March 4, 2015

SCOTUSblog reports from the oral argument in King v. Burwell.

By Eric Citron. Excerpt:
[Justice Kagan... offered (something like) the following example:  Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A’s memo, and then I tell law clerk C to write such memo if law clerk A is too busy.  And imagine that happens – law clerk A is too busy, so law clerk C writes it.  Should law clerk B edit it?... In response, petitioner’s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance.  But that seemed to play into Justice Kagan’s hand, who made clear that this was her point – that in understanding this text, the context obviously mattered....

[Justice Kennedy]... pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges.... not just [because otherwise] their citizens would be denied benefits... [but also because] state insurance systems will fail if the subsidy/mandate system created by the statute does not operate....  For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein....  Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.”
ADDED: I need to see the whole transcript — context matters! — but if this accurately portrays Kennedy's overall analysis, I think the government will win. This idea is that the challengers' interpretation asks the Court to read the statute to do something that would have to be stricken down as unconstitutional, because it would coerce the states to set up the exchanges. Congress lacks the power to commandeer the states and may only offer the states a choice. If the incentive to make the choice Congress wants is too heavy-handed — as it was with the Medicaid expansion in the 2012 Obamacare case — the would-be incentive is viewed as coercion. So if the provision is unconstitutional under the challengers' interpretation, in Kennedy's view, he will have reason to agree with the government's interpretation (that is, he would follow the doctrine of constitutional avoidance).

AND: SCOTUSblog has a second person, Tejinder Singh, also doing mid-argument reporting. Excerpt:
Justice Breyer [noted] that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical... The statute provides that insurance shall be made available on exchanges to “qualified individuals,” and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.” The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the [HHS] exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).

85 comments:

traditionalguy said...

That is a concerning concern by swing vote Kennedy. It is almost troubling.

mccullough said...

Interesting point by Kennedy. So it's unconstitutional. What's the remedy, then? That all states get to rob off the exchanges to the Feds if they want?

BDNYC said...

So Kennedy's solution is to rewrite the law?

Nonapod said...

Who can divine the ephemeral whims of the great demigods Roberts and Kennedy? Surely they are far beyond the understanding and pleas of we mere mortals.

chuck said...

“serious unconstitutional problem.”

Well, yes, that *is* the problem. Is it Kennedy's position that the Supreme Court should avoid constitutional problems? If so, what is the point of having a Supreme Court? Am I missing something?

Fernandinande said...

Justice Kagan... offered (something like) the following example: [...pointless blather]

How many Obamacares can dance on a pinhead?

CWJ said...

What was it; something like 37 states said no thank you to setting up exchanges? Doesn't seem like the coercion was all that coercive.

Anonymous said...

In the earlier case, Kennedy recognized that Congress did, indeed illegally attempt to coerce the states into expanding Medicaid, joined the other justices in striking down that portion of the statute. How is it a stretch to conclude that Congress was illegally attempting to coerce the states in this section, too?

LYNNDH said...

The vote will go 5-4 to uphold BOCare.

dbp said...

If you hold the law up to the light, just so, it almost looks constitutional.

rhhardin said...

It's a living Constitution. It says go with the plan.

Laslo Spatula said...

We'll take the some of the shit out of the shit sandwich but you still gotta eat the bread.

I am Laslo.

dbp said...

My question is this: If the justices rule that the IRS must follow the letter of the law. Can they also rule that this provision is unconstitutional, or do they have to wait for a lawsuit that makes this complaint?

Seeing Red said...

From a non-legal POV, I agree with Fernandinande it's pointless blather because they're all law clerks, they should know the law and the failure to catch it is where the buck stops. Your name is on the opinion, why aren't you reading your subordinates' work?

They tried to pull a fast one. Congress is filled with lawyers. Proofread so we don't have to pass the damn thing find out what's in it. Someone should have caught it.

DO YOUR JOB.

How much has that costs the US taxpayer legal fees?

Larry J said...

So you believe the SC will rule that the literal text of the law doesn't mean anything. I tend to agree. They've already proven countless times that the literal text of the Constitution doesn't mean anything, so why should this law be any different?

Tank said...

I smell a penumbra emanating.

It is a foul odor indeed.

Laslo Spatula said...

"I smell a penumbra emanating."

I think Ginsburg fell asleep and a little seeped out.

It is polite to pretend to not notice.

Or blame it on the dog.


I am Laslo.

mccullough said...

