Just one headline that I'm quoting to stand in for all the articles I'm seeing that seem to be mostly only about scaring/manipulating/massaging the Supreme Court into feeling deep down inside that it simply must not ruin Obamacare.
To my eye, this effort seems so transparent and desperate that it heightens a perception that the text of the statute just won't work for what they really, reeeeeally need it to do.
Pay no attention to that statutory text behind the curtain!!!
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128 comments:
Save us John Roberts. You're the only one who can.
Transparent, yes. But will it work, nonetheless? We'll see....
I think a loss on this ruling by the pro-Obamacare forces would in one way be far more devastating than if they had lost the 2012 ruling, because in this case a major part of their law would be dismantled not because of a key part being questionably unconstitutional, but because of legislative incompetence--either they miswrote the provision about subsidies and exchanges established by the states, or they wrote it intentionally and mistook what they thought the states' responses to the law would be.
Not only does the text work against the Dems, but their clear intent, also. Their original intent about providing an incentive, not their modified, limited, hangout of current intent.
Amazing how political both sides want the supreme court to be, especially when it can side with them :-)
I am hoping that Roberts ignores the pressure this time...
The bigger issue is that if the president/government is not bound by clear meaning of the text, then laws are meaningless and the president becomes a dictator.
I don't mean to express an opinion on whether the text of the statute won't work. I'm just saying that those who are arguing to preserve Obamacare making me feel they are — in so many words — declaring that they are painfully aware that the text won't work and that they are frantic.
This Help up, John Roberts, you're our only hope comes across as a confession of guilt with begging for mercy.
The text worked against the Dems last time around. Roberts helpfully ignored the text. I have confidence he'll try for a similar stunt this time around.
But can't Roberts deem it a tax and ignore the statute. That's like falling off a log for his apolitical self.
As much as I make fun of the last time around, a lot of people said: "Well, if they had structured it as a tax, it would have worked that way. Alas, we were told time and again it is not a tax, so it couldn't be one."
Roberts ruling basically was: "You were lied to. It's a tax, just like the text makes it sound. They just lied to you."
This time, I think it might be the other side getting some tough Supreme Court love. "You were lied to. It is exactly what it said it is, not what you were told it meant to say if they had written it differently."
"But can't Roberts deem it a tax and ignore the statute..."
Deem what a tax? This isn't a question of whether Congress has an enumerated constitutional power. This is a question of what the statute means. There's nothing constitutional about it.
All the "deeming" that's needed is for the Court to deem the statute to mean what the supporters of the statute need it to mean.
The editorials and commentary I'm seeing are about creating the desire to choose a statutory interpretation (not relying much or at all on the text of the statute).
I think there is a textual interpretation that would get you there, but those who are arguing for saving Obamacare are not putting their efforts into making that sound plausible.
What this does is the unthinkable, it forces Congress to open it back up. It would be an absolutely abhorrent miscarriage of justice if we let those troglodytes from the red states, those tea baggers, have a say in this law.
"those who are arguing for saving Obamacare are not putting their efforts into making that sound plausible"
But I'm quite sure those who make the argument directly to the Justices on Wednesday will be quite focused on the statutory text.
The commentary--Toobin has one in the New Yorker that is poor even by his standards, Greenhouse had one recently that was stock for her--is beclowning. It borders on panic. The case is very straightforward and the government's brief is makeweight at best. As Justice Kagan noted just last term, "[u]nder Chevron, the statute’s plain meaning controls, whatever the [agency] might have to say"; if I may show the obverse of the remainder of her sentence, only if "the law does not speak clearly to the question at issue" must "a court ... defer to the [agency]'s reasonable interpretation, rather than substitut[ing] its own reading." Here the statute is clear. It is not ambiguous in the slightest. The statute defines each of the key terms.
The critics would do better to be straightforward: This is a drafting mistake and Congress never intended to limit the subsidies in this way. But they can't do that, because they know that the answer is "so what?" It doesn't matter what Congress intended. What matters is what they enacted. And what they enacted is a text that limits subsidies to state-established exchanges.
He has to write the Opinion so we know what's in it.
Brando said...
I think a loss on this ruling by the pro-Obamacare forces would in one way be far more devastating than if they had lost the 2012 ruling, because in this case a major part of their law would be dismantled not because of a key part being questionably unconstitutional, but because of legislative incompetence--either they miswrote the provision about subsidies and exchanges established by the states, or they wrote it intentionally and mistook what they thought the states' responses to the law would be.
According to Gruber, the text was deliberately written this way to force the states to establish their own exchanges. In the end, it depends on whether the SC holds with the law as written or as some want it to be. If they go with the law as written, it's a slam dunk. However, if they go with what are now claimed to be the law's intentions, then we're another big step towards being a banana republic. How can anyone claim we're a nation of laws if the plain text of the laws are ignored when inconvenient? They've been doing this with the Constitution itself for quite some time, so I have little hope the SC will actually hold the government to the law as written.
Ann Althouse said...
"[T]hose who are arguing to preserve Obamacare making me feel they are...declaring that they are painfully aware that the text won't work and that they are frantic."
That's exactly it. They're ramping up the rhetoric to pre-delegitimize the result and to put pressure on Roberts to buckle. There's an air of desperation in their Orwellian insistence that there is no merit to the challenges when there is, in fact, no serious counterargument. If one couldn't be found by two different fourth-circuit opinions or the SG, there isn't one to make. And having lost on the law, they're scrambling to win in the air.
Will it work? Well, that depends on whether Roberts was sincere in NFIB. I think he was. They evidently think that he was just covering his lack of nerve. But how stupid are they going to look arguing that Roberts is a hack who's just out to destroy Obamacare only three terms after they lauded him as its savior?
Larry J said...
"According to Gruber, the text was deliberately written this way to force the states to establish their own exchanges."
