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ACA Troofers Uncover Another Conspiracy

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507871194_640Above: the woman who pulls the strings

The WSJ editorial page has uncovered some VERY DISTURBING FACTS about the legal world:

During a week they hear oral arguments, the Justices typically hold a private conference on Friday morning in which they declare where they are leaning on the cases. Just in time for last week’s Friday conference, liberal scholar Abbe Gluck tried one more state’s rights gambit to pull Justice Kennedy to the side of the four liberals who clearly want to uphold the subsidies delivered through federal exchanges.

Ms. Gluck teaches at Yale, but she clerked for Justice Ruth Bader Ginsburg and knows well Justices Sonia Sotomayor and Elena Kagan . It’s clear from Wednesday’s oral argument that she heavily influenced all three, and it’s possible the Justices or their clerks urged her to give it one more try.

Think of all the terrifying implications:

  • People who are not political conservatives might get nominated to the Supreme Court.
  • Even more disturbing, these days some of these people might be women.
  • These women may conspire to hire so-called “clerks” who might assist in writing and researching opinions be trained to spread liberal propaganda.
  • Yale Law School might hire people who are not political conservatives.
  • Even more disturbing, these days some of these people might be women.
  • Some of these women might have clerked for other women.
  • These Yale scholars might retroactively be able to form a coven with other women on the Supreme Court and teach them dangerous new things.
  • And as a result of all this sorcery, Justices Ginsburg, Sotomayor and Kagan might reach the same conclusions about the merits of King v. Burwell that every single other person who is not a fanatical opponent of the ACA has reached.

Truly disturbing!  Hopefully, we can have some male justices who worked in the Reagan administration to render a more neutral, independent opinion.

And now, the punchline:

Nice try, but this one is too clever by half. The “clear notice” standard is intended to protect states from being unduly pressured by the feds, as they were under ObamaCare’s Medicaid gun-to-the-head. But in the matter of subsidies, there was no lack of notice. The states knew what their options were from the day the law was passed…

HAHAHAHAHAHAHAHA. It sure is remarkable that none of these states were able to discern this “clear notice” until Republicans needed a Hail Mary after their ad hoc constitutional challenge failed, and indeed with one possible exception said precisely the opposite contemporaneously. My guess is that Abbe Gluck was able to retroactively erase a whole bunch of statements from Republican governors from the historical record.

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  • DrDick

    Further proof that conservatism and reality cannot coexist.

  • rea

    So, those radical leftists in the S Ct clerk’s office let her file a special post-argument brief? Shocking! Of course, anything less than that would be perfectly normal . . .

  • keta

    Right wing terrified hand wringing – as regular as bowel movements – but not nearly as satisfying!

  • Malaclypse

    The WSJ seems to believe Roberts will vote with the lunatics. I’d be a lot happier if Bill Kristol, or even JenBob, came out and said they were sure of Roberts’ vote…

  • Robert M.

    BREAKING NEWS! **MUST CREDIT THE WALL ST JOURNAL-REPORT**

    People who write and think about the same subject for a living sometimes meet and work for one another.

    • AlanInSF

      Even now word is spreading over Journolist, and before long Matt Yglesias and Ezra Klein will also be writing about this. Just “coincidentally,” of course.

  • dmsilev

    There’s also the strong possibility, which you somehow failed to mention, that ‘Abbe Gluck’ is just a clever cover identity manufactured by Jonathan Gruber.

    • Scott Lemieux

      WE’RE THROUGH THE LOOKING GLASS PEOPLE!

  • Joe_JP

    Adler over at PrawfsBlawg doubts the coercion argument has traction. #shocker

  • mbxxxxxx

    Is the author really saying that the states were notified about losing subsidies but not the ramifications of refusing Mcaid expansion? Mcaid expansion was as much a part of the legislation as the subsidies. Both received identical “notice.”

    Am I missing something?

    • Denverite

      It’s hard to tell what the author is saying because s/he is talking gobbledygook. S/he is mixing up the Pennhurst “clear notice” standard with the Dole/NFIB “anti-coercion” doctrine. The purpose of the former isn’t to prevent the feds from unduly pressuring the states. How would a statute’s degree of specificity even remotely affect whether or not it is pressuring the states? It’s the amount of pressure that affects that.

      Instead, the point is that states need to have a full and complete understanding of what the “cost” of participating in a conditional federal program so that they can decide whether it is worth it to give up some degree of sovereignty/autonomy. It’s a disclosure issue, not a coercion one.

  • gratuitous

    Why, this is scandalous! Everyone knows that if you want to have legitimate ex parte contact with a Supreme Court Justice, the way to do it is to go duck hunting:

    http://www.cnn.com/2004/LAW/03/18/scalia.recusal/

    This whole sordid episode of law professors/former clerks skulking around, influencing justices, and generally being women is clearly different. Because shut up, I said so.

  • sleepyirv

    Clearance Thomas can not think of anything more frightening than someone trying to persuade a judge.

  • none of these states were able to discern this “clear notice” until Republicans needed a Hail Mary after their ad hoc constitutional challenge failed, and indeed with one possible exception said precisely the opposite contemporaneously.

    Note that the one possible exception, Oklahoma AG Scott Pruitt, filed an entire lawsuit against the ACA that didn’t say a word about the issue of the federal exchanges, amending it to add the argument only after his original argument failed in the SCOTUS (in June 2012; the amended complaint was filed September 19). He may have known about it from the get-go, but he wasn’t aware that he knew it until he had a chance to discuss it with Adler and Cannon.

  • hylen
  • rea
  • ezra abrams

    in the url below, are links to a transcript of the oral arguments, and podcasts, so one can see what in fact it is that Prof AG said, and what, exaclty, the females on the court said in response

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/todays-oral-argument-in-king-v-burwell/

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