As an empirical matter, it's not coercion since so many states didn't establish an exchange. But if the Court goes that route, then it good be good in the long run since federal coercion would be much easier to establish.

I sense Roberts writing the opinion saying that it is coercion.

mccullough said...

This law is so poorly written in parts, that it's tough to call it a law. It's more like wishes and desires. But the government will crack down on the non politically connected. And fools will still talk about the Rule of Law.

Jim said...

The ACA is crap. Its orwellian, and not just the name. If congress did its job, none of this would be an issue.
Its a law, yeah right. So obama can just change it at will, extent deadlines, requirements etc.
Its a sad pathetic joke. rule of law, yeah thats it.
Let's just await word from on high, we are obviously too stupid to live our own lives with out the elites.

Seeing Red said...

Of course it's going to be found legal. Roberts can't have it any other way.

MadisonMan said...

It's more like wishes and desires.

Wishin' and Hopin'
and thinkin' and prayin'
Plannin' and dreamin'
each night of the laws
Enacted despite all their flaws

So if you're lookin' for laws to enact
All you gotta do is
Write 'em and sign 'em, defend 'em;
You've made a Devil's Pact.

Seeing Red said...

Now obama is working on a way to raise taxes by Executive Order.

Call him Pharoah, so let it be written, so let it be done.

Michael K said...

The Supreme's may make Finley Peter Dunne prescient. "The Supreme Court reads the election returns."

Only the presidential returns but that's what seems to be happening.

Justice Marshall is spinning in his grave.

Johanna Lapp said...

Althouse: If the incentive to earn the subsidy is unconstitutional, why wouldn't that void the subsidy altogether? I take your comment to mean that the incentive only is voided and therefore the subsidies must be free for all. Do I miss your point?

Nonapod said...

" and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.” The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the [HHS] exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).

This reads like some sort of whimsical Lewis Carroll paradox involving a tortoise at a barber shop or something.

rocky17582 said...

But the Medicaid expansion coercion wasn't known by the Dems in Congress to be unconstitiutional at the time they wrote the damn thing, only later after the court case.

cubanbob said...

.. [but also because] state insurance systems will fail if the subsidy/mandate system created by the statute does not operate.... For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court..."

Maybe it's bridge too far for these Supreme Fools to understand that health insurance is an intrastate product and its the States that regulate what policies are sold in their respective state. 37 states decided they didn't want to be part of this federal scheme. What part of this is too difficult to understand? Let the states that chose to be in the federal scheme be subject to a federal tax surcharge to finance this scheme and the others to run their health insurance schemes as they were doing so before.

Revenant said...

"That can't be what the law says, because if the law said that it would be unconstitutional" is logically fallacious reasoning.

Matthew Sablan said...

"Justice Breyer [noted] that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical."

-- Which is why they should be more careful writing laws.

Larry J said...

Seeing Red said...
Now obama is working on a way to raise taxes by Executive Order.

Call him Pharoah, so let it be written, so let it be done.


Obama is inside the Republicans' OODA Loop. He's acting faster than they can react. Since the Republicans have openly stated they won't impeach Obama no matter what he does and Obama shows disregard for the courts, the only thing that can stop him is if enough Democrats turn against him to overturn some of his vetoes. There is no evidence of that happening. It's going to be a long 22 months, 2 weeks and 1 day until someone else takes office, and there's no guarantee that person will be any better.

Bob Boyd said...

Petitioner brings a can labeled ACA to the Supreme Court and tells them its actually a can of worms.

The Supreme Court rules:
1) That it is indeed a can of worms.

2) The can in question will opened anywhere but here.

Matthew Sablan said...

"He also argued that the federal government’s interpretation would create more anomalies, including the potential loss of Medicaid funding for states that don’t establish exchanges because they could not ensure coordination between the federal exchanges in their states and other relevant officials (a prerequisite to Medicaid funding)"


-- I thought that was the point of the requirements? To hold the citizens hostage until the states' submitted.

cubanbob said...

Larry J said...
Seeing Red said...
Now obama is working on a way to raise taxes by Executive Order.

Call him Pharoah, so let it be written, so let it be done.

Obama is inside the Republicans' OODA Loop. He's acting faster than they can react. Since the Republicans have openly stated they won't impeach Obama no matter what he does and Obama shows disregard for the courts, the only thing that can stop him is if enough Democrats turn against him to overturn some of his vetoes. There is no evidence of that happening. It's going to be a long 22 months, 2 weeks and 1 day until someone else takes office, and there's no guarantee that person will be any better.

