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Supreme Court To Almost Certainly Deny Millions of People Health Insurance

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It’s not every day that the Roberts Court can be worse than even I expect, but here we are: the Court is about to rule that the Moops invaded Spain. It’s not 100% that King v. Burwell will be overruled, I guess, but I don’t know why else they would preempt the Halbig en banc hearing otherwise.

I will have a piece on this coming out Monday, but it’s hard to overstate how evil and insidious this is. The Roberts Court stops both key components of the ACA from functioning in red states, based on farcial ad hoc legal arguments, without a single high-profile ruling that the law is unconstitutional.

People with strong stomachs can look at Johnathan Adler, in his palpable excitement about millions of people about to be stripped of their health insurance, claiming that this case is about…deferring to Congress. The fact that not a single member of Congress involved in passing the ACA has believed at any time that the subsidies were not available on federally established exchanges and the interpretation of the statute saying otherwise is nonsensical on its face renders this rather dark comedy indeed.

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  • The order list didn’t show the votes for granting cert. I would sure like to know who they were.

    Either the 4 Sebelius dissenters are throwing down the gauntlet to Roberts, or they’re confident he’s on board, would be my guess.

    The contrast with the “yawn, call us when there’s a circuit split” approach to gay marriage is remarkable.

    • Joe_JP

      Yes to the last point. A circuit split isn’t the only reason anyway (see here, e.g.) as seen by the “fish” case just heard, but really come on. This is such b.s.

      RBG didn’t provide a rare dissent from grant of cert., but maybe she can stop with that line from this point forward, even if she maybe sometimes sneaks in a qualifier no one pays attention to.

    • Scott Lemieux

      The only possible reason for optimism is that the Sebelius 4 have nothing to lose; even if they’re not sure on Roberts there’s no downside. But I just don’t trust Roberts at all here.

      • Me either. The man wrote Shelby County v. Holder. Scruples do not detain him.

        • Mellano

          Scruples, no, but how about professional pride? At least Shelby fit within the American tradition of cosseted white dudes acting obtuse about race. This argument is so embarrassingly stupid that every con law class will be laughing at him for all eternity if he blesses it, and he knows it.

          • dp

            BS. No one with professional pride would have written Shelby County. It is, as a law professor friend of mine once said in a different context, “F work.”

            • Scott Lemieux

              Exactly. Anybody would would issue Shelby County under his name is capable of anything. The decision for all intents and purposes had no constitutional law in it.

              • dp

                Yes. This court excels in writing opinions that, were they submitted in law school exams in a constitutional law course, would result in failing grades.

          • There was nothing obtuse about Shelby County. It was a deliberate imposition of anti-American principles to obtain a pro-Republican, anti-black result. And by anti-American, I mean pro-Confederacy.

          • MAJeff

            Scruples, no, but how about professional pride?

            His “professional pride” was demonstrated in writing Shelby County. He’s a professional right-wing hack and proud.

      • random

        Depends. Does he think that there’s any political downside for the GOP if they unilaterally kick 4.7 million people off their health insurance and then fine them for not having it while blaming Obama and the Democrats for it happening?

        • matt w

          Well, Obama’s IRS can unilaterally delay/waive the fine, can’t it? The GOP could try suing to force them to collect, and I don’t like to think what the courts would say to that, but it’d make the deniability a little less plausible.

          • L2P

            I’m not even sure the Courts would have jurisdiction to hear that claim. Generally the Courts can’t order the President to take any action to enforce the laws of the US. I think even Scalia would think twice about that.

            • matt w

              Not being a lawyer I would generally tend to agree, but — I guess maybe along the lines of the Lochner era we could call it the Bush v. Gore era — you’re kind of assuming that legal norms would place limits on the utter shitbaggery of the Bush v. Gore court, and I don’t think that’s a safe assumption.

        • Davis X. Machina

          It depends on whether the voting public will accept that particular assignment of blame.

          I see no reason to think it won’t.

        • FlipYrWhig

          Does he think that there’s any political downside for the GOP if they unilaterally kick 4.7 million people off their health insurance and then fine them for not having it while blaming Obama and the Democrats for it happening?

          You don’t think they’d get away with this? I’m positive they would. Here’s how: “Blar har, stupid Obama is so stupid he fucked up his own health care law, Supreme Court said so, shoulda thought a’ that before passing it.” Then, later, “Why am I stuck in all this medical debt? Probably those Negroes made it happen. Can’t wait till the next election, I’ll show ’em what fer.”

          • That’s so stupid, it sounds entirely plausible.

            • AlanInSF

              The entire Republican party doesn’t see any political downside in it, so Roberts probably wouldn’t either.

        • Joe_JP
  • rea

    Draw no conclusions from grants or denials of cert–the court doesn’t explain what it means, and there are lots of tactical considerations involved.

    • True to a point, but that kind of reasoning would prevent us from drawing conclusions about much of anything. And this is the INTERNET. We draw conclusions here!

      But really: what would be a positive reason for the cert grant?

      • rea

        what would be a positive reason for the cert grant?

        A calculation by the justices that the good guys win?

        Or–a grant only requires 4 of 9–so the grant doesn’t tell us whether there are 5 votes for a bad result.

        • But that result also obtains if they deny cert on King.

          • Scott Lemieux

            Right. If the D.C. Circuit had refused an en banc rehearing, you couldn’t necessarily infer too much from this. But when the Court takes a high-profile case with no real circuit split, and their ideological makeup suggests that they will reverse — it ain’t good.

            • Denverite

              I will say that it’s at least conceivable that the rest of the NFIB four did this as a sop to Scalia, and they’ve got no real shot at Roberts.

              I mean, a case where he potentially would get to gut the ACA based on hardcore textualist grounds? Scalia better have the “9” and “1” already dialed in is phone, because that erection is definitely going to last more than four hours.

    • Mark Field

      It would be irresponsible not to speculate.

  • Just so I’m clear: when the subsidies become grossly unconstitutional and I can’t afford my insurance anymore, do I still get fined? That’d be awesome.

    • matt w

      Not until the Republicans are in charge of enforcing the tax code.

    • random

      Yup all 4.7+ million of us still get fined for not having the insurance we couldn’t afford to begin with.

      This is suuuuuuuuch bullshit. Seriously fuck these people.

      • BigHank53

        If we make the fines high enough, surely people will stop being poor in response.

        /Romney

    • liberalrob

      Don’t worry. After the SC throws out the subsidies the individual mandate will be repealed too, as the Republicans claim the mantle of “defender of the poor”.

      • Scott Lemieux

        The mandate doesn’t apply if there aren’t subsidies.

        • liberalrob

          So still, no need to worry. The Republicans are looking out for you, poor people! No more shoving basic health care down your throats!

          So, since the mandate no longer applies, what happens when all those people quit having health insurance? The individual mandate was the supposed carrot used to get the insurance companies to accept eliminating the pre-existing conditions and recission practices. I guess the next step is letting those come back, in the name of “deregulation”?

          • Lee Rudolph

            So, since the mandate no longer applies, what happens when all those people quit having health insurance?

