It may be a little late to weigh in on Halbig v. Burwell, but better late than never. The first and most obvious point is that it is a spectacular demonstration of just how broken our political system has become.
Consider: The question of the individual mandate was a deep constitutional question, even if it was a novel one. If the Supreme Court had held that Congress could regulate only economic "activity" and not "inactivity," the individual mandate would have been unsalvageable short of a Constitutional amendment. The Hobby Lobby decision turned on a statute (RFRA), rather than the First Amendment, but constitutional questions lay not far below the surface. This latest opinion lies in a simple glitch in statutory language that Congress could correct in a single afternoon. That this is considered outside the realm of possibility. I would say the fact that it is calmly accepted that if the Supreme Court holds that subsidies are only available to people who purchase insurance on state, not federally, created exchanges, millions will simply have to lose their insurance because Congress would sooner see them suffer than change a few words in a statute is sheer madness.
I am also a bit skeptical about it. Consider the politics of it. Suppose the question goes to the Supreme Court. As the decision draws nearer and nearer, millions will be in fear that their subsidies might be in jeopardy. This will create pressure on Congress to do something to reassure them. And, after all, Congress need only change a few words in the statute and the whole suit will become moot. Holding out and insisting that you want millions of people's subsidies to be in jeopardy looks like very bad politics to me. And suppose that the Supreme Court decides that, indeed, only people who buy insurance on state exchanges are eligible for subsidies. Suddenly millions will be stripped of their health insurance and Republicans will be dancing in the street with glee. That sounds like even worse politics. After all, Republicans have never quite come out and said that they simply don't think some people should have health insurance. They always come up with some other reason to oppose Obamacare. To be caught actually applauding people losing health insurance could be embarrassing. And to fight to the last against a quick and easy fix seems even worse.
Of course, I may be miscalculating the politics here. The usual Republican calculus has always been that since Obama is President, he will be blamed for everything that goes wrong, and therefore the worse they make things, the more they benefit. Thus this time when people lose their insurance subsidies, Republicans will blame "Obamacare" and vow to repeal the monstrosity. Winning issue! But I see a problem here. As one conservative once said explaining why liberals don't bet many votes, "It's the substance, stupid!" The same goes for conservatives. Denouncing the evil of "Obamacare" for people in states with federal exchanges for the sudden loss of subsidies may be popular. Vowing to end this monstrosity may also be popular. But not restoring subsidies and instead stripping subsidies even from people buying insurance on state exchanges is not going to be popular.
And there may be another problem as well. Republicans are usually good at blaming Obama for our country's woes, except during a head-to-head confrontation, when Republicans tend to do very badly. If the Supreme Court strips millions of their subsidies, Obama need only call on Congress to pass very simple legislation to fix the problem, and Congressional Republicans will have a most awkward time explaining why they are unwilling to do so.
Of course, my calculation here might be wrong. The real issue might be that Republicans are highly successful at blaming Obama when they stick to obstruction, but are invariably blamed when they try to force something over. (See government shutdowns, debt ceiling showdowns). Since in this case they will simply be obstructing a fix, they may hope to win out.
Be that as it may, this unseemly enthusiasm for stripping millions of their subsidies is a most disturbing sign of the times.
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