March 25, 2015

Did Anthony Kennedy just reveal the outcome in King v. Burwell?

That's the pending case about whether there can be subsidies on the health insurance exchanges set up in the states by the federal government. On Monday, Justice Kennedy, testifying before a House committee on the court’s budget, said:
It is not novel or new for justices to be concerned that they are making so many decisions that affect a democracy. And we think a responsible, efficient, responsive legislative and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes, and we say, “Well, if this is wrong, the Congress will fix it.” But then we hear that Congress can’t pass the bill one way or the other, that there’s gridlock. And some people say, “Well that should affect the way we interpret the statutes.” That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.
That is, Justice Kennedy clearly and soundly rejected the argument that the inability of Congress to fix a problem should not keep the Court from deciding that there is a problem with a statute that it is the role of Congress, not the courts, to fix.

When this problem came up at oral argument, Justice Scalia said something that — as I explained here — some people thought was amusingly out of touch:
What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?
The Solicitor General drew a laugh with the response "Well, this Congress?"

This Congress can't (or won't) fix it, so that was supposed to be a reason why the Supreme Court should fix the statute for them. In Monday's testimony, Anthony Kennedy called that "a wrong proposition." It's not the Court's role to perceive or predict gridlock. The Court must "assume" a "fully functioning" Congress. That is, the Court's approach to statutory interpretation — its idea of where the judicial role ends and when a problem with a statute needs a legislative solution — remains the same. The dysfunction of Congress doesn't change the function of the judicial branch, and Congress's inability to rewrite statutes does not give rise to an otherwise nonexistent judicial power to rewrite statutes.

Justice Kennedy is standing tough on separation of powers. Get ready!

Now, Kennedy could still find a way to use his idea of proper interpretation and still reach the result the government wants, and the difficulty of a congressional fix could affect the decision even if that's a dirty little secret not fit to mention in the written opinion. And, of course, as in the last Obamacare case, the 5th vote for the government could come from Chief Justice John Roberts.

So to answer the question in the post title: It's impossible to give a yes. But Kennedy revealed something that weighs against victory for the government.

51 comments:

surfed said...

We live in interesting times...

Brando said...

I'm not so sure--it seems the Justices often make remarks like this (or at oral argument) and then go and rule in an unexpected direction. I can't imagine Kennedy would make a comment intentionally signalling how he will rule in this case before the opinion is released.

Having been surprised by Roberts' opinion in the last ACA case, I genuinely think this one can go in any direction. I'm only fairly certain that Scalia and Thomas will go against the government, and Sotomayor and Ginsburg will go for, and the other five I really have no idea.

FleetUSA said...

The Court should force the Executive and Legislative to work together by rejecting the Administration's position. The Executive and Dems can't continue to act as children not dealing with Repubs. Over the centuries our governments have worked out problems. Only since BH0, Queen Nancy, Reid, and ValJar has that stopped.

MaxedOutMama said...

Good catch - but I would say that the SC has traditionally "stood tough" on separation of powers cases. Otherwise, they are quietly facilitating the destruction of the Constitution.

The remedy for dysfunctional Congresses is the electorate, not the SC.

I don't think this flags the outcome - I just think that Kennedy wants to rebut such arguments. My guess is that Kennedy will find that the balance of interpretation lies on the administration's side, and that before the ruling is issued he merely wanted to slap down a constitutionally stupid argument that he doesn't want this ruling to legitimize.

If anyone would cavil at the government's position, I would expect it to be Roberts.

pm317 said...

Good for Kennedy but the wild card is still Roberts.

Brando said...

The sentiment Kennedy expressed is exactly right though--the Court should not be "fixing" what Congress won't. Stick to your constitutional role--interpret the law. Let the legislature write it.

And frankly, the pro-ACA side should be fine with that--let the upheaval in the "non-exchange" states work to their advantage, as people see their subsidies yanked. Either Congress will pass some fix, or the states will. That is, if the subsidies are that politically popular.