            America’s first cohort of home-grown, home-targeting, suicide bombers?

            I am not joking (though I am, I hope, being unrealistically hyperbolic). To despair of life is one thing; to despair, to be at least somewhat rescued from despair, and then to be thrown back into despair, is quite another, and I think it will break some people in unforeseeable ways.

            • DocAmazing

              Popular fiction anticipated this some time ago; see, for example, the movie John Q.

            • AlanInSF

              “to be thrown back into despair, is quite another, and I think it will break some people in unforeseeable ways.”

              And so the moral balance of the universe is restored, exactly as Jesus intended.

  • matt w

    So the question is, what resources are there within an alleged democratic government of laws do when actors within it act lawlessly in pursuit of pure power? This is already a live question in Hungary, where Fidesz’s undemocratic reforms were all passed under color of law or put in place by courts who had been given the power to so rule. The US case may in some ways be even more egregious, as (in addition to the policy of Congressional Republicans to damage the country for their political advantage) the Republican judiciary are not even putting forth anything that is recognizable as jurisprudence except insofar as it’s something that’s done by judges. This can hardly be said to be the rule of law.

    The Roberts Doctrine amounts to “We will use the power we have been given in any way we want.” Which is what the Republicans in general do, but it seems different coming from people who were at least nominally appointed to interpret laws.

    • LeeEsq

      Liberal democracies have long struggled with what to do with illiberals. You can’t force people to respect liberalism but illiberals are very good at subverting the rules and procedures of democracy to illiberal gains. Your best hope is that their aren’t many illiberals.

      • Hogan

        And that they don’t get lifetime appointments to appellate courts.

      • matt w

        The problem is that, back in the 1860s and later when we had sound legal grounds to hang the worst of the illiberals and expropriate a lot of the rest, we didn’t do it.

        • LeeEsq

          Did we hang any high ranking Confederates? One of the things that Reconstruction could have done better on that was politically possible was trying Confederates for treason.

          • Only Henry Wirz.

            • LeeEsq

              Davis, Lee and most of the Confederate leaders should have been tried for treason.

              • DrS

                So interesting the instances when we show mercy and when we don’t, isn’t it?

    • liberal

      Good comment.

      Along with all the (good) commentary about McConnell’s scorched earth tactics, and how they don’t violate law but really debase norms, I wanted to point out that Krugman put this best quite a few years ago in the intro to The Great Unraveling: Losing Our Way in the New Century:

      Back in 1957, Henry Kissenger — then a brilliant, iconoclastic young Harvard scholar, with his eventual career as cynical political manipulator and, later, as crony capitalist still far in the future — published his doctoral dissertation, A World Restored. One wouldn’t think that a book about the diplomatic efforts of Metternich and Castlereagh is relevant to U.S. politics in the twenty-first century. But the first three pages of Kissinger’s book sent chills down my spine, because they seem all too relevant to current events.

      In those first few pages, Kissinger describes the problems confronting a heretofore stable diplomatic system when it is faced with a “revolutionary power” — a power that does not accept that system’s legitimacy. … It seems clear to me that one should regard America’s right-wing movement — which now in effect controls the administration, both houses of Congress, much of the judiciary, and a good slice of the media — as a revolutionary power in Kissinger’s sense. That is, it is a movement whose leaders do not accept the legitimacy of our current political system.

  • timb

    You need four and there were four before. Seems to me the same four think Roberts might go their way.

    After all, isn’t this classic Roberts mendacity? An incremental, nonsensical decision (like Brown v Board meant we should have segregated schools or Texas Municipal water proves there is no racism any more) which enables to him to further his partisan ends.

    Voting with the majority in Sebelius overthrew the entire law. Here, like the Medicaid bs, he can just whack part of it and, like the VRA, watch it wither on the vine.

    Jokes on him, though, if he creates the chaos this would create, single payer comes closer (within the next decade). You create pain amongst middle class white folks, you pay the price

    • bobbo1

      “if he creates the chaos this would create, single payer comes closer (within the next decade)”

      Right, just heightening the contradictions. Just think how fast we could have got to single payer if we hadn’t passed any healthcare law at all!

      • timb

        We had to pass something, as I noted at the time, the CRA of 1964 was preceded by watered down bills. Those bills demonstrated that all the bullshit raised by extremist conservatives about the terrible consequences of civil rights was bullshit.

        Same thing here, the govt has shown (and will show) over the next few years that it can provide health insurance and, when Roberts and company screw more people, those people will clamor for some sort of change which will help them. And, it won’t be with subsidies and private insurance companies.

        The ACA was necessary and would have worked for many people. It would have also showed the Feds can do health insurance, which means the people, eventually, will let them.

        In the meantime, it sure would be nice if Jon Adler could take getting his ass beaten in Congress and once at the SCOTUS as enough.

        • efgoldman

          The ACA was necessary and would have worked for many people. It would have also showed the Feds can do health insurance, which means the people, eventually, will let them.

          I thought for sure that, when folks in all those red states, especially bordering states that took the medicaid, saw their friends and relatives getting decent coverage cheaply, they’d put pressure on their state governments to do the same.
          Silly me. Tried to apply “logic” to “politics”. Won’t get fooled again.

          ETA: Did any governors in states that accepted the medicaid subsidies lose *for that reason?* I don’t think so.

          • timb

            The dude in Pennsylvania?

            Here in Indiana, where the Pence government in exile is set up, the State rejected both Medicaid and the Exchange. In every state surrounding us, folks get Medicaid and, since I represent disabled people who all need health insurance, you’d think some of them would know about Medicaid expansion. To add insult to injury, the State actually changed its Medicaid law this year to make it harder to get Medicaid and my clients are STILL unaware of the changes or how the people in the four surrounding states fare.

            The only people who know and care are the hospitals, who are clamoring for relief. It’s sad. Yet Indiana, on Tuesday, elected three R’s to state office by 9-15 points

            • The dude in Pennsylvania?

              That, alas, was not why he lost.

        • Morat

          If your model is the 1960s civil rights laws, you really shouldn’t be optimistic. Because they were preceded by civil rights laws in the goddamn 1870s. And when the Supreme Court struck them down on an absurdly racist reading of the Constitution, that was it for 90 years.

          You know what the people denied health care will do? They’ll blame the Democrats. The right will vote GOP, the center will drop out or vote GOP, and the left will drop out or vote Green.

    • SatanicPanic

      single payer comes closer

      I don’t see enough people behind this idea for it to really take hold. More likely single-payer comes to blue states, red states provide no healthcare at all to poor people.

      • timb

        I still think that would be better

        • David Hunt

          I hope that you’ll see why I, a resident of such a red state, disagree with you that this would be better.

          • Just_Dropping_By

            I’d suggest relocating to a blue state before developing any serious health problems.

          • AlanInSF

            Possibly at some point the people in the red states might look across the border and notice how much cheaper it is to buy health care in the blue state next door. (not that I think single payer will ever come to pass in a country where 25 percent of registered voters in the 20 smallest states have veto power over the whole country.)

