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Blogging is About Trust

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6amfI, for one, will never trust Lemieux again.

The Supreme Court cemented President Barack Obama’s signature achievement on Thursday by affirming that the Affordable Care Act intended to help all Americans who need help paying for their insurance.
In their 6-3 majority in King v. Burwell, the justices ruled that Americans are eligible for subsidies regardless of whether their state set up its own exchange. The result preserves premium assistance for 6.4 million customers in the 34 states that rely on the federal marketplace. On a practical level, it also preserves the mandate, at the center of the law and of its controversy, that every American buy health insurance.

[SL] …hey, my prediction could have been worse:

More soon, of course. I’m not shocked that Roberts voted for the government, but I am pretty shocked by how unambiguous the win was.

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  • ploeg

    In a 6-3 vote, the USSC rules that 2 + 2 = 4. News at 11.

    Justice Antonin Scalia is pissed. The dissent he wrote in the case includes the line:

    We should start calling this law SCOTUScare.

    http://www.vox.com/2015/6/25/8845449/scalia-dissent-obamacare-scotuscare/in/5690430

    • Katya

      Also, something about applesauce and graduate students.

      • DAS

        Actually Scalia’s analogy is an argument for the subsidies not against them. In Scalia’s analogy, the position Scalia ultimately takes is that a Professor without graduate students must NOT take undergraduate students into account in setting up office hours as the rule only refers to graduate students. In fact Scalia’s argument merely shows that he doesn’t know what a synecdoche is.

    • tsam

      Oh those tears are sweet. Cry hard, Tony. Cry hard.

      • Anon21

        Tony is Kennedy. You want Nino to cry harder. And I agree.

        • stryx

          I always thought it was Slim K and Fat Tony.

        • tsam

          I thought Tony was a contraction of Antonin. No?

          • Anon21

            Maybe for some people, but this most famous Antonin has always gone by Nino.

            • tsam

              Well shuck my corn. I didn’t know that.

            • ChrisTS

              My sister says Nino is “a delightful dinner companion.” Gack.

              • “A piquant little jurist, but I’m sure you’ll be amused by his aftertaste.”

                • efgoldman

                  “A piquant little jurist, but I’m sure you’ll be amused by his aftertaste.”

                  Just a hint of acid bitterness.

                • slavdude

                  Ew.

      • timb

        This

    • Scrotum care is important to a man’s health.

      • tsam

        You’re telling me! I still have nightmares about my wide awake vasectomy.

        • Denverite

          ONE WHOLE STITCHES BITCH

          • random

            It’s two stitches (one for each nut).

            And a nut-stitch is the pain equivalent of 10 stitches anywhere else.

            Trust me I have a lot of experience with this.

            • Hogan

              How many nuts do you have?

              • random

                All of them, of course.

                • efgoldman

                  All of them, of course.

                  And how may vasectomies?

                • Even a blind vasectomologist can find a nut.

            • ThrottleJockey

              A lot of experience? Shouldn’t you just skip the prep & go straight for the final?

            • elk

              Too late now, but you should’ve gone NSV. I chatted w/ the doc about his daughter’s basketball team while he worked, and then spent eight hours on horseback two days later. Never even popped an aspirin.

          • tsam

            I AIN’T SNITCHES

          • tsam

            There is also severing the vas, cauterizing it, and installing a metal clamp on each of them. Then stitching the whole package back together.

            It’s pain from all manner of sources and it sucks.

            However, I’d like to take this opportunity to say that it’s probably nothing compared to giving birth, either vaginally or especially by C Section. Women don’t complain and whine about it nearly as much as men complain about vasectomies.

            • Denverite

              Maybe I had a good doc, but the injection of the local was moderately painful for about 10 seconds, then everything was totally fine and painless. The most difficult part about it was the prep because the nurse doing the shaving and the like was pretty hot, and I had to keep on telling myself “mind over matter” if you know what I mean.

              Recovery was no big deal. There was a deal about four days later when I was hiking with some friends and could tell that “something” was up down there, but it was more sensitive than painful.

