June 25, 2015

Healthcare!

Roberts writes.

Subsidies are available!

Big sigh of relief.

Chaos avoided.

"This means that individuals who get their health insurance through an exchange established by the federal government will be eligible for tax subsidies."

The government wins. The Chief is joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Scalia has a dissenting opinion.

And now this means that only another opinion by Roberts can come out today. But no, that's it for today. The rest, including same-sex marriage, will come tomorrow.

Here's the PDF of the opinion.

ADDED: The majority says that Chevron deference — which asks only "whether the agency’s interpretation is reasonable" — has never applied applied "in extraordinary cases," where there's reason to "hesitate before concluding that Congress has intended" to delegate to the agency the authority to "fill in the statutory gaps." Here, the tax credits are "key reforms, involving billions of dollars," with big "economic and political significance," and the agency making the decision is the IRS, which "no expertise in crafting health insurance policy."

Without Chevron deference, it's the Court's job to say for itself what the statute means.

The losing side in this case rested heavily on the argument that the statute was clear (that there were no subsidies for states that didn't set up their own exchanges and left it to the feds to set up exchanges), but the majority found ambiguity. It blamed Congress for "inartful drafting," for writing "key parts of the Act behind closed doors, rather than through 'the traditional legislative process,'" and for using "reconcilation" instead of leaving the bill open to debate and amendment.  In a sly reference to Nancy Pelosi's "we have to pass the bill so that you can find out what is in it," Chief Justice Roberts quotes an old Felix Frankfurter article — "Some Reflections on the Reading of Statutes, "47 Colum. L. Rev. 527, 545 (1947) — that described a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.'").

Since the text is ambiguous, the Court looks at the statute's "broader structure" for meaning, and the need to prevent the "death spiral" determines the outcome. The Court rejects the idea that Congress intended dire consequences, that it wanted to make an offer the states couldn't refuse, because Congress "expressly addressed what would happen if a State did refuse the deal."

AND: Justice Scalia dissents, joined by Justices Thomas and Alito. He finds clarity in the key phrase and proclaims: "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.'" He accuses the majority of "interpretive jiggery-pokery" in pursuit of "the overriding principle": "The Affordable Care Act must be saved."
The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.... We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct....

It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility....

318 comments:

1 – 200 of 318   Newer›   Newest»
Mark said...

Republicans got lucky.

Jake said...

Sellouts.

sparrow said...

The government wins; meaning the people loose

PB said...

This means that Congress doesn't have to go back and fix wording "mistakes". The President or his Secretaries, or lower level functionaries can perform the function. Why bother with legislation at all now?

Ignorance is Bliss said...

Chaos avoided.

In what way does making this a country of men and not laws avoid chaos?

Mark said...

I hear Scalia rebrands it SCOTUScare in his opinion.

Michael K said...

As Mr Dooley said, "The Supreme Court reads the election returns."

I guess this means Roberts votes for Hillary!

I wonder what they have on him ?

PB said...

This is a pretty dark day. With the Texas Housing ruling, the Federal government can now implement their plan to integrate neighborhoods and laws passed by Congress are only "guidelines". Rule by Pirate Code!

Jake said...

"(Understatement, thy name is an opinion on the Affordable
Care Act!)"

garage mahal said...

Great news for red states.

Sebastian said...

When read in context, the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits. If a State chooses not to follow the di- rective in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Ex- change.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same."

Talk about sophistry.

Matt Sablan said...

Wow.

Well, I guess words don't mean things any more.

Anonymous said...

At this point, it's almost a good ruling in so far as bad rulings can be good.

The sooner it all burns, the sooner we can rebuild.

Why do we need law professors anymore? The law means exactly what I say it means, no more, no less.

Real American said...

the Supreme Court is a fucking joke

The Cracker Emcee Refulgent said...

Mark is right. This keeps Obamacare a wholly Democrat owned farce.

Tom said...

So does this mean that Red States get the subsidies without having to anything (accept Medicaid expansion) to qualify?

damikesc said...

No point in having a government. Laws are whatever courts say they are, ignoring whatever is written.

MacMacConnell said...

The Word of a law no longer matters.

Henry said...

This means that Congress doesn't have to go back and fix wording "mistakes". The President or his Secretaries, or lower level functionaries can perform the function. Why bother with legislation at all now?

The fact that Congress doesn't have to, doesn't mean that Congress can't. The Supreme Court doesn't have to settle the balance of power between the executive and legislative branches by parsing clauses like a bunch of glorified copy editors.

This is a win for the judicial philosophy of pragmatism. I know Althouse has written about this before. I searched and found:

Justice Kennedy has already shown a tendency to stay in the middle, and I think Roberts is something of a pragmatist.

From 2005!

PB said...

This also justifies Congress in ramming though massive legislation that is never read prior to voting. The legislation will become even sloppier. The administration's ability to interpret it however they wish will expand.

damikesc said...
This comment has been removed by the author.
Anonymous said...

They caved to the bully in the White House. What a bunch of pussies..

cubanbob said...

What a disaster. Written law means nothing anymore. It means whatever a bureaucrat says it means when he or she decide what it means. Might as well abolish Congress and The Supreme Court and save some money since for all practical purposes they no longer have any function.

firstHat said...

The Healthcare law wins. People needing healthcare have lost.

Curious George said...

"It is,” he wrote, “not our job to protect the people from the consequences of their political choices.”

Until now.

Matt Sablan said...

It sounds like, from the bit I've seen posted, that the Court basically said: "Our job is to find an interpretation that does what Congress wanted, even if it isn't what is said."

What's the point of written law if what is written doesn't trump what people say they wanted it to do? What's keeping Congress from lying about their intent of written words to get the court's to change the plain meaning of law?

Matt Sablan said...

"This is a win for the judicial philosophy of pragmatism."

-- This is politically pragmatic, not judicially so.

who-knew said...

As I've said before, we no longer have the rule of law in this country. You can't conform your behavior to what the written law because the courts have found over and over again, that what was written doesn't matter. The federal bureaucracy now rules this country unchecked by congress or the courts. At best, your presidential vote supports a figurehead king whose only has real power comes from his ability to influence the bureaucrats. It is another sad day for the United States.

Eric the Fruit Bat said...

I'm looking forward to the internet coverage of the angry mob charging the steps of SCOTUS.

Bonus points for a rebel yell and a Confederate Battle Flag!

PB said...

The final months of the Obama administration are going to be very "interesting".

Larry J said...

So the law doesn't mean what the law actually says. Noted. That means essentially there is no law anymore. The courts and the executive branch are free to just make shit up as they see fit. Noted. Like "equal justice under the law", "we are a nation of laws, not of men" is another one of the pretty lies government tells us.

rhhardin said...

It certainly is a piece-of-shit court.

Bobber Fleck said...

This is great day for those who believe the words of the law say whatever we want them to say.

pm317 said...

wow, Obama is one lucky bastard. That is all I got to say.

Anonymous said...

Blogger Eric the Fruit Bat said...
I'm looking forward to the internet coverage of the angry mob charging the steps of SCOTUS.

Bonus points for a rebel yell and a Confederate Battle Flag!


That confederate battle flag may be needed sooner than people think. Ironic that when it's going to be needed most, it's being taken down.

Hagar said...

