I alternate between being sure that there are five votes on the Supreme Court to throw out a couple of generations of agreed upon administrative law precedents in order to keep people from getting subsidized health insurance in most states, and being reasonably confident that there are only three votes to gut the ACA.
In either scenario, I see the four liberal judges writing a fairly brief and caustic opninion that can be summarized as “Why the fuck are we wasting our time on a minor drafting error case that is advanced by sociopaths, liars and con-men. The law is simple, coherent and not batshit insane when read in its entirity, so of course the subsidies are legal in Healthcare.gov states.” The other two judges in the positive scenario will write a paen to the majesty of cooperative federalism where the law clearly states that subsidies only go to state run exchanges BUT the threat was not clearly communicated therefore, the subsidies have to flow to all states. Nicholas Bagley has been advancing this argument that the ACA was a cooperative federalism model and the states must be respected.
But what happens if the Supremes have five sadists instead of three?
Assuming the ruling comes out in June, policies from Healthcare.gov would be run through July 1st. The Center for Medicare and Medicaid Services (CMS) signed contracts with insurers offering products on Healthcare.gov that they could pull products if Halbig/King were successful. Quite a few insurers would pull most if not all of their On-Exchange products effective July 1 or August 1 depending on state level notification requirements. After that, the remaining individual insurance market now looks like the pre-PPACA New York State insurance market where there is guarantee issue and no medical underwriting but no subsidies and no mandates to get healthy people into the risk pool. We get a death spiral where average premiums for a 30 year old would almost double in two years, and most reasonably healthy people who otherwise would have qualified for subsidies now sit out of the market because they can’t afford the coverage.