November 13, 2014

"'This is Bush v. Gore all over again,' one friend said as we struggled to absorb the news last Friday afternoon."

"'No,' I replied. 'It’s worse.'"

Oh? Is that an admission from Linda Greenhouse that Bush v. Gore wasn't really all that bad? Actually, yes!
In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.

That’s not the case here. There was no urgency....
"Here" = King v. Burwell. That's the new Obamacare case that's freaking people out.
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.
Naked power grab? It's a naked power grab to grant review of a case that's been decided by a Court of Appeals panel, just because there's no split in the circuits? The Supreme Court has discretion over whether to grant certiorari, and its own rule on "Considerations Governing Review on Writ of Certiorari" refers to "compelling reasons," then lists a few things that it says are "neither controlling nor fully measuring the Court's discretion" but that "indicate the character of the reasons the Court considers." One of the things on the list is a split in what different courts have said about federal law. But another is: "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court." So: It's an important question. Where's the power grab — naked or clothed?

The nakedness metaphor must have really stood out to the headline writer. The piece is called "Law in the Raw." Greenhouse doesn't like that the Supreme Court inserted itself — its naked, grabby self — into the controversy when there was going to be a rehearing by the full D.C. Court of Appeals (which had vacated the judgment of the 3-judge panel). But if it's an important question that in the end the Supreme Court is going to resolve, maybe it's also important not to drag things out. Get it resolved so we can move forward either knowing things need to be redone or freed from the cloud of possible illegality.

But Greenhouse's real complaint is that she — like many others — reads the Court's impatience as revealing the opinion on the merits: "There is simply no way to describe what the court did last Friday as a neutral act... [T]he justices have blown their own cover...." By "the justices," she means the 4 Justices she presumes voted to grant review:
Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell....

An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own; just two months ago, at a public appearance at the University of Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.
Wait! Taking cases based on self-interest actually would be naked power-grabbing. I love the way Greenhouse signals to Roberts what he needs to do to win the respect of the legal elite, not that he can ever really have it. He can have a little, and, you know, sometimes a little love, with true love withheld, is just what keeps a love-seeker pursuing love... nakedly grabbing.

96 comments:

rehajm said...

For an older woman, Linda Greenhouse is an extraordinary contortionist.

RecChief said...

blown their cover

That would make them just like the liberal justices then wouldn't it?

Is she just mad that there aren't 8 leftist Justices and 1 conservative (token)?

Bruce Hayden said...

What must, I think be remembered is that this case essentially involves the spending of many billions of dollars likely directly in opposition to the statutory text of the PPACA. Sure, Greenhouse doesn't like that it is probably more likely than not that this spending will be terminated, and ObamaCare may collapse as a result. But that just means that she is a loyal progressive, and Congress, our laws, etc are mere impediments in the drive for their version of Utopia. Which means that one of the last things that she should be doing is Supreme Court reporting.

traditionalguy said...

Poor Chief Justice Roberts. He is damned if he upholds the law as written by the Congress, and he is damned if he doesn't refuse to play that long suspect Marbury v.Madison game of the Supreme Court.

DKWalser said...

Althouse - You write well. You really do. I particularly enjoy your ability to pick up another author's verbal imagery and twist it into another form: naked power grab --> nakedly grabbing. Well done.

traditionalguy said...

Of course creating a narrative of Supreme Court's favoring the GOP has to start with a quick reminder of Bush v.Gore. It then needs all hands on deck approach to spin phrases that the MSM can then repeat a thousand times until they are...well Fact.

Bruce Hayden said...

One of the interesting thoughts was for the Republican Congress to hold hearings on ObamaCare before the Supreme Court hears the case, and put Prof Gruber under oath, asking him directly about what he said in this area, about why it was done this way, etc. Then, the Court could take official notice, and, voila, any typo excuse collapses - the statute says state exchanges, it was intended to get the states to do their own exchanges, and sorry they didn't plan better, but the Court's job isn't to fix this sort of screw ups. Etc.

Achilles said...

"blown their cover"

The people who still support the ACA have blown their cover. Talk about a "naked power grab." Obama, the emperor with no clothes, is now in charge of when we buy insurance and what it covers. The law was written by Reid, Pelosi, and friends. Please god don't let them be naked.

Way too much nakedness.

Michael K said...

The story of the Bush v Gore case that the left ignores is that the Florida Supreme Court with a leftist majority, rewrote the Florida law.

"Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date.

This changed the law.

"Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, specifies the manner in which those electors are selected, stipulating that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

This clause arguably gives power to only one branch of Florida's state government (i.e., the state legislature).


I disagreed with the second USSC decision, to stop counting, as it clouded the issue. Many Democrats still think Gore won the popular vote in Florida.

Revenant said...

The political left is really pulling out all the stops to make "sticking to the letter of the law" seem like an insane right-wing power grab.