As an ACA critic, I'm not sure an anti-government ruling on this case would be such a great thing--dismantling subsidies in some states may have that effect (of pressuring Congress to do a temporary fix, or states to establish exchanges), or galvanize ACA supporters going into the next election. If the law is going to be repealed and replaced, or given an overhaul, it would make more sense to work that out in Congress rather than having to react to subsidies being yanked.

Tank said...

We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

Can you be in lala land and correct at the same time?

traditionalguy said...

There's gonna be a big barn dance in the hot town the night that decision comes down.

The question will then be whether Supreme Ruler Obama just orders it done as if there is no Court and there is no Congress.

MayBee said...

soundly rejected the argument that the inability of Congress to fix a problem should not keep the Court from deciding that there is a problem with a statute that it is the role of Congress, not the courts, to fix.

Didn't he accept the argument that the inability of Congress to fix a problem should not keep the Court from deciding there is a problem?

Bob Ellison said...

"This Congress?"

Ignorance is Bliss said...

The Court must "assume" a "fully functioning" Congress.

Congress is fully functioning. The Constitution organized the government with various checks and balances precisely to prevent it from giving any one group too much power. Gridlock is a feature, not a bug.

Roger Sweeny said...

If the Court is going to assume a dysfunctional Congress in this case, logically it has to assume a dysfunctional Congress in other cases. Which would be huge.

No more deference, no more, "Congress said this is why it passed this law and this is why it will work and we won't look any further no matter how ridiculous that is."

And the logic applies to the executive branch and administrative agencies, too. No more, "They're the experts. We won't second guess them without a really good reason."

I doubt the Court wants to go there. Though I do wonder if that might not be a better system.

Bob Ellison said...

Roberts would have to humble himself quite a bit to go along with Kennedy's reasoning. He's not in a humbling position.

I hate the way lately everyone is forced to read the tea leaves not just at the SCOTUS but even in the Congress and especially the executive branch. It smacks of the old Sovietology days. You have to read Sanskrit to figure out what these bozos are really planning.

That's what made Ted Cruz's announcement so compelling. He spoke forcefully and transparently. Many of us voters are really hungry for that.

But I digress.

MayBee said...

The problem with deciding a case because the Court assumes Congress can't fix it is the built in assumption that the Court knows the "right" way to fix it.

So in this case, for the Court to rule the subsidies stay because Congess couldn't fix the subsidies would be to assume there *should* be subsidies.
Which is what the whole debate is about. And what looks like "this* Congress not fixing something is actually the debate that should take place in a democracy.

MayBee said...

Just as not voting is expressing an opinion, not getting things done is part of legislating.

chickelit said...

We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

In other words, SCOTUS rejects Gleichschaltung, much to the chagrin of Progressos.

JSD said...

I’ll wager on subsidies for non-exchange states remain intact. So much of ACA was left to be determined by HHS regulation, why not add the definition of Exchange?

Under final regulation section 1.36B-1(k), Exchange, the Treasury defined Exchange as having the same meaning as in the Department of Health and Human Services’ regulation section 45 CFR 155.20
1) Title 45 is Public Welfare
2) CFR is code of federal regulations
3) Part 155 is Exchange Establishment Standards and Other Related Standards Under the Affordable Care Act
4) Section 20 says “Exchange means a governmental agency or non-profit entity that meets the applicable standards of this part and makes QHPs (qualified health plans) available to qualified individuals and qualified employers. Unless otherwise identified, this term refers to State Exchanges, regional Exchanges, subsidiary Exchanges, and a Federally-facilitated Exchange.”


Quayle said...

I concur with many here. It is anti-democratic and an arrogant presumption to say that congress is or isn't acting as it should. The way it ultimately ends up acting, as a body, is by definition the way it "should" act.

And if the citizens don't like it, they can change the 100% of the house and 1/3 of the Senate within 2 years, and finish changing the Senate within 6.

And if the citizens choose not to do that, then we must presume (in a democracy) that the citizens don't want to change it.