3/4/15, 11:17 AM"

The Republicans can only operate in the real world and in the real world The First Black President cannot be impeached and removed. As for the OODA Loop, maybe. Or maybe it's simply letting Obama set the principle for the next President to do the same except to a manner not to the liking of the Democrats.

BarrySanders20 said...

Jonathan Alter wrote this is September, 2011 on Volokh:

"While it is certainly plausible – perhaps even likely – that many in Congress wanted tax credits for the purchase of health insurance to be broadly available, there is also ample evidence that the ACA was designed to induce states to create exchanges of their own. For example, Section 1311 directs states to create exchanges.

As in other policy areas, the federal government can’t force states to comply, so it uses a combination of positive and negative incentives – in this case, subsidies for creating exchanges and the threat of a federally run exchange if a state does not create one on its own. In this context, limiting the availability of tax credits to insurance purchased in state-run exchanges can be seen as just an added inducement. Much like the Clean Air Act threatens states with the loss of highway funds if they fail to adopt sufficiently stringent pollution control programs, the ACA as written threatens states with the loss of tax credits for state residents if they do not create an exchange. Such a policy may not be wise or fair – and may undermine the goal of getting more people insured – but it takes far more than that to justify ignoring a statute’s plain text."

Kennedy is acting as the concern troll. Government wins if he follows through, but there is plenty of reasons why he doesn't have to.

Interesting that everyone acknowledges the ACA caused premiums on the individual market to soar. Combined with the mandate to purchase the now-prohibitively expensive coverage, Kennedy worries that the state insurance market for individual coverage might be disrupted if the government subsidies are cut off to help pay for the government- forced price increase (that he found unconstitutional). Yet it appears Congress intended that inducement/coercion.

Whatever happens, it's the very best law, and Obama is the very best president ever.

Laslo Spatula said...

"So if the provision is unconstitutional under the challengers' interpretation, in Kennedy's view, he will have reason to agree with the government's interpretation (that is, he would follow the doctrine of constitutional avoidance)."

In other words, Government gets the benefit of the doubt.

If this is to be an overriding Constitutional understanding than why would we even need a Supreme Court? Sounds like they will interpret the Law in a manner that renders them unnecessary and obsolete.

I am Laslo.

Matthew Sablan said...

I don't see how saying "reading the text in context" is a big win for anyone. Petitioners are saying "the text and context make it clear what the state means here." The government is saying "ignore the context, look at what we want the context to be."

B said...

This idea is that the challengers' interpretation asks the Court to read the statute to do something that would have to be stricken down as unconstitutional

It wasn't written to be unconstitutionally coercive. Only after the Medicaid ruling did that kind of coercion become unconstitutional.

1) Government writes law with coercion.
2) SCOTUS strikes down one element of coercion.
3) Second challenge finds other element of coercion.
4) SCOTUS upholds remaining law under different interpretation to avoid enforcing their own precedent.

Laslo Spatula said...

"If this is to be an overriding Constitutional understanding than why would we even need a Supreme Court? Sounds like they will interpret the Law in a manner that renders them unnecessary and obsolete."

It is not always blow-jobs, stalkers and anal sex.

I am Laslo.

MikeR said...

'So if the provision is unconstitutional under the challengers' interpretation, in Kennedy's view, he will have reason to agree with the government's interpretation (that is, he would follow the doctrine of constitutional avoidance).'
I don't follow this very well. It seems to be undisputable that the government did not think that this kind of this is unconstitutional, as Kennedy himself held that the ACA was written with just this type of coercian included in the Medicaid issue. Does constitutional avoidance require Kennedy to assume that Congress agreed with his decision on that case against Congress - when they wrote the law?

Laslo Spatula said...

"It is not always blow-jobs, stalkers and anal sex."

Unless you want to expand the Context.

I am Laslo.

mikee said...

When judges start deciding that words mean the opposite of what the words meant when written, there is no end to the folly that they can cause.



Peter said...

"Justice Breyer [noted] that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical...

So if ACA is so badly written as to be internally inconsistent, then it is the duty of the Supreme Court to fix these gross errors by "interpreting" it into a form that it "should" have?

But if the law couldn't possibly mean what it text says it means, then how is the Court to divine what it "should" mean?

Even if one claims to be able to find those emanations from penumbras cast by the U.S. Constitution, how would one go about finding enamations from something as massive (and as massively flawed?) as the ACA? (Or does that just mean it's time for a new metaphor?)