BDNYC said...

I don't understand the liberal panic about this. Had conservatives figured out this argument back in 2009 or 2010, back when the backlash was so significant, this case could would have been far more damaging to Obamacare.

But now? If the plaintiffs win, the 4 million or so who will lose their subsidies won't necessarily blame Obama and the Democrats. Their anger might well be directed at state governments that have refused to establish exchanges. This might be exactly what the doctor ordered for Obamacare.

The law had to be obscured and fraudulently misrepresented to pass, and then distorted by the IRS to facilitate its implementation ... but after a couple years, it's possible that an entitlement mentality has taken hold. The time might be right for the generous federal subsidies to have their intended effect.

B said...

The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush.

Could she be any more nakedly partisan? She didn't say the effect was to undermine a valid recount. She said the effect was to give Bush the election.

If you're going to hate Bush v Gore, hate it on the merits. Not on the outcome.

Bruce Hayden said...

Keep in mind that the Dems in Congress cheated to get ObamaCare passed into law. They cheated on the scoring. They cheated with reconciliation. They cheated with the Senate essentially indicating a revenue bill. And this was just a part of the cheating. But, then, when their house of cards starts to collapse through their bad planning, and the weight of all the lying and cheating involved, they expect the Supreme Court to be esp scrupulous when it comes to Cert. Reid blew up the filibuster on judicial nominations in order to prevent just this - this case and other ObamaCare challenges getting to the Supreme Court. Except that they are a co-equal branch of govt, and the circuit clash "rule" is there primarily for their convenience. It allows them to see what is worthy of their attention, and fleshes out the issues. But that the High Court usually things one way doesn't mean that they can't do things another. Esp here where many billions of taxpayer monies are probably being illegally misspent by executive fiat.

Scott M said...

As was said (here, I think, a couple days ago) previous, Gruber isn't speaking to "America".

The Democrats should be outraged. A plurality of the country DIDN'T WANT this law to be passed and the protests against it gave rise to the Tea Party. Not a single member of the GOP voted for it, so the only people he pulled the wool over on was the Dems and their supporters.

Henry said...

Michael K. wrote, The story of the Bush v Gore case that the left ignores is that the Florida Supreme Court with a leftist majority, rewrote the Florida law.

They also ignored the evidentiary findings of the lower court.

Birches said...

Correct me if I'm wrong (2000 was my first election, so I wasn't paying that close of attention to the aftermath), but didn't Gore sue first? My understanding was that since the House of Reps was controlled by the Republican Party, Gore knew he couldn't use the Constitution's answer for a disputed election, so he sued, hoping to come out ahead that way.

If I've been wrong all these years....well, I've won quite a few arguments by pointing out that Gore bypassed the Constitutional solution instead of going to the House... wrongly.

SteveR said...

Linda Greenhouse is a progressive? Who knew, her writing always seems so middle of the road, main stream media-like.

Livermoron said...

CJ Roberts takes too much heat for his decision on the ACA. Although a fervent opponent of Obamacare I was certain that SCOTUS would determine that the penalty was, in reality, a tax. I know that in past USSC cases they have ruled it doesn't matter what the political side of government calls something. If it walks like a tax, etc. then it is a tax.
I can see Roberts wanting to tackle this new aspect of the PPACA as a way to redeem himself without having to abandon his view that the SCOTUS should act as 'umpires' not rule makers.

RecChief said...

Reid blew up the filibuster on judicial nominations in order to prevent just this - this case and other ObamaCare challenges getting to the Supreme Court.

Perhaps this is why the USSC stepped in now, rather than wait for the "packed" DC court of appeals. It's a foregone conclusion how the full DC court will rule isn't it?

Kind of sad that I even had that thought.

Tom said...

I know I shouldn't be, but I'm surprised that even liberal judges/law professors/legal reporters don't see how dangerous a decision is that would allow the Obama Administration through the IRS to execute the statute in the way they're trying to execute it. Imagine the precedent this establishes. The language is quite clear, State is even capitalized, and the IRS is handing out subsidies that are not allowed under the law the Congress and Senate passed.

There's a simple formulation here -- if the statute is clear, then the courts should defer to Congress; if the statute is ambiguous then the courts should defer to the Executive/Administrative agencies. But to allow the Executive branch to make wholesale changes to the statute when the clear language denies that change, is essentially giving legislative powers to the Executive to the extent the Constitution does now allow.

This is not merely a statutory construction case, it's also a separation of powers case. If the Court didn't allow the President a line-item veto, I don't see how it could allow the Executive to simply ignore clear statutory language and create a subsidy out of thin air.

That's why this case is different than the first Obamacare case. Roberts thought it was a political question best decided by the elected branches and he would defer to them as long as Congress had some power to pass the legislation in the first place. They did under the taxing power. Roberts always wants to defer, so in that case he deferred to the other two branches.

