Exclusive: Final hours of Obamacare?

.AP Photo
AP Photo

If plaintiffs have their way at the Supreme Court this week, come July, Obamacare as we know it will be done with. Leonard Leo says the odds of that are pretty good.

Leonard Leo is Executive Vice President of the highly influential Federalist Society, a group that boasts Federal judges and even Supreme Court justices as members. Though Leo knows many of the conservative justices well, he would insist he does not have any direct insight into their minds on any live case. But, he says the situation with this case is markedly different than the previous attempt to overturn Obamacare.

Before the Court this week are oral arguments in King v. Burwell, where plaintiffs argue that a plain reading of the law makes it clear that Federal subsidies cannot go to individuals in States that have not set up a State healthcare exchange. If that’s the case, then something between 6 and 9 million people receiving Federal subsidies for healthcare will no longer be eligible and will have to pay huge premiums to carry government-mandated health insurance. A majority of States — 34 altogether — never set up a State exchange. What this really means is if the Supreme Court goes the way of the plaintiffs, Obamacare would fall under its own weight.

Some will say we’ve been down this road before, when Obamacare was challenged a few years ago, and Justice Roberts changed his mind at the last minute and decided Obamacare was constitutional.

In an exclusive interview with Breitbart News, Leo explains why this time it’s different, “King v. Burwell is not a constitutional case like the original case. It’s a statutory case that really hinges on some basic aspects of statutory construction.”

At issue is a single sentence in the law, “…enrolled in through an Exchange established by the State…” The problem for Obamacare supporters is that 34 States never established a State exchange. In those states, people were allowed to buy insurance through a Federal exchange with subsidies for those who could not afford it. The King plaintiffs say this violates the plain reading of the law.

Leo explains that in the previous Obamacare case, it would have been the Court striking down aspects of the law, which would have led to an unraveling of the ACA. In this case he says, “It will be the 34 States that refused to create exchanges that undo Obamacare if the Supreme  court strikes down the IRS regulation establishing subsidies and employer penalties in Federal-created exchanges.” He says, “This puts a lot less policy and political pressure on the Court this time around.”

Even so, the political left is playing with the mind of Chief Justice John Roberts in advance of oral arguments this Wednesday. They are spinning tales about how going the wrong way in this case, Armageddon will happen and the integrity of the court will be ineluctably harmed.

The scare tactics are coming fast and furious. Writing in the New York Times a few weeks go, predictable left-wing court watcher Linda Greenhouse, said, “The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.”

Greenhouse disagrees with Leo. She says, “It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does.”

Greenhouse argues that all Supreme Court Justices “agree on how to interpret statutory text,” that all agree “that statutory language has to be understood in context.” She says the context of the law makes clear that State exchanges are not necessary. More than that, Greenhouse says — and many others on the left agree —the fate of the statute hangs in the balance, but “so does the honor of the Supreme Court.”

These are the precise arguments that won Chief Justice John Roberts’ mind the last time around.

There are also the arguments that the sky will fall and sick children will die. They say it is Obamacare or nothing and that the Republicans have nothing to make up for its loss. Leo says nonsense to this.

He points out that many very smart non-governmental scholars have offered up plans to take its place and to make it better. Leo points out the ongoing unpopularity of the current law, yet another reason the Justices could decide correctly.

Just today, Senators Orin Hatch, Lamar Alexander, and John Barrasso published a column in the Washington Post offering not only short term plans to cover those who would no longer be able to afford Obamacare but specific plans to fix the uninsured problem going forward.

Leo also says, “Is the administration playing a sleight of hand by saying that, if the decision goes against them, they have no “Plan B?” The administration has found a way to administer many, many aspects of our lives these past six years, but they do not have a plan if this decision goes against them. Within hours of the case going against them, I suspect they will have announced a plan to save it.”

While Chief Justice Roberts fell for the mind-games last time, conservative legal scholars are cautiously optimistic that the current circumstances are different enough to result in a decision that would drive a stake through the heart of government-mandated health care.

The arguments will be heard in a packed Supreme Court on Wednesday. Leo says the Court will likely vote on Friday with the result announced sometime before this term ends on June 30.

Follow Austin Ruse on Twitter @austinruse


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