            Possibly…not going all Green Lantern here, just saying, in the most minimal possible way, possibly it would have some tiny effect if a highly placed elected official of the Democratic persuasion ever said, “Maybe we ought to look at Canada…”

            • Bruce B.

              Unfortunately, the right-wing machine has done a great job training a significant fraction of the population to see an advantage others enjoy and respond with “that has to be stopped!” rather than “I deserve that too!”.

    • Jokes on him, though, if he creates the chaos this would create, single payer comes closer (within the next decade). You create pain amongst middle class white folks, you pay the price

      This seems wildly optimistic to say the least.

      • timb

        I have to hope in both prongs of my comment, Bijan. Hope that the four die-hards are the only people interested in cert and hope that Karma will enable something good to come from a Roberts betrayal of law.

        • David Hunt

          When do you think that we’ll get a Congress that would pass a single payer system into law? Note that we didn’t have the votes in the Senate to even get a public option in 2010, before Ted Kennedy died.

          I find the prospect that any congress that we’ll get within the next ten years would pass a single payer system laughable. I’d say that 20 years is merely unlikely, even if Republicans don’t cripple our economy during the “heighten the differences” period that you seen to think is needed.

        • Well, I’ll hope against sense that Roberts will step back and then if not that a wave in 2016 brings Medicare for all.

          But I won’t hold my breath.

    • If both my legs get broken, maybe they’ll heal in a new, more efficient configuration that will make me a champion track star!

    • Scott Lemieux

      within the next decade

      Within the next century is pretty dubious.

      • liberalrob

        And irrelevant, as we will face bigger problems than overpriced healthcare long before then. Nobody’s going to care about healthcare when Florida’s underwater.

        And anyway, most of us will be dead by then in any case.

        • Some sooner because the the likely outcome of this case :(

  • Davis X. Machina

    The Supreme Court follows the election results.
    (Except when it decides them, of course…)

    • It does feel a little much to have the Sutton op and then this cert grant in the 3 days after Tuesday.

      • Davis X. Machina

        Reminds me of the timing of Dred Scot.

  • sleepyirv

    The “deference” to Congress is a two-way street. If Congress can supposedly correct the Court’s crazy person take that the law was meant to be self-destructive, than Congress could “correct” the Court for ruling the law should be read logically by reinserting gobbledygook.

    • efgoldman

      Congress could “correct” the Court for ruling the law should be read logically by reinserting gobbledygook

      Some congress could, sure. No Congress before at least 2022, though. And that, depending on some unlikely electoral results in the state legislatures in ’16 and ’20.

  • c u n d gulag

    OY!

    I can see “The Fascist Five,” after Tuesday’s election results, feeling even bolder and more Fascistic.

    Roberts is sharpening his shiv, to stick in the liberals backs – particularly, Obama’s.
    Scalia’s, is always razor sharp – as are Alito’s and Thomas’s.
    Kennedy is probably the only hope.
    Kennedy…
    Oy…

  • Prediction Time – If the Supremes obey the Koch, which pundit will be the first to say it was cruel of Obama to disappoint people by creating a life and money-saveing law he knew the GOP would destroy?

    • Kathleen

      That’s easy. Chuckles Toddler.

  • Morse Code for J

    And the majority of voters in all of those states will cry out in ecstasy to have insurance placed beyond many fellow citizens’ reach because the alternative involves gratitude to a black man.

    Obviously, I’m still a little angry with my state for what it did on Tuesday.

  • Ronan

    What Im wondering is why so many in the RW establishment are so opposed to healthcare reform ?(I dont see ‘b/c theyre evil’ as convincing) Afaict a lot of the major interest groups (ie the insuramce companies) are behind it, so it’s not(?) coming from corp groups lobbying against it ? surely the electoral payoff now is non existent ? Why do they care?

    • matt w

      I dont see ‘b/c theyre evil’ as convincing

      What would they have to do for you to find it convincing?

      • “b/c they’re evil” is the explanation that best fits the facts.

        • matt w

          One could advert specifically to the Republican debate crowd cheering the suggestion that we should just let uninsured people die.

    • cleek

      Today’s conservatism is the opposite of what liberals want today, updated daily.

      http://ok-cleek.com/blogs/?page_id=18788

    • The person who signed the bill into law is left handed, which means the law has to be enforced by doing the opposite of what it says. Really.

      OK, they’re evil.

    • BigHank53

      Jesus promised he was going to separate the sheep from the goats on Judgement Day. Many so-called Christians aren’t willing to wait that long, and want to see all the sinners* punished now.

      It’s a sign of diseased thinking, that would begrudge a spoonful of rice in an “undeserving” mouth, while ignoring the rats eating pounds daily in the warehouse. Some of the “haves” are only satisfied when they can see the “have-nots”.

      *A term that can be astonishingly flexible. From the way they harp on gay sex you’d think the Bible had devoted a lot more space to it than the two (count ’em!) measly verses that are there, which probably have more to do with prostitution than actual homosexuality.

      • At least 4. Leviticus 18:22 and 20:23, 1 Cor 6:9, and then Paul’s freakout in Romans 1, which contends that idolatry —-> giving way to our desires —> gaysex.

    • liberal

      Since it’s pretty much an empirical fact that the more private health insurance and even in addition health care itself is provisioned, the more inefficient it is (put aside issues of justice), the only thing that makes sense is pure ideology: they can’t tolerate the notion of anything that is, or smacks of, socializing an industrial sector. (I say “smacks of” because Obamacare really isn’t socialist.)

      • LeeEsq

        If you ever read history, you would realize how true you are. There lots of ideological capitalists that see any form of government action as leading us on a long road to socialist tyranny. Houston refused to adopt a zoning code because they saw it as interfering with a person’s right to use their property as they please. To them this was just a step to the abolishment of private property under socialism. This line of thought already existed in the 19th century. Karl Marx made fun of it in this Third Brumiere.

      • Davis X. Machina

        You can’t pitch social provision to a country where half the people — and more than half of the political nation — don’t think the noun ‘society’ refers to an actually-existing thing.

        • liberal

          Agreed.

      • JustRuss

        I think that’s the gist of it. Sure, the private sector has had forever to solve the healthcare issue and clearly will not, but it’s just wrong for the government to get involved. The suffering of millions without healthcare is just the price you* pay for freedom.

        *meaning “not me”

        • liberal

          Let’s be clear, though. While I don’t want to diminish the justice side of the issue—I agree it’s paramount—we shouldn’t slight the efficiency side of the issue.

          We spend well north of 15% of GDP when we could probably get much better health care for 10% GDP. The fact that we could have much higher efficiency and fairness shows how screwed up the system currently is.

          So it’s not just the poor paying; I pay, too, even though I have good insurance. Not to mention that even “someone like me” has to keep in mind that if a health disaster strikes, life is going to become miserable very, very quickly.

      • Ronan

        i agree with you on ideology, as an aspect of it (plausibly) ..just think there would need to be more (although SL implies below that Ive misunderstood the politics and economics behind it as well)

    • timb

      What cleek said. They really really hate libs

      Here’s a random con on Twitter

      Jim Hanson ‏@Uncle_Jimbo

      @daveweigel Oh Hell No! Why give away a chance to gut O-Care for a nearly sure thing in Keystone?