Yeah, you know, I buy that, but the other side doesn't, and in the last analysis, who cares? I don't want to concede the principle that some kind of mythic "congressional intent" is the touchstone. The question is what the text says, and what the text says is "established by the state." That term, "the state" is neither ambiguous on its face nor left undefined by the statute (ACA § 1304(d), 124 Stat. 119, 172 (2011), codified at 42 U.S.C. § 18024(d)), and the government's notion that we should treat it as a term-of-art is just bewildering.
What is galling about all this is that many pundits (including Gruber on video) explained the provision as a way to force reluctant states to establish an exchange.
They were very confident that no Republican Gov or statehouse would screw their citizens by failing to setup an exchange. Now that it has come to be, they want a new interpretation.
Roberts just needs five votes and his vote is the 4th or 5th. Maybe he can deem there is a missing word, "not".
Missing Word Accidents happen in DC, like entire missing emails.
John Roberts was able to manipulate the text before.
He'll find a way to do it again.
"To my eye, this effort seems so transparent and desperate that it heightens a perception that the text of the statute just won't work for what they really, reeeeeally need it to do."
Perception? It clearly doesn't.
Simon: "The critics would do better to be straightforward: This is a drafting mistake and Congress never intended to limit the subsidies in this way."
Except that Jon Gruber REPEATEDLY explained that this (state exchanges ONLY!) was what they intended. It's on video.
Gruber was on his way to being an unperson anyway, so it isn't like anything he said matters [except when it does.]
Does anyone have any idea why the Greg Sargent scoop won't be the primary reasoning for statutory interpretation?
"The first Senate version of the health law to be passed in 2009 -- by the Health, Education, Labor and Pensions Committee -- explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity."
Isn't it canon that if the language was in an earlier version of a bill and then subsequently removed from the final version it's treated as though it was removed on purpose?
Are you serious? Are you serious?
A committee memo describing the bill circulated at the time spelled this out with total clarity
Except it is still spelled out in the bill with total clarity
When was it removed?
Is it a matter of "canon" that memo's describing laws carry the weight of law?
Didn't Roberts say ,in effect, that its not the courts job to fix bad legislation? Seems I read that somewhere, can't find it now.
Congress needs to do the work. Congress hasn't, and so it goes to the courts.
Be careful what you wish for it might come true. If the court sides with the plaintiffs, there will be an even bigger transfer of money from red states to book blue. Already states that refused to expand Medicaid are hurting. Now with the loss of subsidies, millions of people who had insurance but will lose it are going to be very passed off(especially if they are on the hook to pay back a year and a half of past subsidies) and the states are going to face even bigger strains on their health care budgets
I think everyone is missing Franklin's point:
If the law originally had this language and it was deliberately changed, they cannot claim that the final version is a "drafting error".
"According to Gruber, the text was deliberately written this way to force the states to establish their own exchanges. In the end, it depends on whether the SC holds with the law as written or as some want it to be. If they go with the law as written, it's a slam dunk."
That's true, but of course the Obamists have disowned Gruber and are claiming it was an obvious drafting error. Which, even if true, doesn't get them past the fact that the text itself is unambiguous. If they screwed up by passing a draft bill in a rush, then they are incompetent but the Court shouldn't be making rulings based on what they think the legislature should have written. This isn't the same thing as interpretation of ambiguous provisions.
I also like that the pressure is on Roberts to be nonpartisan. How come Sotomayor, Kagan and Ginsburg don't have to be nonpartisan? Is it because they're on the side of rightness and light, and Roberts should be with them rather than with darkness and sorrow?
2+2=4
If the court ignores the his , the precedent will inexorably lead us to Caesarism.
Although many Americans won't care.
Using 10 words to mean the same thing and one word to mean 10 things, all at the same time, is the Democrat mind.
I know it's common for SCOTUS to send a case back to the lower court with the admonition to "try again and get it right." Is there any precedent for the SCOTUS to strike down Obamacare and admonish Congress to "try again and get it right"?
We are supposed to be a nation built on observing the Rule of Law. I don't see how a statute could have an "intent." Nor do I see why we could countenance considering "congressional intent" in interpreting a law. When a law is presented to a legislator for his vote, we can't expect him to run around asking all his fellows what their intent was in voting "yea." When he votes in favor of the law, it is in favor of the law as written, even if there were an explicit "congressional intent" clause attached to it.
Read through (or listen) this NPR interview with Jeffrey Toobin:
http://www.npr.org/2014/12/03/368228244/president-obama-and-the-courts-a-shift-in-balance
TOOBIN: Well, that's actually a very controversial question - does it count? Because Justice Scalia in particular is an advocate of what's known as textualism and textualism means that the job of the judge is to evaluate only the words of the statute. Legislative intent, the debates in Congress, what people thought, is entirely irrelevant according to this school of thought. Now, Stephen Breyer, who is Scalia's particular opposite on this point thinks this is very foolish and thinks as respect for Congress requires the Supreme Court to study what the congressional intent was and what makes this controversy so important - I mean, this can all seem very abstract - is in the debates in Congress there was never a single suggestion by any member of Congress that these subsidies were not available to the federal exchanges. Not one person ever suggested that, but, the words of the statute do say, in this one part refer only to exchanges established by the state so this is really a perfect example of textualism versus congressional intent.
This is the argument on the other side: Congress "intended" one thing and four pesky words said the opposite. They're flattering Breyer to save them this time.
If SCOTUS follows the plain text of the law then they will not be responsible for killing Obamacare.
That so many states declined to set up exchanges will be the cause.
So, in that sense, it is Federalism that killed Obamacare.
Which is entirely fitting.
Ken Mitchell said...
"Except that Jon Gruber REPEATEDLY explained that this (state exchanges ONLY!) was what they intended. It's on video."
I know that, it's cited in petitioner's brief, but it's a sterile point. The judges who believe that intent controls aren't going to impute a consultant's views to Congress, maybe they should but they won't, and the judges who believe that text controls don't care what a consultant said. So far as purposive analysis goes, I think it suffices to say that a reasonable legislator could have thought that the limitation on credits was an inducement for states, and that thwarts any notion that the text does not produce an irrational or absurd result.
