Patterico's Pontifications

3/4/2015

King v. Burwell (Halbig ObamaCare Case): Oral Argument in Supreme Court Today

Filed under: General — Patterico @ 7:49 am



Today is the day. In preparation, hackwork pieces are appearing all over Big Media, seemingly all from the pro-Obama side. (Shocking and unexpected!) Michael Cannon had a little fun with the fact-challenged offering from Sarah Kliff at Vox, and notes no fewer than 18 problems with it. I won’t go over all 18, but let’s whet your appetite with a couple of them:

3. “As anyone who covered it at the time…remembers, the law’s passage was an absolute mess,” Kliff reports, and the “messy language and loose ends that legislators expected to get ironed out simply became part of the law.”

Nevertheless, Kliff reports that all congressional staff involved with the drafting of the Patient Protection and Affordable Care Act swear they meant to authorize the disputed taxes and subsidies in states with federal Exchanges. She also reports that all journalists who reported on the drafting process swear that every time the topic arose, Democratic staffers always said these provisions would be authorized in states with federal Exchanges. (Well, except these members of Congress and this journalist.)

Kliff neglects to mention that there is absolutely zero contemporaneous evidence of any kind that supports those recollections. Or that contemporaneous discussions of that issue, like this one by Jonathan Cohn, show (A) that even the sharpest journalists weren’t paying attention to this issue, and (B) to the extent they did, their impressions were consistent with the subsidies being conditional.

Thus, the only contemporaneous evidence that speaks directly to the question presented to the Court is the explicit statutory text clearly limiting subsidies to Exchanges “established by the State.” That’s probably something Kliff should have mentioned. You know, so readers can decide whether to take the “if you like your health plan, you can keep it” crowd at their word.

It’s worth noting, I think, that the link to “this journalist” goes to an NPR piece that says:

Indeed, on Monday a group of Democratic House members from Texas wrote to President Obama urging that the House approach be preserved in the final bill. They worry that because leaders in their state oppose the health bill, they won’t bother to create an exchange, leaving uninsured state residents with no way to benefit from the new law.

Absolutely nobody ever said that!!!! Oh, except that guy.

Oh, and except Jonathan Gruber . . . multiple times. But, you see, Kliff advances the compelling “we should all believe Jonathan Gruber” argument, which Cannon refutes easily:

16. Kliff writes, “[Jonathan] Gruber has disavowed the remarks [in which he told audiences that the law conditions subsidies on states establishing Exchanges], saying that he spoke ‘off the cuff’ and made a mistake. There’s reason to believe him: Gruber spoke regularly to dozens of reporters during this period and never mentioned this idea to any of them.”

Kliff should have mentioned there is also reason not to believe Gruber’s disavowals. Gruber made that claim multiple times, and his attempts to explain those comments away reveal, um, inconsistencies.

Kliff also should have mentioned that at least one of his “off the cuff” remarks was anything but. As our pal Morgen said at the time:

Cannon’s piece is worth reading in full. But as we prepare for today’s argument, I would like to point out one major logical flaw that runs through so many of the pro-Obama arguments: the argument that “we are right, and because we’re right, that means were right.” So many of their arguments simply assume the thing they are trying to prove.

For example, there is the “Moops” argument advanced by Jonathan Chait, which references the Seinfeld episode in which George tells Bubble Boy that he got a trivia question wrong because the card says the “Moops” invaded Spain in the 8th Century. This argument is advanced to show that a drafting error is just a drafting error. Putting side (as Cannon shows) the fact that the government is not arguing that the language was a drafting error, the argument still assumes what it claims to prove. It is a fact that the Moors invaded Spain, goes the argument, and it is a fact that the language was drafted to give subsidies to federally established exchanges. Therefore, you must read the language as giving subsidies to federally established exchanges.

See how easy arguments are when you assume your conclusion to be true?

Likewise, the pro-Obama folks argue that, as doofus Scott Lemieux puts it, “the Cannon-Adler interpretation may be unconstitutional, since states have to be given fair notice before a federal benefit is taken away.” Of course, for it to be “taken away” it had to be granted to begin with. But if you just assume the subsidies were there, then you can’t take them away without telling the states clearly. Once again, the argument assumes the very thing the pro-Obama faction is trying to prove: that Congress granted the subsidies to begin with.

The fact is, even if everybody assumed that people would get subsidies, that appears to have been based on another poor assumption: that all states would establish exchanges.

