According to the article by Stephanie Mencimer in Mother Jones, and the flurry of Internet speculation that followed, it’s possible none of the four plaintiffs has been legally affected by having to buy insurance subject to the subsidies involved in the case. As a threshold matter, the justices would have to be able to ascertain this circumstance from the record for the standing issue to arise. The court can’t take judicial notice of investigative journalism, no matter how clever.Just one more Obamacare screw-up by the Obama administration. Couldn't even litigate it right.
Yet if it’s possible to deduce from the record that the plaintiffs qualify for hardship exemptions from paying for insurance, then it’s within the court’s prerogative to consider the issue.
February 26, 2015
"The argument that the plaintiffs in King v. Burwell lack standing wasn’t conceived by the Barack Obama administration, which didn’t raise the issue in its briefs..."
"... for the case to be argued March 4. It was dreamed up by an enterprising journalist who tracked down the plaintiffs and got the details of their life situations," writes lawprof Noah Feldman in "How the Supreme Court Could Save Obamacare Again."
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34 comments:
Impressive "investigative journalism" to suppor a program the writers, we can safely assume, would rather die than use.
I think it fair to say that Bill Clinton raised plenty of issues in his briefs!
"Yet if it’s possible to deduce from the record that the plaintiffs qualify for hardship exemptions from paying for insurance, then it’s within the court’s prerogative to consider the issue."
Are the hardship exemptions actually in the law or are they another provision Obama whipped up with his magic wand?
I am rather certain there were zero exemptions in the law.
If the hardship exemption isn't in the law, how could the court consider it?
Not litigating it right worked out well for them the first time. No one really considered the "it's a tax" argument seriously until the 9th inning.
Couldn't the standing issue come into the record at oral argument?
"Not litigating it right worked out well for them the first time."
Yeah, try to make the Court feel sorry for you, so it will want to help.
I recommend, for oral argument, doing the old stumbling over words and taking awkward gulps of ice water again. Works like a charm!
I didn't follow the legal strategy that closely in 2012, but did the Administration in its briefs even make the argument that the individual mandate was permissible under the taxing power at the time? Or did the Court simply come up with that on their own?
I had a case that went up to the Supreme Court. I was able to put in my brief that the corporate appellant had gone out of business after the trial but before the appeal. Cert denied.
Feldman must be a lawyer. Lots of weasel words - "possible', "might" etc. - in the article. If I were in the Obama admin (god forbid) I wouldn't hang my argument on a lot of "what ifs" either.
The magic words are "established by the state under 1311." You think you know what that means, but do you?
The ambiguity starts with the meaning of the word "established". We saw that can mean a couple of things in the recent poll about establishing Christianity as the national religion. There's also the meaning of "by" that could be interpreted as in or near, as in "by the stream." The "under" could also save the day, that established only means what it means under 1311.
But let's remember that the effect of the botched job is to screw the red states out of a tax subsidy that will remain available in the blue states. The Obama administration may be playing to lose.
"I didn't follow the legal strategy that closely in 2012, but did the Administration in its briefs even make the argument that the individual mandate was permissible under the taxing power at the time? Or did the Court simply come up with that on their own?"
Yes, the government raised the tax/anti-injunction act issue in the district court.
Well, it was raised in Halbig so it's hard to believe the Administration didn't conceive of it in King. But were he solicited, the loquacious Mr. Gruber would surely have an infelicitous quip about leveraging lawyers' "stupidity."
http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254D91F8BAC85257D1D004E6176/$file/14-5018-1503850.pdf
As to the argument the ACA is a tax, well, that was the justification for Social Security when it was challenged. So there's precedent for that approach though not argued in the briefs.
I read the opinion below, the cert petition, and the principal briefs, re-read them again when the reply was filed a couple of weeks ago, and it still strikes me as a blindingly-straightforward win for the petitioners. Not even close. And in terms of the air war, the optics--what are Greenhouse et al going to do, complain that the Chief is out to kill Obamacare? That's going to look pretty stupid given how they lauded him for saving it just three terms ago.
BDNYC said...
