Almost overshadowed amidst revelations by Jonathan Gruber, an MIT economist who was one of the chief architects of the Affordable Care Act, that he and his colleagues lied and misled Congress and the American people about what the law contained in order to get it passed, is the news that the Supreme Court has decided to hear the Halbig case (technically called King v. Burwell)
Essentially, what Halbig is about is this: When the ACA was designed it mandated that poor people be given subsidies to offset the cost of insurance if they purchased their coverage through their state's insurance exchange program. Thirty four states, however, refused to set up exchanges and the federal government had to go in and provide the service. The problem is that the ACA explicitly asserts that only consumers using state exchanges are eligible for subsidies, and it makes no provision for subsidies to people who use federal exchanges. Thus, as the law is written, millions of poor people in states with no state exchange will not be eligible for subsidies and will not be able to afford insurance. This, some observers believe, would be the death knell for Obamacare.
Consequently, the White House is arguing that the intent of the law was to give everyone subsidies even though the law explicitly denies this, and the same Jonathan Gruber is on tape explicitly insisting that subsidies were meant to be granted only to those using the state exchanges. The case has been quietly making its way through the judicial court system and the Supreme Court has now decided to take it up.
This development has led to a lot of speculation about exactly who the justices were (there were four of them) who voted to hear the case. Hot Air's Allahpundit makes a good case for thinking they were three conservatives (Scalia, Thomas, and Alito) plus Anthony Kennedy. If he's right about this, and if he's also right that it's unlikely these Justices would've chosen to hear the case unless they were inclined to rule against the administration, then Chief Justice John Roberts, who saved Obamacare in 2012 from being declared unconstitutional by transmogrifying a fine into a tax may well find himself the swing vote once again.
Roberts received so much condign criticism for that 2012 decision that a lot of people wonder whether he'd be willing to go through all that misery again and might instead be looking for a reasonable way to justify voting against the White House this time around (It's odd that nobody seems to think that a Supreme Court Justice might actually rule on what the Constitution says, but Roberts seriously diminished confidence that he would so rule by deciding as he did in 2012).
Richard Hasen at the LA Times thinks Roberts might decide against the White House in the current case by arguing that the Congress wrote what it wrote and that if they didn't say what they meant to say in the ACA then it's up to them to change it. This would certainly be a reasonable position, but it would almost certainly be the end of Obamacare because there's very little chance that a Congress now controlled by the Republican party, not a single member of which voted to make the ACA law, will now vote to save it.
I guess we'll have to wait and see.