Brando said...
"I also like that the pressure is on Roberts to be nonpartisan. How come Sotomayor, Kagan and Ginsburg don't have to be nonpartisan?"
I cannot bring myself to believe that Kagan will be able to stomach voting for the government on this one. Common sense says that she will, but I think highly of her, and there is no legal argument for the government's position.
I think Congressional memos, intents, etc. are useful in determining the intent of ambiguous laws. For example, say a law said that "dangerous items" should be stored in such and such way, but the statute doesn't define them.
If I dig up a memo from Congress saying, "Dangerous items, like X, Y and Z, should be covered under this law."
Then, I'd say, we should feel safe defining X, Y and Z as part of that umbrella term [but NOT necessarily items T and J.]
They're useful, but not when trying to counter plain meaning.
Now with the loss of subsidies, millions of people who had insurance but will lose it are going to be very passed off(especially if they are on the hook to pay back a year and a half of past subsidies) and the states are going to face even bigger strains on their health care budgets
NOTE: I AM NOT COMPETENT TO ASSERT THIS. I'm just wondering:
Hasn't the USSC ruled that Congressional attempts to impose spending on states are unconstitutional? Congress may offer inducements to states to spend money, but cannot dictate that they must. Therefore, if the federal subsidies are unavailable, states lacking exchanges run by the states may be exempt from all provisions of Obamacare.
"I cannot bring myself to believe that Kagan will be able to stomach voting for the government on this one. Common sense says that she will, but I think highly of her, and there is no legal argument for the government's position."
I would like to think she and Breyer (who both seem to be more independent than Sotomayor or Ginsburg) will go against the government on this one, unwilling to establish the precedent that the government can act in clear violation of a statute. I'm just wondering what curve ball justification the pro-government justices can come up with.
Brando, I think Breyer the most likely of all to vote for the government, and for straightforward reasons. The purpose of the statute is to expand coverage, there's no good reason to believe that Congress ever intended to limit subsidies to the state-run exchanges (indeed, to think that Congress ever gave the question a moment's thought), and if tax credits are only available on state-run exchanges, the purposes of the statute will be thwarted, ergo the statute can't say that. That's not a reasonable interpretation of the statute. For Breyer, the text doesn't control; it's useful evidence of what Congress intended, like legislative history, but little more, especially when enormous consequences hang on pedantic little textual questions.
Now, of course, I don't agree with any of that. But that's how Justice Breyer sees things.
I have no faith that the Supreme Court will hold to the text of the law any more than they hold to the text of the Constitution. I'm willing to be pleasantly surprised if it turns out I'm wrong.
Brando;
"I'm just wondering what curve ball justification the pro-government justices can come up with.
Didn't some of the lower courts already come up with reasoning?
Be careful what you wish for it might come true. If the court sides with the plaintiffs, there will be an even bigger transfer of money from red states to book blue
Yes, and there will be a veto proof set of Senators either Republican, or on the short end of this deal.
Not to mention the electoral college.
So I wouldn't go counting on Democrats to form a political suicide committee to avoid any and all possible modifications to a clearly flawed law.
Mcullough, we are truly, madly, and deeply screwed...
If language is in a prior version but not in the final version, courts are instructed (via precedent) to interpret that as intentional elimination.
So the first committee version of the bill said that the subsidies were available via the Gateway in all states.
Then that language was STRICKEN from the final version, and only those citizens in states that had set up their own Gateways would get subsidies in the final bill.
Thus the correct interpretation, according to precedent and canon, is that the drafters intentionally left the all states language out of the final bill.
Seems like plaintiffs should win this one. Unless a Chief Justice takes it upon himself to broker a lawless, unconstitutional compromise entirely devoid of sound legal reasoning. Again.
Roberts still has those adopted Irish kids and Obama still has their papers. What do you think will happen differently this time?
If the Supremes rule, as they should, that the ACA means what it says, then millions of people who got subsidies for insurance through the federal exchange lose them (maybe they even have to repay them, but let's disregard that). So the Democrats introduce legislation to fix the "drafting error" so those millions of Americans can have their subsidies. Will the Republicans have the cajones to defeat that legislation? Remember, this is the party that can't even defund Obama's executive amnesty, which mostly helps non-voters. I think Congress will cave, not CJ Roberts.
I'm optimistic this will be 7-2 with Ginsburg and the Wise Latina dissenting. Therefore I fully expect it will be 5-4 with Roberts working from the answer backwards and again making some shit up.
Funny how these smart people , like Greenhouse, can be really dumb, when they have to be.
"Simon said...
I cannot bring myself to believe that Kagan will be able to stomach voting for the government on this one. Common sense says that she will, but I think highly of her, and there is no legal argument for the government's position."
You are going to have the sads soon.
Let's hope he's not "Roger Taney Roberts" as he was in the last Obamacare case.
Therefore, if the federal subsidies are unavailable, states lacking exchanges run by the states may be exempt from all provisions of Obamacare.
No, the increased cost will be borne by those wishing to purchase health insurance on the exchange, not the states.
So the Democrats introduce legislation to fix the "drafting error" so those millions of Americans can have their subsidies.
You seem to forget that the Democrats are a minority in both houses. There will be no fix. Millions of people will lose (or possibly have to repay) their subsidies. The Republicans will not allow it to be fixed. They are too down the road of destroying rather than fixing the ACA to change course now.
No, the increased cost will be borne by those wishing to purchase health insurance on the exchange, not the states.
I am sure the Democrat senators and representatives for those people will have no problem upholding Obama's veto of any law either lifting them from the legal requirement to pay the higher premiums, or addressing costs in any manner.
You Marxists are so clever to have created such a steel trap law.
"perception that the text of the statute just won't work for what they really, reeeeeally need it to do"
Never stopped a liberal Justice from reaching the right result.
