Patterico's Pontifications

3/4/2015

King v. Burwell Oral Argument Analysis: Things Not Looking Great for the Good Guys

Filed under: General — Patterico @ 7:50 pm



I have now read the transcript from today’s oral argument in King v. Burwell (.pdf). Here the executive summary: the count stands at 4-3 in favor of Obama, with Roberts and Kennedy up in the air. If I had to guess, I’d say Roberts is looking good.

Kennedy, not so much.

In other words: my prediction, previously optimistic, has just changed. I now think we’ll lose. I’m not positive about this. But that’s the way it looks to me.

(I want to make it clear that I have not read any other analysis of the argument. You’re getting straight Patterico analysis in this post.)

The only good news is that conservatives can leave John Roberts alone for a while and go back to picking on Anthony Kennedy — who, in my mind, is far more deserving of opprobrium.

Here are the details, which are entertaining if (in the end) rather discouraging:

Let me begin by saying that in this post I assume you are familiar with the basic issues. If you’re not, never fear. You can bone up here and return when you’re ready.

Here’s how I count the votes:

Clearly pro-Obama based on the argument:

Ginsburg, Kagan, Sotomayor, Breyer

Clearly anti-Obama based on the argument:

Scalia, Alito

I said 4-3, not 4-2, right? Yes, I did. I would bet the house that Justice Thomas (the Justice whom I respect the most) is on the anti-Obama side here. Just because he is consistently the most sensible justice sitting on that bench. So go ahead and count him on the side of Scalia and Alito. I’m very comfortable with that. That makes the anti-Obama side:

Scalia, Alito, Thomas

All the above-named justices, on both sides (except Thomas), made very clear and consistent statements about their views on the interpretation of the language at issue here.

Let me give you just one example, because I think it is interesting, and because I have a distinct reaction to it. Namely, early on, Kagan challenged plaintiffs’ lawyer Carvin with this hypothetical:

JUSTICE KAGAN:  Can — can I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about?

So I have three clerks, Mr. Carvin.  Their names are Will and Elizabeth and Amanda.  Okay?  So my first clerk, I say, Will, I’d like you to write me a memo.  And I say, Elizabeth, I want you to edit Will’s memo once he’s done.  And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.

Now, my question is:  If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?

Cute. Her answer, of course, is that, of course Elizabeth should edit the memo, even though she was told to edit “Will’s memo” and it was actually written by Amanda.

(By analogy, she is arguing, if subsidies are available on exchanges “established by the state” and the HHS secretary can set up “such exchange” then in context subsidies are available on exchanges established by the HHS secretary because she is establishing “such exchange.”)

There’s not really much question where she stands, is there?

Nor is there really any question about the position of Justice Alito, who responded to Kagan’s hypothetical with this brilliant riposte:

JUSTICE ALITO:  Well, Mr. Carvin, if I had those clerks, I had the same clerks —

(Laughter.)

JUSTICE ALITO:  ­­ and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it?  Would the answer be it was written by Will, because Amanda stepped into Will’s shoes?

Boom.

(By analogy, he is arguing, if the state set up the exchange, then the state actually set it up — and even if someone else like the HHS Secretary set up “such” exchange, you cannot ascribe its establishment to the state, because the state didn’t establish it.)

Kagan’s hypothetical is not linguistically the same as the real situation, because (as Carvin argued in answering the question) in the example we have absolutely no reason to believe that Kagan cares which clerk did the memo.

Let me give a hypo that is more on point. Let’s say Kagan might have really wanted Will to write the memo, because the case involves ObamaCare and Will is an expert on ObamaCare. So Kagan says: “I will give all the clerks’ families a special Christmas present if a memo on ObamaCare is authored by Will. If Will can’t author the memo, Amanda should author such memo.”

As it happens, Will can’t write the memo, so Amanda writes it instead. Justice Kagan has left the country and is unreachable, but on her desk sits a box that says: “Christmas present for the clerks’ families for ObamaCare memo authored by Will.” May the families open the present?

No, of course not. As Justice Alito notes, Amanda may have authored “such memo” — but it makes no linguistic sense to say that, therefore, Will authored the memo. If there is a contingency that kicks in, by its own terms, if Will authored the memo . . . it doesn’t kick in when the memo was instead authored by Amanda.