PB said...

Where to start?

Kagan seems an inferior intellect. Kagan's example is simply not relevant. She describes a procedure as opposed to a law that is being litigated.

In Kagan's example, perhaps the justice knows that clerk A is brilliant, but prone to simple mistakes and thus having clerk B edit is necessary. However clerk C is slightly less brilliant than A but makes no simple mistakes Yet takes longer to accomplish it than A and B working together. In this situation, ignoring the justice's directive and having clerk B review clerk C's work is not consistent with the justice's directive or intent.

Kennedy seems very concerned with the politics and future cocktail party invitations with his "... all but forcing..." logic and concern for economic consequences. "All but" is clearly not forcing as it clearly reflects states were to be allowed a choice.

God I wish there was someone to slap these people on the side of the head and make them stick to the law!

Brando said...

Sounds like they're going to rule in government's favor, though the reasoning Kennedy is using is poor--if the plain language of the statute leads to one reasonable interpretation, and that interpretation would make the law unconstitutional, then how is it desirable for the Court to find another, more tortured interpretation of the statute just to avoid the constitutional problem? It's Congress's job to avoid violating the constitution, not the Court's job to bail them out when Congress fails.

Left Bank of the Charles said...

You can't expect a bunch of Catholics to strike down universal healthcare. For that you need Protestants.

The drafters did seem to screw the pooch, but sometimes you get a pooch that can't be screwed.

PB said...

Thoughts Obama is fast coming to terms with:

Why do we need a Supreme Court if the president can just interpret it how he wants?

Why do we need a Congress if it slows things down and the president can just issue executive orders?

The next executive order will be, "I don't think we need a new presidential election in 2016. The Constitution doesn't fit the needs of a modern society. It's just words."

Eustace Chilke said...

Finding a way to make the law mean whatever government authority wishes it to mean has long been the court's job description. Why would they change now? We can hope, but I've never thought it a good bet. If the government loses then there's still the Republican congress, standing bye in a sweat of eagerness to capitulate and call it a win. Sometimes I just want to vomit and never stop.

PB said...

If the justices rule in the government's favor, please tell me how this places any limits on presidential power? Context is a rhetorical device and in the hands of a slippery con man, everything is up for grabs.

PB said...

In our country today, there is no limit on presidential power, except an armed citizenry sufficiently motivated and organized. Something Obama wants badly to correct.

PB said...

Justice Breyer's concern about "qualified" individuals is not nonsensical. It is merely redundant.

Justice Kagan's poor understanding of economics cries out in her thinking that if there is no exchange created by state there wouldn't be an exchange created by the federal government and thus there wouldn't be any insurance company offering policies. That would clearly not be the case.

If a state chose not to create an exchange, these true-believing democrats would willingly create a federal exchange for the state because they fervently believe that it is the legislation that creates "affordable" care. The modern democrat definition of "affordable" is completely disconnected with any other rational person. If the lowest priced policy on the federal exchange were $5000 but with no state exchange and thus no mandate, insurance companies were offering policies at $3000, the democrat would insist that $5000 is more affordable than $3000 because it offers more things, regardless of whether these are applicable or of interest to the consumer.

Brando said...

Looking ahead--and accepting that ACA will probably stand until 2017--the question is what if anything the GOP will do to replace or reform the law. Even if they keep Congress and win the presidency in 2016, I don't see total repeal as a viable option--not after so many have had subsidies for a few years, and the insurance lobby has gotten used to it. At best, they'd have to take away less popular parts of it (maybe reduce or eliminate the individual mandate penalty, or get rid of the employer mandate, or loosen some restrictions). It would be a good idea now to come up with some proposals to do this so they have something to run on next year.

It would be nice if this mess were never passed, or if the Supreme Court could have established the precedent that the government can't just do everything it wants regardless of what the laws say, but this is where we are.

tim maguire said...

If the law is unconstitutional as written, then the law is unconstitutional. Period. It is not the prerogative of these appointed officials to rewrite the law as they think it should be written.

If they want that job, they are welcome to resign from the bench and campaign for it.

The more I read about these arguments, the more I fear for our republic.

Levi Starks said...

Government cannot lose. Ever.

wendybar said...

tim maguire said..."The more I read about these arguments, the more I fear for our republic."

I fear that we couldn't keep our republic.

Benjamin Franklin (1706–90)
QUOTATION: “Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

Hagar said...