BDNYC said...

Ah, the old "we don't legislate from the bench" stuff.

Mick said...

"Though the heavens shall fall."
Isn't that the motto?

The whole idea of a Republic is that the law supercedes everything.

PB said...

Why is gridlock a bad thing? Doing nothing is always an alternative sometimes the best one if the people doing the deciding are idiots.

Sebastian said...

Everyone knows failure to enact liberal "fixes" = "dysfunction."

Of course, in view of Kennedy's principled, deeply considered judicial philosophy, the actual outcome of the case will depend on which side of the bed he gets up from.

Bob Boyd said...

Herbert Spencer said, “The ultimate result of shielding men from the effects of folly, is to fill the world with fools”

And the same applies to Congress. When the court protects Congress from the effects of bad legislation they produce more of it.
Nor should the voters be shielded by the court from the effects of endlessly re-electing the same scoundrels to Congress.

PB said...

If Democrats don't face up to the failure of their program, financially, structurally, economically, and behaviorally by seeing the devastating results of their efforts, then how are they ever going to learn anything?

There is no measure by which Obamacare can be considered a positive contribution to the health of Americans. It may make it less expensive for a few, but as the Medicaid expansion in Oregon a few years ago showed, there is no difference in healthcare outcomes if you have insurance or if you don't. None, nada, zero, zilch.

Joshua Barker said...

I love how the courts are all deferential and shit when the Federal government is systematically eroding our liberties, but is all "YOU SHALL NOT PASS!!!" when WE THE PEOPLE try to pass something they disagree with, like defining marriage at the state constitution level. The whole fucking thing is a con. The entire system is rigged, its Kabuki theater. They'll throw you enough scraps to keep up the illusion that you have some impact or voice or control over the system, but you don't. We're all modern-day serfs & peons. The government pretty much has unlimited power now, and there is no way they're going to let you take ANY of it away. Let It Burn...

CWJ said...

"This Congress can't (or won't) fix it, so that was supposed to be a reason why the Supreme Court should fix the statute for them."

That assumes that we even know what it means to fix the statute. What should a "repaired" Obamacare even look like? Without consensus, without debate, why should we assume the SC 's idea of a "fix" is a correct one?

Obamacare can't state its objectives plainly because those objectives are unconstitutiuonal. So the whole issue is framed as a series of political extortions. But even these had to be soft enough to be "constitutional." The feds can't constitutionally force the states to set up exchanges, so they used medicaid sweeteners and subsidies to "force" the states to do exactly that. That having failed, the feds set up an exchange. The IRS then granted subsidies everywhere on the basis of I don't know what, and dares someone anyone to say otherwise. Someone finally does say otherwise, and now the Supreme Court is supposed to "fix" the situation because the IRS and the executive branch effectively ignored the actual statute and misled the citizenry.

This isn't law. It's holding political "guns" to each others' heads. The feds wanted to force the states to set up and run the exchanges. The feds wanted to force the people to buy health insurance. Perhaps when what you want to do is clearly unconstitutional, you should take that as a sign to stop there rather than Gruberize a statute to provide plausible constitutionality. But that is simply too much to ask.


tim maguire said...

The Court must "assume" a "fully functioning" Congress.

Even that overstates the court's situation. Far from assuming congress is fully functional, the functioning of congress is utterly irrelevant to the court's duties and powers.

Besides, they have no right to determine under what circumstances congress is "fully functioning." Some people like gridlock.

Bruce Hayden said...

The reason that Congress won't fix the problem is because the (formerly) Dem Congress passed the legislation without a single Repub vote, nor any Dem votes to spare, under time pressure. They pushed the legislation to the limits of what they could get passed. And they knew that it was unpopular at the time, and likely to get more so, as it was implemented. They were hoping that they would get enough new votes to replace the ones they were surely going to lose, but forgot/ignored that the demographics most benefitting were already voting Dem, when they could be bothered.