In this case, Roberts also gets to defer, but the choice is one branch or the other. If he defers to Congress then the integrity of the statute, as written, is maintained and the precedent shouldn't haunt the court later. If he defers to the Executive, then it creates a significant amount of uncertainty in any legislation passed by Congress if the President/administrative agencies are allowed to make the kind of leap the IRS is making here.

Henry said...

I have to add, without speaking to the law of the case, that I hope at this point the issues with the ACA are allowed to be worked out politically.

A conservative ruling in this case would be a Phyrric victory, knocking out one rotten prop of the law while leaving the festering bulk of the behemoth for Congress to deal with.

The elimination of the subsidies for the Federal exchanges would create an emergency situation where that question of subsidies would be the only thing Congress would deal with for months.

Jim in St Louis said...

5 to 4 ? I thought Bush v Gore was a 7 to 2 vote.

The Drill SGT said...

I, for one, am shocked to learn that the fair and balanced MSM reporter covering the SCOTUS says: I’ve often felt like the last progressive

Bruce, also: Cheated in changing the Senate confirmation rules, then
Cheated by packing the DC Appeals Court to short circuit the threat to ACA.

Tom said...

I agree that the Republicans need to be prepared for the inevitable assault the media and Democrats (but I repeat myself) will launch if and when the Court rules that subsidies aren't allowed in 36 states.

I think McConnell and Boehner should pass a simple amendment to Obamacare that changes the subsidy language to apply to everyone. But along with the amendment they should include another amendment that enacts drastic tort reform measures including loser pays in all medical malpractice suits. Also add an amendment that ends all preferential treatment for union health plans under Obamacare -- they can be treated just like everyone else's plans under this disastrous legislation.

Force Obama to make a choice between his favored and moneyed special interests or extending the subsidies to everyone. One of the main goals of the new Congress should be setting Democratic special interests at odds with each other and with the voting public in general and force the Democrats to make a choice.

Hagar said...

“This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon.

The ghost of Pauline Kael?

n.n said...

A multi-trillion dollar welfare economy and there are still Americans who are indigent, homeless, and unidentified. And that's after aborting around 2 million Americans annually. Obamacare is the signature achievement of this colossal house of fraud.

Michael K said...

"after a couple years, it's possible that an entitlement mentality has taken hold. The time might be right for the generous federal subsidies to have their intended effect."

The trouble with that argument is that the people signing up are NOT the previously uninsured. They are people from small group plans that were cancelled. I'm sure they will be happy to go back to real insurance instead of this expanded Medicaid.

The whole premise is wrong. If the Obamacare networks were good, it would be a problem but everyone hates this program. Doctors are quitting practice to get away from it.

The Drill SGT said...

Interesting story today about how the ACA is destroying rural healthcare...

Unknown said...

The critical ruling in Bush v. Gore (00-949) was not the 5-4 decision to stop the Florida recount, but the same opinion's first-step, 7-2 ruling that Florida's inconsistent and ex-post-facto recount recount procedures violated the equal-protection clause of the Constitution: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the
remedy." You could look it up.

Sigivald said...

B said: If you're going to hate Bush v Gore, hate it on the merits. Not on the outcome.

But it's so hard to hate on its merits. That is, if you actually look at what happened and the arguments used.

(I am intolerably sick of people whose idea of proper jurisprudence is "whatever gets the outcome I want", which is what I take most complaints about Gore as, and the article our host links to.

I want good jurisprudence, even if it produces an immediate outcome I don't prefer, because that's far more important to civil society in the long run.)

Lucien said...

I wonder how scrupulously Greenhouse looked at the DC Circuit standards for granting en banc rehearing in this case -- in case there was some naked power grab in the Circuit's "quickly vacating" the initial decision.

After all, there is no intricate issue of law involved because according to Greenhouse the correct ruling is "clear" and "obvious".

Bill Peschel said...

Didn't the NYT do an in-depth investigation of the vote-counting in Florida years later and concluded (probably with much gnashing of teeth) that Bush won a narrow majority of votes?

And as I like to point out to the proponents of "Bush stole the election" meme, if Al Gore had won his freaking home state of Tennessee, we wouldn't be having this discussion at all.

Michael K said...

"that's after aborting around 2 million Americans annually"

In MIchael Barone's column about the election today, he makes an interesting comment.

But blacks are not a growing segment of the population, and Democrats will never again win by the margin Obama enjoyed among blacks in 2008 — 91 points, or 12 points of the entire electorate.

Does anyone think for a moment about why they are "not a growing segment?"

The number of black pregnancies aborted is about 50% or even higher.

nearly half of all pregnancies among black women end in abortion

It is the European phenomenon over here in one segment of the population.

Matthew Sablan said...