I hope this decision will be about as successful as Chief Justice Taney's Dred Scott decision was in ending the fighting over slavery.

damikesc said...

Also time to stop voting Republican. Let the country melt down. The justices Republicans nominate are, frequently, identical to Democrat judges anyway.

Let the country rot and die. Fuck the USA

Rae said...

So the plain text of the law doesn't matter if it contradicts the intent of the legislature. Am I understanding this correctly, Professor?

garage mahal said...

wow, Obama is one lucky bastard. That is all I got to say

I think Republicans having to explain why they favored yanking health care from their constituents are luckier.

Anonymous said...

Blogger Rae said...
So the plain text of the law doesn't matter if it contradicts the intent of the legislature. Am I understanding this correctly, Professor?


Only until the intent of the legislature was that of conservatives. Then the rules change.

Tank said...

Roberts cements his legacy.

The transformation of this country from what it was before to what it will be moves a giant step forward.

It all depends on what kind of country you like.

#gamergate all the way down.

machine said...

so it says something in a 1000 places, but something different in 1 place, but the 1 place should override the 1000 other places.


yup, words don't mean anything anymore...

PB said...

Does this mean that all legislation must now have an "intent" section by which all interpretations must follow or is "intent" merely what the executive who signed it says it is? Seems like it would enshrine a constitutional role for ex-presidents. President Emeritus.

Matt Sablan said...

Like with the not-a-tax decision, this was found the only way anyone thought it could be found. By essentially delegitimizing our process.

In the first ACA decision, we learned that the Congress can lie to us about what a bill is/does, and that's fine. We can then change the law to expose their lies after it is passed.

We've now learned that Congress can ask us to re-interpret already written and passed laws in new ways not supported by plain meaning or legislative history, because they made a mistake.

The law is meaningless since it is now a function to the winds of change. Most big laws [murder, etc.] are not going to influence this. But you can bet there will be selective readings of taxes, fines, regulations, etc., etc. in ways to benefit some and hurt others -- and they need not even be consistent if Congress says "Wait, no, that's not what we meant last time you asked."

Mark said...

All these conservatives here acting like toddlers being forced to share toys.

The same people who kept saying 'Walker won, deal with it' now show how well they take decisions they don't like. They hypocrisy is deep on Althouse today.

Cannot wait for the gay marriage ruling and the hyperbolic claims of the altbillies.

Tank said...

On Wednesday Nation of Islam leader Louis Farrakhan told the congregation at Metropolitan AME Church in Washington that it was time “to put the American flag down.”



Well, he's right isn't he. What the American Flag represents does not exist anymore.

etienne said...

Death Spirals are way too capitalistic, go with the interpretation that supports social welfare.

tim maguire said...

Roberts' Rules baby! The final victory of the administrative state over the democratic institutions is complete!

As a strategic matter, I believe garage mahal is right that the red states dodged a bullet with this ruling. If the plaintiffs won, opposing a fix would be political dynamite, and once a fix was voted in, all hope for repeal would be over. By removing this step, the traitorous Dread Judge Roberts keeps repeal alive.

Mike (MJB Wolf) said...

OK you guys were right about Roberts. Crap.

Rick said...

damikesc said...
No point in having a government. Laws are whatever courts say they are, ignoring whatever is written.


This case means something slightly different, that the law is whatever the implementing agency says it is regardless of the written law.

It's always been this way for small things, because the cost of correction is too great. But now we've succumbed even for larger issues. As long as the responsible agency makes a clear statement the law is effectively changed. It's always been the left's goal to control our institutions for exactly this purpose. As long as they control government, academia, and the media they can change the rules we live under in their favor even if they cannot pass these rules changes democratically.

rhhardin said...

The chaos avoided is at the price of thousand-time-bigger chaos that the law has been and is inflicting.

tim maguire said...

Umm...Mark...Walker won a democratic vote. Does someone need to loan you a civics book? Or a dictionary?

Matt Sablan said...

I have no problem "dealing" with the decision.

The problem is that, to effectively deal with it, I have to accept that I can make no intelligent decision on passed laws based on reading them. I must wait for their true intent to be divined.

tim in vermont said...

I guess it is a fair assumption that a law rammed through under cover of darkness which people were forbidden to read until it passed, and which never went through reconciliation is going to be ambiguous in places and therefore mean whatever the executive decides it means.

Noted.

Beloved Commenter AReasonableMan said...

Politically this is a loss for the Dems. They could have ridden stories about red staters dying from the loss of their health care all the way to the White House while the Repubs dithered and bickered for months over what to do.

Hillary is the saddest woman in America today.

Mike (MJB Wolf) said...

"This is a win for the judicial philosophy of pragmatism."

-- This is politically pragmatic, not judicially so.


Yes, Matthew Sabian, yes.

damikesc said...

Why should Congress even WRITE laws? Seems a wasteful step.

Tank said...

@ARM

Probably right.

CWJ said...

As I said of the Texas license plate ruling, when push come to shove, the various arms of government willl bail each other out. All professions are conspiracies against the laity.

HoodlumDoodlum said...

Well, what else did you expect?

Larry J said...

Matthew Sablan said...
I have no problem "dealing" with the decision.

The problem is that, to effectively deal with it, I have to accept that I can make no intelligent decision on passed laws based on reading them. I must wait for their true intent to be divined.


This is the new legal principle called the Pryor Dictum (after Richard Pryor), "Who are you going to believe, me or your lying eyes?"

Nation of laws, my ass.

JAORE said...

Short term chaos avoided. Long term chaos assured.

PB said...

If the "intent" was to:
1. Allow you to keep your insurance if you liked it.
2. Allow you to keep your doctors of you liked them.
3. Lower the cost of healthcare by $2500/family.
In a world where outcomes is all that matters, how can the legislation be upheld?

Chuck said...

I see a larger problem in this decision, particularly pertaining to Roberts and also to Kennedy. Which is that the highest levels of the legal profession, carefully sculpted by law schools, the largest corporations and legally-influential institutions like the Justice Department and federal court chambers, are all not just tilting leftward on all manner of social and governmental issues; they are openly hostile to traditional values and conservatism.

garage mahal said...

Hillary is the saddest woman in America today.

The Republican nominee isn't going to run on full repeal?

Matt Sablan said...

The language here was clear: They meant state. They had the opportunity to include Federal exchanges and deliberately removed it from the law. From a documentary stand point, the intent was clear.

Imagine if this were a regulation about importing certain kinds of animals, that the punishment is years in jail. You see they removed X kind of cow from the import list during the final draft, so you import it thinking "It's OK. They removed it. It is not part of the 'don't import list'" Only, you get taken to court to find out in court, "Nope. We meant to keep it on there." Now, you're in jail for years despite having read the law and understood it.

That's a real thing that can really happen now.

Rusty said...

AReasonableMan said...
Politically this is a loss for the Dems. They could have ridden stories about red staters dying from the loss of their health care all the way to the White House while the Repubs dithered and bickered for months over what to do.


Agreed

Hillary is the saddest woman in America today.

That probably happened on the honeymoon.

Unknown said...

When Gruber mentioned stupid voters, he was referring to six Supreme Court Justices. Who knew?

Theranter said...

"PB said...This means that Congress doesn't have to go back and fix wording "mistakes". The President or his Secretaries, or lower level functionaries can perform the function. Why bother with legislation at all now?"