The difference between the initial 2,700 pages of the AHCA and the current 900 pages apparently is that the first - the one they voted on - was typed triple-spaced in order to give room for writing in amendments in the legislating process.
It is my understanding that there are a lot of such handwritten changes in the original bill, including some that no one to this day knows who penciled them in, or why.

Did not some Supreme Court justice once opine that it was not the Court's job to teach Congress how to write bills or correct their English?

Bob Boyd said...

The SC will probably uphold the law as written. But it doesn't even matter.
If the SC overturns it, enough Republicans will vote with the Dems to fix the language.
And if not, Obama will pronounce the language fixed based on the precedent that somebody somewhere pronounced something fixed and the Republicans will pretend that they are going to defund something or other, then cave at the last minute.
And despite their fecklessness and treachery, they'll be re-elected on the ridiculous pretext that we'll need them to repeal the law in 2017.

Hagar said...

Can the Court declare the bill unconstitutional on the grounds it is so badly crafted they cannot tell what it is intended to do?

CWJ said...

There may be separation of powers, but in the end all three branches are on Team Gov. They are drunks leaning on each other stumbling home comfortable in the conceit that we commoners don't notice their inebriation. The public be damned. The edifice must be preserved.

tim in vermont said...

In the first case the unconstitutional coercion was through denying existing funding as punishment under a new law, in this case the coercion is through denying new funding.

But hey, it's all good!

Hagar said...

I think there is some precedent for that from state supreme courts doing that to state legislation.

Sloanasaurus said...

I don't get how Kennedy would know that the choice would be too "heavy handed." Not setting up an exchange (so that you don't get subsidies) is the choice that the state gets to make for its people. Its the same choice states made to not get additional Medicaid benefits. Also States not getting subsidies are also exempt from the mandates (individual and employer), so it is not as damaging as they think.

tim maguire said...

Hagar said...Can the Court declare the bill unconstitutional on the grounds it is so badly crafted they cannot tell what it is intended to do?

Yes, a law can be unconstitutional for vagueness.

TreeJoe said...

There seems to be some logical fallacies in the courts initial thinking here...

1. The law could have indeed meant to use the word "state" to represent individual states.

2. The law could have indeed tried to push states to setup their own exchanges but 2/3rds chose not too...

3. Yes, the government could have decided to implement the law differently than written as a result of states decision.

4. Yes, the law could be a piece of garbage because it falls apart due to how it was written and implemented.

...

None of these is a problem to the court of congress. The court interprets the statutes correctly and congress fixes problems in statutes it has put in place.

The executive branch is not meant to re-interpret statutes, congress is not meant to pass responsibility for fixing laws off to the courts or executive branch, and the courts are not meant to re-interpret language to make it work.

Why is that so hard to understand for so many?

Real American said...

if the plain reading of the statute renders the it unconstitutional, then strike down the entire fucking law - something the court should have done the first time!

machine said...

"In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them."

this is all just pretend...or lies.

machine said...

"I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition."

Matthew Sablan said...

Congressional intent is important, when the statue is unclear.

In this case, it seems clear to me what a state means. I think, though, the argument is going to come down to, "Come on! What I said isn't what I meant."

machine said...

If the Court follows existing precedent, however, it will look at the text of the statute as a whole, rather than at this single clause in isolation. If it does, the Court will see that reading “established by the State” as the limitation that Petitioners urge upon it makes it necessary for the Court to engage in endless rationalizations, evasions, and circumventions in reading the rest of the statute. Indeed, if the Court accepts their reading, at least fifty provisions of the ACA would be made anomalous, if not absurd."

let's not be absurd...

Matthew Sablan said...

Machine: In that case, each of those cases will need to be thrown out. The words have meanings, specific meanings that the people writing the law elected for those words to specifically mean.

If they're illiterate in their own legalese, that's a problem -- but not one for the court to re-draft the law for them. If the law is impossible to discern because of the various poorly held together clauses and subclauses and words needing to change meanings mattering on what result we think they should have had -- it needs to die.

James said...

There are several glaring problems with those arguments by the liberals.

First, it is blatantly circular logic at its finest. They are entirely correct that there would be no qualified individuals on the exchange established by the federal government under the correct reading of the statute. An "exchange established by the feds" is an exchange that should never have existed in the first place. The definition of "qualified individuals" is entirely consistent -- not inconsistent -- with the understanding that only states could set up the exchanges. The "inconsistency" they point out only exists when you start from the assumption that it was OK for the HHS to establish the exchange in the first place. And that's the issue that they're supposed to be deciding, not reasoning backwards from.