Indeed, this example illuminates this case nicely, by stripping away the political nonsense, why the government’s position is totally incoherent. So Justice Kagan’s hypo, presented in the proper light, shows why Obama loses.

As it happens, each side has a story as to what Congress must certainly have intended. But as long as the language, read in context, has a plain meaning and the plaintiffs’ story is plausible, the judges should go with the plain meaning.

Anyway, let’s move on to the tea leaves. I just said we are 4-3 in favor of Obama, based on what we know. That leaves two Justices whose tea leaves need to be read: Kennedy and Roberts. (We already knew that, but the argument makes it that much clearer.) Those favoring a plain language reading of the law need both votes. Both Roberts and Kennedy must vote against Obama, for Obama to lose.

So let’s look at what they said. I’ll start with Kennedy, who spoke much more than Roberts. The first thing Kennedy said got my attention:

Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own exchange, or we’ll send your insurance market into a death spiral.  We’ll have people pay mandated taxes which will not get any credit on — on the subsidies.  The cost of insurance will be sky-high, but this is not coercion.  It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument.

Later he reiterates:

I think the Court and the counsel for both sides should confront the proposition that your argument raises a serious constitutional question.  Now, I’m not sure that the government would agree with that, but it it is in the background of how we interpret this — how we interpret this statute.

And immediately after that, he said:

It may well be that you’re correct as to these words, and there’s nothing we can do.  I understand that.

Kennedy gave an example of coercion that he believes would be clearly unconstitutional:

In — in South Carolina v. Dole where — where the matter of funding for the highway, suppose Congress said, and if you don’t build the highways, you have to go 35 miles an hour all over the State.  We wouldn’t allow that.

So what does this mean? One could say that he is trying to hint that, hey, we’ll rule on the plain language of the words, but that could make the mandate unconstitutional. It’s not a crazy thought, since Kennedy was opposed to the mandate the first time ObamaCare came around.

But another possibility is that he would use something called the “doctrine of constitutional avoidance,” which says that language should be interpreted in a way that avoids constitutional problems.

Unfortunately, that’s exactly what I think he means. Here’s the closest he comes to giving a hint:

JUSTICE KENNEDY:  Because it, it — it does seem to me that if Petitioners’ argument is correct, this is just not a rational choice for the States to make and that they’re being coerced.

GENERAL VERRILLI:  So what I ­­–

JUSTICE KENNEDY:  And that you then have to invoke the standard of constitutional avoidance.

(No, you could strike down the mandate, which is what is setting things into the death spiral. But nobody said that, and it clearly wasn’t on the table. So.)

But let’s keep reading. Speaking of the possibility that the statute was set up in a way that gave states the power to decide whether to set up exchanges, Justice Kennedy said:

JUSTICE KENNEDY:  Well, wouldn’t it have been — again, talking about Federalism, a mechanism for States to show that they had concerns about the wisdom and the workability of the Act in the form that it was passed?

Kennedy did not strongly tip his hand concerning the proper interpretation of the provision at issue, but he did suggest at one point that interpreting a cross-reference to section 1311 as a cross-reference to “1311 and 1321″ was not very plausible.

One interesting point is that the Chevron doctrine — under which courts give deference to agencies’ interpretation of ambiguous statutory provisions — was not mentioned until the tail end of the argument. Not one justice challenged Michael Carvin, the plaintiffs’ lawyer (the anti-Obama guy) with Chevron. Nobody said to Carvin: “Hey, don’t you obviously lose under Chevron?” Instead, the leftist hacks said the language clearly conferred subsidies on exchanges established by the federal government, and the conservative justices just as clearly denied it. No sooner did Kennedy invoke Chevron than he threw cold water on the idea, saying:

[I]t seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here?  Hundreds of millions?

. . . .

And it ­­– it seems to me
our cases say that if the Internal Revenue Service is
going to allow deductions using these, that it has to be very, very clear.

. . . .

And it — it seems to me a little odd that the director of Internal Revenue didn’t — didn’t identify this problem if it’s ambiguous and advise Congress it was.