      Timb116 ‏@timb116 1h1 hour ago

      @Uncle_Jimbo @daveweigel Nothing like kicking 3-5 million off health insurance to give a con a chubby. Jesus, Republicans are sociopaths

      Jim Hanson ‏@Uncle_Jimbo 40m40 minutes ago

      @timb116 @daveweigel Or maybe we just want a system that will actually work, not just make liberals feel good about themselves.

      Timb116 ‏@timb116 36m36 minutes ago

      @Uncle_Jimbo @daveweigel Covers millions of people, uninsured rate dropped, & it helps the deficit. Libs feel good about successful policy

      Jim Hanson ‏@Uncle_Jimbo 32m32 minutes ago

      @timb116 @daveweigel You just made the NY Times Fiction Best Sellers with that load of tripe. You can’t sell a lipsticked pig to us.

      They don’t believe any institution which tells them the law might work.

      • liberal

        I’m not the greatest fan of Obama or Obamacare (being to the left of him, blah blah blah), but the comment sections “even at The New Republic” (how’s that for irony) are just full of unhinged people. They really believe Obama is the worst president ever, that Obamacare is a national disaster, that immigration is destroying the country. (I actually don’t think immigration is such a good thing, insofar as I don’t think it’s good for the working class, but the notion that it’s some kind of nation-buster is risible.)

        Sure, I’ll bet there are scads of liberal/left anti-vaxers, etc. But there are plenty of commonsense liberal/left folks. In contrast, the fraction of right wingers that come across as not reality challenged is very, very small.

        • witlesschum

          OT: For what its worth, (and I know you didn’t precisely say it was) polls on antivax actually show it’s not mostly a left thing.

          http://www.motherjones.com/environment/2014/09/left-science-gmo-vaccines

          I’d guess lefties might be overrepresented in media coverage of it because journalists find goo goo hippys more interesting/understandable/marketable than sovereign citizen types and libertarians.

      • LeeEsq

        That’s what gets me the most. We have plenty of good evidence that the various forms of socialized medicine work better than the American system before the ACA. We know that Medicare works splendidly. Conservatives still manage to believe that the market works best. Capitalism is more than an economic system for them, it’s an entire religion.

      • efgoldman

        They don’t believe any institution which tells them the law might work.

        [I’ve typed the following so many times that it pretty much types itself.]
        Facts have a liberal bias.

    • DocAmazing

      Because workers who have access to reliable and affordable health care can tell their employers to get lost when said employers make unreasonable demands, refuse to pay them, and so on. Many working people in the US stay at jobs that quite literally steal their labor just so they can have coverage for catastrophic illnesses or injuries. The right-wing establishment has traditionally represented the worst of employers.

      • Moondog

        You have it.

        It’s all about keeping the safety net in shreds.

    • Scott Lemieux

      Afaict a lot of the major interest groups (ie the insuramce companies) are behind it

      If by “behind it” you mean “spend shitons of money trying to get it stopped.”

      • Ronan

        well ok, then im wrong (and it starts making sense to me)

        • liberalrob

          Trying to get it stopped cold was plan A. Influencing its drafting and shaping its impact was plan B. Scott doesn’t believe in plan B, however.

          There are still 2 years left in the Obama Administration. If they can succeed in getting rid of his signature domestic policy success, they can try to hang that around the Dems in 2016. They can also boast about how they stuck to their guns for 8 years, showing “character” and “leadership” that the Dems clearly lacked, QED.

          • gmack

            I don’t agree with the claim that “Scott doesn’t believe in plan B.” However, It seems to me that your comment does articulate a key lesson that many liberals seem to forget. There seems to be a belief (a rather naive one, I think) that when a law gets passed, or when the courts acknowledge a collection of formal rights, that we have “won” and now the battle is over. However, enacting a law is not the end of politics but often the beginning. The actual reality of a law is not determined by its text; it has a concrete life in the actual implementation of the law and how it is lived throughout the society. In the wake of the ACA (and also in efforts, for example, to desegregate schools), conservatives did not just accept defeat; they continued the fight through other means, some legal and some extra-legal (and in some cases, illegal). They worked to get the ACA repealed, de-funded, or gutted; they worked to undermine its implementation in states where they had the power to do so. They worked to make the policy as unpopular as possible in the public. In short, they treated the passage of the ACA as the beginning of a new stage of political conflict. Liberals need to do so too.

    • patrick II

      why so many in the RW establishment are so opposed to healthcare reform ?

      Health insurance companies must take a smaller percentage of premiums for profit.

      Business with 50 or more employees have new requirements for employee health insurance for employees working over 30 hours, thus lessening their profit.

      The Federal Government cannot be allowed to be successful and competent. This goes for health care, the post office, social security or any other opportunity for potential private profit. Services, and thus Profit, should be reserved for capitalists.

      Keep the proles servile, if they die it is their own fault for being a prole in the first place. Non-desperate proles are more expensive, and more independent. Thus lessening profit.

      There are several new taxes, including a 3.8% tax on investment return — thus lessening profit.

      A black president would have a major political success. This has little to do with profit, but it grates on these racist assholes.

      For a list of new taxes and requirements, see: IRS ACA Tax Provisions

    • Bruce B.

      They want every good thing to be largesse that can be taken away, not a right you can count on. The less we fear our overlords can take away from us and leave us wretched and dying, the less likely we are to toe whatever line they wish to draw. They don’t like ever actually helping people in need, but they prefer charity because they can stop it at any time.

      “They’re evil” is in fact a parsimonious explanation for the spread of their policies and implementations.

  • CaptainBringdown

    Are there any hardcore utilitarians with guns out there?

    • celticdragonchick

      Not a utilitarian…but armed? Oh yes. Yes indeed. Here in NC…the anti gay and anti trans types are pretty upfront about willingness to resort to violence. I adjust accordingly.

    • Karate Bearfighter

      No, but I happen to have a trolley and a bridge.

  • Gwen

    I hate to be a dick about this, but the whole Halbig case would never have existed if the Democrats in Congress had actually read the bill before they voted for it.

    But anyway, the right-wing jackholes who now control 2 of our 3 branches of government are like a cancer on America, and it’s now Stage IV.

    • SatanicPanic

      if the Democrats in Congress had actually read the bill

      Would you have spent the time to read a 1,000 page bill that the Democrats had to pass because there was no way to reconcile it after Brown was elected? Why?

      • Gwen

        I’ll grant the political situation was extraordinary, but you don’t overhaul a trillion-dollar industry without reading the damn thing.

        Obamacare is on balance a great good, but the process that led to its passage was close to legislative malpractice.

        • Davis X. Machina

          The fact that legislators didn’t read it neither surprises or disturbs me. Half of it is unreadable, anyways — it’s all cross-references to other, existing legislation, administrative rulings, etc. etc.

          That’s why there’s staff.