"Didn't the NYT do an in-depth investigation of the vote-counting in Florida years later and concluded (probably with much gnashing of teeth) that Bush won a narrow majority of votes?"

-- There was another study that was amusing.

If we counted the votes the way Bush wanted -- Gore would have won.

If we counted the votes the way Gore wanted -- Bush would have won.

Instead, we counted the votes the way the law was intended [or at least, interpreted as being intended, which is how it should be counted.]

khesanh0802 said...

She knows she is in deep shit on the merits.

gregq said...

" That’s not the case here. There was no urgency...."

Only if the dishonest side wins.

If the law is to be upheld, then people in at least 36 States won't be eligible for the tax credits they're being told they're getting.

What could be more urgent that stopping people from being lied to by the Federal Gov't?

richard mcenroe said...

The Obama administration still has the files on Roberts' adopted Irish kids; he will do as he's told.

RecChief said...

Her article will probably get all the leftists in an uproar. Bush v Gore is the signal for leftists to get their hate on. No on hates like the left does.

richard mcenroe said...

The NYT? That right-wing propaganda rag? (As it was described to me by one ANSWER marcher at a rally.)

HoodlumDoodlum said...

BDNYC said...
The law had to be obscured and fraudulently misrepresented to pass, and then distorted by the IRS to facilitate its implementation ... but after a couple years, it's possible that an entitlement mentality has taken hold. The time might be right for the generous federal subsidies to have their intended effect.


There's no need to couch this in speculative terms--that is what has happened, and it was completely by design. That was the point of front-loading benefits and back-loading costs, as well as of making the law (and its attendant apparatus) large and unweildy. Disagreements with (obviously-flawed) implementation or interpretation(s) would have to be litigated, and that would take time. Repub. arguments about overall costs and long term effects would be vitiated by immediate benefts a large number of people would receive. Who can argue about costs when voters get benefits now?! This explains the push to get the law passed as quickly as possible in whatever rough form it was in. Just reading the damn thing was taken as an unreasonable demand for delay--and the media ran with that line!
The law's damage is done. I don't think it will be undone. Neither, though, will the damage to the conept of rule of law. The S. Court could at least help by making the gov follow the law as written, but try telling that to Greenhouse et al.
If this law can mean whatever the current Admin wants it to mean, why shouldn't that be true of other laws?

Lev Bronstein said...

BDNY Posted: "But now? If the plaintiffs win, the 4 million or so who will lose their subsidies won't necessarily blame Obama and the Democrats. Their anger might well be directed at state governments that have refused to establish exchanges. This might be exactly what the doctor ordered for Obamacare"



This is a valid issue, but it misses the other half. The subsidy is also tied to the tax/penalty. If there is no state exchange, then no subsidy, if no subsidy, then there is no tax. So everyone else in the states is exempted from the tax and the insurance companies can/will offer older style cheaper polices. This is the true heart of the matter and why its being fought so hard.

richard mcenroe said...

I've said this before and I wasn't kidding: between the level of abortions in Democrat-controlled black communities and the level of black-on-black violence in Democrat-controlled communities they are exterminating themselves.

eric said...

It seems like, in retrospect, the Supreme Court ruling making Obamacare a Tax actually helped the Republicans to get a majority. There is a lot more anger out there (At least in the circle of people I know) than what the media is reporting on. Real dollars are being sucked out of people's pockets for medical insurance, and it's not even for direct medical care. It's to subsidize someone elses care, which doesn't make successful people happy.

SteveM said...

Unknown said...
The critical ruling in Bush v. Gore (00-949) was not the 5-4 decision to stop the Florida recount, but the same opinion's first-step, 7-2 ruling that Florida's inconsistent and ex-post-facto recount recount procedures violated the equal-protection clause of the Constitution: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the
remedy." You could look it up.Unknown said...
The critical ruling in Bush v. Gore (00-949) was not the 5-4 decision to stop the Florida recount, but the same opinion's first-step, 7-2 ruling that Florida's inconsistent and ex-post-facto recount recount procedures violated the equal-protection clause of the Constitution: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the
remedy." You could look it up.

This my understanding as well. It is a pet peeve of mine that the media consistently mistates/omits this fact. Greenhouse should know better.

Unknown said...

Devilishly awesome sardonic last paragraph. Made me smile.

April Apple said...

The democrat learned with Bush V Gore. They learned with the bogus election of Al Franken that they need more time to find votes.

Trashhauler said...

"I don't see how it could allow the Executive to simply ignore clear statutory language and create a subsidy out of thin air."

But, it was just a typo.

n.n said...

eric:

Conflating contributory and non-contributory (i.e. welfare) entitlements is one problem. An equally caustic problem is that Obamacare secures and ensures the inflated cost of medical care. Another problem is that while Obamacare targets fiscal revenue
(i.e. redistributive change or private capital capture), it does not actually address availability of physical resources. Perhaps they believe that a perception of doing something will appease the stupid Americans.