Scalia:
“…The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.


“Just ponder the significance of the Court’s decision to take matters into its own hands. The Court’s revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act’s individual mandate, whose scope depends in part on the availability of credits. What a parody today’s decision makes of Hamilton’s assurances to the people of New York:...”

Anonymous said...

Blogger AReasonableMan said...
Politically this is a loss for the Dems. They could have ridden stories about red staters dying from the loss of their health care all the way to the White House while the Repubs dithered and bickered for months over what to do.

Hillary is the saddest woman in America today.


Blogger garage mahal said...
wow, Obama is one lucky bastard. That is all I got to say

I think Republicans having to explain why they favored yanking health care from their constituents are luckier.


Whereas the rest of us are less concerned with politics and more concerned with the rule of law and our nation.

Joe Schmoe said...

Chaos avoided.

Wait until the risk corridors go down and the Cadillac tax kicks in. Not only did you need to pass the law to find out what was in it, you have to wait 3 years for ALL OF THIS P.O.S. to kick in.

Bob Ellison said...

We never can win against so many Poozers.

wildswan said...

Reading an interesting book - The Iraq War by John Keegan which discusses the "olympian attitude" now dominate in the European Union and which sees the Executive arm as the arm which makes the rules. The legislature is merely able to assent or disagree like the Russian Parliament in 1905. Hence the bureaucrats and their rules whose power comes from the King=Executive) trump the legislature. I wonder if that is not Obama's vision. It is totally unconstitutional which would explain why he never explains it. It is not essentially socialistic but rather just sees government by the executive as over all and as the way to go to achieve international order. The return of the king and the aristocracy. Rule by Executive action. The way to rule by the UN achieved by a secret confederacy of bureaucrats. Peace in our time. Corrupt people like Hilary rising because she shares the vision.

Or maybe not. These are tough times.


Anonymous said...

Blogger Matthew Sablan said...
The language here was clear: They meant state. They had the opportunity to include Federal exchanges and deliberately removed it from the law. From a documentary stand point, the intent was clear.

Imagine if this were a regulation about importing certain kinds of animals, that the punishment is years in jail. You see they removed X kind of cow from the import list during the final draft, so you import it thinking "It's OK. They removed it. It is not part of the 'don't import list'" Only, you get taken to court to find out in court, "Nope. We meant to keep it on there." Now, you're in jail for years despite having read the law and understood it.

That's a real thing that can really happen now.


Just call is Chevron and that makes it ok.

Todd said...

The Supreme Court has ruled that words don't mean what you think they mean.

Will we now have to send dictionary proofs through SCOTUS every year so that they can change the definitions of words to suit their needs?

Mark said...

Hell of a straw man you built there, Matthew.

Mike (MJB Wolf) said...

Holy crap I even agree with Garage!

wow, Obama is one lucky bastard. That is all I got to say

I think Republicans having to explain why they favored yanking health care from their constituents are luckier.

Matt Sablan said...

It's not a strawman Mark. It is an analogy.

The law was written in one way. The history of the document shows us that certain language was removed. Later, we find out, "Nope. We wanted it to say what it said before that we then changed to say a different thing, and we're going to hold you to the previous version we didn't approve, and in fact, we are going to tell you the version that we DID approve isn't right."

That's what happened. Why shouldn't we strike it down and force Congress to do it the right way?

Political expediency is the reason.

The Cracker Emcee Refulgent said...

"Politically this is a loss for the Dems. They could have ridden stories about red staters dying from the loss of their health care all the way to the White House while the Repubs dithered and bickered for months over what to do."

ARM gets one right. Republicans have been gifted with two whomping mid-term victories due to the Obamacare fiasco. It's likely to be the gift that keeps on giving, politically. Political junkies rail against low-information voters but the fact is that with every disaster of my lifetime, from Vietnam to Obamacare, the train wreck has to be seen to be understood. That's a political reality that, in the case of Obamacare, will rebound in conservative's favor.

Henry said...

Scalia's dissent is very entertaining.

The Court interprets §36B to award tax credits on both
federal and state Exchanges. It accepts that the “most
natural sense” of the phrase “Exchange established by the
State” is an Exchange established by a State. Ante, at 11.
(Understatement, thy name is an opinion on the Affordable
Care Act!) Yet the opinion continues, with no semblance
of shame, that “it is also possible that the phrase
refers to all Exchanges—both State and Federal.” Ante, at
13. (Impossible possibility, thy name is an opinion on the
Affordable Care Act!)

Left Bank of the Charles said...

Obamacare subsidies are saved by the word "such". It is such a lawyerly usage.

Henry said...

Nevertheless, for all those that bewail both the way Congress passed the law and the way the administration interprets, the answer is not more SCOTUS, but more Congress.

garage mahal said...

The language here was clear: They meant state

Then why did Congress include the federal fallback exchange for states that didn't create their own?

PB said...

"the train wreck has to be seen to be understood"? Perhaps, but the trainwreck of socialism and it's lesser forms has been seen for decades/centuries, but some never learn.

Insurance companies unchained.
Pharmaceutical companies unchained.
The economy bound and gagged.
The people in chains.
To a President king.

Matt Sablan said...

"Then why did Congress include the federal fallback exchange for states that didn't create their own?"

-- I don't know. I do know that they removed including federal exchanges in the part referenced. We shouldn't NEED to know. We shouldn't need to commune with the spirits of Congress past.

We should be able to pick up the law and interpret the clear meaning. Also: Remember, Congress also made multiple of the same sections in the law. So, the Occam's Razor for why they included those exchanges? Because they were sloppy drafters writing a law they didn't understand, read or care about.

kcom said...

We're all Chavistas now. Let's dump presidential elections and just vote for a caudillo. It would be more efficient. Oh yeah, Congress, you can go home.


CWJ said...

Obamacare's business model is like that of retail jewelry. Mark on item up and then put it on "sale" at fifty percent off. Unless one has no other option, no one buys jewelry at the marked up price.

But here's the difference. Think of the subsidies as "coupons" in order to get the sale price. The affordable price is dependent upon obtaing a coupon, but in the case of jewelry this is not difficult. A jeweler has every incentive to distribute his coupons as widely as possible. He's in the jewelry selling business. But government is in the influence peddling dependecy encouraging business, and its primary objective is to manage access to the coupons, not provide actual affordable health unsurance. The only people directly paying the jacked price are the poor rubes like me who get the 40% premium jumnp and have to write an actual check each month.

I have no respect for this ruling, but I have grudging admiration for the racketeers who set up yet another dependency scheme. Perhaps the biggest one yet.

PB said...

"the answer is more Congress": We here in Illinois have used the word "combine" to refer to the interchangeable Democrats and Republicans that serve the special interests to gain the political contributions at the expense of the economy, the law, and the people.

etienne said...

I like Scalia's sword in the gut:

the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Bad laws weigh the same when Lady Justice adds pet rocks to the scales, and the sword is dull anyway.

CWJ said...

As I said of the Texas license plate ruling, when push come to shove, the various arms of government willl bail each other out. All professions are conspiracies against the laity.

sparrow said...