        • Joe_JP

          Legislation is repeatedly quite complex and they very well could read it and other stuff and miss something like this. I don’t expect, e.g., some generalist legislator to understand the fine tune aspects of some jurisdiction bill that can have great fiscal implications or whatever. That is why they have staffs and subcommittees.

          Anyway, Adler himself pointed out the expectation was that a full conference would take place that would allow clean-up and something like this might have been addressed. But, since Brown was elected, they couldn’t fully do that given the Republicans. That is where a great amount of the blame should lie.

          Since what they meant is clear, the ‘malpractice’ is unclear. Any number of legislation by willing stooges can be twisted. Big legislation is even in good faith going to have glitches given human error. Republicans again here wouldn’t allow an easy fix even though it’s clear what was meant. So again, THEY are the ones that deserve the blame a lot more than “Democrats.”

          • witlesschum

            This sounds a lot more reasonable than “read the bill in case a majority of the Supreme Court feels like playing games.”

        • SatanicPanic

          I can see the ads now “Vote Jones-D for State Senate… he’s an excellent proofreader”

    • Say what?

      I don’t buy this at all. Would anyone have caught most of these things in the absence of our recent court experience?

      Also, wasn’t the problem that there couldn’t be a committee to clean it up?

      • This, also. The normal course of action is the people tasked with enacting a law (i.e. a federal agency) seek guidance from the people who created the law (i.e. Congress).

      • brugroffil

        To your last point, exactly. Even if this was “caught,” it couldn’t be changed. The House had to take the Senate bill as it was.

        More importantly, this problem wasn’t even “caught” until libertarians and conservatives (but I repeat myself) launched a massive effort to undermine the ACA at all costs, and even they described it as a drafting error at the time.

    • You’re not being a dick if you honestly think this is the only law out there that contains errors that could, if you read them as printed, be taken to create a condition that would gank the law.

      This, as LeMieux noted, is something even the people bringing the case don’t believe.

      • Gwen

        I hardly believe it’s the only law out there with inartful language, and to be clear I think the Halbig challenge is ridiculous; a quick look at legislative intent should resolve the ambiguity, and in either case the IRS should be granted deference in interpreting the law unless it’s clear the interpretation is bogus.

        The governing legal standard is or ought to be a lot like the NFL’s Instant Replay rule (in this case the refs are the agencies administering the law). Unless the evidence is clear that the call on the field is wrong, it should stand.

        • Based on my own experience proofing & being proofed, the bill could have been read over 1,000 times and a slip like this still missed.

          • Yes. And even if everyone involved in drafting is inhumanly perfect, you can and do get errors caused by things as simple as copying and pasting a passage in the wrong place, or twice. Or copying but not pasting…

            • Scott Mc

              And, although I am sure the decision will be another “No Precedence Here”, move along, I don’t see how striking down the subsidies on this tenuous an argument doesn’t open up everything to interpretation. I’d be astonished if most laws don’t have something a little sideways in their language somewhere, especially if it has any impact. Why wouldn’t every aggrieved group come up with their own tendentious reading of any law they don’t like?

              • Oh, they’ll tie it to the equal sovereignty of the states or something else made up for the occasion.

                • Tumors have a right to life, dontcha know.

        • Also, really, I don’t think the J “Laughing at the suffering of millions” Alder reading is so compelling. I think a straightforward, local reading allows for one way a state to set up an exchange is to let the Feds do it.

        • efgoldman

          The governing legal standard is or ought to be …. Unless the evidence is clear that the call on the field is wrong, it should stand.

          Clearly, the Five Savonarolas and their ideological henchpersons, think “governing legal standard” is whatever suits them this week.
          Inconsequential wording error? Void the law.
          Plain black letter text of the 15th amendment? Ignore it.
          Corporations, which are artificial constructs of the state, have the same rights as natural persons? Sure, why not.

          We can’t really blame Congress. Nobody expects the Spanish Inquisition, and nobody really expected the Five Savonarolas to ignore precedent, and deference, and the Constitution itself.

      • timb

        Shakes,

        An excellent point about what Scott said, because the freakin’ Sebelius dissent contains exactly the same language!

        The four idiots mentioned in their dissent that the law provided subsidies on Federal exchanges for states which refused to set them up.

        Now, they want a do-over?

    • royko

      Laws are like sausage, best not to get too hung up on every bit of gristle that they contain.

    • Lurking Canadian

      As I understand it, the recent SC decision about [the lack of] voting rights for Black people directly contradicts both the fifteenth amendment and the plain text of the Voting Rights Act, recently re-confirmed by something like 90% of Congress.

      Honestly, I don’t think the text of the law matters. These people are determined to immiserate the maximum number of people. They don’t need a legal justification. They just need enough judges on their side.

    • Bruce Vail

      You do realize, Gwen, that members of Congress rarely, if ever, actually read the bills they vote on?

  • bobbo1

    For that matter why didn’t the Court read the law? Surely they would have found this fateful error and struck the whole thing down the first time

    • Davis X. Machina

      That was after the 2012 election, but before the 2010 election.

      The Supreme Court isn’t so much the third branch of the government as a third house of Congress.

      • Davis X. Machina

        (Dates obviously reversed….)

        • I figured you’d found BO’s time machine.

    • royko

      This is the same court that issued a stay against the use of Form 700 as a religious accommodation days after the Hobby Lobby ruling that pointed to Form 700 as a less restrictive alternative. So consistency is not a big concern for them.

  • deptfordx

    I have to ask out of morbid curiosity.

    My sister is in the Hospital at the moment, in the UK. She had Peritonitis caused by Gall Stones.

    She’s recovering fine and were expecting her to leave the hospital this coming Monday.

    That makes a week in a hospital room plus drugs etc, a emergency Endoscopy and a CT scan.

    If this had happened in America how much would we be on the hook for?

    • Davis X. Machina

      Somewhere between $7000 and $70,000, with no way of knowing which.

      With decent insurance, you’d probably pay about $5000-$10,000 in out-of-pocket, depending on coverage.

      • AlanInSF

        My daughter was hit by a car several years ago — she was fine, but they had to do the full protocol for head injury and such. She was in the hospital for five hours, at SF General, our low-cost city hospital. The bill was $9000.

    • DocAmazing

      Ballpark: $60-80k

      • deptfordx

        Yikes! 10 grand with good health insurance.

        • Davis X. Machina

          Figure a 90-10% to 70-30% copay (10%-30% to be paid by the consumer) plus various uncovereds, plus charges excess to usual-and-customary, plus out-of-network penalties….

          Many common policies have an out of pocket cap in the $6000 range, for a good reason.

          • mpowell

            I don’t know what you’re calling ‘good’ but plenty of plans have an out-of-pocket cap much lower, especially for a single person on a family plan. Ours is about $2500.

            The out-of-network stuff is insidious though because even if the hospital is in-network contract specialists may not be. That one pisses me off.

            • Davis X. Machina

              Based on the lower-premium end of the silver plans on offer on the SC/Federal exchange (I was helping my son shop) that’s not a ridiculously high out-of-pocket cap.

