Two of the judges, both Republican appointees, expressed varying degrees of sympathy for the challengers' case during the open court hearing.
The ACA was left mostly unharmed by the Supreme Court's ruling against its universal contraception mandate if the majority's statement that the ruling is very narrow applying only to a very specific subset of businesses does, in fact, come to pass.
At issue is whether the statute permits the federal exchange (which serves residents of 34 states which opted not to build their own) to dole out premium tax credits. The challengers seized on an ambiguity in the language of the statute which says the subsidies are to be provided by "an Exchange established by the State." The Federal exchanges are not, by definition, state exchanges.
"The administration's loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court." writes George Washington University Law Professor Jonathan Turley. http://www.latimes.com/...The good news is that the Obama Administration would petition for an en-banc ruling in which the entire D.C. circuit would review the case and vote on it. There are 11 judges: 7 Democratic appointees; 4 Republican appointees.
The bad news is that the conservative think tank, The Cato Institute, crafted the legal argument that is the cornerstone of the case and is working on three other similar cases wherein language in the complex law is being used to undo it. And, there is no doubt that if the en-banc ruling were to go against the conservatives, they will appeal which means the Supreme Court could get yet another chance to scuttle ACA.
BUT....there may be a silver lining even in the worst of circumstances....
"I have to wonder whether they would continue their refusal to set up state marketplaces just so low- to middle-income residents of their states would be ineligible for federal subsidies. With Medicaid, they at least had the fig leaf that they would be paying 10% of the cost of expansion after a couple of years, and that the federal government might later cut back further, leaving them holding the bag. But I wonder whether even they would be happy having to admit that the ONLY effect of them not setting up their own exchange would be to deprive their own residents of the subsidies." wrote DK diarist leevank in response to my original post.THIS may explain why the GOP has been so quiet about this case....It's a sword that will cut both ways but the deepest cuts may be to them.
After all GOP governors refusing to take Medicaid expansion mostly hurts the working poor, among the least engaged in the political process but if suddenly the 200,000 plus in my state who got ACA subsidies lost them...hmmmmm.
A side note from leevank and murphthesurf3: Almost every major piece of legislation is followed, within a relatively brief period of time, by "technical corrections acts" to fix thee kind of problems -- because these kind of glitches occursin essentially EVERY major piece of legislation- even the minor ones. It's not a matter of "not reading the bill before it's voted on," as the simplistic insist. It's a matter of not discovering how some provisions operate, what some provisions actually mean when applied and where errors in text subvert its purpose until the law is implemented.
What is unique in this case is the absolute refusal of the Republicans to go along with ANYTHING other than complete repeal.
Just for fun google "medicare D fixes" and discover how many, how fast and how significant were the fixes for George W. Bush's Medicare D. See: http://talkingpointsmemo.com/...