Somewhere Aristotle is spinning in his grave, trying to figure out how his principles of logic have been so badly distorted.

I’ll try to offer some commentary on the oral argument this evening.

103 Responses to “King v. Burwell (Halbig ObamaCare Case): Oral Argument in Supreme Court Today”

  1. Ding.

    Patterico (9c670f)

  2. From the WSJ live blog:

    “Justice Kennedy says he sees ‘a serious constitutional problem’ in the idea Congress would force states to set up exchanges or risk their residents losing tax credits.”

    Wonderful.

    Patterico (9c670f)

  3. I hate to read too much into one excerpt but is Kennedy acknowledging that one aspect of the law may be unconstitutional, but also suggesting we shouldn’t undo it if people would be hurt?

    DRJ (e80d46)

  4. I’ll have to hear it or read it myself. My question at this point is: who is being coerced, Justice Kennedy? The states, or the people of the states? If the former, how? And isn’t the remedy for the latter to invalidate the mandate?

    Patterico (9c670f)

  5. When a judge asks a question like that, he is asking for help from counsel in my opinion. He wants the best argument, from either side, that will withstand future scrutiny.

    nk (dbc370)

  6. How embarrassing is it to Los Angeles that we can read this illuminating piece today, or the NY Times expose on Hilary’s secret email, but the LA Times will offer only another recycled rant by Michael “Half-Truth” Hiltzik.

    Harcourt Fenton Mudd (5e0a82)

  7. Just to throw this into the mix, if one is interested in reading more desperate nonsense about why the SCOTUS must not adhere to the plain reading of the language.

    http://www.theweek.com/articles/541532/conservative-case-supreme-court-upholdobamacare

    The conservative case for the Supreme Court to uphold ObamaCare

    In which the author, Joel Dodge, proves as suspected there is no such conservative case to be made.

    Like all of the amici weighing in on the side of the administration, Dodge makes the case that SCOTUS must act as a policy-making body and not a law court. I find his argument particularly unpersuasive:

    …But the challengers’ interpretation of the law also redefines the relationship between the federal and state governments in unprecedentedly draconian terms. Under their view, Congress attempted to prod states to create health exchanges in two ways. First, Congress threatened to withhold subsidies from states that refuse to cooperate with creating exchanges.

    Second, and more significantly, the challengers’ theory entails that Congress threatened states with utter devastation of their insurance markets if they failed to create exchanges. This follows from the very structure of the ACA. If subsidies became unavailable in certain states, the law would render the individual and employer mandates virtually inoperative there. But these states would still be subject to requirements preventing insurers from denying coverage or charging higher premiums based on an individual’s preexisting condition.

    This environment would wreck state insurance markets. It’s the exact recipe for an insurance market death spiral…

    So the challengers’ interpretation of the law means that Congress attempted to make a grave threat against the states. This threat, as the brief puts it, amounts to: “Establish an exchange, or the federal government will destroy your individual health insurance market.”…

    Stop me if I’m wrong. But no, Mr. Dodge, the challengers’ interpretation of law doesn’t mean that Congress attempted to make a grave threat against the states. The structure of the ACA means the Congress made a grave threat against the states.

    And that’s not a reason to pretend there’s language in the ACA that would prevent that result. That’s a reason to declare such grave threats by Congress against the states unconstitutional.

    Is there something wrong with my reasoning, or Joel Dodge’s?

    Steve57 (127339)

  8. I mean, seriously?

    …The challengers’ argument may also offend the principle that Congress may not coerce the states. In 2012, the Supreme Court struck down the ACA’s mandatory Medicaid expansion. The court determined that Congress had threatened states with losing all Medicaid funding if they refused to expand the program, and that this threat unconstitutionally pointed a “gun to the head” of the states.

    The challengers’ reading of the law may leave the states in a similarly coercive environment. States would face both a massive loss of federal subsidies and the imminent destruction of their insurance markets if they defy the will of Congress. They would have little meaningful freedom to choose given the magnitude of these threats.

    So the challengers’ version of the ACA raises stark constitutional problems — and this is a major strike against the validity of their argument…

    How does the challengers’ interpretation of the law offend these Constitutional principles?

    It’s the ACA that offends these Constitutional principles.

    Steve57 (127339)

  9. he is more frum than frum:

    https://jdodgeblog.wordpress.com/

    narciso (ee1f88)

  10. For the children The hard working
    of VS Middle Class
    Judge Roberts

    mg (31009b)

  11. Well that never worked.

    mg (31009b)

  12. @9, I take it this dude writes a lot of “The conservative case for (insert name of liberal policy position here)” type articles.

