobody knows which argument is the stronger one at this point. The Obamacare defenders argue first that the totality of the law should be taken into account when interpreting any one tiny piece of it -- the clear intent was that Congress was providing subsidies equally to all Americans, no matter what their state legislatures did. The law must be read in context to the other parts of the law. This is an argument that many conservative justices on the court have used in previous cases, so it's not exactly a partisan argument. The second argument from the Obamacare side is that when the federal government is using either sticks or carrots when dealing with the states in any particular legislation, there must be clear warning given to the states: "Do X, or we will withhold Y amount of federal dollars," for instance. This argument is bolstered by the fact that even Obamacare's opponents in Congress never used the "states on the federal exchange will not get subsidies" line of attack when the bill was being endlessly debated, before it passed. Obamacare opponents only recently discovered this argument, after King V. Burwell was filed. If states without their own exchanges were going to be penalized in such a fashion, why didn't anyone point it out at the time? Again, this line of legal reasoning has been used by conservative justices in other cases.

The opponents of Obamacare have one clear argument, one which Horton the Elephant might have stated as: "It means what it says, and it says what it means." The one sentence in question clearly only refers to exchanges set up by the states, therefore the I.R.S. cannot allow subsidies to be given in any state included in the federal exchange. Period.

Both arguments will be pitched to one man: Chief Justice John Roberts. How the other justices rule is not really much in question (although it's conceivable that Kennedy might surprise some people by voting for Obamacare). Roberts was the deciding vote in the earlier Obamacare case, and Roberts is much more aware of his namesake court's historical legacy. No chief justice wants their name on a legal decision that later will be taught in law schools as a great example of bad law, in other words. This weight on Roberts' shoulders existed in the earlier case, and may have nudged him towards ruling for Obamacare. But if that's true, then it would be hard to see him now essentially reversing himself after allowing Obamacare to move forward. But again, that would be prematurely counting chickens. Neither side is all that sure they're going to win this case, to put it another way.

The impact of gutting Obamacare now would be immeasurably bigger than it was back in 2012, which is something else Roberts could be giving consideration to in his decision. If Obamacare had been eviscerated back in 2012, almost all of its benefits would have remained in the realm of the theoretical. Future benefits would not have appeared. It's a vastly different situation now, however. If the court ruled against the subsidies, it would endanger millions of Americans' health insurance, immediately. Health options would be taken away from people who are now benefiting from them. There would be nothing theoretical at all about the fallout. This is a big change. It's not supposed to matter all that much in the pure and rarefied legalistic heights of the Supreme Court, but it's one more thing that likely is now crossing the mind of John Roberts. Yanking the rug out from under Obamacare in 2012 would have led to a legislative mess, and the denial of a major part of a president's legacy. Doing so now would mean making health insurance unaffordable for tens of millions who currently can afford it, thanks to the subsidies. The disruption factor is a lot higher.

I'm certainly not going to venture a prediction of which way the court will rule, at least not before hearing what happens Wednesday. But even that may not give many clues. Roberts is fully capable of performing a "head fake" and asking tough and pointed questions of one side of the argument -- and then going ahead and ruling for that side anyway. The Supreme Court knows how closely their every utterance during oral arguments is dissected by legal experts, so they can at times play their cards very close to the vest indeed. To put this another way, even after Wednesday's arguments, neither side should count too many chickens too early.

If the court does rule against Obamacare, there are several quick fixes which could take place which would solve the problem almost immediately. Congress could pass a one-sentence bill that says "replace 'by the State' in this one subsection of the Patient Protection and Affordable Care Act with 'by the State or federal government.'" That's all it would take. The entire bill would fit on one piece of paper. Since this is not likely to happen immediately (given the current makeup of Congress), another quick fix would be for every state to set up some sort of middleman arrangement, or just legislatively declare "we hereby declare that our state's official exchange is the federal exchange's webpage which deals with our state." This is, obviously, a riskier quick fix to attempt, since it would likely be challenged in court.

If the court does rule against the subsidies for states on the federal exchange and no quick fix appears, it's going to set up an interesting political dynamic. Most of the states on the federal exchange (but not all of them) are red states run by Republicans. The pressure to cobble together a state-level exchange is going to be fierce, even in the reddest areas of the country. Unfortunately for them, there is no longer federal money available to do so (the federal help only lasted during the initial Obamacare setup period). So it's going to cost the states to set up their own exchanges.

If states refuse to set up their own exchanges, then hundreds of thousands of citizens in each state are going to lose their health insurance. This is a trap the Republicans dug for themselves, really, by making such a stink when all the substandard pre-Obamacare insurance policies ended (when Obamacare exchanges first opened). Republicans took the position that nobody should lose their health insurance at all, ever, and they hit Obama hard on the issue. So how are they going to now explain their glee at the prospect of millions losing their health insurance? That's going to be an interesting political tightrope for them to attempt to walk, that's for sure.

Republicans in Congress, of course, have been saying for five years now that their top priority is to "repeal and replace" Obamacare with something that gets the conservative seal of approval. The problem, however, is that they have been woefully unable to agree among themselves what, precisely, this would look like. They are now scrambling to come up with something (anything!) that would help convince John Roberts to vote against Obamacare. "It won't be that bad," the GOP is signaling Roberts, "because we'll have a bill to fix everything, so there won't be any massive disruption in the marketplace." The sticking point, as it has always been, is that they have no such bill. Amusingly, some prominent Republicans just penned an opinion piece for the Washington Post titled "We Have A Plan For Fixing Health Care," which does nothing more than repeat "we have a plan" over and over again -- without offering up a single detail of what that plan would be, other than some vague language about how they'll somehow magically continue the federal subsidies for the rest of this year (so people don't lose insurance mid-year). That's it. That's the only detail in their entire article. Lots of talk of "freedom" and badmouthing federal bureaucrats, but virtually no actual substance whatsoever. So it certainly doesn't seem likely, after all this time, that the Republican bill to "replace" Obamacare is going to appear any time soon. They can't even agree on a set of bullet points, so how are they going to manage to construct a piece of actual legislation?

Personally, I am hopeful that John Roberts will take into account both his own legacy and the Republicans laughable lack of any other viable plan when deciding which side to rule for. That's just my gut talking, though, I will fully admit. But I truly think that if Roberts had wanted to exterminate Obamacare, he would have done so in the earlier case. There is an easy legal route to ruling for Obamacare, and I think Roberts will take it. I could easily wind up being wrong, however. I'm not going to read too much into any questioning Roberts does this Wednesday, no matter which way it goes, because I think the oral arguments are little more than a dog-and-pony show for the public -- I think the real legal decision-making happens while the justices read over the voluminous case materials instead. While some cases are easier to predict than others (for example, I think marriage equality will be the law of the land everywhere, before summer), the Obamacare case really could go either way. We'll all just have to wait patiently until June to find out, that's about the only thing that can be said with any degree of certainty right now.


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