But now, this epically horrendous piece of legislation is stumbling, and the Republicans voted in to repeal it are refusing to work with the Remaing Dems to fix it, without subjecting it to a major rewrite. And that is somehow a Republican problem. Sorry, but the problem is 100% the result of gross overreach by Obama, Reid, Pelosi, et al. They are the ones who screwed up, and did so royally. If they had enacted legislation with some Republican support, or maybe even with all the Dems, it might not have been so extreme. And, if they hadn't rushed it, and played legislative games, some of these problems might have been addressed up front, where they are supposed to be. But when the Dem response is "We Won", they shouldn't expect much sympathy from Republican nominated Justices, or, really, anyone else.

Left Bank of the Charles said...

The state legislatures could fix it too.

But couldn't he be suggesting else, that they plan to uphold the administration interpretation, and if Congress doesn't like that it can just change the law?

Bruce Hayden said...

Maybe what I was trying to say is that the Dems, etc are like the guy who killed his parents then asks the court for mercy because he is now an orphan.

Thorley Winston said...

I don’t see the problem being a dysfunctional Congress so much as an absentee POTUS that doesn’t want to be bothered with having to do the business of governing.

B said...

Kennedy said what everyone already assumed he believed. This should not change expectations about the verdict.

Fen said...

Ugh. Yes but no.

My experience with predicting SCOTUS outcomes based on oral arguments has been an absolute failure.

Bob Boyd said...

"...and if Congress doesn't like that it can just change the law?"

Change it to what it already says now?

richlb said...

Just like voting, doing nothing is, in itself, a way of doing something. I wish Congress would actively do nothing more often.

Kristian Holvoet said...

When you assume incompetence in others branches in order to grab powers that aren't assigned to your branch, we have left constitutional government and entered tyranny. That we have three branches, with one doing this (Executive), and one acquiescing (Legislative), and one balanced on a knife's edge for many decisions (Judicial), and I am not seeing a happy ending, no matter the outcome of this case.

Michael K said...

"The feds wanted to force the states to set up and run the exchanges."

One way to fix this is to make the law optional in states that did not establish exchanges. That way, if you live in a state that elected a governor and legislature that declined to establish an exchange, you are not obliged to join Obamacare. The blue states could keep it. Voting with feet could then commence.

I still think the way to solve it would be to make it optional. This would be a start.

Birches said...

It appears at least someone is wearing his big boy pants. Good.

This decision could end up being similar to the Voting Rights Act. So the MSM will decry the "gutting" of Obamacare when in actuality, they've just told Congress to fix it.

Larry J said...

The Democrats intentionally wrote the law to require states to establish their own exchanges to be eligible for subsidies. Not a single Republican voted for the legislation. We were told that they'd have to pass the law for everyone to know what's in it. This is in it. How is it a Republican problem?

As for the Supreme Court, I long ago abandoned any hope that it will consistently rule in line with the Constitution. The Constitution only means what 5 or more of the SC justices say it means and that changes from day to day.

Sammy Finkelman said...

The Democrats intentionally wrote the law that way, I think, but not with the idea of of requiring states to set up their own exchanges.

There are a couple of things being missed here.

The authors of the bill wanted to offload the costs of operating these exchanges onto the states.

There was really no other reason for creating them, the rumor that Senator Ben Nelson of Nebraska wanted them notwithstanding. Operating an exchange doesn't give a state any more or less power other than having abetter or worse software interface. So why a state want it?

The reason they wanted to offload the costs of the exchanges onto the states was that it saved the federal government a little bit of money - maybe only a paltry few billion, but you know, a billion here, and billion there, and pretty soon you are talking about real money.

More seriously, the Obama Administration was really stuck on keeping the estimated net costs of the bill over ten years under $1 trillion and every billion dollars counted.

It was very hard to squeeze the
Congressional Budget Office estimate under a trillion.