    Steve57 (127339)

  13. I wanted to give him a fair shake,

    let’s just surrender to the state, it saves on overhead.

    narciso (ee1f88)

  14. no matter how the court rules, Senator Orrin Hatch, who was enthusiastically endorsed by Sarah Palin, is very committed to paying these subsidies

    happyfeet (831175)

  15. Prediction – Ginsburg writes opinion that credits are available for insurance purchased on federal exchanges because it is good policy.

    Lily Ledbetter – the statute of limitations should continue ticking even though the statute should toll
    Seblis v NFIB – we need health care reform , therefore the mandate is good policy and since it is good policy – well – it must be constitutional
    King – Burwell – It would be bad policy to take away the subsidies, therefore federal exchanges are exchanges created by the state under section 1311.

    The only question is whether her opinion will be a majority opinion or a dissenting opinion

    joe (debac0)

  16. Prediction: Challengers have no standing to challenge Congress’s exercise of the Spending Power since no fundamental right or Tenth Amendment interest is involved.

    nk (dbc370)

  17. How embarrassing is it to Los Angeles that we can read this illuminating piece today, or the NY Times expose on Hilary’s secret email, but the LA Times will offer only another recycled rant by Michael “Half-Truth” Hiltzik.

    Harcourt Fenton Mudd (5e0a82) — 3/4/2015 @ 8:16 am

    Even though it’s somewhat smaller and slightly less sophisticated, the Orange County Register is considerably more honest and reliable. The only thing useful about the Times is the comics section (the real comics- not the opinion section).

    Bill H (f9e4cd)

  18. Once we started to allow the Media, the politicians and other so called
    leaders to lie and get away with it (“I never had sex with that woman”)
    and the PC witch hunts to begin,the path to insanity and unreason was
    clearly outlined as our destination. And here we are.

    You can lie to others all you want but once you start lying to yourself about
    the realities of your situation, then you’re on the road to insanity
    and illogic which will generate nothing but confusion and wasteful expense
    for yourself and others around you.

    Welcome to the world of Progressivism. The very word they use to denote their
    beliefs is a lie; they’re not progressive. The actions they take to accomplish
    their goals are lies and they have always said that the ends justifies the
    means so any falsehoods along the way are just fine if the goal is achieved.
    (whether that goal is a positive one for the country is another matter)

    jakee308 (49ccc6)

  19. Prediction: Challengers have no standing to challenge Congress’s exercise of the Spending Power since no fundamental right or Tenth Amendment interest is involved.

    nk (dbc370) — 3/4/2015 @ 9:23 am

    Ginsburg is the only justice that I know that came down on both sides of the standing issue on the same day based on nearly identical facts – see the UofMich lawschool and undergraduate quota admisssions case issued on the same day.

    joe (debac0)

  20. not sure how they will twist it, but with Roberts in the driver’s seat, Obolacare will be protected, one way or another.

    there will be a special place in hell for that gutless swine and it must be one damning piece of blackmail they have on him.

    redc1c4 (34e91b)

  21. BTW: ? for you experts…

    someone commented elsewhere that the justices all seemed to be hostile to the plaintiffs…are you seeing that

    redc1c4 (34e91b)

  22. too?

    stupid keyboard “shortcuts”… i wish i knew how to disable them all.

    redc1c4 (34e91b)

  23. A ruling that decides to accept the administration’s faithless rewriting of the clear statutory language will be the capstone for the destruction of rule of law we’ve seen for the past six years.

    SPQR (4764ea)

  24. #23: which is what i’m afraid they are going to do.

    redc1c4 (34e91b)

  25. Justice Roberts was able in the same ruling to decide that the “mandate” was not a tax therefore not held to the standards of the anti-injunction act, and later in the same decision to rule that it was a tax and not a penalty as the ACA itself stipulated.

    Well that seems like precedent set in stone. If a supreme court justice doesn’t like the words that Congress used in a law, he or she can simply magic them into what they think they should have said.

    The Democrats have placed a gasoline soaked tire around America’s shoulders and the torch is being passed forward. It’s all over but the frying.

    Jack (ff1ca8)

  26. So whether the law is unconstitutional is secondary. Roberts will be loathe to destroy the law he saved from destruction, and Kennedy may be loathe to impose a hardship on people who relied on the law.

    Patterico may be right but SPQR is right, too. Holding the law doesn’t say what it says will take a harsh toll on public respect for the law.

