How ObamaCare can survive a knee-capping by the Supreme Court

This summer, the conservative majority on the Supreme Court will once again decide whether it dares to destroy ObamaCare. In King v. Burwell, the justices will determine whether the law's subsidies can flow through the federal exchange of Healthcare.gov, based on a wildly tendentious challenge to the statute.

This raises the question of stakes. What happens if the Obama administration loses? Millions may lose their insurance — of those, many thousands may die of preventable medical conditions. But it all depends on how the government reacts. With some silly workarounds, ObamaCare may survive after all.

One thing we know for sure: If subsides are yanked off Healthcare.gov, an immediate catastrophe would ensue in the private health-insurance market. The whole insurance industry has been upended to adapt to ObamaCare, and knee-capping the law will lead to some very ugly outcomes.

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A Rand Corp. study found that unsubsidized premiums in the 36 states without their own insurance exchanges would increase by 47 percent. Total enrollment in the private market, both on the exchanges and off, would fall by 70 percent, or 9.6 million people. An Urban Institute study found slightly fewer uninsured: 8.2 million. In other words, conservatives will have created the very market death spirals they were eagerly anticipating in 2013 during the bungled rollout of Healthcare.gov.

So if 9.6 million people lose their insurance, how many die? Let's try a rough guess. Pre-ObamaCare, lack of insurance was associated with between 26,100 and 45,000 deaths annually. Say there were about 50 million uninsured people at the time (a reasonable approximation); that gives an excess annual death rate between 0.0005 and 0.0009.

Thus, if 9.6 million people lose their insurance, between 4,800 and 8,600 of them would die needlessly every year.

Conservatives get quite heated during these discussions, understandably. They would very much like to avoid being perceived as being responsible for thousands of pointless deaths. In particular, many quibble on causality grounds. But studies of the Medicaid expansion found that getting covered reduced mortality rates, as did a study of universal coverage in Massachusetts. Relying on such reasoning, a brief submitted to the Supreme Court argued that striking down the subsidies would kill 9,800 people annually. Even if the number is closer to the bottom end of my range, it's still a lot of people to kill because #Obummer.

A Supreme Court decision striking down the federal subsidies would result in an almost unprecedented combination of legal preposterousness and enormous real-world impact. As Linda Greenhouse argues, as a case of statutory interpretation (King is not a constitutional case), ruling against the government would be a bald contradiction of everything the justices, even the conservative ones, have ever said on the subject. The case ought to be open-and-shut.

Greenhouse is concerned that such a decision would do great damage to the court's reputation. It also may want to consider what the government might do in response.

Shanking ObamaCare on grounds of pure partisan hackery would obliterate any reluctance for the administration to fight fire with fire. If the court is going to attack ObamaCare with uncut legal argle-bargle, then there's no reason not to respond with the same.

Charles Gaba once wrote that it would be possible to patch up ObamaCare for the low, low price of $360 per year. Each of the 36 states without an exchange could buy a domain name from GoDaddy or another low-rent service for a sawbuck, and set up a simple redirect to Healthcare.gov. With the "state exchange" requirement met, the subsidies could flow. For recalcitrant states that refuse to cough up the $9.95, people could be redirected to functioning state-level exchanges, and the subsidies would be funneled out that way. States could also just get a copy-and-pasted version of the Healthcare.gov setup. These are goofy ideas, but ObamaCare would be safe, until the next nutcase lawsuit at least.

This would, of course, be straining the bounds of strict legal interpretation. But no more so than the Supreme Court itself would have done. In many ways this would be the best outcome for conservatives. They'd "win" in court, but also get another dastardly executive action from the president to rail against. Best of all, they wouldn't have to confront the disastrous consequences of their preferred policies.

But if the court wants to avoid all of this, perhaps the conservative justices ought to just leave ObamaCare alone. They could even try urging their fellow conservatives to pass policy through the legislature.