              • tsam

                the nurse doing the shaving and the like was pretty hot,

                I did it myself because I was just not going to force a woman to shave that part of me. They can’t possibly pay them enough for that.

            • DAS

              I take it you don’t have a Jewish mother: “for 24 hours I was in painful labor, the worst pain you can imagine, and in exchange what do I get from you? Heartache? The ache you know where was bad enough”

              • The Dark Avenger

                How many Jewish mothers does it take to change a light bulb?

                “Never mind, I don’t mind sitting here alone in the dark.”

            • Joseph Slater

              I must say that when I decided to check out what the good folks at LGM had to say about the King v. Burwell decision, I was not expecting comments like these.

              • BigHank53

                There’s really nothing like a good game of conversational hare and hounds. Puns, Tolkien pastiches, and yeti dildo jokes are just bonuses.

              • tsam

                good folks at LGM

                There’s a new sheriff in town, mister!

        • Did they use a drain snake? I hear that was part of the Repub plan in case the SC decided the other way.

          • tsam

            No, luckily I had health insurance. No drain snake or rubber band castration for me.

            But now that the ACA is upheld, we’ll see how it goes at my death panel appearance.

            • Hogan

              Bring doughnuts.

              • ThrottleJockey

                And liquor. Wanna make ’em feel good.

            • efgoldman

              No drain snake or rubber band castration for me.

              Too bad. Senator Ernst (Wacko-IA) could have used the practice.

          • Origami Isopod

            I heard they’d have Nino sever the vas… with his teeth.

            • Between the Moors and the Moops is a vas deferens.

              • stryx

                You are going to make me lose my job.

                • Buy a drain snake and a white coat.

                • tsam

                  Dr Stryx will see you now…

                  Here, bite down on this..

              • Barry Freed

                You may pick up your intertubes at the front desk whenever you please.

        • Brad Nailer

          Dude, I’m having nightmares about your wide-awake vasectomy.

    • kayden

      You can’t argue with a 6-3 decision. That’s quite decisive in favor of the ACA. I don’t see how repealing this is a winning issue for Republicans.

      • tsam

        Talking about repealing it has been a steady vote getter for them. I assume they’ll just continue that.

        • liberalrob

          I think it’s more important to them that it’s a steady donor getter. And I think your assumption is well-founded.

      • IM

        It is a good thing for McCain.

    • Roger Ailes

      Fat Tony makes it too easy.

      It’s a nice day for a SCOTUS wedding, yeah! It’s nice day to start again.

      • Ahuitzotl

        … ACAs without a face

  • yet_another_lawyer

    Their legal rationale is interesting, although for now academic. Not one justice thought the law was clearly allowing subsidies on exchanges not established by a state. Six conceded that “subsidies only on exchanges established by a state” was the more natural reading but the government won because the statute was sufficiently ambiguous, and the remaining three thought that subsidies were clearly restricted to state exchanges. Which means, I think, that a future GOP administration can in theory remove subsidies from the federal exchanges via simple rule-making.

    • Anon21

      No, I don’t think so. They ended up deciding that the correct interpretation is that subsidies are available, and did not defer to the IRS rule.

      • dn

        Correct. Roberts’ opinion expressly denies that Chevron is the controlling precedent, on the eminently reasonable grounds that the matter is so central to the design of the statute that it would be unreasonable to conclude that Congress had intended to delegate that authority.

        • IM

          “, on the eminently reasonable grounds that the matter is so central to the design of the statute that it would be unreasonable to conclude that Congress had intended to delegate that authority.”

          But isn’t that hollowing out Chevron?

          • Anon21

            Maybe–we’re going to have to see how it plays out later, but as a decided Chevron non-specialist, the argument does look reasonable on its face. Would Congress have really delegated the entire viability of the statute in federal exchange states to the IRS without saying so?

          • dp

            Don’t think so. Chevron would be the next step, but they don’t get there because this wasn’t delegated.