A big step forward for the leftist tyrants: tomorrow they may advance another step by redefining marriage. Then comes the real persecution of the Christians. Slowly at first, just civil suit harassment at the start, but it's coming. The court, or one like it, will eventually decide that freedom of religion only means freedom to worship in some restricted time/space because that what the framers really mean, or some other excuse will be made. The efforts to hide the power grabs have been diminishing because they already have so much power they have little to fear. Maybe the next time they won't bother to given an excuse or write an opinion at all since words don't matter anymore.

Beorn said...

When in the course of human events...

Michael said...

Well, how nice it is to have these men and women correcting the inartful work of those idiots down the street. We are lucky to have them

Bob Ellison said...

Not a single Republican vote in Congress, and Congress has shifted drastically to the Republican side. Yet the SCOTUS knows what the people wanted. It's like Tarot cards.

Matt Sablan said...

On the bright side, sucks to be the states that made exchanges -- spending and wasting billions.

Shows them for following the law as written.

Brando said...

I didn't read the ruling yet, but can't imagine what legal reasoning would uphold this. Though in a way this is good news for the GOP--they avoided the "what do we do about the subsidies" question and took an issue away from the Dems in 2016 (when Hillary can avoid ownership of the poorly crafted law, but still rail against Republicans for not fixing it).

Matt said...

So, SCOTUS decided that Obamacare is too big to fail?

PB said...

Now, the first amendment and second amendment will be under direct attack from Presidental proclamations. Guns will be a healthcare crisis. Speech will be a healthcare crisis. The "intent" of PPACA was to lower healthcare costs and thus restrictions against the 1st and 2nd amendment will be implemented while court cases are filed and pursue a lengthy journey, never to reach the Supreme Court again.

After all, those were old, white, slave-owning men, and anything they did should be repudiated and ignored.

tim in vermont said...

We are always assured that SCOTUSCare is a big winner electorally. Yet it never seems to be. Obama rarely mentioned it in 2012. Pelosi and Reid were booted from their perches by the electorate because of it.

Yet we are assured, time and again, that it is a political third rail that can never be touched. Ohh kaay!

traditionalguy said...

Government as organized crime is a realistic assessment. All that "limited government with a separation of powers to restrain it" jive needs to be taken out of the civics courses. It is just as out dated now as the Confederate battle flag fantasy.

So maybe Elizabeth Warren's approach is what is needed today. Why not demand policies that are for Americans instead of for the International Taipans of wealth flows.

Then there is Donald Trump who understands them so well he can stand up to them. If he will do it.The rest of the GOP is as sold out as the John Roberts Court.

Jason said...

What. Great day for executive orders, signing statements and the American dream of Imperial Presidency!!

Michael said...

Doesn't matter. Interesting article in the WSJ this morning noting the large number willing to pay the fine rather than buy the insurance. We will end up where we started and know the place for the first time.

MadisonMan said...

This keeps Obamacare a wholly Democrat owned farce.

True -- but as the Republicans have offered no real credible alternative, I don't see how the Democrats Own This card can be played. As opposed to what? "Something Else" is not going to work, I don't think.

Robert Cook said...

"In what way does making this a country of men and not laws avoid chaos?"

That cruise missile was launched long ago.

Todd said...

garage mahal said...
The language here was clear: They meant state

Then why did Congress include the federal fallback exchange for states that didn't create their own?
6/25/15, 10:05 AM


WOW, you are something else garage.

The [dems in] congress wanted the states to setup healthcare exchanges because they wanted all people to have to get [their idea of] health insurance. People getting insurance was their goal. To coerce the states into setting up exchanges, they said "look at all of this money we will give you if you do and all of this money we will withhold if you don't" and if you don't your citizens will be forced to use this federal exchange that we are setting up AND your state citizens will not be able to take advantage of these nice subsidies that will lessen the cost of their premiums.

36(?) states still told congress to jam it. They went to court and fought and won the disentanglement of the state funds from the ACA so that knocked down one of the sticks. The only real threat left was the "no subsidies for you". SCOTUS just rules that is not "really" what the law says despite everyone involved in the law at the time saying that is exactly what it says.

I can not believe [but am forced to] that you are so partisan that you can not see how this ruling is really a bad thing. That the written law, the passed law, the implemented law does not in fact mean what it says it means. Instead it means what some people "believe" other people "really meant" when they wrote it despite all of the evidence that it was written as intended.

This now means that some future court can use this very same tactic against something you like or are in favor of. Just to pick an example, what if a future court rules that one person one vote really means "one veteran one vote" and only people that served in the military can vote? They could [based on this precedent] decide that as all original voting colonists were in the colonial militia, that that means only vets or active duty military can vote, case closed. Whether or not it is true or has any basis in fact no longer matters. What matters is what they feel it should mean. Ponder that.

garage mahal said...

We should be able to pick up the law and interpret the clear meaning

Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange.

Robert Cook said...

"Interesting article in the WSJ this morning noting the large number willing to pay the fine rather than buy the insurance."

It may be that the fine is far more affordable than the "affordable" private insurance. (Big surprise!)

Ty said...

"And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat."

tim in vermont said...

Even the head of the healthcare committee in Vermont that was pushing single-payer was defeated, in Vermont. And the governor barely achieved a plurality as votes were divided between a Republican and a Libertarian.

But Obamacare is a sure winner!

BTW, I could support single payer if it was payed for with the same kinds of regressive taxation that pays for it in the other countries that have it. Instead though, liberals insist on multiple goals, income equality after taxation and single-payer.

Talk about wanting your toys!

Michael Fitzgerald said...

Obamacare upheld.

Corruption rewarded.

Chaos inevitable.

Robert Cook said...

"A big step forward for the leftist tyrants...."

Don't forget the rightist tyrants!

I Callahan said...

It blamed Congress for "inartful drafting," for writing "key parts of the Act behind closed doors, rather than through 'the traditional legislative process,'" and for using the "reconcilation" process instead of leaving the bill open to debate and amendment.

So 6/9 US Supreme Court Justices took it upon themselves to finish the job Congress didn't do right, therefore letting Congress off the hook. Anyone else find it ironic that USSC admonishes congress but pulls them out of the fire?

cubanbob said...

tim in vermont said...

I guess it is a fair assumption that a law rammed through under cover of darkness which people were forbidden to read until it passed, and which never went through reconciliation is going to be ambiguous in places and therefore mean whatever the executive decides it means.

Noted.
6/25/15, 9:42 AM
AReasonableMan said...

Politically this is a loss for the Dems. They could have ridden stories about red staters dying from the loss of their health care all the way to the White House while the Repubs dithered and bickered for months over what to do.

Hillary is the saddest woman in America today.

6/25/15, 9:43 AM

Oddly enough both commenters despite being on opposite poles are right in the above comments.

tim in vermont said...

One thing that has become clear is that abstract rules and old fashioned concepts like the clear meaning of words are not any kind of political force anymore.

I Callahan said...

Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange.

Maybe, Garage, but the question is whether it is the USSC's job to interpret what Congress did AND fix it the way they think it should be fixed.

etienne said...

The only reason why anyone would allow a system where you sent half your salary to a bank, for 535 elected officials, and 25 million non-elected officials, and 35 million police officials to administer, is because they are communists.

The next thing you know, they will open the borders and allow non-citizens to vote.

Curious George said...

"garage mahal said...
We should be able to pick up the law and interpret the clear meaning

Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange.

