If the Supreme Court cripples Obamacare, which way will fingers point?

This photo appears to have been taken moments after a secret agent (right) has injected an enemy agent (left) with a deadly toxin that even now is coursing through his veins, causing . . . oh wait, it's just President Obama glad-handing Chief Justice "Smirkin' John" Roberts.

"Playing chicken with the Justices only works if it works."

-- The New Yorker's Jeffrey Toobin, in "Obama's
Game of Chicken with the Supreme Court"

by Ken

As DWT readers surely know by now, Obamacare is on trial for its life (as I wrote in early March, "Our clown Supreme Court takes on the bogus challenge to Obamacare -- and makes believe it's legitimate!"), over four carelessly chosen words in the Affordable Care Act which have been twisted by right-wing psychopaths and dishonest scumbags to mean that people who register for health care on the federal insurance exchange rather than on state exchanges (in the 16 states -- plus the District of Columbia -- that have established them) aren't entitled to federal subsidies as set out in the act.

Now the lying dirtbag plaintiffs in King v. Burwell know perfectly well that their "case" is idiotic on its face -- even in terms of the contested four words, which simply can't mean what they're pretending, at least not to anyone who's at all acquainted with the English language. And of course there's not a word of support anywhere else for their preposterous claim -- not in the entire rest of the ACA, not in the entire legislative history of the ACA, not even in the millions of invective-laden denunciations hurled at the ACA before this tiny phraseological glitch was glommed on. Nothing. And the lawyers have always known this. Their only interest, they have made abundantly clear, is finding whatever means they can to achieve their goal of undoing the act. Nevertheless, betting that there aren't five lying imbecile scumbags on the Roberts Court prepared to go along with the scam seems like an awfully poor bet.

In a new blogpost, New Yorker legal correspondent Jeffrey Toobin takes a new look at what happens if this bet loses, and it's "likely" that most of the 13 million people now receiving subsidies for insurance purchased on the federal exchange "will no longer be able to afford their insurance." Jeffrey presents the question of what happens next as a drama in its own right, which we might think of as being in three acts.

Act I: Democrats are all atremble

"Until recently," Jeffrey writes, "the perception has also been that the Democrats had the largest political stake in the case. After all, the A.C.A. is the signature achievement of the Democratic President."

Act II: Pity the poor GOP!

"Suddenly, though, and paradoxically," Jeffrey writes, "it has come to seem that Obamacare's Republican opponents are most at risk if the decision goes their way. They have the most to lose by winning."

As Jonathan Chait wrote recently, “The chaos their lawsuit would unleash might blow back in a way few Republicans had considered until recently, and now, on the eve of a possible triumph, they find themselves scrambling to contain the damage.” In this view, the peril is especially great for Republicans, because, as Jonathan Cohn recently pointed out, the G.O.P. has failed to propose any kind of plan to address the loss of insurance for so many millions of people.

(I suppose it would be inappropriate for me to suggest that one eminently solvable problem we have here is altogether too many Jonathans involved in the case. Perhaps some of the surplus Jonathans could investigate other names, of which there are many. Julius, for example, or Nathaniel, or Ewan. Maybe Rafael, or Spike? There are a zillion more, more than enough to go around.)

So that’s the theory: millions will suddenly be uninsured, and will blame Republicans. As Harry Reid, the Democratic leader in the Senate, put it recently, “I don’t think they will [win the case]. If they do, that’s a problem that the Republicans have.”

Act III: Hold on there, Harry!

Not so fast, Jonathans (or Rafael, or Spike), says Jeffrey T. "If the Obama Administration loses in the Supreme Court, the political pain will fall almost exclusively on the President and his Party."

To paraphrase Colin Powell and the Pottery Barn rule, President Obama will have broken health care, so he owns it. To the vast mass of Americans who follow politics casually or not at all, Obamacare and the American system of health care have become virtually synonymous. This may not be exactly right or fair, but it’s a reasonable perception on the part of most people. The scope of the Affordable Care Act is so vast, and its effects so pervasive, that there is scarcely a corner of health care, especially with regard to insurance, that is unaffected by it. So if millions lose insurance, they will hold it against Obamacare, and against Obama. Blaming the President in these circumstances may be unfair, but it’s the way American politics works.

It won't matter, Jeffrey says, how "esoteric" the legal point at issue is. "The central assertion by the plaintiffs is that the Obama Administration violated the law itself," and "the subtlety of the issue at the heart of the case will sure be lost in its aftermath."

The headlines will read, correctly, “Court rules against Obamacare,” and this will be all that matters. The Republicans will argue that the Supreme Court showed that the law was flawed from the start, that the Obama Administration is lawless, that a full repeal of the law is the only appropriate response to the Court’s decision—and that the millions who lose their subsides should blame the sponsor of the law. Watch for references to a “failed Presidency.” There’ll be plenty of them.

JEFFREY SEES THE ADMINISTRATION'S FIX, BUT --

No one, after all, knows better than people in the adminsitration "the scale of the problems that would be created by a loss in the Supreme Court." And as "a litigation strategy," there's something to be said for trying to impress on the Court the chaos that will result if the justices turn thumbs-down on the defense. He notes that HHS Secretary Sylvia Burwell (the defendant "Burwell" of King v. Burwell) has said "in testimony before Congress and elsewhere . . . that the Administration has no contingency plan for an adverse ruling."

Which brings us to that line I put atop this post.

But playing chicken with the Justices only works if it works. If the Supreme Court strikes down the subsidies, the Administration will also have to answer for why it didn’t prepare for this possibility.

And it won't matter, Jeffrey insists, even if the Court is wrong -- even if, to put it in my terms, there really five or more lying-imbecile-scumbag justices.

For many people, the President of the United States is the government of the United States. It’s why he gets the credit and blame for so many things, like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him.

I don't consider myself a great predictor of the responses of the American public. So while I'm not sure that Jeffrey is completely right about this, neither am I sure that he's completely wrong. And when it comes to cranking up the volume of noise, and at maximum volume hurling thunderbolts of blame at parties that may or not be to blame, which side has the better resources and track record?

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