    DRJ (e80d46)

  27. More than holding that a fish is not a tangible object?

    Leviticus (f9a067)

  28. Cuz I mean, that kinda stuff regularly takes a harsh toll on my respect for the law – on either the creation end or the interpretation end.

    Leviticus (f9a067)

  29. Yes, more than saying a fish isn’t a tangible object for the purpose of Sarbanes-Oxley.

    DRJ (e80d46)

  30. The Court is specifically considering the meaning of health care exchanges under ObamaCare, not what the meaning of these words would be in another context.

    DRJ (e80d46)

  31. I wonder if the way out for Roberts and Kennedy is to say, look, the administration is basically interpreting huge swaths of this law however they want to interpret it, and this court is going to grant them that ability. However, understand that a future administration that doesn’t share the same ideology will also be free to make their own interpretation of the law, and if that has a huge effect upon it’s scope and reach then so be it. The court is not going to concern itself with this dispute, which is entirely between the legislative and executive branches.

    It would be like the antithesis of Marbury v. Madison. Maybe Roberts’ hidden agenda is to stop having the judicial branch extend itself into these types of matters.

    JVW (854318)

  32. Are there laymen out there who understand this distinction, or is Leviticus right that “words is words” and the public can’t possibly understand why the Court would distinguish words used in another context from words used in the law itself? This is a serious question and not rhetorical.

    DRJ (e80d46)

  33. 27. More than holding that a fish is not a tangible object?
    Leviticus (f9a067) — 3/4/2015 @ 1:26 pm

    How does discarding a fish violate the “Public Company Accounting Reform and Investor Protection Act?”

    Did the fisherman somehow violate his fiduciary responsibility to non-existent shareholders in a party boat that doesn’t trade on any stock exchange?

    Because Sarbanes-Oxley only applies to publicly traded companies.

    If you change your own oil and illegally discard the used oil down a storm drain, can a cop who witnessed your act charge you with violating Sarbanes-Oxley?

    After all, used motor oil is a tangible object isn’t it?

    Steve57 (813c29)

  34. JVW:

    31.I wonder if the way out for Roberts and Kennedy is to say, look, the administration is basically interpreting huge swaths of this law however they want to interpret it, and this court is going to grant them that ability. However, understand that a future administration that doesn’t share the same ideology will also be free to make their own interpretation of the law, and if that has a huge effect upon it’s scope and reach then so be it.

    That was discussed in the oral argument. The attorney for the government said a future President would be loathe to undo what the current President’s Administration, Congress and the courts have approved. It would also be hard to change, except at the margins. Of course, the justices didn’t say for sure but my impression is that most agreed with that.

    DRJ (e80d46)

  35. “It would be like the antithesis of Marbury v. Madison. Maybe Roberts’ hidden agenda is to stop having the judicial branch extend itself into these types of matters.”

    – JVW

    That would be very interesting.

    Leviticus (f9a067)

  36. I just want to point out two things about Justice Roberts …

    1) He is from Harvard which means the cocktail party friends are more important than the Nation or its laws

    2) He was appointed by a Bush

    So Memo to anyone with a brain, no Bush and no Harvard.

    Rodney King's Spirit (d5efc1)

  37. “If you change your own oil and illegally discard the used oil down a storm drain, can a cop who witnessed your act charge you with violating Sarbanes-Oxley?”

    – Steve57

    If you somehow knowingly discarded said oil with the specific intent to “impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” then yeah, you could, under the plain language of the statute.

    Which would be ridiculous.

    Which is why this particular issue “takes a harsh toll on my respect for the law – on either the creation end or the interpretation end.

    An illogical interpretation of an unnecessary enforcement is a “rock/hard place” situation.

    Leviticus (f9a067)

  38. *the cop could (charge you), I mean

    Leviticus (f9a067)

  39. #2 But if true then what Kennedy is saying is the law as written violates the equal protection clause. But the corollary is the law as implemented does not violate equal protection.

    So what is SCOTUS to do? Strike down a law that in effect does not exist or uphold an implementation that is not lawfu?

    This is what happens when you put a Leftist in the White House. You get shit for brains.

    Rodney King's Spirit (d5efc1)

  40. @38, I agree. But if it would be insane to charge me with violating Sarbanes-Oxley simply because the words “tangible object” appear in it.

    With enough creativity I could also be charged with assault on a public official, given a sewer worker at some point is going to come in contact with the toxic waste.