Oh, well. It's not insurance. It is a tax. I agree with another comment that people have no difficulty understanding the effect of an upfront tax vs a backhanded entitlement.

PB said...

The first act of the House of Representatives in 2015 after being sworn in should be to remove from the DC Circuit Court of Appeals the three judges appointed by Obama and confirmed by the Senate simple majority and Harry Reid's "nuclear option". Yes, this means impeachment and the Senate should convict with the necessary 2/3 majority. It should be made clear to all Senators that failure to convict means there will be no 60 vote threshold, for anything.

Harry Reid should be censured as the Senate's second act.

Unknown said...

If the law is to be upheld, then people in at least 36 States won't be eligible for the tax they're being told they're going to have to pay.

paminwi said...

Yeah Tom! at 11:55am

Ignorance is Bliss said...

gregq said...

What could be more urgent that stopping people from being lied to by the Federal Gov't?

Jonathan Gruber could not be reached for comment...

HoodlumDoodlum said...

Lev Bronstein said...
So everyone else in the states is exempted from the tax and the insurance companies can/will offer older style cheaper polices.

Not without additional changes to the law, no. Community rating, bans on payout caps, loss ratio rules, etc.--all of that stays in place, even if the Court rules that the fed. tax subsidies aren't available through state-run exchanges. It's not a matter of an ins. company being able to just turn around as soon as the Court rules and offer a cheap catastrophic plan they used sell--those plans aren't available now because they're no longer legal. Changing the availability of subsidies for now-legal plans won't change that. Frankly it's more likely (in my mind) that the ensuing chaos (such as it is, I mean, when people will face having to pay the full price of the plans now available) will push people more towards the Dem "free money" side than the correct free market side.

Big Mike said...

The funny thing is that Linda Greenhouse and her friends are arguing over one of the few parts of the ACA where the language is quite plain.

Johanna Lapp said...

The 5-4 portion of the Supreme Court ruling was to uphold the deadline that David Boies, Gore's lawyer, had stipulated for a final Florida count. That deadline left no possibility of completing a fair and complete statewide recount once Gore's defective partial count was stomped down for a second time.

jacksonjay said...

Does it really matter how the SCOTUS rules? Swaggy with a Phone and a Pen is Hell Bent. Blow Job Media is determined. "What difference at this point does it make?"

AJ Lynch said...

Why do libruls get so frantic when the fed govt may not do their bidding? Can't they just get their own state [probably librul home state like NY, CA, IL etc] do what they want instead of having the fed govt do it? Oh that's right, states can't print money or spend money they don't have so libs want the fed govt to do it which will only put us all further and further into debt!

Michael K said...

" It's not a matter of an ins. company being able to just turn around as soon as the Court rules and offer a cheap catastrophic plan "

There a new product in the market that could provide an end run for those who can afford it. It is Life Insurance with a "critical illness" provision.

The customer buys a life insurance policy that pays up to $250,000 upon death, which I believe is the current maximum available for this kind of policy.

Along with life insurance coverage the policy includes what’s called a “critical illness” component. If the policyholder needs, say, surgery, the insurer writes the policyholder a check based on a schedule. Let’s say, for example, it’s $10,000.

The policyholder has $10,000 in hand to pay for the medical care — or, frankly, anything else since the money belongs to the insured — but the value of his life insurance benefit is reduced by the same amount, to $240,000. Thus the critical illness component simply accelerates the benefit payout.

One existing policy pays 100 percent for heart attack, stroke, life-threatening cancer, major organ transplant, kidney failure, Alzheimer’s and paralysis, among other medical conditions.

The policyholder could also be part of a provider network that provides a discounted rate for the care — one of the most important current benefits of having health insurance.

How much would such a policy cost? For one company, a 30-year-old male would pay $1,438 a year, and for a 50-year-old male it’s $3,234.


This sort of product fits well with cash medical practices and Obamacare has banned some new specialty hospitals from coverage.

Voila ! A new system outside Obamacare.

Original Mike said...

@PB (12:53): I like the cut of your jib.

Original Mike said...

It is clear that the Republican Congress needs to have legislation ready to go in case the Supreme Court rules that subsidies are illegal in the federal exchange states.

curmudgeoninchief said...

Actually, the decision that turned off the Florida recounts was the 7-2 decision joined by Breyer and Souter, not the 5-4 decision that the liberal media has pushed since 2000.

"Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice."
http://www.oyez.org/cases/2000-2009/2000/2000_00_949

Jack Richardson said...

Jim in St Louis said...
"5 to 4 ? I thought Bush v Gore was a 7 to 2 vote."

If I recall correctly, Bush won 7-2 that the recount procedure established by the Florida Supreme Court violated the Equal Protection Clause, but won only 5-4 on the question of whether to remand to the Florida Supreme Court to establish constitutional recount rules.

