Six reasons why the Halbig case before the Supreme Court should be taken seriously

6. A ruling for the plaintiffs wouldn’t be the end of the road for Obamacare. To be sure, the law would have a very difficult time functioning if subsidies weren’t available in 36 states. But remember, the law will still be on the books. Everything else will still be enforceable.

In other words, we’ll just get a new set of political struggles. Republicans will push for full repeal, or major modifications to the scope of the law. But Democrats will push for full authorization of the subsidies and expansions of exchanges in the states. In the meantime, insurance rates will begin to skyrocket. Who wins that political battle? I honestly don’t think we can answer that with certainty.

In closing, I’ll simply note this: When I heard the theories behind the constitutional challenges to Obamacare, I thought they were borderline frivolous. And yet, the challenge to the individual mandate under the Commerce Clause received five votes (observers were surprised when the individual mandate survived under the taxing power), while the challenge to the Medicaid expansion received seven votes.

I have always thought that if this case got to the Supreme Court before the law fully took root, that it would be a very strong challenge. I don’t think this is a slam dunk by any means, and there are enough nuances, even within textualism, to approve of the federal subsidies. But this threat is real.