            • Gwen

              Haven’t read the opinion yet, but my understanding is, this seems to really clarify what Chevron means.

              In Chevron, the issue was pretty technical, basically how you determined what a “site” was. I honestly can’t really describe what the bubble concept was intelligently.

              But anyway, suffice it to say that the dispute in Chevron was sufficiently esoteric that Congress clearly hadn’t thought through what the term was supposed to mean, and one could reasonably expect that they intended EPA to decide the finer details of this regulatory regime.

              Given the stakes – hundreds of dollars per person per month – and the potential budget impacts – and the centrality of subsidies to Obamacare – it seems very very sensible to distinguish this from Chevron.

              I have to admit, I really expected that the Court would apply Chevron here, but I can’t say that I’m unhappy with the outcome. It seems like clear-thinking prevailed.

              • Denverite

                In Chevron, the issue was pretty technical, basically how you determined what a “site” was. I honestly can’t really describe what the bubble concept was intelligently.

                I dunno. How you define what a pollution source was seems pretty central to that part of the CAA. Again, under the rule announced in King, I’m not 100% sure that Chevron should have applied in Chevron itself.

                At the very least, this “new” rule is going to create a crapload of litigation as to whether a particular issue is a fundamental part of the law in question.

                • Gwen

                  Fair enough. It is going to keep lawyers busy for a while.

                • tsam

                  under the rule announced in King, I’m not 100% sure that Chevron should have applied in Chevron itself.

                  Do you lawyer types just do this shit to make me feel dumb?

                • Hogan

                  Pretty much.

                • tsam

                  Well it’s WORKING.

          • dn

            Seems to me that this would only be so if you conclude not only that the card says Moops, but also that the Moops invaded Spain. Roberts argues, as Scott does, that the latter makes no sense, as Congress’ intent with the statute as a whole is clear in spite of inartful drafting.

        • dn

          Oh, and Roberts even quoted Scalia’s own NFIB v. Sebelius dissent back at him to prove it:

          If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange. The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral.

          It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

          • Schadenboner

            In a better world, a more-just world, this would have been read aloud at lil’ Nino by one of Robert’s aides, with another aide being dispatched to smack him across the face with a blue gill tuna at the appropriate point in the recitation.

            • tsam

              Why aren’t you a screen writer?

              • Schadenboner

                Tragic cocaine allergy?

                • tsam

                  That’s just not fair.

      • Scott Lemieux

        Right. Roberts says that the isolated provision is ambiguous, but taken as a whole Congress clearly made subsides available on the federal exchanges.

    • Well the outcome is right, but c’mon the strained reading is Alder’s.

      I wonder if this was part of the deal making, that is, to pretend that there was some sort of case.

    • LeeEsq

      Probably but this would put the Republican president in the awkward situation of having to hurt many Republican voters to satisfy the demands of Republican primary voters.

      • Pat

        I think Roberts made another pro-business ruling, period. The idea that he would contribute to chaos in the insurance market, and the ensuing loss of money for insurance corporations, was a pipe dream on the Republicans’ side.

        • Latverian Diplomat

          Yes, the positive thing about the subsidies from Roberts perspective (as opposed to the medicare expansion) is that insurance companies get a generous cut.

          I do wonder if the Congress was less dysfunctional and could have demonstrated an ability to subtly undermine the ACA in some other way while “fixing” the moops issue, that Roberts and Kennedy might have swung the other way on this.

          But that’s a hypothetical. With the Congress we have, a pro-Moops ruling could never be other than a fiasco.

        • DAS

          The best thing for the insurance companies is for the ACA to remain law (who wouldn’t want a law mandating people purchase your product and subsidizing their purchases of your product?) but for the whole process of reform to leave such a bad taste in everyone’s mouths that further reform is a political non-starter.

          • Morat

            who wouldn’t want a law mandating people purchase your product and subsidizing their purchases of your product?

            Not me, if in exchange I have to sell to a lot of people at a loss and also both my current profit and its future growth are capped lower than they already are.

