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The one weird trick that could save Obamacare (and why Democrats aren't using it)

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(Bloomberg Politics) — On Feb. 6, less than a month before Supreme Court arguments would begin in the case of King vs. Burwell, Politico reporter Jennifer Haberkorn published a profile of the newly famous plaintiff. David King’s home, according to Haberkorn, was “lined with mementos from his Vietnam War service.”

Three days later, Mother Jones reporter Stephanie Mencimer published a profile of the case’s other plaintiffs. One of them would soon be eligible for Medicare. Two others, as far as Mencimer could tell, stood to benefit if they took the subsidies available under the Patient Protection and Affordable Care Act (PPACA)–subsidies they were suing to end, on the theory that the law did not intend to provide them, and on the basis that they would be harmed by paying mandates if they forewent insurance.

These stories and some reporting by the Wall Street Journal have cooked up a new drama about a case that has evolved swiftly from a dilatory-seeming experiment to a threat to PPACA itself. What if the plaintiffs could be proven not to have standing? What if all were actually eligible for coverage that could save them money–King through the VA, for example–and they were not truly harmed by the law?

The Competitive Enterprise Institution, the libertarian think tank that brought forward the lawsuits, has not really responded to the chest-pounding. “The four plaintiffs involved are individuals who are harmed by this regulation because it makes them subject to Obamacare’s individual mandate, which requires people to enroll in comprehensive health care coverage or pay a tax penalty,” said CEI in a Feb. 13 statement.

A follow-up question about whether CEI would file a supplementary brief was not answered. I asked it because of Nicholas Bagley’s argument that it might be necessary.

The court could call for supplemental briefing (or, alternatively, it could instruct the plaintiffs to address standing in their reply brief, which is due on Friday). The idea would be to get the plaintiffs’ lawyers to explain the factual basis for their clients’ standing. Ordering such briefing wouldn’t be unprecedented: In a case decided in 2000, for example, the court ordered supplemental briefing on standing the day after oral argument. And such briefs often address questions pertaining to mootness.

CEI could respond, but libertarians aren’t broadcasting much worry about this. The case, as CEI, attorney Jonathan Adler, and Cato Institute scholar Michael Cannon keep restating, is not just about four plaintiffs. If PPACA is wound back by the court, everyone subject to the employer mandate would be freed. “Poof!” If people need to see someone being harmed, there he is, there he is, and there are 56,999,998 more of him.

Tellingly, Democrats haven’t really scrambled to embrace the “standing” drama. “To me this is also going to be a key moment for leg intent,” said Oregon Sen. Ron Wyden in an interview last week. “I’ve seen a lot of lawyers making the point that there still is standing, because there are other individuals [who could be affected].”

Wyden, like most Dems, had previously argued that the Court needed to rule against King plaintiffs because the clear intent of Congress was to provide subsidies for health insurance plans, whether or not the states build the exchanges that sold them. They’re more focused on getting John Roberts to believe that than they are in hoping for some “standing” fairy dust to make the case disappear.

See also: 10 states where the Supreme Court may help short-term health sales.