    Steve57 (813c29)

  41. Or, how about this. Dumping used motor oil in a storm drain violates the marine mammal protection act, since it’ll eventually end up in the ocean.

    Steve57 (813c29)

  42. Heres hoping your upstream of the floodgates.
    http://touch.latimes.com/#section/-1/article/p2p-82964644/

    mg (31009b)

  43. if laws no longer mean what they say as written, but whatever some government official or judge says they mean after the fact, then we are all just one bureaucrat away from prison.

    so much for the rule of law. a citizen cannot possibly give their just consent to be governed when they don’t have any idea what it is they are consenting to, so the government itself is illegal and must be replaced.

    either that or we have to surrender once and for all to the state.

    redc1c4 (6d1848)

  44. The nice thing about specific intent statutes is that they serve as a natural limitation on overbreadth. They should (but do not always) serve as a simultaneous interpretive aid. In Yates, the Court looked to what was destroyed, when more important element was the specific intent in destroying it.

    Leviticus (f9a067)

  45. these days, the courts appear to look at whatever aspect allows them to come to the ruling they wish to issue.

    redc1c4 (6d1848)

  46. Everything is falling into place perfectly.
    obama/mcconnell 2016

    mg (31009b)

  47. #44 redc1c4 —

    I’m inclined to agree.

    Had you see Karl Denninger’s remarks from March 1st?

    http://market-ticker.org/akcs-www?post=229884

    He argues that since Roberts already upended common sense and rule-of-law in order to deem the ACA constitutional, there’s nothing to keep him from doing whatever he wants in a mere matter of implementation. He ALSO argues that the Supreme Court has been MEDDLING in the law instead of just interpreting it, since Wickard v Filburn (if not before).

    It all seems to hinge on what “the deciders” WANT to see happen, and not so much on the wording of the statutes.

    A_Nonny_Mouse (4a75eb)

  48. It seems like some members of the Court are worried about damage done from undoing the ObamaCare mandates/system, especially the cost to people who rely on the existing system. Isn’t that a little like worrying about undoing slavery because the slaves, slave owners and the Southern society that depends on slavery would be harmed?

    DRJ (e80d46)

  49. I’d say it is a lot like that DRJ.

    Dejectedhead (4bfcf6)

  50. you’re both H8rs!!!

    redc1c4 (6d1848)

  51. I can’t see how the Feds have won ANY court cases over this leading up to the SCOTUS. Everyone states that it’s “just 4 words”, but it’s more than that. Specific section numbers are called out and the term State is defined as the 50 states and the District of Columbia.

    It is mind boggling to me how anyone could say that isn’t clear.

    Dejectedhead (4bfcf6)

  52. Did anyone notice who quickly Ginsburg jumped on Carvin (the plaintiff attorney) for questioning her signature legislation – oops I mean kagan’s signature legislation – oops I mean Obama’s signature legislation.

    joe (debac0)

  53. Isn’t it ironic that Obama and his Administration — the folks who told the Treasury Department and the IRS to delay implementation of the mandate and many other aspects of ObamaCare — think there’s no way to delay dealing with a subsidy problem?

    DRJ (e80d46)

  54. 47. It seems like some members of the Court are worried about damage done from undoing the ObamaCare mandates/system, especially the cost to people who rely on the existing system. Isn’t that a little like worrying about undoing slavery because the slaves, slave owners and the Southern society that depends on slavery would be harmed?

    DRJ (e80d46) — 3/4/2015 @ 4:15 pm

    I just made a run to the store (brrr! Freezing rain. Hail.) and I listened to Mark Levin as he interviewed the plaintiff’s lawyer (the name escapes me). They talked about exactly this. The lawyer didn’t see things quite the same way as the reporters.

    He said Justice Kennedy, who asked about the harm the coercive language of the ACA would do to state insurance markets, may merely intend to flag the issue in a concurring opinion so that states are aware they would have standing to sue as a result of that harm. Not, as the “journalists” so fervently hope as expressed in their skewed reportage, that he is going to ignore the plain meaning of the text of the statute.

    It is entirely possible that Kennedy despite his flaws realizes that the whole ACA is an unconstitutional attempt to coerce the states. The think is over 2000 pages long. There will be no end to provisions this and ensuing administrations are going to have to ask the court to rewrite so as to avoid the terrible consequences of the law as written.

    I’m none too bright, but that was the flaw I perceived in the article I critiqued @7 and 8.