Second, if "context matters" then all the examples of people saying that they were going to force states to establish exchanges by having it be insane to do otherwise matter.

Third, if "context matters" then the fact that the "unconstitutional coercion" issue didn't exist at the time the law was written, and only comes into being after the groundbreaking anti-coercion precedent in the 2012 decision, is positively damning. The authors couldn't have been worried they were stepping into a trap because there wasn't one at that point. Context, baby.

Results driven activism at its most glaring.

Sebastian said...

"That can't be what the law says, because if the law said that it would be unconstitutional" is logically fallacious reasoning."

Hasn't stopped them before, won't stop them now.

Kagan is showing that our legal commenter, Simon, had too high an opinion of her. AA's favorite, Breyer, is equally "creative" (but not boring, God forbid, not boring).

Text be damned, active liberty rules.

Ignorance is Bliss said...

machine said...

"In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them."

this is all just pretend...or lies.

You are too hard on yourself, machine. What you quoted is not all lies.

But certainly the part about providing insurance subsidies for all Americans who needed them was a pretty blatant lie.

Ignorance is Bliss said...

machine-

forgive me if I missed it, but do you mention whom you are quoting?

Herb said...

this was deliberate language to force the red states into eventually adopting the AHCA.

Kagen's argument really doent make any sense either. if Clerk A is getting paid but clerk C is a volunteer and wont get credit or pay regardless but Clerk A will get paid for Clerk C's work or his/hers own regardless maybe that argument would spell out whats going on here.

n.n said...

It's easier to abort an unwanted clump of cells, predetermined to be human, than an unwanted clump of policies, projected to be law.

The Godfather said...

A question about the facts: Does anyone know whether ALL the States that opted not to establish exchanges did so only AFTER the IRS decided that subsidies would be available on the federal exchange? If some States made the decision not to establish exchanges even though they thought that this meant they would not qualify for subsidies, that refutes the coercion argument, doesn't it?

The Godfather said...

It's a well established principle that courts will seek to avoid an interpretation of a statute that would render it unconstitutional -- but this applies only if the statute is ambiguous. Is "established by the State" ambiguous?

The Godfather said...

In the Medicaid expansion case, the Court ruled that the law was improperly coercive in that States that didn't expand Medicaid would lose ALL federal Medicaid funding, which would force all States to expand Medicaid. Therefore, the Court held that such States could be denied ONLY the additional funding associated with the expansion and not the existing level of federal funding, thus leaving each State free to decide whether or not to expand Medicaid.

If Obamacare provisions would "destroy" a State's insurance industry unless it established an exchange, thus coercing the State to establish an exchange, wouldn't a proper response by the Supreme Court be to hold that the Obamacare provisions that would destroy the industry are invalid, rather than that the federal government can/must provide subsidies to State residents?

khesanh0802 said...

"Constitutional Avoidance" translates to me as "too chicken shit to make a decision."

Though the ramifications are not going to be pretty the law is clear and written as it was intended. I flash back to the tortuous rendering in Plessy v. Ferguson and wonder if these guys are going to fall into similar disrepute.

What really irritates me is that those who are arguing that there was no intent to coerce the states to establish their own exchanges are just plain lying.

BarrySanders20 said...

Godfather-- yes.

If Kennedy's logic holds, then the states that set up the exchanges are relieved of that unlawful coersion. A strange result what those states are not even before the court complaining. Talk about lack of standing.

Then the question remains whether its mandates and subsidies for all or for none.

Ignorance is Bliss said...

I don't see how Constitutional Avoidance buys the government anything. To apply Constitutional Avoidance the statue already has to support multiple valid readings, ie it must be ambiguous. At that point Chevron deference already applies and the government wins.

Big Mike said...

At that point Chevron deference already applies and the government wins.

And the people of the United States lose.

DavidD said...

Oh, what's the point in even having a judicial branch anymore, anyway? President Obama's already made the legislative branch obsolete. Why should the Supreme Court get any more deference than does Congress?

Let's just acclaim Mr. Obama Barack I and be done with it. All hail Emperoe Barack I.

DavidD said...

Oh, what's the point in even having a judicial branch anymore, anyway? President Obama's already made the legislative branch obsolete. Why should the Supreme Court get any more deference than does Congress?

Let's just acclaim Mr. Obama Barack I and be done with it. All hail Emperoe Barack I.