You need to go back to whatever blog you read this and re-read, because it is idiocy. The Feds had to create an exchange for states that chose not to. That's how you sign up for insurance Corky. On the exchange. You cannot mandate an action and then not provide a conduit for that mandated action to happen.

The language of the law is clear. The intent was clear. It blew up in their faces being the dumbfucks they are and 6 justices said law doesn't matter.

tim in vermont said...

Except as they apply to weapons design and military tactics. Those will always require clear thinking. Other than that, we are back to where we were when we got the Magna Carta signed and began the long struggle for human freedom.

Beach Brutus said...

Justice Roberts’ ACA jurisprudence is a case study in Thomas Jefferson's comment to his nephew Peter Carr, "State a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules."

As Justice Scalia's dissent observes:

"Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual 'shall' maintain insurance or else pay a 'penalty.' 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. 567 U. S., at ___–___ (principal opinion) (slip op., at 15–45). The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. 567 U. S., at ___–___ (principal opinion) (slip op., at 45–58). Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an 'Exchange established by the State.' This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

The cleverness in Justice Roberts decisions is undermining the rule of law.

Matt Sablan said...

"Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange."

-- Then they should have left the language in allowing that instead of removing it intentionally. You say "They wouldn't have done a thing." But, they did that thing. Clearly. Consciously. In triplicate, probably, there is a carbon copy of the memo, signed saying to remove the language.

You literally just said "They wouldn't X!" The whole reason we're in this problem? They did X.

Theranter said...

Garage Mahal: said...
...I think Republicans having to explain why they favored yanking health care from their constituents are luckier.

Eric: Whereas the rest of us are less concerned with politics and more concerned with the rule of law and our nation.

Eric, I agree, and I'll add that the ACA in practice sucks for the consumer, doctors, and for our nations future. (#scotuscare sucks!)

Have you used it Mahal? I mean really used it, both purchased on the exchange and tried to get "affordable" care? (Or in some instances, care at all?)So Republicans better get busy explaining why they haven't killed this monstrosity and come up with a plan that genuinely provides coverage and not explaining as you contend "yanking health care from their constituents"

And yes, Congress may as well go home--for good. Let our now administrative state write all the laws, and when some peon American doesn't like it, file a complaint directly to SCOTUS whom will uphold (fix) it. It'll save a ton of money and oh so much greener to not have all those congresspersons flying here and there.

Scalia really nails it here:
"This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not.

[]But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

[]And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.

The Cracker Emcee Refulgent said...

"This keeps Obamacare a wholly Democrat owned farce.

True -- but as the Republicans have offered no real credible alternative, I don't see how the Democrats Own This card can be played. As opposed to what? "Something Else" is not going to work, I don't think"

"Credible alternative" seems to be an idea distinctly lacking from any political advertising I've ever seen. From anyone. Fixing blame is always more politically potent than fixing problems.

Hagar said...

"It is [ ] our job to protect the people from the consequences of their political choices.”

FIFY, John Roberts.

Big Mike said...

I'm pained, because IMAO the text of the statute was clear and there was more than ample evidence, from politicians as well as from the mouthy Prof. Gruber, that the text was meant to be interpreted precisely as stated.

OTOH, I see that Hawaii is being forced by economic realities to shut down its health exchange, and Maryland's exchange failed in time to help elect a Republican governor in a normally incandescent blue state. Does any state still have a functioning state-run exchange? Maybe legislating the creation of state health exchanges is like legislating a train that can exceed the speed of light? Democrats seem to believe that they can ignore the laws of economics with impunity. State health exchanges seems to be merely the latest example. So the question is, what is the Court to do when the law cannot be enforced as written due to the laws of physics or the laws of economics either one?

Matt Sablan said...

Also, remember: The people who wrote the law, a few years ago, insisted that how Scalia says the law should have run? They were 100% in agreement with him [no subsidies, states will suffer.]

It wasn't until recently they changed their minds and started to disagree with Scalia.

Yet, not a word of the law has changed.

Law CANNOT work like that in a good, lawful society. It cannot mean one thing one year, another thing the next, based on the whims of the elite.

cubanbob said...

garage mahal said...

The language here was clear: They meant state

Then why did Congress include the federal fallback exchange for states that didn't create their own?
6/25/15, 10:05 AM

The better question is why did Congress waste time with state exchanges when it could have simply created fifty federal exchanges or one national exchange.

sparrow said...

Mr Cook
Leftist tyrants overwhelmingly dominate right wing ones at the moment but in any case this is an erosion of the rule of law and reason. Also it is a show of raw power; if the court will not be constrained by the written word it will not be constrained by reason either. We are ruled by a judicial oligarchy with a Potemkin village for a Congress.

Matt Sablan said...

"So the question is, what is the Court to do when the law cannot be enforced as written due to the laws of physics or the laws of economics either one?"

You boot it as a political question. Or you say "It sucks it works that way, get on them to rewrite it" like when the law was determined to be a tax. Lots of options besides wishing one law into another.

MadisonMan said...

Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange.

That was exactly the intent -- as stated by the main author of the bill!

Congress is inept. I think we can all agree on that.

Chris said...

From the dissent:
The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not
this Court, responsible for both making laws and mending them.


If judges will endure, this erodes separation of powers, and it can surely be abused by a Republican administration, too.

Matt Sablan said...

Honestly, I'd have a lot more respect for the Supreme Court if the opinion read this:

"The only way this law works is for us to to change how it works. Letting Congress fix it will take too long and cause a lot of pain. We would rather citizens not suffer, so we're going to change the law. We're sorry that's how it is going to be, but we really don't want people to suffer."

That's really how the decision seems to have came about, so why not just tell us that straight?

Big Mike said...

It may be that the fine is far more affordable than the "affordable" private insurance. (Big surprise!)

Well, Cookie, it's not as though this wasn't predicted by numerous conservatives.

BxBomber said...

I wonder what the value of being a Constitutional Law Professor is when the Supreme Court makes decisions like this. Might as well be a tea leaf/tarot card reader.

Sebastian said...

"the majority found ambiguity"

There's that word again.

They "found" what they were looking for.

Tomorrow they'll "find" a right to SSM in the 14th.

So it goes.

Overlords telling us what they "find" = "chaos avoided." Right. Some order.

Swifty Quick said...

Roberts is dead to me.

Rick said...

The "ambiguity" the majority finds and relies on is between their (and public) expectations and the text. This is not an appropriate usage of the term in the context. The word describing the government enacting a different law than the public expected isn't "ambiguity" but "different".

walter said...


Blogger Matt said...

So, SCOTUS decided that Obamacare is too big to fail?

More like too nice to fail.

It's all good, right? As long as that nice road to hell is paved with good intentions.
Of course, after a couple runs through SCOTUS, the bandwagon will roll eyes at anyone who questions ACA: "Puhleeeze..give it up already" etc. "What are you..a SCOTUS denier?"

Great news for those IRS hires.

Matt Sablan said...

“In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

-- In short, "Yeah, we know we're re-interpreting the law. Just go with us, OK?"

Rick said...

Chris said...
They made Congress, not
this Court, responsible for both making laws and mending them.

If judges will endure, this erodes separation of powers, and it can surely be abused by a Republican administration, too.


I think it's too soon for jokes.

garage mahal said...

The Feds had to create an exchange for states that chose not to. That's how you sign up for insurance Corky. On the exchange. You cannot mandate an action and then not provide a conduit for that mandated action to happen.