    Steve57 (813c29)

  55. did anyone notice that Ginsburg and Sotomayer stated the ACA provision for the individual tax credit should be someplace other than the tax code. How do you tell the judge that is deciding your case that she is an idiot for thinking a tax provision should be some place other than title 26 – ie the tax code.

    joe (debac0)

  56. * The think thing is

    Steve57 (813c29)

  57. #53

    47. It seems like some members of the Court are worried about damage done from undoing the ObamaCare mandates/system, especially the cost to people who rely on the existing system. Isn’t that a little like worrying about undoing slavery because the slaves, slave owners and the Southern society that depends on slavery would be harmed?

    DRJ (e80d46) — 3/4/2015 @ 4:15 pm

    I just made a run to the store (brrr! Freezing rain. Hail.) and I listened to Mark Levin as he interviewed the plaintiff’s lawyer (the name escapes me). They talked about exactly this. The lawyer didn’t see things quite the same way as the reporters.

    He said Justice Kennedy, who asked about the harm the coercive language of the ACA would do to state insurance markets, may merely intend to flag the issue in a concurring opinion so that states are aware they would have standing to sue as a result of that harm. Not, as the “journalists” so fervently hope as expressed in their skewed reportage, that he is going to ignore the plain meaning of the text of the statute.

    Carvin is the plaintiff attorney’s name.

    It is hard to read Kennedy’s concern – Dont know whether his coercion concern dooms the subsidy or if he pulls a roberts and okays the subsidy to save obamacare. I would be more concerned with Roberts. Does he correct his mistake – or does two wrongs make it worse?

    joe (debac0)

  58. Not sure if anyone has seen this, but

    Real Clear Politics has a good analysis of the arguments.

    Chuck Bartowski (11fb31)

  59. “Thus, the only contemporaneous evidence that speaks directly to the question presented to the Court is the explicit statutory text clearly limiting subsidies to Exchanges “established by the State.” That’s probably something Kliff should have mentioned.”

    If we go back to the archives of this blog, we might find folks railing against the cost of the law, including while it was being debated. Would those folks be railing against a cost that assumed all the states got subsidies, consistent with the government’s reading? Or one that did not, consistent with the anti-ACA litigants? Is that contemporaneous evidence?

    sing (bbbfe8)

  60. i’ve seen where you can substitute malted milk powder for sugar in pancakes

    happyfeet (831175)

  61. “It seems like some members of the Court are worried about damage done from undoing the ObamaCare mandates/system, especially the cost to people who rely on the existing system. Isn’t that a little like worrying about undoing slavery because the slaves, slave owners and the Southern society that depends on slavery would be harmed?”

    No.

    sing (bbbfe8)

  62. sing @58, when was this law debated? There was never any debate. As Pelosi said we had to pass it to find out what was in it.

    How could anything anybody said on this blog about a bill that nobody except the people drafting it in some Capitol building basement constitute contemporaneous evidence?

    Steve57 (813c29)

  63. * nobody except the people drafting it in some Capitol building basement had ever seen constitute contemporaneous evidence?

    Steve57 (813c29)

  64. Why not, sing?

    DRJ (e80d46)

  65. Because getting a subsidy to get health care is not like being a slave.

    “sing @58, when was this law debated? There was never any debate. As Pelosi said we had to pass it to find out what was in it.”

    In several committees. And in several votes. And in the media. It was a big part of the election of a Senator from MA. Wasn’t there a white house summit on this? Were you paying attention to any of that? It’s really disturbing that such recent history seems to be forgotten on what seems to be an important topic.

    sing (bbbfe8)

  66. “Isn’t that a little like worrying about undoing slavery because the slaves, slave owners and the Southern society that depends on slavery would be harmed?”

    I’d say the only way this statement isn’t correct is that slavery actually WAS Constitutionally protected.

    So, for historical purposes, the analogy isn’t proper because slavery had more legitimacy than Obamacare subsidies.

    Dejectedhead (4bfcf6)

  67. It was never informed debate, sing. No, I have forgotten nothing about the underhanded and dishonest way the ACA was rammed through Congress unread.

    Steve57 (813c29)

  68. “Rule of law.”