Richard Dolan said...

"what he needs to do to win the respect of the legal elite"

However you might define the 'legal elite', Linda Greenhouse would not be part of that club.

As for the latest ACA case, the same issue is heading to the Tenth Circuit, following a decision by a district judge in Oklahoma to invalidate the same regulations as the DC Circuit panel had done. The district court opinion also had a nice rejoinder to the argument, advanced by the dissenter on the DC Circuit panel, that a court should reject a politically motivated attack on an important statute. A court's job, the district judge observed, was to apply the law without regard to politics, and that the political motives of the plaintiffs in bringing their case were beside the point. There may well be cases in other circuits raising the same issue -- all you need is a plaintiff with standing and that's not hard to find. The rest is just litigation-by-photocopy, since all the pleadings, motions and briefs are only a click away.

There is obviously a strong argument that the issue is important, and that it needs to be settled now. Greenhouse wants the issue to go away even more than she wants this case to go away. That's why so many pundits writing for a non-legal audience try to dismiss the issue as 'capitalizing on a typo.' Don't expect to see that kind of foolish argument show up in the SCOTUS -- instead, the back-and-forth is all about careful parsings of the statutory language (Jon Alter has been posting a lot on that at Volokh.)

Because this case presents a normal issue of statutory interpretation, rather than expansive constitutional arguments that might create problems down the road, it is an easy kind of case for the Court. If Congress disagrees with the Court's ruling, it can change the statute -- no big deal. So don't expect CJ Roberts to twist himself into a pretzel on this one. I think the ACA is going to be construed as it was written, which is not good news for Obamacare. The Obama Admin's habit of ignoring statutory provisions they don't like will not help them much here either. While the Court proceeds to construe the statutory language, it will also remind the Executive that its duty is carry out the law as written, not pretend that it says whatever the Executive would prefer it to say.

Michael said...

Does anyone think for a moment that if the circumstances were exactly the same except that the case were a challenge to say, a voter ID law, and that a liberal majority had "nakedly" jumped in before a true circuit split had developed, that Linda Greenhouse and the legal elite would be doing anything other than cheering them on? Nothing is more transparent that the partisan hypocrisy of the media's objective experts.

Sam L. said...

This. Is. Just. HORRIBLE! (I suspect they see a really good chance of losing.)

HoodlumDoodlum said...

Michael K said...Voila ! A new system outside Obamacare.

That sounds like an interesting plan and I certainly hope options like that are viable and widely available...but since plans like that directly threaten the fundamental structure of Obamacare (by denying that system the cross subsidies upon which it depends) I wouldn't expect governmental approval (of such plans as allowable alternatives to coverage through existing O'care plans) to be smooth sailing.

RecChief said...

That sounds like an interesting plan and I certainly hope options like that are viable and widely available...but since plans like that directly threaten the fundamental structure of Obamacare (by denying that system the cross subsidies upon which it depends) I wouldn't expect governmental approval (of such plans as allowable alternatives to coverage through existing O'care plans) to be smooth sailing.

Actually, I'm not sure that is totally a new concept. If I remember correctly, I think this was available a few years ago from John Hancock, MetLife, and a couple other big players in life insurance. But, as I recall, back then it was for terminal illnesses with a life expectancy of less than 12 months. It was called an accelerated benefit back then.

Michael K said...

"I wouldn't expect governmental approval (of such plans as allowable alternatives to coverage through existing O'care plans) to be smooth sailing."

It's legal now but, of course, they could try to ban it. Massachusetts has tried to force physicians to participate in their version as a condition of licensure. It could become a national trend but I doubt it.

Democrats at both the federal and state levels are trying and make one of the country’s biggest policy disasters work. They have already committed trillions of taxpayer dollars to get their government-controlled health care system up and running (sort of); it is very unlikely that they will let doctors’ unwillingness to take Obamacare coverage stand in their way.

Brando said...

Anyone pissed about "Bush v. Gore" should have to explain how any other solution could have not resulted in half the country feeling cheated by the outcome. Let the Florida Supreme Court decide which count to certify? Launch one more recount? Three more?

The problem was that the margin of error, with every count, was greater than the margin of victory. Whether you counted hanging chads, dimpled chads, blank ballots that included votes for one party for every other office but strangely left blank for the presidency, or votes for Buchanan by old Jewish ladies, there was always going to be a large discrepency among the counts. Usually not enough to sway the outcome for a big state like Florida, but in this odd case that was exactly the result. And, in this odd case, Florida's electoral votes decided the entire election.

Sucks for Gore, but it would have sucked just as much for Bush if a different recount was used that put Gore slightly ahead. One side was going to be unhappy.

Matthew Sablan said...