The Democrats want to discuss the "intent of Congress" before the Court, when no one in Congress had read that bill before they voted on it?
t would have to be "Gruber's intent," and that would surely embarass even Democrats, no?
Absolutely amazing how a failed President can call into question all the institutions surrounding him.
While it is common to gnash teeth at the Supreme Court or Congress right now, the proper way to see this is that Obama's Unchecked and Unbalanced assault on the Constitution, the Law and standard practice is throwing sand in the gears of democracy.
Of course Boehner and McConnell don't know how to set tactics for an unprecedented power grab. Of course the Supreme Court doesn't know how to rule on a law that set 10 years of revenues against 6 years of expenses and makes exception after exception yet calls it "settled law."
Obama's regulatory power grabs with FCC and EPA, his foreign policy that tried to stymie Congress from "advise & consent" by calling treaties by some other name, his court-packing via the nuclear option, are all unprecedented. And dangerous.
The fact that Obama and the Dems are completely reckless and incompetent in drawing the legislation should reflect on them. Obamacare got zero bipartisan support and zero GOP votes. Scorn should be heaped on Dems, who should spend a generation in the wilderness. Dems shit the bed here, and it reflects on them, not on SCOTUS and Congress trying to clean the sheets.
Cronies in Health/Insurance industries that were bought off and changed their business models should suffer for their lawlessness and poor judgement.
SCOTUS must rule on the law, not the entirely foreseeable "unintended consequences" of their fully intentional recklessness.
They are too down the road of destroying rather than fixing the ACA to change course now.
Yeah, had they not run on that, the Democrats would probably still be in the majority and everything would be fine.
The problem is that the American People are not good enough to be led by Obama and they keep screwing up his plans with there votes.
What we really need is to suspend elections and have Obama appoint legislators. You know, be led more like Russia and China.
Cronies in Health/Insurance industries that were bought off and changed their business models should suffer for their lawlessness and poor judgement.
No they were terrified into it by an Obama that was having great success at the time attacking industry after industry.
If Congress goes to "fixing" the bill, will they be fixing on it the way it was voted, or on whatever it is the way Obama is working it now?
"I think Congress will cave, not CJ Roberts."
One possibility being floated is that the GOP passes an 18 month extension of the subsidies for residents of states without exchanges, to get them to the next presidential administration, at which time they hope to come up with something better. I doubt that would pass, but even if it did it would mean another 18 months of people getting used to their subsidies, and hoping the GOP has the White House and Congress, which isn't a sure thing.
The GOP needs to think about what, if anything, to replace ACA with if they actually got what they wished for (ACA dismantled). If the answer is "nothing" then get ready for a lot of stories about people losing their dialysis and babies dying in incubators. Remember the Obamists put out an ad blaming Romney for giving a guy's wife cancer. You think they won't stoop to as much here?
@Simon: "I cannot bring myself to believe that Kagan will be able to stomach voting for the government"
I can. This is an emergency. She can find a way. When the choice is between your high opinion and the right result, right result wins.
Of course, I hope I am wrong.
"But how stupid are they going to look arguing that Roberts is a hack"
Very. But they don't care how they look. They care about results. By any means necessary. A luta continua, always.
"SCOTUS must rule on the law, not the entirely foreseeable "unintended consequences" of their fully intentional recklessness."
SCOTUS shouldn't consider anything other than the law itself, but of course it often does.
The congressional GOP though is going to be stuck trying to decide what to do if this gets overturned. Obama will ask for the law to be corrected, and blame the GOP for every negative effect of people losing their subsidies. Whether the GOP can hold firm and say "we're not bailing your law out of this, repeal it all" or decides to pass their own replacement law remains to be seen.
The "idea" that the "explicitly excluded from subsidy fed exchanges" were actually meant to be "clearly included" for subsidies is "easily" found in the many penumbras, formed by emanations, which exude from all pores of this most wonderful of all pieces of legislation.
It is meant to mean all things to all peoples at all times.
Except when it doesn't.
I'm sure John Roberts will have no difficulty whatsoever being enlisted once again into the junior white house legislative counsel role.
This Help up, John Roberts, you're our only hope comes across as a confession of guilt with begging for mercy
What do you suppose it was that Princess Leia was confessing to?
I am not a lawyer but I don't see any basis for a finding for the government on the Merits. Is it too late for the court to find lack of standing? I don't quite see a convincing argument that the plaintiffs could show harm to themselves from other people getting tax breaks.
The case seems really easy. The text says it must be established by the state. The Court should rule that way and it's up to Congress to fix it.
I think the Court will rule against the Administration, but that the Administration will just provide the subsidies anyway. They will keep finding a workaround (an illegal one) like they have done with all other parts of the law. They will keep doing it in perpetuity - until Obama is out of office.
Also people keep citing the loss of subsidies among the insured and how it will affect them. But also remember that if there is no subsidy then under the law's mechanics there cannot be an employer mandate (or penalty). The employer mandate has been delayed numerous times. All the administration has to do is provide the subsidy anyway - illegally - and then continue to delay the employer mandate, until Obama runs out the clock for his administration to leave the dirty work to the next administration.
Although in terms of its impact on our republic, I think the Immigration lawsuit is much more serious.
eric said...
"Didn't some of the lower courts already come up with reasoning?"
Because this is a review of an agency decision, Chevron applies. So long as the statute is ambiguous and the agency interpretation is reasonable, the courts defer to it. So if you're a judge and you want to uphold it, you just have to have the nerve to pretend that the statute is ambiguous. It isn't, of course, but sometimes you've gotta roll the hard six.
Freder Frederson said...
"Democrats are a minority in both houses. There will be no fix. Millions of people will lose (or possibly have to repay) their subsidies. The Republicans will not allow it to be fixed. They are too down the road of destroying rather than fixing the ACA to change course now."