(SIDE NOTE: Just as it seems Chevron is not much of an issue, neither is standing. Only Ginsburg seemed concerned with it, for a brief period at the beginning of the argument — and by the end of the argument it was clear to me that this case will not be decided on the issue of standing.)

Roberts did not speak much. But he seemed friendly to Carvin. One comment of his effectively rebutted an a broadside from Kagan and Sotomayor on Carvin. Kagan at one point tried to rake Carvin over the coals for a position he had taken in the previous ObamaCare lawsuit. In the previous suit, Kagan said, Carvin had argued that the subsidies were necessary to incentivize insurers to offer policies on the exchanges. Sotomayor jumped in the fray and also tried to accuse Carvin of contradicting his previous position. At that point, Roberts drolly interjected:

Mr. Carvin, we’ve heard talk about this other case.  Did you win that other case?

(Laughter)

So maybe it makes sense that you have a different story today?

(DIGRESSION: Sotomayor was very high-handed and arrogant at points in the argument. At one point, after she tried to interrupt Carvin and he tried very hard to finish the point he was making, she told Carvin to “take a breath.”)

Other than rescuing Carvin there (albeit in a way sure to enrage hard-line conservatives), Roberts said almost nothing else of substance, other than to suggest that applying Chevron deference might mean that the IRS under a different president could change the interpretation.

If you’re right — if you’re right about Chevron, that would indicate that a subsequent administration could change that interpretation?

I will (not so) humbly remind the reader that I raised exactly that point in this post from last July, saying: “if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one.” (The answer to the question isn’t quite that stark, by the way — but it could happen.)

So, the bottom line is: I think Roberts may be on our side.

But I don’t think Kennedy is.

If I’m right . . . we lose.

58 Responses to “King v. Burwell Oral Argument Analysis: Things Not Looking Great for the Good Guys”

  1. Ding.

    Patterico (9c670f)

  2. It occurred to me, listening to NPR’s report on the way home from work, that it is less of a stretch to adopt the Obama side of the argument than it was to make the case for the ACA which Roberts made in upholding it (ie, as a tax even though no one else wanted to call it a tax). That too was constitutional avoidance.
    BTW, it may or may not mean anything, but NPR chose to highlight almost exactly the same passages you did. I did not hear about Amanda ghostwriting memos, but I did turn it on when the report was underway.

    kishnevi (9c4b9c)

  3. I had not read or heard any other analysis when I wrote this post.

    Patterico (9c670f)

  4. I’m full of bad news based on oral arguments these days.

    First that Fifth Circuit amnesty case, and now this.

    Patterico (9c670f)

  5. I think that Kennedy is concerned that states are being forced to “create” exchanges in order for their residents to get subsidies and that this force may be unconstitutional, along the lines of the Medicaid expansion in Sibelius. I think this worry is misplaced:

    1) The states do not have to do ANYTHING but say “I hire the Feds to run this exchange for me.” If they hired EDS is would be “their” exchange, so they could IF THEY WANTED TO, authorize the Federal government to run the State Exchange. Doesn’t even have to be exclusive, just a “select your state” dropdown would suffice.

    There is no force and no burden on the state.

    2) The states are simply grated a POWER. They can, if they choose, NOT hire anyone to run their exchange. They can refuse to cooperate and prevent their residents from participating in the subsidy system. This may backfire on the state government next election, but they cannot complain that they were given too much power.

    3) Nothing is being taken away (as you point out in some detail). Unlike the Medicaid, there is no prior subsidy system. True, the ACA could not have conditioned continued Medicaid on setting up a state exchange, but that wasn’t in the bill.

    Kennedy will use this specious argument only if he wants to uphold the ACA. He voted to strike it down before, so I’m unconvinced.

    Kevin M (25bbee)

  6. I don’t get how Justice Kennedy can identify a Constitutional issue…in a law that he already felt was unConstitutional…and then decide the case to support the very administration that passed an unConstitutional law.

    Dejectedhead (4bfcf6)

  7. Note that the Feds cannot create a state exchange. Only a state can, even if it just takes an executive order by the governor to authorize the Feds’ action.