"[I didn't follow the legal strategy that closely in 2012, but did the Administration in its briefs even make the argument that the individual mandate was permissible under the taxing power at the time? Or did the Court simply come up with that on their own?] Yes, the government raised the tax/anti-injunction act issue in the district court."
And even if it didn't, the Roberts opinion took seriously the avoidance canon, and it seems to me that it may well have been legitimate to take that approach even if it wasn't briefed. I had a lengthy post at the time on why the fuss about the Chief's opinion missed the mark.
~ Gordon Pasha said...
I had a case that went up to the Supreme Court. I was able to put in my brief that the corporate appellant had gone out of business after the trial but before the appeal. Cert denied.
Then how did Miller vs The United States become law?
No one really considered the "it's a tax" argument seriously until the 9th inning.
That slight-or-wording by Roberts always reminded me of the scene in "Death to Smoochy" where Ed Norton, playing a kids show host on live TV, is given a bag of cookies for the kids, which were made by his rival.
When he takes them out to pass around to the kids, it is immediately obvious they are penis-cookies. He stands there for a second, then stammers. "It's a...it's a...it's a ROCKET SHIP!"
Matthew Sablan said...
"No one really considered the 'it's a tax' argument seriously until the 9th inning."
I don't think that the chief considered it seriously until he concluded that the mandate exceeded Congress' authority. The question then became: "Is there some alternative construction that this statute will bear that will sustain it?" That's exactly what the Chief did only three terms previously in his opinion for the court in Northwest Austin Municipal Utility District No. 1 v. Holder, joined by every justice except Clarence Thomas. And Thomas, by the by, didn't disagree on that point, he just didn't reach it. Cf. Clark v. Martinez, 543 U.S. 371, 395 (2005)(Thomas, J., dissenting). So I just don't see the hullabaloo (right or left) as much more than a furious reaction to the Chief's position on the commerce clause question or his failure to allow that question to be dispositive.
Ahem, if I may.
The previous time Obamacare was litigated before the Supreme Court Chief Justice John Roberts concluded that it was a tax. More recently video has surfaced of Jonathan Gruber, proclaimed by Nancy Pelosi as the true architect of Obamacare, years before the Roberts ruling, explaining that Obamacare is ... are you ready for it? ... a tax disguised as healthcare reform.
I'd be very happy if people would accept that John Roberts was right back then, and move on.
Consequently I conclude that what happened in 2012 offers no particular guidance as to what will happen in King v. Burwell.
I recommend, for oral argument, doing the old stumbling over words and taking awkward gulps of ice water again. Works like a charm!
Ha!
So a hack like Holder hired a bunch of legal hacks who didn't cover all the bases and issues. What a surprise. But then these clowns at first said it wasn't a tax, then jumped on John Roberts tax argument like it was a lifeboat on the Titanic.
Other suggestions: Show up five minutes late and tell the justices you would have been on time, but you had to have your dog put down that morning.
Failing to get something can be fatal for an appeal. One of the more interesting cases was US v. Miller, the 2nd Amdt. gun case where the Supreme Court determined that sawed off shotguns could be banned (under the NFA) because the defendant had not shown that they were in use by the military. But, of course, they had been in WW I, where they were used to clear trenches. Miller had been indigent, and, I believe had died by then.
That said, we are essentially talking jurisdiction, which can be brought up much later in the process.
Basic (not "prudential") issues of standing affect the Court's Article III powers, and so cannot be waived and may be raised at any time, or by the Court itself. Of course, the Court generally relies on the what's in the record, which, depending upon the procedural posture of the case might simply be comprised of pleadings.
This is independent of whether it might be a good idea to rule on the issue now, rather than injecting another two or three years of uncertainty into the entire undertaking. (Assuming that there is someone, somewhere, who has standing and is willing to sue.)
Lucien, I agree with your comment, but question the part about relying on what is in the records. Assuming the court if following appellate rules, isn't it a requirement that it rely on what is in the record?
The alternative would be to question the attorney's on a factual point (terrible method for finding facts), pulling it from outside sources (also terrible for so many reasons), or just pulling them from thin air. In other words, when would a court not rely on the record and how do they get the facts?