    • Denverite

      I’ll put it this way. Mrs. Denverite has been having pelvic pain for several months and is going in for a laparoscopy next week. It’s considered minor, outpatient surgery. The GYN practice wants the deductible ($5k) up front before they cut her, and we’re on the hook for 20% of the rest up to a max of $10k. They’re not sure if we’ll hit it, but they think not. Btw, we pay another $4k a year for health insurance (which is low).

    • DrS

      My Dad’s partner broke her hip in London a few years back. She’s on Medicare and did not realize that she needed supplemental insurance overseas. Billed charges from NHS to an American citizen for total hip replacement was ~$7500. Cost without insurance here usually between $30-40k and can touch $50k.

      For this he complains heavily about the socialized medicine of Europe.

      Of course, if you’ve got good insurance, like the kind my ex gets for working with doctors, you can get a gall bladder removed for a $5 copay

    • Morat

      Last October, a guy posted his hospital bill, and it went viral, because he was charged $55,000 for an uncomplicated appendectomy. Since no insurance company ever pays the nominal bill (that’s what they send to the uninsured), the hospital charged them $17,500, the insurer paid $6500, and the remaining $11k is his problem.

      See, he had 80% insurance, but Aetna decided that as they had “paid” the difference between $55k and $17.5k (that they were never billed, because they’re an insurance company), they only needed to actually cough up $6500 to have covered 80% of the bill.

      And they broke down what they charged for: $4878 for one night in a hospital bed, $7501 for a few hours in a recovery room, $6983 for a CT scan, $2420.56 for the pharmacy, $4562 for anesthesia, etc. Now, yes, he’s only actually responsible for 20% of that. So your sister’s week in a hospital would be 4878 x .2 x 7, or $6829.20. Just for the room and board, no medical services, and after insurance.

      We’re not talking about experimental particle accelerator robot brain surgery here, we’re talking about a basic appendectomy. Or, if you want to be horrified in a different way, the birth of Prince George in the fanciest ward in the UK cost $15k. The average American birth costs $18k. C-sections are $27k. And that’s after the discount that insurers get. It’s tripled since 1996. Out of pocket costs quadrupled between 2004 and 2010.

      Davis is right (as usual), the key is that it is completely impossible to know how much a hospital will charge you until they send you the bill. Variations of tenfold or more are not weird (a study found CA appendectomies from $1,500 to $180,000) So you come out and they just…charge whatever. Maybe you get lucky, or maybe you go to an in-network hospital that decided to use out-of-network specialists without telling you, that your insurance won’t cover.

  • liberal

    Analogous to “peak wingnut”, can we come up with an artful phrase for peak USSC hackery?

    • David Hunt

      “Peak Wingnut” looks good to me, but if you really want something new, “Peak Hackery?”

    • Much like Peak Wingnut, I’m not sure Peak USSC Hackery can ever be reached. Once the Supremes get it in their head to start repealing laws over typos, can you really imagine there’s not a law that Scalia and Alito wouldn’t try to erase?

    • Schadenboner

      “Top kek”?

      • AlanInSF

        Judicial Hactivism, while not original, covers it fairly well.

  • Murc

    You may want to link directly to K-Drum’s post on the topic, rather than just his blog, Scott. Just from a link curation perspective.

    • Scott Lemieux

      Corrected, thanks!

  • Lt. Condition

    The question this entire situation begs is what do we do when the law is essentially swept away by those who are supposed to be its custodians? Violent revolution (set aside the fact that there’s a close to 0% chance of it in this country) virtually never accomplishes the desired aim, but between this and the issue of Chase / Goldman et al essentially being immune to rule of law, what’s the answer?

    If we don’t have rule of law, most of the rest of what we’re supposed to be as a country doesn’t much matter since it won’t apply.

    • liberalrob

      It need not be violent revolution, but it has to be a mass movement of the true grassroots variety.

      BILL MOYERS: How do you make the Hillary wing of the Democratic Party pay attention to the power of a populist message unless you’re in the debates in 2016, when most of the public is paying attention to political messages?

      BERNIE SANDERS: This has been my political experience. When you rally the grassroots of the country or the city or of your state, when people begin to stand up and say, ‘Enough is enough. We want to do well by our kids. We want to protect the environment. We believe we should join the rest of the world in terms of having health care for all, single-payer health care for all, et cetera, et cetera.’

      When people begin to move, the people on top will follow them. So, whether it’s Hillary or anybody else, what we have got to do is mobilize the American people in a way that we have not seen in recent history around a progressive agenda. Bill, every poll that I have seen, when they ask the American people, what is the most important issue that you’re concerned about? You know what they say? Jobs and the economy.

      How come we are not investing heavily in rebuilding our crumbling infrastructure. $1 trillion invested in rebuilding roads, bridges, water systems, rail creates 13 million decent-paying jobs. You know what? The American people want us to do that. They want us to raise the minimum wage. So, you need a very strong agenda. You need a mechanism. And you’ve asked a hard question. Easier to say than to do, to rally people around that agenda. And once you do that, things will take care of itself.

      BILL MOYERS: This is what Barack Obama did in 2008. He asked people to take over the Democratic Party, progressives and populists, everyday people that you describe in your speech out in Richmond. He asked those people to come in and, elect me and we’ll do just exactly what Bernie Sanders would do if he were president. Hasn’t happened.

      BERNIE SANDERS: I have lot of respect for Barack Obama. But, his biggest mistake is that, after running a brilliant campaign in 2008, where millions of people in fact were galvanized, young people, people of color came out and said, ‘Hey, we’re going to make some real change.’ The day after the election he said, okay, thank you very much. Now I’m going to work inside the Beltway and we’re going to start negotiating with Republicans and all that stuff. The simple truth is, in my view, nothing gets done unless millions and millions of people will demand it. Politics is 365 days a year.

      BILL MOYERS: Not just voting?

      BERNIE SANDERS: Exactly. And anyone, you can have the best person in the world as president of the United States, that person will accomplish nothing unless millions of people are standing behind him or her. Just an example, Bill, everybody, all the young people in this country are worried about student debt. The fact that hundreds of thousands of young people can’t even afford to go to college.

      You have a million people, a million young people marching on Washington saying, there’s a vote coming up. And if you vote the wrong way, we know who you are. We actually are paying attention. You aren’t going to get reelected. We will lower the cost of college substantially and deal with the student debt crisis. It will not happen. It will not happen unless millions of people are activated.

  • random

    Just having this pending in the SCOTUS will probably be used by them as an argument to try to convince people not to sign up.

    But let’s not kid ourselves: the federal exchange is about to get nuked in a 5-4 decision by the SCOTUS. At which point the entire law will be repealed in order to avoid fining poor people in GOP states for not having health insurance.

    This is the worst news I’ve heard all year long. Way worse than losing 2 years of Senate control.

    • Gwen

      I actually am disinclined to believe that. Kennedy has generally not shown a tendency to carpet-bomb major government programs. I am reminded of his split-the-baby approach a few years ago re: the definition of wetlands in the Clean Water Act.

      It’s possible we might not get a majority opinion in this case, but if we do I am not convinced that it will necessarily be anti-ACA.

