Health care can save Obama’s legacy – if the Republicans don’t destroy it first

You thought the worst thing that happened last week was the Republican rampage through Congress. Possibly, but my sinking feeling is about something else. It’s Obamacare – which, like the wheezing combine harvester my father had on his farm, always seems to be on the brink of collapse.

With its leaking hydraulic rams and rattling conveyors, the harvester was critical to our family’s fortunes. It wasn’t allowed to die. Likewise the healthcare law for Barack Obama. If it blows up, his legacy will be gone for good. For that not to happen, all its mysterious components must keeping working in sync.

Or course, he nearly killed it himself with the disastrous roll-out a year ago of the website that was meant to make it easy for Americans – including the millions without insurance of any kind – to buy new health policies. But the enrollment window for people to sign up for 2015 opens this Saturday and we are assured that the gremlins have been chased away and signing up will be like slicing marzipan.

Yet it’s impossible not to hear those new and very ominous banging sounds coming from its bowels.

It is thanks to some new spanners being thrown into the works, not in fact by the Republican party directly, but by the Supreme Court. Or potentially thrown in.

I thought we were in the clear when in 2012 I found myself standing outside the Court’s grand edifice across the road from Congress and, as if by miracle, Chief Justice John Roberts detached himself from his conservative friends and voted with the majority to uphold the constitutionality of the centerpiece of the law – that every citizen was obliged to get health insurance.

But not so fast. Last Friday, the court announced that another attempt by the conservative forces in the land to pierce the heart of the law deserved their attention. The spear this time is different, but the risk that Obamacare will be felled seems at least as real as in 2012. Perhaps more so.

Here’s the problem. When Congress originally wrote the law, it stipulated that federal subsidies should be available for the least wealthy Americans to purchase the newly available plans on the online exchanges that each of the 50 states were meant to set up. To be clear, the text of the law says subsidies will be available for people “enrolled through an Exchange established by the State”. Someone in Virginia who hates the law – and they are very much not alone – spotted this and went on to point out that, as it turned out, only 14 of the 50 states set up their own exchanges. The other 36 opted to use a federal exchange instead. Does that mean, in those states which did not establish their own exchanges, federal subsidies should be denied to buyers of healthcare plans?

Everyone knows that the intent of Congress at the time was to offer subsidies to everyone who needed them. Never mind that circumstances have changed a little. But the Supreme Court justices aren’t big on what people meant at the time. They are literal folk. There is, therefore, a real risk that they will agree with the plaintiff and issue and remove those subsidies from the 36 states without exchanges of their own. The cost of policies for people in those states, it’s estimated, would instantly jump by 43 per cent.

That is when the combine harvester would burp, grumble and give up the ghost. It simply wouldn’t work any longer without those subsidies and the plaintiffs in the case know it full well. Obamacare, in other words, is once again in mortal danger.

And that is more depressing than anything.