As a young trial lawyer, I had a judge question me on facts in oral argument for a 12(b)(6) motion. I didn't have the confidence at the time to politely tell him that the rule required that he only look at the pleadings when deciding the motion. After digging at facts (which I didn't even have at my disposal), he ruled against me. Lesson learned.
" The question then became: "Is there some alternative construction that this statute will bear that will sustain it?" "
IANAL, but I don't see the point of checks and balances if the judiciary thinks its job is to find some way to rubber-stamp everything the legislature comes up with. I want a SCOTUS that jealously guards its own power, to the point of bouncing laws back to Congress hard enough to give concussions if there is even the shadow of a penumbra of a chance that a law might somehow, somewhere, put a faint dent in the Constitutional rights of an American.
YMMV.
Perhaps the administration believes it benefits politically from a decision on the merits, either striking down the subsidies or upholding them.
"So I just don't see the hullabaloo (right or left) as much more than a furious reaction to the Chief's position on the commerce clause question or his failure to allow that question to be dispositive."
I think much of the discussion at the time was that the minority dissent was written as though it was a majority opinion and that suggested that Roberts changed his mind and his vote at the last moment.
SO MANY law profs who think they have the answer.
So few who confirm that in the real world.
If the tax subsidies were available to "insurance plan purchasers" in states that did not create their own exchange, then there would be no reason for a state to create an exchange---DUH.
Roberts even said in his ruling legalizing the ACA as a tax that acquiescence by the states would either validate or doom the law.
The criminals in Congress counted on most states expanding medicaid by creating an exchange. They did not count on 3/4 of the states not doing so.
The Federal government cannot force states to accept the expanded tax burden of expanding medicaid.
That 3/4 of the states did not set up their own exchange is NULLIFICATION of the law.
As for standing. the plaintiffs certainly have an actual "case and controversy", since they are employers facing an increased tax burden in a state that did not set up an exchange, and have employees that elected to receive subsidies according to the ACA, thus burdening the company with added tax burden.
Healthcare is well held to be a state function, not that of the Federal Government-- that's why insurance rates do not reflect risks across state lines. In order to get around the Commerce Clause and make Insurance regulated as "interstate commerce" by the Federal government, states were required to set up insurance exchanges that expanded medicaid and provided Federal subsidies. Without the state network of exchanges there is no "interstate commerce".
Here in Fla. the desperate propaganda has begun, with the U of Miami Law Journal writing a desperate article saying that the "context" of the law is more important than the actual words of the law.
http://lawreview.law.miami.edu/healthier-state-federal-exchanges-looming-implications-king-v-burwell/
And also the Miami Herald had an article actually written by the Insurance Companies (Kaiser Health News, how's that for objectivity)saying that ruling against ACA would cause major chaos, even for (gasp!!) Republicans! And that the justices would probably allow some "grace period" (like they can write law)
http://www.healthcarefinancenews.com/news/price-hikes-likely-if-obamacare-subsidies-struck-down
And so it goes, the death of the Republic. There is no law when the executor of the laws is an illegal entity-- so who knows what will happen. The Marxist Criminals in government create the problems in order to "solve" them.
Mick said...
"That 3/4 of the states did not set up their own exchange is NULLIFICATION of the law."
No it isn't. That's just silly; the ACA tells the states to set up the exchanges, but Congress knows perfectly well that it can't commandeer the states (Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); cf. Althouse, The Vigor of the Anti-Commandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004)), which means that what reads as a "demand" in section 1311 has to be understood as a request that the states were free to accept or reject. Indeed, that section 1311 be read as an invitation that states were free to and might actually decline is the only way to make sense of provisions such as the various inducements offered to states to accept the invitation, and section 1321, which provides a backstop for those states which do not accept.
Simon said,
" Indeed, that section 1311 be read as an invitation that states were free to and might actually decline is the only way to make sense of provisions such as the various inducements offered to states to accept the invitation, and section 1321, which provides a backstop for those states which do not accept."
And of course you are only half right. If the state did not set up an exchange then the tax subsidy that comes from Medicaid expansion would not be available. The Federal Govt. cannot just expand Medicaid without the state's consent--- thus no subsidy is available-- which is the whole point. Since 75%- 80% of those that got insurance on the exchange got subsidies, then, as Roberts insinuated correctly, the ACA will fail.
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