"blank ballots that included votes for one party for every other office but strangely left blank for the presidency,"

-- Once people start suggesting this, I couldn't take them seriously. The same thing happened in the Franken recount, where votes were counting the 'voter's intent' if they left that race blank but solidly voted the party for the rest.

You know what the voter's intent was? To not fill in either bubble.

Brando said...

"You know what the voter's intent was? To not fill in either bubble."

Pretty much. And if the instructions say to pop the chad out, then pop the whole thing out--if you leave it dimpled or hanging, your vote becomes ambiguous. Again, not a huge deal normally, but if the entire election comes down to ballots like that, it's a problem to count those as votes.

It's also why it's important for the vote counting to be properly audited in all elections, so that the public can have faith that one party isn't going all Mayor Daley on it.

RecChief said...

And if the instructions say to pop the chad out, then pop the whole thing out--if you leave it dimpled or hanging, your vote becomes ambiguous.

We use optical readers where I live. fill in a circle with a black magic marker, feed it into a machine that reads it. stores the paper ballots in the bottom in case of a recount or the machine breaks. Easy, cheap, pretty much bulletproof.

MadisonMan said...

From the article: It bears repeating that what’s at stake is whether the Affordable Care Act can continue on its successful trajectory

To be sure, when something starts out as an unmitigated disaster and abject failure, the trajectory it subsequently takes can be construed as successful.

This is known as lowering expectations to zero from the start.

Look! It's not so bad now!!

madAsHell said...

....and today, Al Gore is fighting Greenhouse gases!!

Harold said...

There was a study done of double votes in Palm Beach County, the Democratic home of all the ballot confusion. All, or almost all, of double vote there, with two punch outs, or hanging chads, or however you want to call them, was a double vote for Gore and another candidate. A virtual impossibel stattistice to cvome about by any reason other then fraud. Take a stack of cards, punch out Gore, and Voila! A new double vote if the punch out was for someone else, and the ballot is not counted. If there was a punch out for Gore- nothing changes. If there was a non-vote, there's a new vote for Gore. A win-win-win for the puncher intent on fraud. There were other statistical irregularities in the Palm Beach County vote, but that was the biggest.

Not that a Democrat would have a ballot punching machine in their personal possession to do this with http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1374635/Democrat-hid-voting-machine-in-his-car.html oops, never mind.

campy said...

Come on, wingnutz, haven't you heard there's no such thing as democrat vote fraud?

Stoopid science deniers.

n.n said...

To be fair to Democrats, they did not expect tribal alliances, including family, to survive federal entitlements, including social security, medicare, etc. They did not expect children would honor a mother and father who chose to abort their siblings for pleasure and convenience.

They did expect that Americans would be eviscerated through a voluntary genocide. They did expect that immigration, including illegal immigration, would displace and replace Americans throughout society and favor Democrat reforms.

They did not expect that people would notice the massive devaluation of capital and labor through trillion dollar deficits. They did not expect that Americans would notice displacement at work, school, hospitals, etc. by millions of legal and illegal aliens.

They did expect that stupid Americans would consume the highly addictive opiate of dissociation of risk (a regression to childhood bliss). They did expect that other Americans would be subdued through political, legal, and social attacks. They did expect that American voices would be quelled with taunts of racism, sexism, homophobia, xenophobia, etc.

Without knowing Professor Gruber's motives; without knowing Dr. Gosnell's motives; they revealed an agenda that denigrates individual dignity and devalues human life, respectively. Each was a breath of fresh air in a highly polluted political, economic, and social environment targeting Americans.

Unknown said...

----To be fair to Democrats, they did not expect tribal alliances, including family, to survive federal entitlements, including social security, medicare, etc. They did not expect children would honor a mother and father who chose to abort their siblings for pleasure and convenience.

Vert well said n.n.

David said...

You must remember that this is a woman who went on a crying jag at a Simon and Garfunkle concert when she concluded that her generation hadn't run the country any better than the previous generations.

She mentioned this supposed ephipany in a speech at Harvard in 2006.

And of course my little crying jag occurred before we knew the worst of it, before it was clear the extent to which our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let's not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism. To say that these last years have been dispiriting is an understatement.

Radcliffe, Yale, Harvard, Ford Foundation, New York Times. Quite a pedigree. I doubt it's the full reason she is convinced that she is right about everything, but it helps.

David said...

Greenhouse: I disagreed with the [Bush v. Gore] decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.

As I recall seven of the nine justices agreed that the Florida recount procedures were a violation of the equal protection clause. That was not too surprising. Three judges of the Florida Supreme Court, including its Chief Justice, had dissented from the Florida result equal protection grounds. Gore's own lawyers had tried to dissuade him from seeking a selective recount, arguing that it ran a high risk of being an equal protection violation. But Gore decided to game the process anyway.