            The best thing for the insurance companies is repeal, they’ve been very clear on that. It’s just that the full ACA is better for them than being legally required to cover sick people while the healthy drop out. Because that would put many of them out of business.

        • efgoldman

          I think Roberts made another pro-business ruling, period. The idea that he would contribute to chaos in the insurance market, and the ensuing loss of money for insurance corporations, was a pipe dream on the Republicans’ side.

          I also think, as some of us speculated before, that Roberts could look down the road and see that finding for the plaintiffs cold/would unleash hundreds of suits challenging the wording of statutes and regulations. He’s an ideologue, but no dummy.
          The ruling also sends a pretty clear message to the appeals courts about this kind of suit, except the Fifth CA, which gets its messages from somewhere the right of the Klingon home world.

      • LWA

        Not like that’s stopping them anywhere else.

    • Srsly Dad Y

      YAL — No, read the part where they say this is not a case for Chevron deference. Josh Barro tweet —

      By not using Chevron, SCOTUS saved Republican presidential candidates from having to promise to yank away people’s subsidies if elected.

      • Rob Patterson

        Great point.

    • They had to pretend there was an actual case to justify accepting it.

  • LeeEsq

    Yes, this is really good news.

  • BigHank53

    Perhaps those weeping bitter tears of rage over this decision can try wiping them away with a nasty non-absorbent polyester copy of the Dixie Swastika.

    • ColBatGuano

      This is almost as sweet as election night 2012.

      • Karen24

        This has been the worst month for the right wing since Obama’s re-election, and his re-election was so very much worse for them than his initial win. Schadenfreude — it’s a beautiful thing.

        • ThrottleJockey

          Its “pure apple sauce”.

          Funny. I’ve always hated apple sauce. Til today. Can’t wait for seconds, Mmmm, mmm!

  • Anon21

    Obviously Roberts’ whole “balls and strikes” routine was 90% bullshit, but the other 10%–the times when he’s just too embarrassed by the terrible lawyering to do the conservative movement’s bidding–turn out to be surprisingly important.

    • FMguru

      Roberts does appear to be quite concerned about His Legacy and he really does not want to go down in history as “that total right wing hack”.

      I also suspect he saw there were five votes already in favor of the ACA and seeing the fait accompli he threw himself in as the sixth vote, not because he believed in it, but because 1) he wanted another high-profile example of his non-hackishness, 2) he could assign the writing of the opinion to himself, and 3) 6-3 rulings make his court seems more legitimate than 5-4 rulings.

      • brugroffil

        I’m more inclined to think it was Kennedy that jumped on board

        • dp

          I think they both got cold feet about being forever identified as pro-Moop.

      • Anon21

        If he didn’t believe it, you certainly can’t tell from the opinion. It’s as clear and logical explication of why the plaintiffs and Nino are imbeciles as one could ask for.

      • Derelict

        I think Roberts has established a pretty definitive record of ruling in favor of whatever funnels cash to business, regardless of any other principles that may be at stake. The only “legacy” he’s concerned about is whether Jesus really meant it about rich men entering Heaven.

    • Murc

      I’ve said it before and will again: Roberts is actually concerned about his legacy in mainstream academia in ways that Scalia and Thomas are not.

      Scalia and Thomas just don’t give a shit, and in fact would take it as a badge of honor to, in sixty years time, only be remembered as fine jurists by the intellectual heirs of the Federalist and John Birch Societies. Scalia I think actively works towards that goal.

      Roberts doesn’t feel that way. Roberts would like “the Roberts Court” to be something law and history professors teach their students about without pointing and laughing and/or weeping silently.

      I have no doubt Roberts would have liked to gut the ACA, but only if he could do so with a rationale that was, at least facially, sane.

      He’s a tree-girdler. Roberts isn’t the sort of man who will stroll up to a thousand year old oak in broad daylight with a chainsaw, fire it up, give the finger to the crowd of horrified onlookers, and then cut that sucker down so it can be made into frames for Thomas Kinkade paintings.

