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Eight Reasons to Stop Freaking Out About the Supreme Court's Next Obamacare Case

Chip Somodevilla/Getty Images

What makes liberals so nervous about the Supreme Court’s decision to hear arguments in a case that could wipe out Affordable Care Act insurance subsidies in dozens of states isn’t just that the stakes are so high, but that they understand something basic about the right and Obamacare.

If you haven’t noticed, the right hates Obamacare. Even if you don’t read a ton of significance into the Court’s decision to grant the challengers cert, it’s easy to imagine five justices reasoning themselves into buying the challengers’ story here, or of just doing great violence to the law as willful activism.

But that’s really the only reason for the left to worry. Outside of these conservative precincts, the challenge is rightly viewed as a cynical effort to gut the ACA. For the challengers to prevail in what’s ultimately a political campaign, they will have to overcome not just the weakness of their own legal arguments, but the political and substantive concerns weighing against them.

Here are eight reasons for the ACA’s supporters to stop freaking out—at least for now.

1. The Legal Case Is Extremely Weak

It’s easy to argue that the language in the ACA statute pertaining to insurance subsidies is ambiguous. It’s also easy to argue that, taken in context, these provisions unambiguously provide for subsidies in every state, no matter what. It’s much harder to show that the law unambiguously precludes these subsidies in states that don’t set up their own exchanges. Watching the right is like staring into an abyss. There’s almost no recognition of the fact that nearly all of the federal judges who’ve looked at this case have sided with the government, and that the two circuit court judges who sided with the challengers saw their opinion vacated. But that’s what happened—and it’s because the merits favor the law as implemented.

2. The Roberts Court Is a Business Friendly Court

And Chief Justice John Roberts himself is a business friendly justice. The Chamber of Commerce basically bats 1.000 with him. An adverse ruling would cause immense harm to powerful corporate interests like private insurance companies, hospitals, and other stakeholders, all of whom oppose the challenge.

3. The Ruling Would Be Embarrassingly Hypocritical

The four other conservatives on the Court have already acknowledged that the ACA scheme requires subsidies to flow everywhere. As Yale law professor Abbe Gluck noted back in August, the conservatives’ dissent in the last major ACA challenge stipulated that the scheme Congress devised wouldn’t work if the subsidies were eliminated. The dissent reads:

In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.

As Gluck observed, these arguments “are textual, structural and contextual arguments—arguments about what the statute means, drawing from how the act’s different textual provisions fit with one another and are read in light of one another, in the entire statutory scheme. These are not extratextual or legislative history arguments." It follows that if justices Alito, Scalia, Thomas, and Kennedy want to nix the subsidies, they’ll be tacitly admitting that they read the statute incorrectly. But if the statute is so easy to misconstrue, then it's probably ambiguous. And if that’s the case, the federal government should win. Not that anything requires these justices to be consistent or honest, but if they’re being honest, they’ll uphold the statute.

4. An Adverse Ruling Could Be Self Correcting

Even if all five of the Court’s conservatives decide they agree with the challengers’ interpretation of the statute, they will have to consider whether or not that interpretation renders the statute unconstitutional—either because the scheme it implies is unconstitutionally coercive, or because it didn’t advise states about the conditional nature of the subsidies before those states decided whether or not to establish their own exchanges. If the new interpretation renders the statute unconstitutional, then the onus will be on the Court to rewrite the law in a way that makes it constitutional—i.e. by requiring subsidies in every state.

5. Executive Discretion Is at Stake

The Roberts Court might hate Obamacare, but it might just hate the idea of the courts usurping executive discretion over the interpretation of statutory ambiguities even more.

6. An Adverse Ruling Would Be Immoral

Irrespective of the legal questions, and questions about judicial temperament, the justices will be made well aware of the fact that a knee-jerk ruling in favor of the challengers will kill people.

7. An Adverse Ruling Would Be Politically Damaging to Republicans

As much as Obamacare supporters want this challenge to fail, conservatives recognize that the aftermath of an adverse ruling would put the right in a really challenging spot. Democrats would have an easy answer to the chaos unleashed, and if Republicans stood in the way, they would bear the consequences. The politics would in many ways resemble the politics of government shutdowns. You don’t win fights by saying, "I'll only fund the government if the President agrees to X, Y, Z." By the same token, I don’t think Republicans would be able to withstand the blowback from constituents and industry stakeholders by saying they’ll only reinstate the subsidies under severe conditions. The right’s leverage would be illusory. If you don’t believe that this is at least a possibility, then read through this conversation between several bright young conservatives. If the conservative justices are willing to void the subsidies, then they’re willing to be political operators—but if they’re willing to be political operators, then they’ll examine the politics from all angles.

8. An Adverse Ruling Would Define Roberts's Legacy, for the Worse

Nobody knows for sure, but when Roberts saved the ACA back in 2012, the conventional wisdom held that he did it to avoid tarnishing the Court's legacy under his stewardship. Roberts's m.o. is to steadily advance conservative interests without over-reaching, thereby discrediting the very Court responsible for these advancaments. If that analysis is correct, then it makes no more sense for Roberts to annihilate the ACA now than it did two years ago.