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

(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.