And Sometimes Bad News Is Probably Just Bad News

It may well have been two whole hours since you’ve read one of my columns.  Fortunately, the suspense is over!  My take on the Supreme Court’s decision to jump the Halbig en banc and decide the ACA troofer case:

This is why the Supreme Court’s decision to step in is so disturbing. If there was still a circuit split, one couldn’t really infer very much about the position of the justices. But the court preempting the en banc hearing of Halbig is another story. “There was no reason to take this case in order to uphold the ACA, given the nearly certain result of the en banc,” Margo Schlanger of the University of Michigan Law School told me. “So that means there are four justices who want to strike it down who think they have five votes to do so.”

[…]

It’s very likely, in other words, that John Roberts is on a crusade to slowly poison the ACA to death without issuing a single high-profile ruling holding the ACA unconstitutional. First, he re-wrote the Medicaid expansion in a way that denies health insurance to millions of poor people (while not even meaningfully protecting state sovereignty). And now, Roberts might be ready to join the court’s other Republicans to destroy most of the exchanges based on legal arguments that are even more dubious.

Don’t be fooled. Such a ruling would not reflect any legal principles. Rather, it would reflect the Republican Party’s longstanding offer to people who lack health insurance: nothing.

But read the whole etc. if you want to be angry on a Monday morning.

I should note that some smart observers are more optimistic than I am: see for example Brianne Gorod and Ian Millhiser. The latter makes an interesting argument about how Roberts could use the arguments advanced by 18 states to save the subsides while advancing other reactionary federalist goals. It’s very possible, given his third way in Sebelius. And one might think that a large number of states filing briefs in favor of the federal government’s position, although I would caution that 36 states filing or signing amicus briefs supporting the federal government didn’t stop the Supreme Court from striking down part of the Violence Against Women Act in the name of “states’ rights.”

Let’s also be clear that this a life or death issue: see Beutler, and in a particularly heartbreaking essay, David Tedrow.

Finally, this twitter thread uncovered by Josh Marshall really tells you a great deal about modern Republicans. You have your Michael Cannons who are just straightforwardly giddy about people being stripped of their insurance. But then there are people who just think that it’s unpossible that someone could get their health insurance cancelled and be ineligible for Medicaid under the status quo ante, because Free Market Ponies! What can you say? It’s this moral and political universe in which it is quite likely that five Supreme Court justices will claim they’re enforcing the will of Congress by enforcing a nonsensical interpretation of a statute no member of Congress who voted for the legislation agrees with then or now.

…Bill Gardner is a fellow pessimist.