      • Kennedy has generally not shown a tendency to carpet-bomb major government programs.

        Kennedy slathered at the mouth to strike down the entire ACA the first time around.

        • Joe_JP

          I was somewhat surprised at this because I too didn’t recall him being willing to go so far. But, he showed his colors on this law, so fool me once …

      • Frankly, I think Kennedy is not only more conservative than he’s given credit for, but he’s also maybe a bit dim. It wouldn’t surprise me at all for him to vote with the rest of the wingnut crew because “they told me no one would get hurt by it.”

        • TriforceofNature

          He’s also by far the least qualified. Or at least he has the least impressive CV. People often say Thomas but that’s mostly racism.

          Kennedy’s biggest qualifications are that he went to Harvard (but so did thousands of people around his age) and that he was Reagan’s friend. Reagan helped him get his 9th Circuit gig for helping him in his gubernatorial campaign, and then he got his SCOTUS nomination from Reagan. He is by far the least distinguished and least impressive Justice. I’m sure he was a decent lawyer.

          But in a just, meritocratic world, undistinguished lawyer friends of polticians top out at District Judge. We deserve better on our Supreme Court.

    • Gwen

      Moreover, there is a good chance (not having seen the order; someone correct me if I am blatantly wrong) that that the SCOTUS will only look at a narrow technical issue of statutory interpretation, reverse the appeals court and instruct them to reconsider using some new grading rubric, but the appeals court will come to the same answer they originally did with the SCOTUS-approved standard.

      • Srsly Dad Y

        Hard to see that happening in a Chevron case. The issue on cert is “[w]hether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under section 1321 of the ACA.” The Supremes will say yea or nay.

        (And btw, a few months back when I used “SCOTUS,” people jumped on me for it, wtf.)

        • Weird. SCOTUS is perfectly normal. As in, SCOTUSblog.

          And yeah, they’ve pretty much got to decide it. Either the statute is clear one way or the other, or else the court defers to IRS.

          I guess we will get a new “federalism” element to Chevron.

  • William Berry

    I retired three years early due to the ACA.

    If Halbig is overturned, I will lose my subsidy in Missouri, as I will not be able pay over 1,000$ per month to BCBS.

    Makes it kind of personal.

    • celticdragonchick

      Yep. We will lose coverage here as well in NC. Not good at all, and no way our insane wingnut legislature will set up an exchange. They will laugh at people dying on the steps in Raleigh.

    • Tom Till

      Yep. I lacked the moral fiber to avoid being laid off three times over the past six years and thus turned into one of those moochers now able to afford health insurance that is cheaper and far superior to my previous two plans. So should Roberts look at Sebelius as his Great Mulligan and gut the ACA, the total and irreversible destruction of his reputation in the eyes of history will come as small comfort when I’m struggling to pay my premiums after the morons in my state legislature (Va.) refuse to build an exchange. And I’m one of the lucky ones, given that I live in a prosperous area and can rely on the generosity of family to get me through tough times.

      But what about those (far) less fortunate than me? They’re screwed even worse than they already are. Not that our Confederate enemies give a goddamn. The 2016 Democratic nominee will have no choice but to make this a central issue of the campaign, and in starkly moral terms—justice vs. power, playing by the rules vs. a rigged game, and freedom vs. a corrupt tyranny.

  • Dr. Ronnie James, DO

    Tuesday: GOP wins control of Senate, retains House
    Wednesday: Boehner and McConnell make conciliatory announcement of willingness to work with the President, back away from ACA repeal.
    Thursday: Boehner and McConnell announce “ha ha jk lol srsly f Obummer,” talk about need to repeal multiple essential parts of ACA that “just aren’t working”
    Friday: SCOTUS agrees to treat seriously an astoundingly passive-aggressive challenge to core elements of the ACA.

    My guess is if SCOTUS guts the subsidies, it will precipitate a “crisis” (if we’re lucky, just in time for tax day) that will require the GOP Congress “revisiting” the ACA, and why won’t the President be reasonable? Your taxes just got jacked up thanks to Obamacare!!!, etc etc.

    Bill Clinton tried a big national health care bill, failed spectacularly, then spent the next 6-8 years working quietly with Ted Kennedy and Newt Gingrich to pass several major pieces of health care legislation (including IIRC S-CHIP, HIPAA, COBRA and EMTALA).

    Now, we’ve got the reverse: pass a big bill, then watch as it’s chipped apart brick by brick.

    • Schadenboner

      Well, at least no more free clinics will go out of business!

    • JKTH

      EMTALA and COBRA were in the 80s. S-CHIP was the main victory in the 90s. In fact, it seems like there was definitely more done on health care under Reagan/Bush I than Clinton, which shows that it’s more important to have Democrats in Congress than the White House (although obviously you’d rather have both).

  • Denverite

    The really shitty thing about this is that there was a good bit of thought that as part of the inevitable “the voters have spoken” compromise, they’d actually get to fix this when they amended the ACA to remove the medical device tax and/or the employer mandate.

    No fucking way the GOP agrees to that now.

  • So after they overturn subsidies on the federal exchange, the next step is to overturn subsidies for the state exchanges. Taking bets on which time-tested Roberts innovation is used for that: “equal sovereignty”, or “offering the states money to fund a program is unacceptable coercion”?

    • JKTH

      I can imagine King 2: Electric Boogaloo. States with federal exchanges had subsidies for a year so the feds would be taking them away unless states establish their own exchanges. Therefore, COERCION!!!!111!!!!!111

  • Schadenboner

    So, the best option here is to bone up on French and try for immigration to Red Canukistan?

    Although, that asshole Harper…

    Ok, bone up on Sveedish?

  • Joe_JP
  • Pingback: Never Say Die: Why We Can’t Have Nice Things | Ordinary Times()

  • witlesschum

    The talk on here the other day about Mitch McConnell’s political strategy makes me wonder whether John Roberts hasn’t figured out what McConnell did: our political culture is not currently able to deal out punishment for obstructionism and resistance, so he can just do what he wants.

  • Sewer Echinoid

    So, the concern is that John Roberts will claim:

    It is unconstitutional to coerce the states to expand Medicaid by withholding money from the states that refuse.

    On the other hand, it is constitutional to coerce the states to operate insurance exchanges by withholding subsidies from the residents of the states that refuse.

    PS I am not a crackpot.

    • Hogan

      Oh well done old man. Here, have all of my kudos.

  • Gwen

    Having had some time to think about the legal issues involved here, and read briefs, etc., some points:

    1.) This is a challenge to an IRS rulemaking under the Administrative Procedure Act. This is the only procedural posture that would justify the plaintiffs having standing. Therefore, the governing standard will be, whether the IRS interpretation of the Patient Protection and Affordable Care Act of 2010 is arbitrary, capricious, or otherwise unlawful.

    2.) The burden is very much on the plaintiffs and not the government in an APA “arbitrary and capricious” case. A long line of cases have indicated that most any reasonable agency interpretation of a law should be upheld, most notably (as pointed out above) in the watershed Chevron case. The issue is not whether the IRS regulation is the best or most-correct interpretation of PPACA’s text, but whether it falls within a range of permissible interpretations. It is the plaintiff’s job to show that it is not (much like the burden in an NFL coach challenge is for the video to show that the ruling on the field is clearly wrong).