      No. He sneaks in, under cover of night, and carefully removes just enough so that the tree dies slowly, over time, with little trace of the crime attaching itself to him. And then when it falls, he will nod sorrowfully and cluck his tongue and act as if a regrettable but unavoidable tragedy has struck.

      • timb

        Nino is Ned stark; Roberts is Littlefinger.

        h/t strained metaphors

        • Denverite

          Please. If Nino ain’t Walder Frey, ain’t no one Walder Frey. Roberts is clearly Tywin Lannister.

          • timb

            Crap, you’ve aced me again.

          • Bob Loblaw Lobs Law Bomb

            No, Roberts is Wyman Manderly, Nino is Queen Nymeria.

            It’s been a long time since I read those books.

            • Lurking Canadian

              You take that back! Wyman Manderly kicks all the ass. If he were on the court, he would have fed Scalia to Thomas by now.

          • Origami Isopod

            Who’s Ramsay Bolton, then?

            • Hogan

              Alito. Duh. Strip search, flayed man . . . it’s all a continuum.

            • Tyto

              Thomas. I think he takes joy in the pain he inflicts.

              • witlesschum

                Thomas is Stannis. Resentful at the world, doesn’t give a shit about the consequences of his extremism.

          • wjts

            I don’t think Nino’s Walder Frey. No one was sure which side Walder would pick in either Robert’s or Robb’s Rebellions, while Nino’s allegiance is never in doubt.

            • timb

              See, I picked Stark for him, because Nino lets everyone know where he stands (for the minute) and demands honor and never persuades anyone.

              but, since Frey is so gross, he’s akin to Scalia’s soul, I went for the addendum

              • wjts

                …because Nino lets everyone know where he stands (for the minute) and demands honor and never persuades anyone.

                So he’s Viserys.

            • Denverite

              I’m talking shows, not books. And focusing on the character’s temperament.

      • Pat

        It’s all about preserving the trust corporations have in him to uphold their bottom lines. Roberts is a corporatist, through and through, before he is anti-Obama.

        • random

          Roberts first loyalty is to the GOP Party, otherwise Rove wouldn’t have nominated him for the court. That he’s reflexively pro-corporate is actually secondary or incidental to that first priority.

          If finding for plaintiff wasn’t unambiguously extremely bad for the GOP’s political fortunes in the next election, there’s a very good chance we’d be looking at a 5-4 decision the other way.

          • Pat

            Personally, I think Robert’s first loyalty is to his own ego, but I completely concur that he is a solid Republican loyalist. He’s no Souter.

            But I think that the events of the last week are evidence that the business wing of the Republican party is looking to assert its interests in competition with the oligarchs. The rapid withdrawal of the symbols of the Confederacy, for example, is being pushed by business interests, including the Southern-identifying Walton clan.

            Taken together, we’re looking at a very interesting Republican primary.

          • Rove is stupid and easily misled. Pat’s right, Roberts loves business first.

            • random

              Well in this instance both interests align.

              But rest assured that if given a choice between benefiting business or the Republican Party winning the next election, business is always gonna take a hike.

              He is damn sure not going to help the Democrats appoint his fellow judges and pass laws.

            • UserGoogol

              It’s worth remembering that Karl Rove was the guy who made that horrible “reality based community” comment, which is certainly not indicative of being a particularly craftful strategist.

              • random

                Shelby is kinda hard to spin as something other than Roberts doing exactly what Rove picked him to do.

  • sleepyirv

    I’ll give Scalia this, he usually has someone else write the opinion/dissent if he’s about to do something wildly hypocritical. Today he jumped on grenade, admitted textualism is useless, and spit on everyone in the process.

    • howard

      i am looking forward to reading scalia’s opinion, but that’s because i think he should be impeached as lacking judicial temperament and for constantly introducing material not in evidence in the case at hand that he heard on talk radio and i’m looking for more evidence.

      • Davis X. Machina

        He doesn’t make the “Madder Than Samuel Chase” cut… yet.

