There are three paths Congress could take in the wake of a ruling from the Supreme Court that strikes down the Obamacare insurance exchange subsidy system. They amount to a path toward doing nothing, a path toward doing something, and a path toward doing everything.
For as Blow then recounts, Obama’s 2013 response to Republicans was: “You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election.” Which Republicans, of course, promptly did, in both 2010 and 2014.
Following oral arguments, I was not optimistic about this ruling. The Court could have bought into the argument that Hobby Lobby can’t really complain about this requirement when they have the capability to not offer coverage at all, instead shifting people under their employ to the taxpayer via Medicaid or the exchanges. The penalty for offering coverage which fails to meet essential benefits is clearly absurd and sizable, but the penalty for not offering coverage at all would actually cost them less than offering coverage in the first place (around $26 million per year). The “gun to your head” penalty was the one which moved the court on the Medicaid/federalism question before, in a ruling that unexpectedly led to half the states declining to expand Medicaid. Justices Kagan and Sotomayor stressed this in oral argument and the Court could have found that this factor removes the pressure of an actual requirement. You can understand the reasoning: Just like the requirement to purchase insurance, it’s not illegal, it’s just a tax!