The 5-4 aspect of Bush v. Gore was over whether the Florida Supreme Court should be invited to create new standards for a recount and proceed under the new standard. It had nothing to do with equal protection. It related to an issue of Florida law that the majority interpreted as requiring that the election results be final as of December 12 (which was the date of the Bush v. Gore decision.)

It is really beyond me how Greenhouse, supposedly a scholar of constitutional jurisprudence, can make a statement that "the majority" reached a ludicrous result under the equal protection clause. It's a statement completely inconsistent with the history of the case.

mccullough said...

If the court ruled that the statute means what it says with regard to subsidies on federal exchanges, it would be a pro-democracy decision. It would then be up to each state to decide if it wanted its citizens to be eligible for subsidies by setting up it's own exchange. And it would also be up to Congress to change the law.

Original Mike said...
This comment has been removed by the author.
Laslo Spatula said...

This amount of commenting and nothing even vaguely sexual? I thought I was on the internet.

Laslo Spatula said...

I mean, Althouse ven used the phrase "nakedly grabbing." And then she used the word "throbbing." And then the phrase "water over the beaver dam."

I think.

Peter Bella said...

This is what happens when so-called journalists do not know what they are writing about. On the other hand, the people who read these so-called journalists are just as clueless.

campy said...

"Anyone pissed about "Bush v. Gore" should have to explain how any other solution could have not resulted in half the country feeling cheated by the outcome."

Who gives a fuck about wingnutz feelings? Just win, by any means necessary.

Lev Bronstein said...

HoodlumDoodlum said...

Lev Bronstein said...
So everyone else in the states is exempted from the tax and the insurance companies can/will offer older style cheaper polices.
Not without additional changes to the law, no. Community rating, bans on payout caps, loss ratio rules, etc.--all of that stays in place, even if the Court rules that the fed. tax subsidies aren't available through state-run exchanges. It's not a matter of an ins. company being able to just turn around as soon as the Court rules and offer a cheap catastrophic plan they used sell--those plans aren't available now because they're no longer legal. Changing the availability of subsidies for now-legal plans won't change that. Frankly it's more likely (in my mind) that the ensuing chaos (such as it is, I mean, when people will face having to pay the full price of the plans now available) will push people more towards the Dem "free money" side than the correct free market side.


The plans aren't illegal, they're just not qualified plans under the statute. So whoever gets them still has to pay the penalty. And they're already here and growing:
http://www.foxnews.com/politics/2014/10/29/death-spiral-short-term-health-plans-grow-as-cheap-alternative-to-obamacare/


I read the case file again. The lack of subsidy doesn't automatically exempt people from the tax, but the subsidy doesn't get subtracted when calculating if the plan is too expensive to cause the tax. It does though get rid of the employer tax for not providing healthcare, because that is tied to if anyone they employ buys a subsidized plan.

Original Mike said...

"The plans aren't illegal, they're just not qualified plans under the statute."

So a Republican fix could be to change this if the SC rules against Obama.

Lev Bronstein said...

So a Republican fix could be to change this if the SC rules against Obama.

Why? Who cares if its a qualified plan if businesses can offer it without paying a penalty and if most people aren't penalized for not having a qualified plan. If the SC rules against Obama, then all the blue states that created their own exchanges will disadvantage all the employers in their states. Stupid should hurt.

Unknown said...

The immediate post-election timing of the cert tells me that the 4 court cons thought they could hand some ammunition to the newly regnant Senate Reps in the coming negotiations on ACA's future. Will JR follow through? That's the only question. Will Obama want to nego now, or wait until the Court decides?

Original Mike said...

"Who cares if its a qualified plan if businesses can offer it without paying a penalty and if most people aren't penalized for not having a qualified plan."

Why should we provide only for the people who can get it through their employer? There are a lot of people who are self employed.

Lev Bronstein said...

Why should we provide only for the people who can get it through their employer? There are a lot of people who are self employed.

That's an interesting take. When an employee works for an employer and in return receives pay, including insurance, its "we provide."
When a person purchases this insurance for themselves without any government subsidy or interference with money it isn't "we provide."

Ever heard of TANSTAFL?

Original Mike said...

"Ever heard of TANSTAFL?"

Oh, for Christ sake. You think I'm a lefty? I didn't know you'd be picking apart an innocent sentence.

Lev Bronstein said...

Oh, for Christ sake. You think I'm a lefty?

You use a frame of reference without any awareness of it. I will happily take credit for that. After all ideas that enter the mind under fire remain there securely and for ever.

Original Mike said...

I'm so thankful you set me right.

JohnBoy said...

Any state can solve this problem simply by building their own exchange.

That is why the ultimate resolution of the ACA is political. If enough voters want a state to build an exchange, then they will.

The issue, though, is that the numbers are still small. Only about 2 million people on the exchanges are NET new insured - the rest were forced to replace cancelled policies. A recent bankrate survey showed that only 43% of current exchange users wanted to re-up - that is a low batting average.