This article provides a good primer on one of the rationales the Supreme Court (including some of the conservative justices) could uphold the individual mandate and the employer mandate in the states that have not adopted their own Marketplaces. In essence, the argument is that by interpreting the ACA to preclude subsidies in the 36 states with a Federal Marketplace, the Court would be construing the ACA in a way that unconstitutionally infringes on federalism principles (i.e. states’ rights). The Court would then adopt the constitutional interpretation rather than the unconstitutional one. Of course, this argument could also backfire – if the ACA individual mandate/ employer mandate/ Marketplace structure is not ambiguous and it does unconstituitionally infringe on federalism principles then it is unconstitutional in its entirety (even in the states that have adopted their own Marketplaces).
King v. Burwell Isn’t About Obamacare – Abbe R. Gluck – POLITICO Magazine.
