President Obama recently gave a speech in which he offered some rather mild criticisms of the arguments being made by the plaintiffs in King v. Burwell, the forthcoming Supreme Court case that could very well determine the fate of Obama's health care law. "This should be an easy case. Frankly, it probably shouldn't even have been taken up," said Obama. "It seems so cynical to want to take coverage away from millions of people."
Not exactly fire-breathing rhetoric. And yet various conservatives who anxiously want the Supreme Court to willfully misread the law and cripple ObamaCare reacted hysterically. "[T]ypical Obama bullying of the Court," huffed the legal scholar and blogger Glenn Reynolds. "[T]here's nothing 'moral' about attempting to bully the Supreme Court by presenting a false choice between the rule of law and love for one's neighbor," thundered a Republican legal operative. Michael Cannon, one of the major drivers of the litigation, which claims the federal government does not have the right to provide subsidies to states that do not establish their own health care exchanges, asserted that it was "a speech designed to cow the Supreme Court justices into turning a blind eye to the law."
To state what should be obvious, the idea that Obama is engaged in some kind of illegitimate "bullying" by criticizing the latest anti-ObamaCare attack cooked up by the law's most fanatical opponents is asinine. Obama is not suggesting that he would refuse to comply with an unfavorable ruling. He is not following FDR and arguing that Congress should retaliate by adding additional seats to the court. He has no leverage to force the court to do anything. He's expressing his views about a case.
And there's absolutely nothing wrong with that. The Supreme Court has the authority to determine the meaning of statutes. But that doesn't mean that public officials are required to agree with every possible outcome, something Reynolds understands perfectly well when there's a Republican in the White House.
On the merits, the arguments against Obama's argument are also weak. Reynolds links to National Review's Joel Gehrke, who suggests that King cannot possibly be an easy case because "Jonathan Gruber, one of ObamaCare's architects, famously contradicted that assertion in 2012." For one, Gruber, a health care consultant, did not draft any of the relevant provisions of the bill. He also, of course, did not vote for it. Given that literally every other supporter of the ACA who was involved in the process — including many who were far more important players than Gruber — believes that the ACA made subsidies available on federally established exchanges, citing Gruber as evidence that King cannot be an "easy case" is feeble.
But it's worse than that. Gehrke quotes Gruber as saying, "What's important to remember politically about this is if you're a state and you don't set up an exchange, that means your citizens don't get their tax credits." But Gehrke conveniently omits the preceding sentence: "The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it." In other words, Gruber seems to be arguing that the federal government might not establish the exchanges in time, not that the exchanges wouldn't provide tax credits. So this is cherry-picking without the cherry.
But the quality of the arguments against Obama isn't really the point. Claiming that Obama isn't allowed to criticize the court is an attempt to control the politics should the court wreck the federally established exchanges. As Sen. John Thune's infamous bellyflop on Twitter showed, Republicans will try to argue that if a conservative challenge to the ACA is accepted by a bare majority of GOP-appointed Supreme Court justices, and state and federal legislators refuse to do anything as millions of people lose their insurance, it's Barack Obama's fault.
If that argument sounds dumb, it's because it is. So I really can't blame the ACA's opponents for their preemptive whining. Like every other aspect of this latest legal challenge, the argument is an almost comically transparent fraud. If I was trying to sell the idea that Congress set up a federal backstop that was designed to fail, and kept this a secret for reasons nobody has ever been able to explain, I might argue that disagreeing with me was inherently illegitimate too.