    I used to think I knew what this meant (and that meaning was not that the rule was that the law was a club used to implement the rule of man.) I was going to quote an apt line from the DoI but there are too many of them.

    htom (4ca1fa)

  69. sounds like at least one Justice doesn’t even want to approach the subject by saying no one has any standing to bring a law suit.
    Interesting way of avoiding addressing what a Congressional bill is and keep Ocare as is.

    seeRpea (181740)

  70. elissa (87e2bc) — 3/4/2015 @ 5:50 pm

    LOL!

    felipe (56556d)

  71. oops! Wrong thread!

    felipe (56556d)

  72. re #58: actually sing , you are quite wrong about that. When the cornhusker kickback hit the news there was a lot of discussion of how some people would carry quite a bit of costs and the answer was basically ‘vote with your feet’ to a State where it would not cost so much.

    The ‘costs’ were not just those being forced upon taxpayers but also the costs to consumers.

    seeRpea (181740)

  73. “It was never informed debate, sing.”

    So Scott Brown voters had no idea why they should vote for him? Just the senate finance committee met for 60 hours from June to Sept in 2009.

    sing (bbbfe8)

  74. re #64: the law that got rammed through was not the law that the debating happened over.
    one more time sing
    – “We Have To Pass The Bill, So That You Can Find Out What Is In the Bill!” , the contents of the bill were not disclosed while being “debated”.

    – lots of people were pointing out the inconsistencies of the bill after the Brown election

    – there was knowledge that some States would face pressure to “join the club” from citizens not being able to get subsidized.

    (as to whether any of that will make a diff to the SC Justices? probably not, as this group is more than inclined to let the Congress houses setup their own rules and definitions plus once an executive outlet is created they will not allow Congress to impinge. This drove the former CJ Renquist nuts)

    seeRpea (181740)

  75. Sing,

    I think Scott Brown voters knew Scott Brown was going to vote against the ACA Bill…but I think the issue that is being brought up is that the specifics of the bill were widely unknown.

    That’s why Pelosi herself couldn’t state what was in the bill while advocating passage.

    Plus, there were several versions of the bill floating around in the committees. The House passed their own, then the Senate Passed their version…then after Scott Brown was elected, the House passed the Senate version.

    Dejectedhead (4bfcf6)

  76. “Plus, there were several versions of the bill floating around in the committees. The House passed their own, then the Senate Passed their version…then after Scott Brown was elected, the House passed the Senate version.”

    So Scott Brown voters who wanted to knnow could just look at the Senate version.

    Let me ask something else that might elucidate this: What piece of recent legislation got more debate, that you wish the ACA had?

    sing (bbbfe8)

  77. Sophists are so cute

    JD (41da8c)

  78. A ruling that decides to accept the administration’s faithless rewriting of the clear statutory language will be the capstone for the destruction of rule of law we’ve seen for the past six years.

    SPQR (4764ea) — 3/4/2015 @ 11:38 am

    This

    JD (41da8c)

  79. #75.

    I don’t hold the stance that there was NO debate on the ACA. But I do think there was a lack of transparency surrounding the bill’s passage. There were issues of how long the text of the document was made available prior to votes and voting legislators on record that they had not read the text of the bill that they voted on.

    Dejectedhead (4bfcf6)

  80. sing:

    64.Because getting a subsidy to get health care is not like being a slave

    But when the government mandates that people buy health care (or they will be taxed) and that states must establish health care exchanges (or it will do it for them), isn’t that like being a government slave? Of course, the government simply wants everyone to be taken care of and promises to have our best interests at heart, just as I suspect many Southerners said they felt about their slaves.

    DRJ (e80d46)

  81. “But when the government mandates that people buy health care (or they will be taxed) and that states must establish health care exchanges (or it will do it for them), isn’t that like being a government slave?”

    No, that’s just silly. Do you even know what slaves lives were like?

    sing (bbbfe8)

  82. Your act never gets tiresome. Ever.

    JD (41da8c)

  83. To paraphrase CJ Roberts in Sebelius:

    “It is not our job to protect the Congress from the consequences of their legislative choices.”

    Kevin M (25bbee)

  84. You’re so silly, sing.

    DRJ (e80d46)

  85. Burn this traitorous country to the ground. And fresh seeds will grow.
    It’s nature.

    mg (31009b)

  86. Watched a couple of newscasts. No surprise no one mentioned intent or Grubers explicit confirmation of same. Just sad-eyed children who will die if the four words are upheld.

    patricia (5fc097)

  87. So maybe we can agree that anyone that was a slave would rather get subsidized health care, and anyone getting subsidized health care would not want to be a slave?

    sing (bbbfe8)

  88. to bad it can’t sing a more intelligent song…

    redc1c4 (4db2c8)

  89. sing,

    Do you think there is a limit on what the government can order people or States to do? If so, what is it?