    This is a fundamental notion that liberals have real problems with.

    Kevin M (25bbee)

  8. Kennedy will use this specious argument only if he wants to uphold the ACA. He voted to strike it down before, so I’m unconvinced.

    Well, this case isn’t really about upholding the ACA.

    I get your point: he is hostile to it, and not inclined to go out of his way to do it favors.

    That said, he is a big federalism guy. He jumped on the federalism point, which I can’t remember anyone ever raising before, but which is clearly now the key issue in the case.

    Hint: the words “Moops” was not spoken today. Take that, Lemieux!

    Patterico (9c670f)

  9. Note that the Feds cannot create a state exchange. Only a state can

    Well, that was what today’s entire argument was about.

    I don’t like the term “state exchange” even though I saw Scalia using it.

    The key word is “established.”

    Even if you want to call the exchange established by HHS a “state exchange,” it was still established by HHS and not the state.

    Just like Amanda really authored the memo.

    I have a new respect for Alito after the way he turned that around on Kagan. That was truly on-the-spot brilliance.

    Patterico (9c670f)

  10. Patterico,

    “Established” is just such a tricky word. It requires the state to take an action, certainly, but almost any action suffices. They do NOT have to do it themselves with state workers. They can write a check to EDS. They can accept one for free. They can make a deal with another state that has a working site. They can make a deal with the feds.

    But the State has to make the deal.

    New joke: In Obama’s America, the deal makes YOU!

    Kevin M (25bbee)

  11. And I thought I was speaking to the (non-existant) federalism point in #5. The only things here that violate federalism are 1) the Feds acting for the State unilaterally, 2) coercing the State into creating one themselves, and 3) Foisting program costs on the States. The ACA does not allow the former (this was Senator Nelson’s exact demand, and the issue at hand today), there is no coercion but instead the recognition of the state’s constitutional power to choose, and 3) there is no cost to setting up an exchange — the Feds will run it for free. They just need permission.

    Kevin M (25bbee)

  12. I agree that what constitutes “established” may be minimal.

    But the minimal level is not met by a state that says “fuck you, we’re not establishing a damned thing.”

    To be sure, there are certain hacks on the left who would interpret language such as that to read: “We hereby establish an exchange.” To such people, there is literally nothing you could say that they couldn’t twist into what they want it to say.

    Patterico (9c670f)

  13. Even if you want to call the exchange established by HHS a “state exchange,” it was still established by HHS and not the state.

    If the state says “Madame HHS Secretary, will you please add us to your exchange” it is established by the state. If not, not.

    Kevin M (25bbee)

  14. And I thought I was speaking to the (non-existant) federalism point in #5. The only things here that violate federalism are 1) the Feds acting for the State unilaterally, 2) coercing the State into creating one themselves, and 3) Foisting program costs on the States. The ACA does not allow the former (this was Senator Nelson’s exact demand, and the issue at hand today), there is no coercion but instead the recognition of the state’s constitutional power to choose, and 3) there is no cost to setting up an exchange — the Feds will run it for free. They just need permission.

    I agree with you, but Kennedy is concerned about #2. He says that if Congress tells the states: “establish an exchange or we are sending your health insurance industry into a death spiral” that is coercion.

    My argument is: maybe so, but if so, that’s because of the mandate. So invalidate the mandate.

    Patterico (9c670f)

  15. I think we are in violent agreement.

    Kevin M (25bbee)

  16. “I agree with you, but Kennedy is concerned about #2. He says that if Congress tells the states: “establish an exchange or we are sending your health insurance industry into a death spiral” that is coercion.”

    Patterico – Hey, and if things go the wrong way and residents of a state that did not set up its own exchange lose their subsidies, a state can always create its own exchange going forward or Congress can amend the ACA. Problems solved.

    sarc

    daleyrocks (bf33e9)

  17. Doesn’t the coercion point depend on a finding, first, of ambiguity in the statutory language? It’s a rule for construction when there is an ambiguity.