We told you that it wouldn't work. Don't expect too much sympathy that it didn't work. And don't bleat about how it would have worked but for ongoing resistance; if your plan involves the enemy surrendering on first contact, your plan is lousy.
I mean, seriously--what did you think was going to happen? Did you think you were going to ram that monstrosity through and if you could only get it passed we'd just go off into a corner and sulk? Is that what you thought would happen?
You forced that statute through as if you believed that all you had to do was shove it over the top, as if you thought that once it got enacted, that was it, that it was done and could never be undone. Do you seriously believe that such misbehavior would be allowed to stand?
Curious George said...
"[Simon said 'I cannot bring myself to believe that Kagan will be able to stomach voting for the government on this one.'] You are going to have the sads soon."
Perhaps, but as Kagan wrote just last week in Yates: "[W]hatever the wisdom or folly of [the statute], this Court does not get to rewrite the law...If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design."
Ann, you say above "I think there is a textual interpretation that would get you there". Can you elaborate?
As I read this stuff (and I'm not a lawyer, but I was an Army IG for 4 years) I naturally trace lines of authority, and give the greatest weight to named and numbered sections of the text rather than the words, since section numbers are (presumably) inherently unambiguous.
Section 1401 establishes the authority for subsidies, and it extends them only to section 1311 entities, not section 1321 entities. By following the numbers you can avoid getting trapped in questions like "what does the glossary say an 'exchange' is?". Much cleaner way to read. But it leaves no room as I see it for "textual interpretation that would get you there".
So how do you possibly get there?
dbp said...
"Is it too late for the court to find lack of standing?"
It's never too late for the court to raise a jurisdictional question and article III standing is jurisdictional. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) ("Though the [petitioners] raised their standing argument for the first time before this Court, we bear an independent obligation to assure ourselves that jurisdiction is proper before proceeding to the merits").
Freder Frederson said...
So the Democrats introduce legislation to fix the "drafting error" so those millions of Americans can have their subsidies.
You seem to forget that the Democrats are a minority in both houses. There will be no fix. Millions of people will lose (or possibly have to repay) their subsidies. The Republicans will not allow it to be fixed. They are too down the road of destroying rather than fixing the ACA to change course now.
No Republican had any input into the writing of the law. All of their attempts to participate were refused. No Republican voted for the law. It is 100% the responsibility of the Democrats. So why is it that Republicans have the responsibility to fix a bad law that none of them wrote or supported?
"Mommy, Mommy! Timmy didn't stop me from doing something bad so it's all his fault!"
Since the Democrats ran on keeping the law and the Republicans ran on repealing it, and the Republicans won the actual elections, the only thing left to do is to demonize the American people for electing Republicans.
If Roberts rules for Obamacare he tosses textualism and intent in the trash. He did it once and has this chance to recover. Done twice would be a fait accompli to law, itself. Judges could cite two precedents where the court totally ignored the construction, text, intent and did what they were told.
Whatever the court rule, subsidies through the feds is one easy Exacutive Action from the big fix. What is there to indicate it isn't already arranged? Congress has already gotten the silent treatment fromaobama on his plans if the defense loses. I say the fix is in.
First, the plain language of the statute should control. Second, even if the Supreme Court decides to try to conform their interpretation to Congressional intent, they should limit this to laws where the average congressman made some attempt to try to make sure that the text of the law conformed to his intent.
Thanks Simon!
Imagine if people had just been allowed to read the law. This could have been fixed easily, except that damn election in Massachusetts, which may have,as was intended by Bay Staters at the time, fatally damaged the law at last.
Roberts already killed his own dream of a non-partisan Supreme Court in 2012 when he straight-up lied about what the mandate "penalty" was so he could vote to uphold the law and spare himself mean things being said about him in the New Yorker.
He sent a very clear message: threaten the Supreme Court with "loss of legitimacy" in the halls of media power if they don't politically agree with your ruling, and the Court, or at least the Chief Justice, will fold.
You forced that statute through as if you believed that all you had to do was shove it over the top, as if you thought that once it got enacted, that was it, that it was done and could never be undone. Do you seriously believe that such misbehavior would be allowed to stand?
Who on earth are you addressing. I had nothing to do with the passage of the ACA. I am flattered that you think I have such an influence on the congress, but sadly no.
If I was going to force anything through it would have been Medicare for all or some kind of single payer, like most sane countries have.
And what misbehavior are you talking about?
You are quite bitter.
No Republican had any input into the writing of the law. All of their attempts to participate were refused.
Are you serious? The law was written the way it was in a desperate attempt to get some buy in from the Republicans. It is a fundamentally the plan that was developed by Republicans (i.e., The Heritage Foundation). If you recall, Obama campaigned on a single payer system.
Those in the press who aren't in the Obamist camp should be instead advancing the narrative that Kagan and Breyer have the opportunity now to stick to a much more important principle than whether Obamacare gets to shovel more subsidy money at people--namely, the rule of law. After all, if this does get partly repealed, the politiians in the non-exchange states as well as Congress will have to deal with the aftermath, as is their job, but it is more important that the Court properly interpret and uphold the rule of law. Like Marbury vs. Madison, the precedent being established is far more important than the immediate policy issue before the Court.
Let THAT be the narrative--not this cheezy "save us, Justice Roberts, because Pelosi can't read a law before passing it!" argument which deserves to be laughed off the page.
Naut right said...
"If Roberts rules for Obamacare he tosses textualism and intent in the trash. He did it once...."