    DRJ (e80d46)

  90. So maybe we can agree sing is being a festering douchenozzle.

    JD (41da8c)

  91. DRJ – I always admire your tenacity in trying to coax honest discussion from steaming cesspools of asshattery.

    JD (41da8c)

  92. sing:

    86.So maybe we can agree that anyone that was a slave would rather get subsidized health care, and anyone getting subsidized health care would not want to be a slave?

    You know who is missing from this “agreement”? The taxpayer-slaves who don’t get subsidies. What do they get out of your sweet agreement, other than the “right” to work and pay for other people’s health care?

    DRJ (e80d46)

  93. President Obama on the campaign trail – “Words mean something”

    Obama and Democrats defending Obamacare subsidies – Words mean nothing

    daleyrocks (bf33e9)

  94. I thought pregnancy was considered a form of slavery nowadays. Isn’t that what Pro-abortion advocates claim so that they can say the 13th and 14th amendments protect the practice of pregnancy termination?

    At any rate, no one was comparing healthcare to slavery. The comparison was that the harm from removing a subsidy is kind of like saying it would be harmful if you removed slavery. (Slavery was chosen because we all morally agree that it is wrong.)

    Dejectedhead (4bfcf6)

  95. My analysis is up.

    Patterico (9c670f)

  96. I’d say the only way this statement isn’t correct is that slavery actually WAS Constitutionally protected.

    Actually, the Constitution does not specifically mention slavery anywhere, a point Lysander Spooner used to make.

    There are provisions that were interpreted that way, but the word does not appear in the document, and there are, arguably, alternate ways to interpret the provisions most people cite. (Again, see Spooner.)

    In any event, the idea that slavery was legitimate in any way, share, or form is wrong, for anyone who believes in natural rights.

    Patterico (9c670f)

  97. At any rate, no one was comparing healthcare to slavery. The comparison was that the harm from removing a subsidy is kind of like saying it would be harmful if you removed slavery. (Slavery was chosen because we all morally agree that it is wrong.)

    Analogies are not equivalencies. Unfortunately sing ain’t bright enough to understand that very simple point, which even my 12- and 15-year old children understand.

    Patterico (9c670f)

  98. “You know who is missing from this “agreement”? The taxpayer-slaves who don’t get subsidies. What do they get out of your sweet agreement, other than the “right” to work and pay for other people’s health care?”

    They get to be just like any other taxpayer that doesn’t agree with where their tax dollars go.

    “There are provisions that were interpreted that way, but the word does not appear in the document, and there are, arguably, alternate ways to interpret the provisions most people cite. (Again, see Spooner.)”

    It’s not that they were “interpreted that way.” Their point was to include slavery. Not just the 3/5ths clause but also article V section 2. How else could we have interpreted these?

    sing (bbbfe8)

  99. You are a special little snowflake.

    JD (86a5eb)

  100. It’s pretty clear nobody anticipated a national exchange (citations that cite the Senate bill after it was passed can be used) but that doesn’t mean somebody thought some people would not be eligible forsubsidies.

    There was of course never supposed to be any such thing as healthcare.gov, but only separate state exchanges. That is actually not quite the issue in King vs Burwell. I am not sure why they missed it or decided not to say anything about or (if the lawsuit does mention that problem, why it’s misisng from news coverage)

    The trith is, nobody anticipated the bill as written, and I think the bill was actually delioberately written defecctively. They offloaded admisnitrative costs onto the states, without any real attempt to force states to establish an exchange or any expectation that every state would establish an exchange by itself. The Democrats meeting in Hary reid’s office intended to fix that in the nect Congress, but not before, because that way the CBO would not revise its score. The CBO was told to assume every state would establish an exchange and the Senators involved knew very well that would not happen.

    Sammy Finkelman (a551ff)

  101. 99. Separate state exchanges even if the software was written by the federal government and it was operated by HHS. Right there, they departed from the law as written.

    Sammy Finkelman (a551ff)

  102. Why, of why, does everybody talk about exchanges “established by a state” and not the mucuh less ambiguous, exchanges established under “Section 1311″ The section authorizing the secretary of HHS to establish one is sextion 1321. A much clearer argument.

    Sammy Finkelman (a551ff)

  103. analogies are like when you say something is kinda like something else like how the supreme court is kinda like a group of corrupt uglybutt constitution-defiling ivy league trash

    with robes

    that they probably never wash cause they nasty

    happyfeet (a037ad)


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