      • Code Name Cain

        IANALB I’ve been following this case very closely and I just read some of Scalia’s dissent. Without exaggeration I can say rarely have I read something so unhinged from reality, and I sometimes seek out bad arguments intentionally because they are funny.

    • Tyro

      Au contraire! Jiggery-pokery has a history going back to the late 19th century!

    • Pat

      Dude’s probably got early stage Alzheimers. He’s going to get wilder and wilder. He’ll start by contradicting his own precedent, and then he’ll contradict himself in a single opinion. His clerks probably have to clean up his language already in the early drafts.

      • Derelict

        I believe he’s already contradicted his own precedent several times. But that’s not because he’s got incipient Alzheimer’s–it’s because following his earlier rulings would have prevented reaching the conclusions he needed in his LATEST ruling.

      • Pat

        I think we need to ask Sen. Frist if he can diagnose Nino from afar. But, curious, why don’t you think he has early Alzheimers? It’s pretty common in people of his age, and the guy will one day die of something.

        • NonyNony

          I don’t think you need early Alzheimers to behave like Scalia has been. I’ve watched older relatives who aren’t suffering from Alzheimers or anything else go as nutty as Nino Scalia has been getting. All it seems to take is a conservative information bubble – surround yourself with right-wing media, refuse to allow conflicting positions in, and it’s pretty easy to behave like Scalia has been for the past decade or so. It helps if you start out as a giant flaming asshole, because then you already have a penchant for shouting down conflicting opinions from those closest to you and they’ve learned to tiptoe around you and not bother your pretty little mind with obvious rejoinders to your nonsense.

          I mean he might have a degenerative condition like Alzheimers, but it certainly isn’t necessary for him to behave the way he’s been behaving.

          • Pat

            From the Alzheimer’s Association pamphlet, 2014:

            Individuals with MCI (mild cognitive impairment, the second stage of Alzheimer’s disease) have mild but measurable changes in thinking abilities that are noticeable to the person affected and to family members and friends, but that do not affect the individual’s ability to carry out everyday activities. Studies indicate that as many as 10 to 20 percent of people age 65 or older have MCI.

            • Pat

              Of course, if your everyday activities involve writing closely reasoned legal opinions, people might notice.

    • Joe_JP

      You are confused. The text is clear. “Words no longer have meaning” if you don’t see that.

  • Davis X. Machina

    Well, that’s the end of capitalism, the market economy, and the American way of life, I guess.

    Because it was all about freedom, wasn’t it?

    Not some wrangling over partisan advantage, or a pissing match about money….

    • tsam

      Does that mean the government is all done taking over health care?

      Should I start studying for my appearance before the death panel?

    • David Hunt

      Well, it was also about ethics in game journalism…

      • Joseph Slater

        +1

  • I’m genuinely shocked. I thought for sure it was going to go the other way.

    And I’m really hoping this doesn’t mean they’re going to go madballs wingnut on all the other important cases…

    • I never really understood why Roberts would have passed on the chance to kill the ACA the first time and then changed his mind with this absurdity.

      • random

        Since the case was always about partisanship to begin with, it seemed unlikely that Roberts would elect to throw his party into total chaos.

      • Denverite

        Realpolitik: He got raked over the coals by the conservative mainstream last time.

        Different realpolitik: Going Moops wouldn’t have killed the ACA, it would have just turned it into a program where states that wanted it got it, and those that didn’t didn’t, which fits nicely with his worldview.

        • Of course what does he care what conservatives say about him. He’s has accountability to no one.

          • Denverite

            I think Roberts’s tenure on the court shows a pretty keen concern about balancing his reputation as a “conservative” jurist with the Court’s institutional legitimacy.

            Which is a fancy way of saying that he seems pretty amenable to throwing the right wing hacks a bone from time to time.

            • random

              Remember that the guy who selected him for this job was also running around firing USAs and replacing them with Republican loyalists who would be willing to criminalize Democratic voters using bogus ‘voter fraud’ cases.

              So really what it shows is a guy who was hand-selected for the primary purpose of providing electoral political advantages to the Republican Party. Without regard for ideology or any legal standard or norm.