    Beldar (fa637a)

  18. Re: Kennedy. How coercive can the statute be when 37 states were manifestly not coerced by it?

    Barry Jacobs (adddc2)

  19. Reading the tea leaves and trying to interpret the oral arguments is an interesting evening’s entertainment. Does anybody remember or want to go back and actually review the similar discussion of the first Supreme Court ACA case? I seem to recall that there were a few surprises that time when the ruling came out.

    elissa (687101)

  20. Doesn’t the coercion point depend on a finding, first, of ambiguity in the statutory language? It’s a rule for construction when there is an ambiguity.

    I agree, if your comment is shorthand for saying that the “constitutional avoidance” doctrine kicks in only when the interpretation that allows one to avoid the constitutional issue is plausible.

    And that is why Justice Kennedy’s comments don’t really hang together. In essence, he is saying: hey, you have a pretty good case that the words mean what they say, but if they do, there is this giant coercion issue, and so I’m kinda thinking maybe we can just avoid that with the “constitutional avoidance” doctrine.

    The problem is that “ambiguity” is in the eye of the squishy and unprincipled beholder. Kennedy will find “ambiguity” if it suits his purposes. I have little enough respect for the man that I feel comfortable saying that.

    Patterico (9c670f)

  21. Reading the tea leaves and trying to interpret the oral arguments is an interesting evening’s entertainment. Does anybody remember or want to go back and actually review the similar discussion of the first Supreme Court ACA case? I seem to recall that there were a few surprises that time when the ruling came out.

    I’ve been meaning today to go back and look to see if Roberts ever said anything about the thing surviving as a tax. Your comment reminds me to do that. I think I will right now.

    Patterico (9c670f)

  22. I just did. I really see nothing there.

    But remember, Jan Crawford reported that Roberts flipped during the opinion writing. I don’t think his views were fully fleshed out at the time of oral argument.

    Patterico (9c670f)

  23. I will say that I believed everything came down to Kennedy last time, and that’s what I wrote.

    But I still think that was a defensible analysis, based on Roberts’s and Kennedy’s comments in oral argument last time.

    Patterico (9c670f)

  24. Re: Kennedy. How coercive can the statute be when 37 states were manifestly not coerced by it?

    The government would respond: they didn’t realize they were being coerced, because they thought their citizens would get the subsidies.

    Let the Supremes overrule King and then see how many states change their minds. Then we’ll see if there was coercion.

    Patterico (9c670f)

  25. Please demonstrate your track record of predicting Kennedy’s vote on tough cases based on his questions during oral argument.

    If it is better than 50% – a coin flip – maybe someone should listen. But that would make you the best of the Tony Kennedy Watchers, and requires proof.

    Estragon (ada867)

  26. Welp, there goes my topic for Friday. I’ll try to come up with something original.

    JWB (6cba10)

  27. I can’t stand what Obama has done to simple English, the country, the Constitution, and basic honesty.

    JD (86a5eb)

  28. I thought words were simple. Who knew?

    Ag80 (eb6ffa)

  29. Of course the federal government has used coercion. Remember the 55 MPH speed limit? If a state didn’t enact the limit, they didn’t get highway funds.

    Look at common core, if the states don’t implement it, the get reduced funds. Sounds like coercion to me.

    Look at operation choke point, government coercion.

    The government does it often.

    Tanny O'Haley (c674c7)

  30. And Kagan — Obama’s solicitor general arguing for the Audacity Con Act before she became a Supreme — absolutely has no bias against the plaintiffs? Thank you McCain and Graham.

    jb (d52e5e)

  31. Eatragon,

    I think my track record is pretty good, actually. I said we had a chance with Kennedy in the first ObamaCare case and we did.

    http://patterico.com/2012/03/28/obamacare-second-day-arguments-can-congress-make-citizens-buy-something/

    I could look up more, but how do I know you won’t simply play Internet Guy and redefine any successful prediction I have made as occurring in an “easy” case?

    “Please demonstrate” that you won’t.

    Patterico (acc927)

  32. I called Halbig when few others did. That wasn’t Kennedy, but I know how to listen to an argument.

    Patterico (acc927)

  33. Outcome-based testing of evidence and legal theory is tyranny.

    For almost my entire lifetime, this is our judicial reality.