    3.) While it is not unrealistic to assume that the Supreme Court justices are political actors, or that Obamacare is sui generius, I would urge that they may be playing a deeper game with respect to APA jurisprudence. Administrative procedure touches almost everything that happens in D.C.

    It is possible that the SCOTUS may feel the need to explicitly correct the D.C. Circuit panel, as it’s holding is apparently far out of the mainstream. It may also be possible that they feel the need to extend or elaborate on the Chevron standard. It may be that four justices simply want to insert some dicta into case law that might be useful for them later on down the road.

    Do not assume this case is really about what the media says it is about.

    4.) Check out the government’s brief in opposition. It really hits the key points relating to Chevron deference.

    I would note that one of the cases cited by the government is Whitman v. American Trucking Association. This was a unanimous opinion upholding the EPA’s decision not to weigh cost-benefits in air pollution standards. However, it’s also a case where Scalia appears to have regrets, or at least, very confused remembrances:

    http://talkingpointsmemo.com/dc/antonin-scalia-error-supreme-court-dissent-epa

    Also, Scalia was the only real dissenter on the conservative wing in the Brand X case (2005 net neutrality case). In Brand X, the Court very strongly sided with the FCC’s judgment that an internet service provider was an information service (to which common carrier rules do not apply), in the face of an ambiguous provision of the 1996 Telecommunications Act.

    If there’s anyone on the court who would be playing a deeper game here, it would be Scalia. Before being appointed, he was an administrative law professor, and has often had very pointed criticisms of the way statutory ambiguities are resolved.

    5.) If you look at the major APA cases in the past 30 years (I admit I am using Wikipedia here), you have:

    Brand X (2005)
    Whitman (2001)
    United States v. Mead (2001)

    In two of those three cases, the Supreme Court ruled in favor of agency deference; in the third, Mead, it didn’t, but that case dealt with a tariff classification, in essence holding that the Customs Service’s classification of Mead’s notebooks wasn’t consequential enough to be precedential and justify deference.

    (The IRS decision in King and Halbig is obviously quite different).

    And in all of these cases Justice Kennedy voted with the majority.

    6.) I am not an active practitioner of law anymore, so I don’t keep track of other cases, but I would bet that in the past few years the Court has said other things about Chevron deference, and I would further bet that in these cases that Kennedy, and probably Chief Justice Roberts, have regularly voted to uphold agency discretion more than they’ve been against it.

    7.) I wouldn’t rule out the possibility that you could have a fractured court decision as in Rapanos v. United States (2006), the Clean Water Act case I was referring to earlier. But, if the Court’s aim is to simply clarify or reprimand the DC Circuit, it could be a unanimous decision. I wouldn’t automatically assume we are headed to a 5-4 or 6-3 split.

    8.) It will be interesting to see if Massachusetts v. EPA gets cited at any point, particularly Scalia’s dissent. In that case, the Court found that the EPA did have jurisdiction over greenhouse gases despite the Bush EPA’s assertions that it did not. Scalia argued that the majority (including Kennedy but not Roberts) was breaching the Chevron principle in that case.

    • random

      I think you have not been paying attention to recent court decisions and this is leading to your confusion about how the SCOTUS functions in 2014.

      Obama passed this law and it helps people. Therefore it is guaranteed it will be thrown out in a 5-4 decision that pins the blame squarely on Obama and the Democrats. The federal exchange and probably the rest of the law is now toast.

  • NobodySpecial

    The only thing I can think of that might be positive on this is that Roberts himself might want to squash this nonsense. After all, his deciding vote on the tax provision was a clear suggestion to me that he didn’t want to risk his reputation junking that law. Maybe the same calculus still applies. I can only hope so.

    • random

      Except from his perspective and within his social circle his reputation is improved every time he stymies Obama or screws poor people.

      His reputation (with anyone who’s opinion he would care about) took a serious hit the last time he didn’t nuke ACA. There’s no chance he’s going to pass up this opportunity.

  • Bruce Vail

    Is there any reason why the govt can’t file affadavits from Reid, Pelosi and a dozen other Democrats detailing their actual intentions?

    • Joe_JP

      Well, it kinda doesn’t work that way, but the people behind the law have been out there talking about how stupid this challenge was. Since that appears pretty clear, this is one of those case where truth doesn’t matter too much. Anyway, like in the Jerusalem case just heard, members of Congress probably can join an amicus brief. FWIW.

      Anyway, over at Balkanization, various writers have been on this issue for months. A recent post is pretty good:

      http://balkin.blogspot.com/2014/11/states-rightsto-block-flow-of-federal.html

  • tgirsch

    Scott’s WAY more of an expert on the SCOTUS than I’ll ever dream of being, but I just don’t share his pessimism here. It strikes me that a ruling in favor of the plaintiffs would be a political disaster for the Congressional GOP. Such a ruling would strip a benefit from people who are currently receiving it, and it would do so primarily in red and purple states. I’d have to believe that if that were to occur, the pressure on the GOP to pass a fix would be tremendous. I just can’t envision a scenario in which “now we have to take it away from everyone else, too” is going to fly.

    It would be a different can of worms if this case had been heard and decided by SCOTUS prior to anyone starting to receive the subsidies, but by the time this ruling comes down, people will likely have been receiving the benefit for nearly a year and a half.

    If this actually happens and the Democrats are smart (the latter a big if, I’ll grant), they’d harp on this just the way the GOP harped on the millions of “cancellation letters.” Except that in this case, people really would be losing their insurance.

    So I don’t get it: how, exactly, would this politically help the GOP?

    • Jean-Michel

      This presumes the five reactionaries on the court will make their decision based on the help or harm to the congressional GOP, and not the help or harm to their overall ideology. Here’s how the five reactionaries on the court probably see their options:

      1) Leave the ACA as is. Millions of people continue to receive health insurance thanks to the government, an idea deeply offensive to the five justices. The ACA is probably unrepealable at this point. No real effect on the GOP.

      2) Strike down the ACA and destroy a law contrary to their conception of the government’s role as keeping the wealthy up and the rabble down. GOP could take action to “fix” the not-actually-broken law, but the crazies in the caucus wouldn’t allow that even if the leadership did, which they almost certainly wouldn’t anyway. GOP’s popularity will probably take a hit, but SCOTUS-approved voter suppression will cushion the blow, and the Democrats’ marginal chances of retaking the House before 2022 become only slightly less marginal (even 2022 is optimistic IMO). No Dem control over Congress means no chance of a replacement for the ACA. Five reactionary justices succeed in imposing their ideology on the government (vis-à-vis health care) for at least eight years and probably longer.

      If I were one of those five justices, option 2 would barely seem like a gamble. It’s not like they’re going to lose their seats.

      • tgirsch

        The only other wildcard I’d throw in is that Roberts has already demonstrated that he’s more concerned with his legacy than with any particular judicial principle.

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