Not so. The irony is that (assuming that the vitriol directed at him is wholly uninformed and rawly-partisan) Roberts is being faulted for being a conservative judge rather than a textualist judge. For some thirteen decades, since at least Brogden, the Supreme Court has insisted that when a statute is amenable to two constructions, one of which transgresses the Constitution and one of which does not, the court should adopt the one which does not so long as the language of the statute will bear it. As Cooley's 1868 treatise, whence Brogden seems to have taken the principle, "where the meaning of the constitution is clear, ... the court, if possible, must give the statute such a construction as will enable it to have effect." See Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009); Clark v. Martinez, 543 U.S. 371, 395 (2005) (Thomas, J., dissenting) ("Traditionally, the avoidance canon ... commanded courts, when faced with two plausible constructions of a statute–one constitutional and the other unconstitutional–to choose the constitutional reading"); Rust v. Sullivan, 500 U.S. 173, 190-91 (1990); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979); Machinists v. Street, 367 U.S. 740, 749-50 (1961); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 62 (1932); Blodget v. Holden, 275 U.S. 142, 148 (1928) (Holmes, J., concurring) ("the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same"); U.S. ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407-408 (1909); Knights Templars' & M. Life Indemnity Co. v. Jarman, 187 U.S. 197, 205 (1902); Granada County v. Brogden, 112 U.S. 261, 268-69 (1884); cf. Murray v. The Charming Betsey, 6 U.S. 64, 118 (1804).
And so, what the Chief said in NFIB was:
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance ... Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But... the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one ... The question is not whether that is the most natural interpretation of the mandate, but only whether it is a 'fairly possible' one. As we have explained, 'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' Hooper v. California, 155 U. S. 648, 657 (1895) . The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read...."
Now maybe that's right or wrong, but it is judicial modesty, which is what Roberts has said all along is his touchstone, deciding only that which is necessary to decide the case and neither more nor less, and it is deeply-rooted in the legal tradition, which is what we ask conservative judges to be.
Freder Frederson said...
"[The ACA] is a [sic.] fundamentally the plan that was developed by Republicans (i.e., The Heritage Foundation)."
No. It was developed by a Republican at the Heritage Foundation, i.e. Stuart Butler. That doesn't make it a plan "developed by Republicans," and it certainly doesn't make it (as the implication is supposed to have the casual reader infer) a plan that Republicans approved until that dastardly Obama took it up. That kind of talking-point may work to get 'em warmed up in the leftosphere's echochamber, but it doesn't convince anyone who knows the history. I don't think that you want to advance the notion that the balls of every member of a political party are tied to every idea that comes out of a think-tank associated with that party. There's some kooky stuff that comes out of lefty think-tanks, after all.
"I think Congressional memos, intents, etc. are useful in determining the intent of ambiguous laws."--Matthew Sablan
That's the domain of historians. Courts however should do their duty to throw out "ambiguous laws" for impermissible vagueness.
Micha Elyi said...
"Courts however should do their duty to throw out 'ambiguous laws' for impermissible vagueness."
"Ambiguity" is not necessarily the same as "vagueness." Penal statutes, sure. But it depends on the ambiguity; for example, a tax exemption for "students" isn't in the slightest bit ambiguous for the vast majority of cases, but it can be ambiguous as applied in some cases--for example, is a doctor still a "student" during her residencies? That was what the court faced in Mayo Foundation v. United States, and the answer was, yes, the statute was ambiguous. Now, in fact, what that meant is that the court deferred to the interpretation of the administering agencies, which is what courts have done since Chevron: The statute is ambiguous, the agency's interpretation is reasonable, and it's ultimately subject to Presidential control. Are you suggesting that the fact that term "students" was ambiguous to a tiny subset of all the people within its compass should have led the court to strike down the exemptions for millions of people? Just because it's ambiguous?
and it certainly doesn't make it (as the implication is supposed to have the casual reader infer) a plan that Republicans approved until that dastardly Obama took it up.
How do you know what I want the casual reader to infer? I am well aware that left to their own devices the Republicans will never propose serious health care reform. The point I was making is the act is like it is because of the desire to have some Republican sign on. The Republicans never signed on and we still got stuck with a bad law.
Well, had the Democrats pushed single-payer, we would have been spared all of this because it would never have passed.
"How can anyone claim we're a nation of laws if the plain text of the laws are [sic] ignored when inconvenient? They've been doing this with the Constitution itself for quite some time, so I have little hope the SC will actually hold the government to the law as written."
Ah, they've been doing this since at least the Slaughterhouse cases, and especially since hallucinating emanations and penumbra in Griswold.
Mr. Obama is just more unusually forthright than most of the clerisy of the Church of the All-Powerful State about the flimsiness of the Constitution as they view it--taught well by the "progressive" arch-racist Woodrow Wilson.
"The point I was making is the act is like it is because of the desire to have some Republican sign on. The Republicans never signed on and we still got stuck with a bad law."
Is that the line making the rounds in lefty circles? It's the Republican's fault the law is so bad? That's priceless.
Bottom line is that the Dems are about to fall into the pit that they dug for States in the State Exchanges part and they want equity done by Chancellor Roberts' instead of following harsh since he knows they acted in good faith.
Republican's fault the law is so bad? That's priceless.
Yeah, there were 60 votes for single-payer in there world, but they passed it up in order to be civil.
This is what they have to believe, because they can't process what they really did. Which is screw up and throw away their majorities for a monstrosity nobody likes.
@Simon: "the Supreme Court has insisted that when a statute is amenable to two constructions . . ."
I appreciate your insights, and this statement is correct, but in practice it all comes down to interpretations of amenability. Since there's no obvious constraint, judges still have tremendous leeway to reach their desired result.
In the prior ACA case, Roberts obviously could treat the penalty as a tax and therefore fit it under Congress' constitutional powers, he could because he did and who are we to object, even in the case of a targeted penalty framed as an incentive, adopted as a penalty, specifically not adopted as a tax in Congress, and Robertsian definition of which as a tax in the legislative process would have scuttled the whole deal.
How often have liberal justices used the two-constructions approach to save statutes favored by conservatives? (Don't mean to make you do my homework :)!)
It's the Republican's fault the law is so bad?
That's not what I am saying at all. The Democrats are responsible for the law. But by trying to make it acceptable to the Republicans (which was hopeless from the get go), they gave us a bad law. (Better than the way things were but still a bad law.)
