Tuesday, November 11, 2014

The Supreme Court Guns for Obamacare Again

The Supreme Court’s decision to hear the latest challenge to Obamacare, and in such unseemly haste, is alarming.  The haste is what worries me most, for several reasons. 

Normally, the Supreme Court waits for a circuit split, i.e., for two different circuits to disagree before it takes on a challenge.  This time the claim of a circuit split was extremely dubious.  The Fourth Circuit has ruled in favor of the government.  A three-judge panel of the D.C. Circuit ruled against it, but the decision was on track to be overturned by the D.C. Circuit as a whole.  Instead the Supreme Court jumped in and decided to hear it.  It takes four justices to decide to hear a case.  Clearly the four who lost last time around were stung to the quick and determined to kill Obamacare at the first chance they got.  That they were so quick to jump at the chance strongly suggests they are confident that this time Roberts will rule their way.

Another reason for the haste was articulated by the challengers of the law.  The faster they act, the fewer people will be stripped of their health insurance by an adverse court ruling.  Presumably the Supreme Court wants to strip people of their health insurance as soon as it can so as to limit the number being affected.

But the timing right after an election that was a Republican blowout is most suspicious.  Republicans have always had several goals.  (1) Kill Obamacare.  (2) Make sure Obama gets blamed when millions lose their health insurance.  (3) Make the subject so toxic that Democrats will never touch it again.  (4) Avoid coming under pressure to do something themselves.   This set of priorities rules out an open repeal now that people actually have gotten insurance because openly voting to strip people of their health insurance is a surefire loser.  If Republicans win the triple crown in 2016, they might vote to repeal the individual mandate in hopes of inducing a death spiral.  If the death spiral hits soon enough, they can probably blame Obama for it (just as Obama escaped too much blame for the bad economy in his first term by blaming it on Bush).  But if it takes longer, they will be blamed.  And if the death spiral gets seriously underway while Republicans are in power, they might come under pressure to do something about it. 

Enter the Supreme Court.  If the Supreme Court rules that people cannot receive subsidies if they buy insurance on federal exchanges, it will successfully kill Obamacare in the majority of states that did not set up their own exchanges.  By doing stripping millions of their health insurance during the Obama presidency, the Supreme Court can ensure that Obama and not they are blamed for it.  The whole uproar will probably convince Democrats just how high a priority preventing any expansion in health insurance is to Republicans and prevent them from tackling the issue ever again.  And while Republicans can ride the wave of outrage over so many people losing their health insurance to victory in 2016, they can at least hope that the outrage will have died down enough by the time they come to power, and people will have adjusted well enough to the new situation that they will not come under any pressure to do anything about it, and people will finally accept high rates of uninsured as the will of God and/or the free market.

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