    The only real hope left for our republic is an Article Five convention. The problem, of course, is that even that would be subject to the black-robed regiments of apparatchiks who refuse to accept limitation on their power.

    Were I a bookie, I would set the line at a minimum of 100-1 against the “good guys” prevailing in this case. Many thanks, Pat, for your typically sharp analysis.

    Ed from SFV (3400a5)

  34. Let the Supremes overrule King and then see how many states change their minds. Then we’ll see if there was coercion.

    What, exactly are they being coerced into doing?

    A phone call the the DHHS Secretary will suffice to end their “obstruction” and allow the federal exchange to serve as the official state exchange. Problem solved. Not one thin dime (phone calls are free now) needs to be spent.

    Oh, perhaps the state’s residents are coerced, but who cares about that?.

    Kevin M (25bbee)

  35. A couple thoughts:

    (1) I think Kagan’s analogy draws most of its persuasive force from removing the dispute from the realm of statutory interpretation, where language is analyzed as though used precisely, to the realm of everyday communications, which employs a more forgiving mode of interpretation.

    (2) Regarding what it means to “establish” an Exchange, I think 1311(d)(1) of the ACA has been woefully under-appreciated. That provision requires that an Exchange be a “governmental agency or nonprofit entity established by the State.” This (a) rebuts the government’s argument that the state can establish an Exchange under 1311 by failing to establish an Exchange and having HHS do so under 1321 (HHS, though a “governmental agency,” is not established by the State); and (b) demonstrates that some legal action by the state is required to “establish” an Exchange–namely, the state must establish a “governmental agency or nonprofit entity.” It can’t, for instance, deem an HHS-established Exchange to be a state-established Exchange.

    mtphrs (eef893)

  36. I think Kagan’s analogy draws most of its persuasive force from removing the dispute from the realm of statutory interpretation, where language is analyzed as though used precisely, to the realm of everyday communications, which employs a more forgiving mode of interpretation.

    Yeah, and imagine her surprise when she found out everyone on the court or near it was a lawyer.

    This doesn’t even pass the laugh test. When lawyers lose at the law, OF COURSE they want to say “Law, schmaw, let’s be reasonable!” Oddly, they are not so keen when the law serves them.

    Kevin M (25bbee)

  37. analogies are always tricky as inevitably, they leave something out.

    Suppose this variation on the law clerk memo writing analogy. Kagan’s senior clerks think they should have first dibs on writing memos. Kagan agrees and says that Will will get first chance to write the Halbig memo, but if he doesn’t than Amanda, a junior clerk, will do so. Kagan than decides it would be a good idea to stop paying clerks a fixed salary but only pay them on a per memo basis. If they don’t write memo’s they don’t get paid, and she will put different prices on different memos. She then writes a note to Emil that he’ll get paid a 2,000 for writing the Halbig memo. But then he doesn’t and Alice does. Should Alice get paid $2,000? Particularly if she doesn’t get paid she will be in danger of not getting paid enough that month to pay rent and would have to quit being a clerk?

    Why I think this is an improvement over your analogy is 1) your assumption that there was some special quality in Will’s writing that Kagan would want to reward, analogous to some special magic i nthe state exchanges. But they run the same way as the HHS exchanges. The preference for the state exchanges was simply a bow towards federalism, but allowing a federal fall back, just as Kagan may wish to give senior clerks first dibs. and 2) your analogy of the subsidies as special Christmas bonuses, making them look like gifts that anybody could do without, when in fact without the subsidies the exchanges head into a death spiral and are useless. Just like a clerk who doesn’t get paid is probably not going to stay a clerk very long.

    Four justices pointed out in argument at various times that it would make no sense to set up federal fall back exchanges that were doomed to fail. Your christmas bonus analogy doesn’t really get to that point.

    Northener (54cc9d)

  38. Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally.

    If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

    Lamar Alexander (R-Tenn.) chairs the Senate Health, Education, Labor and Pensions Committee. Orrin Hatch (R-Utah) chairs the Senate Finance Committee. John Barrasso (R-Wyo.) chairs the Senate Republican Policy Committee.

    happyfeet (831175)

  39. 37. …Four justices pointed out in argument at various times that it would make no sense to set up federal fall back exchanges that were doomed to fail…

    Northener (54cc9d) — 3/5/2015 @ 3:46 am

    Only in hindsight.