No shit, Sherlock! Congress intent all along was to provide subsidies to people that live in states with asshole governors like Walker.

machine said...

“the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”



sick burn.

Matt Sablan said...

"Congress intent all along was to provide subsidies to people that live in states with asshole governors like Walker."

-- Unless you asked them three or four years ago.

Matt Sablan said...

Also: Here's a thought. Did Roberts vote with the majority solely so it would not be a divisive 5-4 decision?

garage mahal said...

-- Unless you asked them three or four years ago.

I don't recall any Republicans in Congress or conservative pundits arguing that states that don't set up exchanges are not eligible for federal subsidies.

Matt Sablan said...

"To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used." -- Scalia.

These are my two biggest issues with the decision.

The law, as it was few years ago, is completely different than today without anything changing but how the elites wanted it to work, no matter what hammering they had to do to language to make it so.

Matt Sablan said...

"The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements “would destabilize the individual insurance market.” Ante, at 15. If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says. Moreover, it is a flaw that appeared as well in other parts of the Act. A different title established a long-term-care insurance program with guaranteed-issue and community-rating requirements, but without an individual mandate or subsidies. §§8001–8002, 124 Stat. 828–847 (2010). This program never came into effect “only because Congress, in response to actuarial analyses predicting that the [program] would be fiscally unsustainable, repealed the provision in 2013.” Halbig, 758 F. 3d, at 410. How could the Court say that Congress would never dream of combining guaranteed-issue and community rating requirements with a narrow individual mandate, when it combined those requirements with no individual mandate in the context of long-term-care insurance?" -- More from Scalia, in response to Garage's "They'd never do that!"

But, they did!

walter said...

But Matthew..
"Dude." That was years before even Benghazi ;)

tim in vermont said...

So Congress better start getting some laws written and sent to Obama's desk attacking Obamacare, which is very weak politically, and forcing Hillary on the record as a staunch defender of every unpopular aspect of the law. Force Democratic Senators up for election to vote against these changes. Get to it. Repeal is a pipe dream, but the law needs a lot of reform.

Same as the Democrat party has declared every white person who identifies, however slightly, with the mythos of rebellion represented by the Confederate flag and irredeemable racist. I am sure that white votes will come pouring in on that one for Democrats too.

Mick said...

How dumb are you "law prof"?

This just proves that the entire government of the US-- ALL BRANCHES--- have committed treason against the US by allowing an ineligible non natural born Citizen, Hussein Obama, to infiltrate the WH, and bring with him the New World Order Puppeteers, enslaving us all, and removing US Citizen sovereignty.

Roberts is a criminal, and has been blackmailed into approving anything that the NWO and the ineligible puppet want to pass (he has illegally adopted chidren, and is likely homosexual). He flubbed the Presidential Oath in 2009 on purpose, then never even administered it in public in 2013.

You all need to wake up and understand what has transpired. There IS NO UNITED STATES. It has been Usurped by an ineligible executor of the laws. Thus the Constitution does not exist, and the law is only what evil and corrupt men/ women say it is.

Hussein Obama was born a British subject, and is likely still a British subject, under the yoke of the British Rothchild Banker control. We have been repatriated.

Only a new Revolution and hanging of the government conspiators who have committed treason-- including the Usurper, will restore the Republic.

PB said...

final word: get ready for the last months of the Obama administration. Barack unchained.

His preparation for his post-presidency foundation will begin and it will dwarf the Clinton's. We'll never be rid of that yapping jack-ass.

Mick said...

The Law had to say "established by the state" because the Federal government is not allowed to coerce the states to accept medicare expansion. Roberts is a criminal.

tim in vermont said...

The thumb has been on the scale ever since Souter lied his way onto the court and overrode a presidential election.

etienne said...

The part I don't understand, is Congress intended to create a system that can't pay for itself. That requires injection of money, at rates determined by insurance corporations. Why would they do that?

Thus by definition, it is a social program, paid by the Proletariat through wage deductions, to the Bourgeoisie.

Like all such programs; however, the wage deductions are far greater than the value of the service.

The only recourse is revolution, but the Proletariat are much too meek yet. We will need some kind of Perestroika to fend off the collapse. Like the Soviets, I don't think it will work though. The Constitution is on its last legs...

Chuck said...

Is garage mahal correct? Did Congress enact a federal healthcare exchange as a fallback for states that declined to create their own? I had thought that HHS created the form and the funding for the federal exchange as we now know it. Not Congress.

Who's right?

Chris said...

The law, as it was few years ago, is completely different than today without anything changing but how the elites wanted it to work, no matter what hammering they had to do to language to make it so.

We have a government not of laws, but women and men.

damikesc said...

I don't recall any Republicans in Congress or conservative pundits arguing that states that don't set up exchanges are not eligible for federal subsidies.

DEMOCRATS did, you fucking idiot.

Michael K said...

"t may be that the fine is far more affordable than the "affordable" private insurance. (Big surprise!)"

Cookie has it right here. The Obamacare act is so larded with Democrat constituency mandates that the cost is horrendous. I think Obama, who is preening himself this morning, has the instincts of a tyrant or Caliph if you will, and may not be able to resist the impulse to try to enforce the employer mandate. That will set off a firestorm. He doesn't have to stand for election again but Hillary and the rest of the remaining Democrats in office do.

So far, the Democrats have avoided the employer mandate even though it is part of the law. Interesting times, indeed.

Matt Sablan said...

It seems like there's a couple of schools of thought on this:

1. Victory for Obama/Democrats
2. Breathing space for Republicans
3. Political defeat for Republicans
4. This is bad for how we view society's approach to law

It's kind of a shame that even after a big ruling, we're all still kind of unsure how effective the law will be at getting people health care that no one is really talking about how good/bad the decision is in those regards. Because it's such a badly constructed law, we don't know!

damikesc said...

Isn't it time that we view an Ivy League education as a disqualifying factor in running for office? Has electing a crap ton of Ivies to office made ANYTHING better? They fucked the economy. Boned real estate. Killed health care.

I'd rather vote for a Socialist than a Harvard grad at this point.

sparrow said...

Matthew,

I've stopped caring about the Republican/Democrat horse race. Our problems exceed the typical two party squabble.

damikesc said...

So far, the Democrats have avoided the employer mandate even though it is part of the law. Interesting times, indeed.

You see, they didn't really INTEND for the employer mandate to be law. I mean, sure, it's WRITTEN, but it's ambiguous because they haven't collected it.

There --- a preview of the government case if somebody sues over the employer mandate.

etienne said...

damikesc said...I'd rather vote for a Socialist than a Harvard grad at this point.

The truth be told, the ruling class 10 years from now, will all be graduates who defaulted on their student loans, bankrupted their parents, and think that everything can be fixed by building a football stadium.

Matt Sablan said...

Here's another problem.

With the tax decision, we were told "Sometimes Congress lies. But what the law IS is what matters. In the law this IS a tax, despite what Congress intended it to be."

Now we're being told: "Sometimes Congress screws up. But what they INTENDED is what matters, not what IS. This exchange includes federal exchanges, despite what Congress wrote."

We have no solid foundation, as a citizen, to interpret law.

damikesc said...

The truth be told, the ruling class 10 years from now, will all be graduates who defaulted on their student loans, bankrupted their parents, and think that everything can be fixed by building a football stadium.

