Republican politicians aren't making the lawyers' job in the
King v. Burwell challenge to Obamacare any easier. Those lawyers have to convince five Supreme Court justices—but most importantly, Chief Justice John Roberts—that not only do they have a totally legitimate case (which most non-conservative legal scholars agree they don't) but that the court wouldn't be doing real damage to the law should they decide for the plaintiffs. This case challenges the subsidies that people who purchase Obamacare plans on the federal insurance exchange receive, stating that one isolated phrase in the law stipulates that only people who sign up on state-based exchanges are eligible for the financial assistance. It would also help the plaintiffs out a lot if the case weren't so obviously political. That's where the politicians are a problem. First there's Mitch McConnell
speculating that the court will do the dirty work of killing Obamacare while a Republican Congress can't.
Now it's Gov. Scott Walker (R-WI) opining on the lawsuit and potentially derailing it. Walker told a local news outlet that he plans to "do nothing" if the court strikes down federal subsidies. As governor, Walker could establish a Wisconsin exchange to make sure that 362,000 people getting the assistance don't lose their insurance. But he won't. And that's a problem for the plaintiffs because a key part of their argument—the part where they have to convince the court that it wouldn't be screwing over millions of Americans—is that the states will just step up.
Indeed, they argue in their brief that a major reason why many states elected not to set up their own exchanges is because the IRS told them that their residents could have tax credits regardless of who runs the exchange in each state. "Because the IRS Rule promised states the quid of subsidies without demanding the quo of state-run Exchanges," the lawyers opposing Obamacare argue, "34 states predictably declined to assume the difficult responsibility of establishing exchanges." They add that, if the Supreme Court reinterprets the law to deny subsidies in states with federally-run exchanges “states may well establish Exchanges going forward."
Walker just blew a big hole in that one. Given that Republican governors and legislatures in most of the states on the federal exchange hate Obamacare so much they won't even accept the free Medicaid money it provides—to take care of their constituents!—Walker is probably not the only governor who would just as soon see the law collapse. Because without the subsidies in the 36 states using the federal exchange, that's probably what would happen. The healthy people on the exchanges would suddenly find that they couldn't afford insurance and would have to drop it. Insurers would be left with the sickest patients—they are now legally required to cover them—and would have to keep raising premium rates, causing more people to drop out.
That's the motivation the lawyers bringing this challenge have had all along—it's all about destroying the law and it's all political and now that's on the Supreme Court's head, or more specifically, on John Roberts' head.