Sen. Mitch McConnell has copped to the reality that Republicans generally try to keep under wraps: a slim majority of five U.S. Supreme Court Justices has turned the court into basically a political institution aligned with Republicans. The admission came in a
speech at the
Wall Street Journal CEO Council annual meeting, talking about the prospects for—what else—Obamacare repeal. Greg Sargent
excerpts the key bits.
"It bears the president's name. The chances of his signing a full repeal are pretty limited. There are parts of it that are extremely toxic with the American people. The elimination of the 40 hour work week. The individual mandate. The medical device tax. The health insurance tax. I think you could anticipate those kinds of things being voted on in the Senate. Such votes have not been allowed in the past.
"Who may ultimately take it down is the Supreme Court of the United States. I mean there's a very significant case that will be decided before June on the question of whether the language of the law means what the language of the law says, which is that subsidies are only available for states that set up state exchanges. Many states have not. If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing—that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen." [emphasis mine]
McConnell is presenting the same extremely confined reading of the law that the conservative activists who brought the case employ: two places in the law where the subsidies appear to be tied to "an Exchange established by the State under 1311." That's two references in the totality of the law. If the court follows
its own precedent which says "a reviewing court should not confine itself to examining a particular statutory provision in isolation," because "meaning—or ambiguity—of certain words or phrases may only become evident when placed in context," then the plaintiffs, and McConnell, are out of luck. The full context of the law, in fact, is explicit in the intent of the law to make health insurance affordable for all Americans.
The plaintiffs are making the argument that they are just trying to force what the law requires: making states step up to create their own insurance exchanges. McConnell blows that myth out of the water, too. The Supreme Court can "take it down," he says. That's not about fixing the law, that's about killing the law.
That's been the goal of the conservative activists who brought the Halbig and King cases from the beginning—the destruction of the law. Nothing less. They can't do it through repeal, so they'll do it through the Supreme Court. There might be one member of that court majority of five who won't be too pleased that McConnell has ripped the veneer off of this case and exposed it for the baldly political stunt it is: Chief Justice John Roberts. He does seem to have some concern for his legacy. He might not want that legacy to include being responsible for taking health insurance away from millions of people and gutting the law that is racking up successes and saving lives.