    Now that you want a do-over you say they were doomed to fail, but your ilk in Congress thought this would work until they tried it.

    Steve57 (813c29)

  40. And of course the fix is legislative.

    But since plain English doesn’t matter to you, why should it matter if the plain English is in the Constitution?

    Steve57 (813c29)

  41. Did anyone notice that both Ginsburg and Sotomayar stated the provision for income tax credits should be someplace other than the income tax code. Their rationale was that an income tax provision was important and therefore it order for everyone to know about then income tax credit – it needed to be someplace other than the tax code so that people could find the tax provision. Brilliant justices.

    joe (debac0)

  42. A bow to federalism?! That is laughable. There is a legislative fix that doesn’t involve bastardizing the English language.

    JD (4d1012)

  43. Patterico, I can only pray your conclusion is incorrect.

    htom (4ca1fa)

  44. IMO Kagan’s analogy is flawed for another reason, which strengthens plaintiff’s arguments.

    In Kagan’s analogy, it is only at the last stage that she calls for the fallback memo writer. When she gave the instruction about editing, it was assumed who would write the memo. The chronology makes it different from the actual case in a way which is fatal to the analogy.

    A better analogy would be if she went to Elizabeth and said:

    I’ve told Will to write the memo. I’ve also told Amanda to do it if Will does not. Now I am telling you, Elizabeth: if Will writes the memo, I want you to edit it.

    DF (63295d)

  45. I think Congress could write a statute that says, in toto: “The Department of Health and Human Services and the Internal Revenue shall provide health care insurance to every American through the enactment of relevant regulations.” So what? That’s not what it did here.

    nk (dbc370)

  46. Apart from analyzing the oral arguments, over at PowerLine they describe how the case should clearly be decided one way, but how the court can rule the opposite way in line with their own example:
    http://www.powerlineblog.com/archives/2015/03/triumph-of-the-leftist-will.php

    I guess the answer to Mr. Franklin is that we have indeed already lost it, it is now a question on whether how bad it can get before we can get it back, if we can.

    Bread and circuses worked for only so long,
    so will food stamps and cellphones.

    Hey, even the enemies at the end may come from central Eurasia.

    But history is not completely cyclical, IMO, it is composed of repeating cycles moving forward toward an end.

    MD in Philly (f9371b)

  47. “I will (not so) humbly remind the reader that I raised exactly that point in this post from last July, saying: “if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one.” (The answer to the question isn’t quite that stark, by the way — but it could happen.)”

    Deference to the IRS interpretation is my preferred outcome for this reason. It gets us a bunch of GOP primary contestants promsing to raise taxes and health care costs and to wreck insurance markets, as a litmus test of loyalty to the anti-Obamacare cause.

    sing (bbbfe8)

  48. Sure. For you, a partisan political advantage is the thing to hope for. Some of us actually care about the judges getting it right, but obviously you don’t.

    Patterico (9c670f)

  49. I think we both prefer to let Ted Cruz be Ted Cruz.

    sing (bbbfe8)

  50. I think Congress could write a statute that says, in toto: “The Department of Health and Human Services and the Internal Revenue shall provide health care insurance to every American through the enactment of relevant regulations.”

    I think Congress could write a statute saying “The Department of the Treasury and the IRS shall level all income through the enactment of relevant regulations.” I doubt it would pass constitutional muster either. I also think that it will be a cold day in Hell before another law is passed granting an agency increased power of regulation. The Obama administration has demonstrated a reducio ad absurdum case against such and the next GOP administration will complete it.

    Kevin M (25bbee)

  51. Only slightly off topic:

    Has anyone been watching the new season of “House of Cards”?

    What passes for acceptable executive action is incredible. President issues executive order. Congress passes law to cancel order. President vetoes it and says if they override the veto, he’ll just not enforce it.

    What passes for acceptable federal power is incredible. The “centrist” president is trying to take over the employment market “to get people back to work” through government jobs or heavily subsidized private ones (and robbing unrelated budgets to fund it). Accoring to the writers, there are lots of Republicans who like the plan.