That's not what I am saying at all.
So do you think they could have passed what you wanted had they not tried to please Republicans?
Come on, we want to know the depths of your delusion Freder.
Even Vermont has rejected single-payer.
You know why? Because single-payer requires regressive taxes. Sales Taxes, VATs, payroll taxes, etc, to fund it. You can't get there by taxing the rich.
Freder, quit tying yourself up in a knot.
The Democrats are responsible for the law...they gave us a bad law. Those are true words.
Anything else you write is immediately apparent to anyone who has siblings: Trying to Shift Blame. Won't work.
Because single-payer requires regressive taxes. Sales Taxes, VATs, payroll taxes, etc, to fund it. You can't get there by taxing the rich.
We spend more on health care (by at least 50%) than anywhere else in the world and still have millions of uninsured. How is it that other countries can figure out something that you contend is impossible.
"We spend more on health care (by at least 50%) than anywhere else in the world and still have millions of uninsured. How is it that other countries can figure out something that you contend is impossible."
Being "insured" is not the right comparison. The uninsured in this country still have access to health care. A hospital still has to treat you. In fact an uninsured person might have better health care in this country than an "insured" person in another country, because over all our system is better.
I have assumed that the federal government was a government of "We, the people." My ancestors have participated in forming it since at least the early 1800's and probably farther back than that.
I have now decided that the government is a parasite on "We, the people." An overgrown parasite kills the host. And I think the current administration is killing its host on purpose.
I am making plans accordingly.
Not an answer Freder. Could Pelosi, Reid, and Obama have passed Single-Payer.
We are talking about the politics of it, on which you have opined heavily in this thread.
"In the prior ACA case, Roberts obviously could treat the penalty as a tax and therefore fit it under Congress' constitutional powers, he could because he did and who are we to object, even in the case of a targeted penalty framed as an incentive, adopted as a penalty, specifically not adopted as a tax in Congress, and Robertsian definition of which as a tax in the legislative process would have scuttled the whole deal. "
In expanding on this point, one could argue that Roberts avoided the politics in reaching his first ACA decision. The argument that the mandate was not a tax was a political one. Roberts just ruled that legally it was a tax regardless of what people were saying about it in public.
Freder may have no more memory of the Cornhusker Kickback and the Louisiana Purchase than he does of what sort of health-care reform Obama actually ran on-- but the rest of us have no trouble remembering who the ACA'a backers were and were not trying to mollify when they amended it.
Wake up people, the fight against Obamacare was lost the minute Roberts changed his mind (even with Anthony Kennedy attempting to explain reality) listened to the NYT and WaPo (and whatever conspiracy you may choose to believe, if any) more than he did the constitutional arguments and ruled that it was OK because the law that the administration insisted was not a tax was a tax.
I have no faith in Roberts acting in defense of our rights (aka the constitution) and believe instead he will worry about his legacy which if you think about it should actually make the anti-Obamacare case even stronger.
I think that Roberts was right. Congress has the right to lie to us as to whether it was a tax or not, and even if they didn't the Supreme Court is not the place to sort it out.
It doesn't say much for Democrat respect for democracy, but there it is.
harkin said...
"I have no faith in Roberts acting in defense of our rights"
Well, then you will be happy to learn that this is not a case about our rights.
Sloanasaurus said...
"The argument that the mandate was not a tax was a political one. Roberts just ruled that legally it was a tax regardless of what people were saying about it in public."
Roberts concluded that the statute would bear the interpretation that it was a tax—not that the statute was written that way, not that it was best-understood that way, but that it could be read that way—and that since it could be and the alternative was to hold the statute unconstitutional, under a venerable and deeply-embedded rule of statutory interpretation, which goes back in principle to Chief Justice Marshall, it should be read that way. People can agree or disagree about that, and I take no position on whether it was correct, but what irritates me is people who've never read the opinion and have no familiarity with or comprehension of the materials, start attacking Roberts and pretending that their beef is anything but raw politics.
@Freder Frederson: Please don't try to refute (1:55pm) my comment without reading it. I KNOW the Republicans control both houses of Congress; that was my point. They'll wimp out and amend the ACA to provide subsidies under the federal exchanges after the Supreme Court rules that the current version of the ACA doesn't permit such subsidies.
And BTW where in the heck did you get the idea that Obama tried to get GOP buy-in for Obamacare? Don't you think that, if he tried, he could at least have gotten the ladies from Maine on board? All he would have had to do was agree to some face-saving revisions to the statute, and he wouldn't even do that.
" They are too down the road of destroying rather than fixing the ACA to change course now."
The solution is simply to make Obamacare voluntary and allow states to charter real health insurance. There are already some experimental forms out there.
Here are few suggestions.
The most interesting one is the life insurance that allows "critical illness' payouts. This would mesh well with cash medical care.
"If I was going to force anything through it would have been Medicare for all or some kind of single payer, "
We know and we also know that you have no idea how that works, or rather doesn't work.
Sebastian said...
"In the prior ACA case, Roberts obviously could treat the penalty as a tax and therefore fit it under Congress' constitutional powers, he could because he did and who are we to object[?]"
I certainly think that one can object; the dissenters objected strongly, and I think there's a strong argument that they had the better of it. What I object to is the oft-made complaint that Roberts did something wildly off-base or bizarre or political by people who don't actually understand the context.
"How often have liberal justices used the two-constructions approach to save statutes favored by conservatives?"
Not often, I fancy.
The Godfather said...
"And BTW where in the heck did [Freder] get the idea that Obama tried to get GOP buy-in for Obamacare? Don't you think that, if he tried, he could at least have gotten the ladies from Maine on board?"
That is either ignorance or rank revisionism. The Democrats spent months courting votes from people like Olympia Snowe and Lindsay Graham. Freder isn't lying about that.
Not much commented on here is Althouse's quoting of the WaPo headline--a textbook example of the arrogance of the clerisy of the Church of the All-Powerful State which assumes that all right-thinking people look at the world the way they do.