So they budgeted $0 extra dollars for administrative costs to the
federal government for operating any exchanges (and I think only a
paltry $1 billion for all administrative expenses)

They also told the Congressional Budget Office to assume all people in the 50 states and DC would be eligible for the subsidies (because if they had not done that too many people would have spotted what was
going on, and the bill would not have passed if anybody had thought
there was a real possibility of people in some states not being
eligible for the subsidies, so they had to include the full value of them in the estimate - but not the administrative costs.

But if they had said that the federal government would actually operate an exchange, the CBO probably would have insisted that some money be budgeted for it.)

They did nothing to actually attempt to force states to establish exchanges. That also would have caused a problem in passing the bill.

They just assumed away the problem of getting the states to establish exchanges.

They created a train wreck on purpose and not because they wanted to give themselves an opening to amend the bill later.

Not due to an oversight, but on purpose. It was budgetary gimmickry.

They intended to fix this provision in the next Congress, by which time the cost estimates wouldn't matter.

But they lost control of the House of Representatives in the 2010 election!

This is not the first and only time Congress has created train wreck
legislation. There's been a lot of it in the last decade or so. We
had tax cuts expire that nobody at all intended to let expire.

We had Medicare payments cut to doctors, that nobody intended to ever actually go into force.

We had provisions for the Alternative Minimum Tax that nobody intended ever to go into effect.

Several times a year now sometimes we have train wrecks coming. The expiration of appropriations, necessitating a government shutdown or a continuing resolution. Debt ceiling limits.. Expiring provisions of other kinds of laws.

Congress creates train wrecks all the time. Maybe the Supreme Court
should tell them to stop.

SteveM said...

An example of this point is the Ledbetter case. The case turned on the construction of the statutory limitations provision, and the dismissal of Lilly Ledbetter's pay discrimination suit was upheld. Later, with much fanfare, congress amended the provision, thereby dealing a blow against the Republicans' war on women (sarcasm).

CWJ said...

Sammy Finkelman,

Please don't think I hadn't considered the budgetary games that were afoot when I said the feds wanted to force the state's to set up and RUN the exchanges.

Larry J said...

Sammy Finkelman said...
The Democrats intentionally wrote the law that way, I think, but not with the idea of of requiring states to set up their own exchanges.


According to Gruber, they wrote the law the way they did to effectively force states to establish their own exchanges.

In petitioning the Supreme Court to take their case, the plaintiffs quoted Gruber, who said in 2012: "[I]f you're a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

SteveR said...

In the mean time, please go about sinking the GOP 2016 presidential nomination by bitching about every little thing not being right and watch Hillary get 3-4 new justices in place.

You'll see the court "fix" all sorts of problems.

Matthew Sablan said...

Assuming Congress will "fix" a law that the Supreme Court strikes down also implies that Congress SHOULD fix it.

That seems to be getting out into the weeds of what the court should be doing.

Unknown said...

The alleged gridlock is indeed a function of a working democracy too.

Anonymous said...

I thought the issue here was that the mandatory language, if interpreted as plaintiffs want, would make the law unconstitutional and therefore, must be interpreted differently. IE: As the Government wants.

CStanley said...

Kennedy is absolutely right about this and I hope he stands firm. If anything, the current gridlock and inability to "fix" the law is a direct result of the fact that the law never represented the will of the majority of people. The makeup of Congress changed as a direct result of that, which is why it would be problematic for it to be sent back to Congress to fix. SCOTUS would definitely then be overstepping it's bounds to create the fix itself.

Paradoxically, if Congress was still composed of members who were inclined to fix the law, then it wouldn't matter as much if the Court did the fixing (it would as a matter of principle and precedent though, of course.)

Matthew Sablan said...

"I thought the issue here was that the mandatory language, if interpreted as plaintiffs want, would make the law unconstitutional and therefore, must be interpreted differently. IE: As the Government wants."

-- I think that's one of many defenses.

RecChief said...

Anthony Kennedy is only one vote out of nine. I'm sure Roberts will save the Government's case for them

David Begley said...

All this speculation about what Congress could or might or should do is outside the record and should be given ZERO consideration in a court of law.