Democrat mayors are going to run everything? Yikes.

Anonymous said...

Matthew Sablan: It's kind of a shame that even after a big ruling, we're all still kind of unsure how effective the law will be at getting people health care that no one is really talking about how good/bad the decision is in those regards.

The law was never about getting people health care, it was about getting more people to buy health insurance. I think it's going to be very effective in benefiting the intended recipients of the legislation.

Anonymous said...

Coupe said...
damikesc said...I'd rather vote for a Socialist than a Harvard grad at this point.

The truth be told, the ruling class 10 years from now, will all be graduates who defaulted on their student loans, bankrupted their parents, and think that everything can be fixed by building a light rail system. (fixed)

HoodlumDoodlum said...

Ann Althouse said...The majority says that Chevron deference — which asks only "whether the agency’s interpretation is reasonable" — has never applied applied "in extraordinary cases,"

Yeah, that's the part that's jumping out at me, too. Chevron applies, except when it would be bad, then it doesn't. I'm not sure how that's not a post hoc rationalization, though, and as such I'm not sure how it works as legal precedent. But I'm not a lawyer.

Matt Sablan said...

The interesting thing is just one different seat -- if Franken hadn't won, if Stevens hadn't been unfairly accused/tried, etc., etc., we'd never be here. It's amazing the little things ripple into big things.

Anonymous said...

damikesc: Isn't it time that we view an Ivy League education as a disqualifying factor in running for office? Has electing a crap ton of Ivies to office made ANYTHING better? They fucked the economy. Boned real estate. Killed health care.

And they're just warming up!

It seems like it used to be that our lords and masters at least had the grace to let some time elapse between episodes of shitting all over the citizenry. But recently it just seems so...nonstop...

Matt Sablan said...

The interesting thing: If the Court had granted a stay for Congress to amend it saying: "Yeah, as written? It's bad. Really bad. But, we know that's now what you meant, so amend it before we axe it?"

Republicans would have caved and amended it.

Henry said...

Matthew Sablan wrote:

It seems like there's a couple of schools of thought on this:

1. Victory for Obama/Democrats
2. Breathing space for Republicans
3. Political defeat for Republicans
4. This is bad for how we view society's approach to law

It's kind of a shame that even after a big ruling, we're all still kind of unsure how effective the law will be at getting people health care that no one is really talking about how good/bad the decision is in those regards. Because it's such a badly constructed law, we don't know!


5. The appropriate fix for this mess is for Congress to assert its authority. The fact that the law is badly constructed and interpreted to advantage by the administration makes Congressional action even more appropriate.

If the Court had ruled against the administration's interpretation it would, by necessity, have forced Congress's hands. But the fact that they didn't does not stop Congress from changing the law itself.

etienne said...

Morning political cartoon:

Roberts giving Lady Justice the middle finger, while his foot is on Boehner's head (with x's for eyes and his tongue hanging out, and her bloody sword laying on the steps).

Anonymous said...

Today the court finds that it must look to the intent of congress when it made this law.

Tomorrow the court must not look at the intent of congress when it crafted the amendments to our Constitution. Because clearly they weren't thinking of gay marriage.

Words mean something different every day, so we may always have our desired result.

kcom said...

Let's pass a law with the following text "Blah, blah, blah.". Then in the future it can mean anything to anybody, depending on which administration is in office. Because it's ambiguous. A simple majority will do nicely to pass it. We don't need no stinkin' filibuster to protect our rights from governmental overreach in the world's greatest deliberative body. It's all good.

Michael K said...

The war on the Middle Class just saw another battle won. I finished reading Fred Siegel's The Revolt Against the Masses. and I highly recommend it. It is a history of Progressivism from Herbert Croly to Obama.

It explains a lot. The left is not about the Middle Class which it demeans as "Babbitt" or as HL Mencken described us, "The Boobousie." He did get one thing right, though.

"On some great and glorious day the plain folks of the land will reach their heart's desire at last, and the White House will be adorned by a downright moron."

H. L. Mencken


traditionalguy said...

Congress cannot assert its authority because a leader, be he Reid or Sessions, has been bought and paid for so ago that the newbies fresh from making promises to voters cannot affect the outcome.

Which brings up Senator Rubio, the total winner of the Benedict Arnold lifetime switcheroo award.

Rick said...

Coupe said...
everything can be fixed by building a football stadium.
.

They've moved on to trains and streetcars now. Same effect, but since football owners are rich they prefer not to emphasize that.

Todd said...

Ann, can you explain what would happen if the following were to take place?

A policy promoted by the President and congress becomes law. That law is challenged and goes before SCOTUS. SCOTUS rules that it is unconstitutional but the President says "too bad, so sad", we will continue to enforce this law.

What would be the recourse for SCOTUS or the people? What "requires" that the government listen to SCOTUS and what is the recourse if it does not?

Real American said...

the text is not ambiguous. fucking traitors.

Matt Sablan said...

I wonder if the states that were told they needed to set up exchanges to get subsidies can sue anyone.

JSD said...

Over the past year, every tax seminar I attended concluded that the exchanges would be upheld. Treasury defined “exchange” as having the same meaning as found in DHS regulations. Not one single tax professional ever thought that the result would be different.

Under final regulation section 1.36B-1(k), Exchange, the Treasury defined Exchange as having the same meaning as in the Department of Health and Human Services’ regulation section 45 CFR 155.20

DHS Regulations as follows:
1) Title 45 is Public Welfare
2) CFR is code of federal regulations
3) Part 155 is Exchange Establishment Standards and Other Related Standards Under the Affordable Care Act
4) Section 20 says “Exchange means a governmental agency or non-profit entity that meets the applicable standards of this part and makes QHPs (qualified health plans) available to qualified individuals and qualified employers. Unless otherwise identified, this term refers to State Exchanges, regional Exchanges, subsidiary Exchanges, and a Federally-facilitated Exchange.”

The hype was entirely manufactured.

Bushman of the Kohlrabi said...

It seems like there's a couple of schools of thought on this:

1. Victory for Obama/Democrats
2. Breathing space for Republicans
3. Political defeat for Republicans
4. This is bad for how we view society's approach to law


Here's how I see it:

1. Big win for Obama. After all, it's his legacy.
2. Win for GOP. No need for yet another episode of failure theater. There is no doubt they would have extended the subsidies.
3. Loss for Democrats, especially Hillary. This would have been a big hammer for the Dems (and especially media) to beat Republicans over the head with going into 2016.
4. Loss for conservatives and America at large. The law sucks. It does more damage than good.

StoughtonSconnie said...

Is garage mahal correct? Did Congress enact a federal healthcare exchange as a fallback for states that declined to create their own? I had thought that HHS created the form and the funding for the federal exchange as we now know it. Not Congress.

Garage is misdirecting, either intentionally or unintentionally. The law does set up Federal exchanges as a fall-back. That is what he keeps arguing, and he is correct. But that wasn't the question at hand, the subsidies were. That is in a separate section of the law, and that is where the key words "established by the state" are contained. The intent was (or seemed to be until it wasn't convenient) to entice states to set up exchanges by backing truckloads of "free" money to their borders which could then by disseminated by the state exchange

I don't recall any Republicans in Congress or conservative pundits arguing that states that don't set up exchanges are not eligible for federal subsidies.

