The stakes will be high again on Wednesday, when the court hears King v. Burwell, although lofty constitutional principles are not the issue this time. The case is largely about how to interpret four words in the Affordable Care Act statute. The plaintiffs claim that those words effectively forbid the federal government from subsidizing private insurance in about two-thirds of the states. The outcome of the case should have no effect in places like California and Kentucky, where officials have embraced Obamacare and set up their own infrastructure for helping people to purchase insurance. But in the rest of the country, a victory for the plaintiffs would cut off financial assistance for those seeking to buy coverage. Millions of people would lose their health insurance altogether. State insurance markets could fall into chaos.
Nicholas Bagley, a law professor at the University of Michigan, has made this point repeatedly. “When Vito Corleone in 'The Godfather' made a man an offer 'he couldn’t refuse,' he wasn’t subtle about it: 'Either his brains or his signature would be on the contract,'" Bagley wrote in The New York Times. “That’s how you threaten somebody. The phrase 'through an exchange established by the state' doesn’t cut it.”