    Meanwhile, the Democrat challenger wants to institute regulation of salaries and bonuses, to level the income gap, and punish companies like Wal-Mart who don’t pay a “living wage.”

    Hollywood’s political space is pretty far out there if this is their vision of the political battlefield.

    Kevin M (25bbee)

  52. “It gets us a bunch of GOP primary contestants promsing to raise taxes and health care costs and to wreck insurance markets, as a litmus test of loyalty to the anti-Obamacare cause.”

    sing – You go with that. Given the increases in health care costs and insurance premiums caused by Obamacare reflected in its unpopularity, that’s a win-win for your side.

    daleyrocks (bf33e9)

  53. sing – President Obama said the ACA would save families $2,500 on average on their health care and if their like their doctor they could keep their doctor.

    How is that working out?

    Pre-ACA 85% of people were happy with their health insurance. Obama wrecked the entire market for what, 30 million people, of whom less than 1/3 have signed up for the awesomeness of his plan?

    People are loving those narrower provider networks and higher deductibles aren’t they?

    Bring a better game if you want to sit at the adult table.

    daleyrocks (bf33e9)

  54. analogies are always tricky as inevitably, they leave something out.

    Northener (54cc9d) — 3/5/2015 @ 3:46 am

    And I don’t think there’s any need for an analogy in this case. Rather than trying to construct an analogous scenario that accounts for all the intricacies of this case, we should just be talking about this case. Analogies in this context simply invite unconscious question-begging.

    mtphrs (19320d)

  55. What I find amusing is the executive overreach they’re fighting so hard to legitimize paves the way for the reversal of excessive federal action in one fell swoop Jan 20, 2017. Subject to political courage, of course, which has been hard to find lately.

    crazy (cde091)

  56. So the Court could rule that the words are ambiguous and should be interpreted to mean the opposite of what they say because the correct reading would be too onerous on some Americans. Isn’t that the thinking behind constitutional avoidance? If so, the Court’s opinion should cite Dred Scott as authority.

    DRJ (e80d46)

  57. I’m not quite as convinced that Kennedy is going to go with the government’s case because the plain text interpretation (the sane interpretation) of the statute leads to horrible consequences that he just can’t contemplate.

    http://www.weeklystandard.com/blogs/kennedys-constitutional-concerns-then-and-now_875257.html

    After today’s oral arguments, the administration’s proponents (and many of its critics) seemed to glean from Kennedy’s federalism questions that these concerns may persuade Kennedy to “avoid” the constitutional problem by interpreting the ACA to allow the subsidies for all states, even states that didn’t establish exchanges. Maybe that is what Kennedy will decide.

    But here is another possibility: Kennedy may conclude that the text clearly limits the subsidies to state-established exchanges; that the federalism concerns he raised don’t justify the Court in rewriting the clear statutory text; and that therefore those federalism concerns should be left for a future lawsuit, in which those who cry “coercion,” either individuals or states, challenge the constitutionality of the ACA’s exchange provisions.

    …Let me reiterate, I am not saying that this is how Kennedy will certainly vote, against the administration. Oral arguments are notoriously bad indicators of ultimate positions. And he may not yet have made up his mind. Perhaps he will conclude that the statutory language is broad enough to encompass either side’s interpretation, and that in that case the constitutional problem is not merely “in the background of how we interpret this ­­how we interpret this statute,” but ultimately in the foreground of that interpretation, convincing Kennedy and four other justices to rule for the administration.

    But perhaps he will conclude that some constitutional problems can’t be interpreted away. As Kennedy himself (with Scalia, Thomas, and Alito) wrote against the Chief Justice in NFIB v. Sebelius, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” Indeed, Kennedy and the others emphasized in that case, that such an “interpretation” of unambiguous statutory text is not “judicial modesty,” but “a vast judicial overreaching.” Is that how he will feel about “an Exchange established by the State”?

    Randy Barnett has a post up that provides a good sanity check on the issues raised by the “constitutional avoidance” question, if not a prediction on how the court may rule.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/avoiding-constitutional-avoidance/

    Steve57 (813c29)


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