Maybe not Republicans in Congress, but conservative governors, state legislators and pundits all very clearly argued this. It was the basis for not setting up exchanges in the first place, because if there was no state exchange, there was no subsidy. If there is no subsidy, there can be no penalties and no mandates (per the law). That is now inoperative because state doesn't mean what the clear meaning used to mean, so in effect the 36 states that didn't blow wads of cash on setting up their own exchanges come out ahead.

Michael said...

Todd

If the President telling the SCOTUS to pound salt is a Republican then the Constitution would require she be impeached. On the other hand if a Democrat President ignores the SCOTUS absolutely nothing would happen other than some umbrage on conservative blogs or Fox. Or SCOTUS would reconvene and revise its thinking.

tim in vermont said...

I still don't understand why people think that Obamacare is some kind of force that can't be opposed. Opposition to O'Care has won the Republicans both houses of Congress.

Hillary has a narrow path to victory, and she is making it narrower all the time as she tries to make her support more intense.

Sigivald said...

I am, naturally, with the dissent.

(I don't like Obamacare, but I would not have shed a single, solitary tear if Congress had spent 15 minutes a few years ago passing a bill amending the law to, well, add subsidies to every exchange, rather than what the law actually said originally.)

I am utterly disgusted by rewriting the law by fiat to say exactly what it does not say, and was deliberately not meant to say, by all appearances from the people who drafted it and their arguments at the time.

This ruling suggests that no sort of legislative sticks and carrots can be trusted to mean what they say, if the Court decides it'd be nicer if they said the opposite.

Sigivald said...

JSD: Did the regulation redefine "established by the States" somehow as well?

The problem was never what "exchange" meant - it was "established by the States", according to the analyses of the complaint that I read (and had been reading for, at this point, years).

(If the regulations ignored the clause, well, they were rewriting the law, which is a separate problem.)

Todd said...

Michael said... [hush]​[hide comment]
Todd

If the President telling the SCOTUS to pound salt is a Republican then the Constitution would require she be impeached.

6/25/15, 12:04 PM


OK but that would be at the behest of Congress, correct? So if Congress did not care, in effect SCOTUS would be negated? What "recourse" does SCOTUS have if the President and Congress decided to not go along with their ruling?

I ask as it is sort of the opposite of what has happened here, SCOTUS approved of the government's actions. If instead, SCOTUS had said no, IRS is wrong and the President replied "too bad, we are going to do it anyway", what sort of power does SCOTUS have to "enforce" their rulings? Is it simply the "gentleman's agreement" that SCOTUS knows what it is doing and should be listened too? If the President said no [and you are right that Congress could impeach but does not] is that the end of SCOTUS?

Matt Sablan said...

"What "recourse" does SCOTUS have if the President and Congress decided to not go along with their ruling?"

-- The people vote out the bums, recalling those they legally can.

Seeing Red said...

We are over. Now that words have no meaning, your exams will take on an interesting color. No one is wrong.

Can Of Cheese for Hunter said...

Matthew Sablan @ 9:37 Thread winner. Excellent.

Anonymous said...

We need a State and it's government to stand up again.

To put their hand up and yell, Stop!

Yeah, it didn't work decades ago because they were wrong. They were on the wrong side of history. They were racist. They were acting in an evil way.

But today? I believe you'd get a different outcome because you'd be right.

damikesc said...

I still don't understand why people think that Obamacare is some kind of force that can't be opposed. Opposition to O'Care has won the Republicans both houses of Congress.

That assumes the Republican Establishment wants it repealed.

They don't.

Again, note that they got the unpopular TIPP nonsense passed. But when the public supported them on ending Obama's illegal immigration policy? Nope, they couldn't do a thing with that.

The only way it is repealed if the Republican leadership is replaced. Boehner is just a less competent version of Pelosi.

Anonymous said...

Blogger Todd said...
Michael said... [hush]​[hide comment]
Todd

If the President telling the SCOTUS to pound salt is a Republican then the Constitution would require she be impeached.

6/25/15, 12:04 PM

OK but that would be at the behest of Congress, correct? So if Congress did not care, in effect SCOTUS would be negated? What "recourse" does SCOTUS have if the President and Congress decided to not go along with their ruling?

I ask as it is sort of the opposite of what has happened here, SCOTUS approved of the government's actions. If instead, SCOTUS had said no, IRS is wrong and the President replied "too bad, we are going to do it anyway", what sort of power does SCOTUS have to "enforce" their rulings? Is it simply the "gentleman's agreement" that SCOTUS knows what it is doing and should be listened too? If the President said no [and you are right that Congress could impeach but does not] is that the end of SCOTUS?


It's time we find out.

Beorn said...

@garage "Congress wouldn't have created a federal exchange if their intent was to restrict subsidies to only the states that set up their own exchange."

I call BS, and so does MIT professor Jonathan Gruber.

"The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it[, and] if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits."
- Jonathan Gruber

Brando said...

Politically, there's another way to look at this--had the law been taken apart either by Republicans or by the Court, and then whatever part remained failed to do what it was promised to do (expand coverage, make health care cheaper and better, reduce the deficit, improve the economy somehow) the pro-ACA folks would have had their excuse--"we tried to do good and the opposition screwed things up!"

But considering that (1) the GOP was unwilling to stop or even alter the original law; (2) the Supreme Court turned away both major challenges to the law (the contraception mandate and State Medicaid mandate were insignificant parts of the whole); and (3) the GOP has shown no ability to actually delay implementation of the law or repeal any part of it legislatively, now whatever failings the law produces will be entirely due to its own creation and Obama's implementation. (Had Romney been elected in 2012, you can bet he would have taken the blame)

Let's see what the long term effects are--as premiums adjust to the populations being served, and plans are adjusted to fit the mandates, and people start getting hit with penalties. Either it will work itself out (and those of us who opposed the law will turn out to be wrong) or it will fall apart, and a groundswell of opinion will force a needed reform.

Michael K said...

"he GOP was unwilling to stop or even alter the original law;"

Where does that come from ? How were they to do that ?

Bobby said...

Todd,

I think that was pretty much the scenario that occurred with the Indian Removal Act, President Andrew Jackson and the Supreme Court's decision in Worcester v. Georgia. IIRC, the Court ruled in favor of the Cherokee Nation fellows, and Andrew Jackson just plain ignored it because the Court had no enforcement mechanism (although he may not have actually said the whole "John Marshall has made his decision, now let him enforce it" quote).

I don't know what it meant for the Court, but it must not have meant its end, because we're talking about the Supreme Court today.

Brando said...

"The only way it is repealed if the Republican leadership is replaced. Boehner is just a less competent version of Pelosi."

I wouldn't hold your breath--anyone replacing Boehner will do the same thing to corral a majority party. It's one reason you don't really see a rival for his job.

The GOP hasn't done anything serious about repealing it because a simple repeal will likely never make it through the Senate, let alone Obama's veto. But they're also afraid of just repealing the whole thing when there are some broadly popular parts of the law, and a lot of people opposing the law who want it replaced with something else. There's no simple road map here and if the opponents are serious they need to come up with something that can pass.

I'm not sure it will be much easier with a Republican president.

bgates said...

When read in context, the sentence Held: Section 36B’s tax credits are available to individuals in States that have a Federal Exchange is properly viewed as ambiguous.

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