If they were genuine pomos they'd see how oppressive their assumptions were and attack themselves for perpetrating hate speech.
I'd actually pay to see that.
Democrats may have tried to bring some Republicans on board, but to pretend that they sacrificed single-payer to do it is delusional.
If they could have gotten 60 Democrat votes for single-payer, they would have done so. The votes were never there on the blue side of the aisle, and Freder knows it, that is why he ran away to keep his fairy tale delusions from meeting the harsh light of reason.
President Barack Obama said on Monday that he thinks there is no ´plausible legal basis´ for the U.S. Supreme Court to strike down a key plank of Obamacare,
He doesn't even pretend to care what people think of him anymore.
MadisonMan @ 4:57,
Thank you for your input.
Everyome else, you may be wise to remember that freder frederson is still in his twenties. He speaks with both the assurance and innocence of his youth. He has lived in Europe so he knows what healthcare and what it costs should be (for someone in their twenties).
It would take me three or four comments to begin to respond to Simon on this thread. The effort is just not worth it. But let me say that Simon is a valued contributor to the comentariat. Welcome!
TheGodfather said... I KNOW the Republicans control both houses of Congress; that was my point. They'll wimp out and amend the ACA to provide subsidies under the federal exchanges after the Supreme Court rules that the current version of the ACA doesn't permit such subsidies.
Sadly, my money's on Godfather's bet here, which really means my tax money's going to keep going, well--you know.
CWJ said...
"It would take me three or four comments to begin to respond to Simon on this thread. The effort is just not worth it. But let me say that Simon is a valued contributor to the comentariat. Welcome!"
I appreciate that; I was actually here 2005-2009, then took a lengthy sabbatical, and have been dipping in and out for the last year or two. The last few weeks I've had a little more time and energy.
OK got it. In that case I'm the newcomer.
"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
"That is either ignorance or rank revisionism. The Democrats spent months courting votes from people like Olympia Snowe and Lindsay Graham. Freder isn't lying about that.
Did you even bother to read your link? It was clearly written by partisan Democrat shills.
No, the Democrats didn't bother to try and get Republicans on board. Unless telling them, "I won." is your version of getting them on board.
You may know a lot about the law and the Supreme Court (Although I think you're quite naive concerning judges, as though Kagan isn't a political creature long before she is a judge) but when it comes to politics, you and Freder are wrong.
The Democrats had the winning hand. They had the media and the Presidency and the Senate. They didn't need the Republicans and they showed that.
If they wanted to make Obamacare Bipartisan, they could have.
Your only other option is to believe that every single solitary Republican is either so racist, or so partisan, that nothing would have convinced them to side with Democrats on Obamacare.
You seriously wish us to swallow that?
Occams Razor Simon.
The Democrats weren't willing to compromise to pass Obamacare, that's the simplest answer. Now they have to live with what they passed.
No, the Democrats didn't bother to try and get Republicans on board. Unless telling them, "I won." is your version of getting them on board.
This is a silly thing to argue about.
Yes, Obama tried to get Snowe to vote for the bill. What neither he nor any other Democrat did was actually allow her any *input* into the bill.
Obviously Democrats would have liked to have the cover offered by Republican votes. They just didn't want it enough to actually make any concessions whatsoever to the Republican members of Congress. So whining that Republicans won't let them "fix" the bill now is pathetic. Fuck you and fuck each and every member of your shitty little political party, Freder.
I really have no idea how the Court will rule, as their ruling on the ACA in 2012 was not what I'd expected from the way oral argument had gone. But if they rule against the government in this case, the real unknown is how the political fallout will land. Obama and co. will certainly look beyond incompetent for passing the law in this form and then claiming it was a drafting error, but of course they will get lots of mileage blaming the GOP for tossing millions off their subsidized policies if they don't pass a "fix." And the way Congress and Obama operate now--with as much warmth towards each other as two ice cubes--I can't imagine any fix being passed before 2017.
Eric,
thanks for handing Simon his head.
"what irritates me is people who've never read the opinion and have no familiarity with or comprehension of the materials"
But it doesn't irritate you that the POTUS lied bald-face to the American people when he told them over and over again that it wasn't going to be a tax? Wonder why you left that part out.
Obama's useful idiots are everywhere.
But it doesn't irritate you that the POTUS lied bald-face to the American people when he told them over and over again that it wasn't going to be a tax?
Democracy is an experiment. In this experiment it is up to the voters to punish liars.
harkin said...
"But it doesn't irritate you that the POTUS lied bald-face to the American people when he told them over and over again that it wasn't going to be a tax? Wonder why you left that part out."
Set aside that politicians lie. If you're going to get irritated every time a politician lies, you're in for a long life of chafing constantly. Set aside that actually it irritates me a great deal when politicians advance bald-faced Orwellian lies such as the President's outright inversion of the situation of this case (he claims there is no serious argument behind the challenge when there is in fact no serious argument against it). Set those aside. Obama didn't lie when he said that it wasn't going to be a tax. Obama believed (and still believes) that Congress had (and has) the power to implement the mandate as a mandate. The government's brief in the cases decided sub nom. NFIB argued that the commerce clause authorized Congress to enact the mandate; it advanced the tax argument only as a backstop, as a contingency in case the court rejected (as it ultimately did) the commerce clause argument. To complain that Obama lied in 2008-2009 because three years the Chief was compelled by a canon of statutory construction to uphold it as a tax on lacking insurance rather than a mandate to purchase insurance is dishonest; it puts politics ahead of truth. There are plenty of reasons to fault Obama without inventing new and spurious ones.
"Eric, thanks for handing Simon his head."
Right, because ignorance or revisionism is "handing [one one's] head." Don't tell me that the Democrats didn't court GOP votes as cover for Obamacare--I was there. I saw it happen. So don't tell me that it didn't happen just because you're too young, too forgetful, too fearful, or too dishonest.
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