          • David Hunt

            I’ve always been of the opinion that he cares at least a little about how history views him. He doesn’t want to be be associated with a case that will be forever grouped with Dred Scott and Bush v Gore.

            • brugroffil

              On the other hand, Shelby County and the equal dignitude of the states

              • random

                See my post above. The MO of the people who nominated him for the job was to put Party above every other consideration or duty.

          • Pat

            Erik, Roberts realized that the mandate was a tax. He has always believed that Congress can tax anything they damn well want to. But because he realized that on his own, he just didn’t have it in him to write an opinion saying the mandate is unconstitutional. He tried, but his ego wouldn’t let him.

          • CrunchyFrog

            No legal accountability, but he’s very much a part of the wingnut welfare institution and gets all kinds of funds – none dare call them bribes – as do the other conservative justices and politicians via mechanisms like speaking fees and bulk book buys.

            I think a lot of people underestimate just how much the accountants in the health insurance and medical industries like the ACA. Yes, it restricts some of their nastier practices, but it does that to all members of the industry equally. Meanwhile the net spending on medical care is way, way up (even while the cost-per-insured is down).

            Now, if the medical industry leaders wanted ACA dead, it would be dead. This never was about the meaning of the statute.

            • random

              I’m incredibly dubious that lobbyists actually have that much influence on Roberts.

              He was appointed to promote the political interests of the Republican Party, so it’s unlikely that he’d rule in a way that hurt the Party regardless of how the business guys felt about it.

              • Pat

                Even though they try to act as one, Republicans have different emphases and different interests. In this particular case, one set of Republicans (looney anti-Obama reflexive) were pitted against another set (insurance business interests). Roberts actually wrote in his opinion that while he thought the statute was poorly written, in no way was Congress trying to destroy the insurance industry. Which was in a large part why he was ruling for the government.

                • random

                  I wouldn’t place much stock by whatever justification he contrived to explain his ruling.

                  The insurance industry having pains can’t affect Roberts in any way, whereas who gets to appoint future judges to his court and pass future laws for him to preside over directly affects him.

                • Exactly. When it came to tossing Medicaid expansion he was happy to oblige because Medicaid has no capitalists, but the ACA is money for shareholders.

                • random

                  If he sincerely thought that striking down the subsidies guaranteed the GOP would win the Presidency, then the subsidies would done be struck down.

                  Priority #1 is making sure Democrats aren’t appointing his fellow judges or in a position to pass laws. That actually affects the next 20 years of his daily professional life.

                  Some lobbyists somewhere not making their bottom line doesn’t.

        • timb

          And, been an albatross around the neck of a Republican Congress going into an election year.

          I won by winning and I won by losing. Roberts knew he would lose either way and he decided to take the smartest way possible

          • Manny Kant

            The long term interest of the Republican Party is to get over its obsession with repealing Obamacare, and this particular manifestation of that obsession would have been particularly damaging even to the short-term interests of the Republican Party. Roberts, as a non-elected person who’s fairly smart and not beholden to lunatics for re-election, has enough perspective to see that.

            • Srsly Dad Y

              100% agree. The Chief is like Permanent Outside General Counsel to the GOP, and he’s saying, c’mon, guys, fight the next battle, not the last one.

      • Aaron Morrow

        Then why did Roberts vote to take the case in the first place? There was no active split in the federal appeals courts, as the panel decision in the DC Circuit was set aside until the full D.C. Circuit issued its verdict, a likely win for the ACA.

        Why were there four votes to take this case?

        • Anon21

          We don’t know if he did. I can imagine many different ways the plaintiffs could have gotten to 4 without him.

          • Lee Rudolph

            I can imagine several myself, but most of them involve roofies.

    • Richard Hershberger

      I’m not. Roberts already had the opportunity to blow up ACA on half-assed bogus grounds. Nothing has changed since then to make that more attractive to him.

      • random

        It had actually changed in such a way to make it a lot less-attractive. Barring millions of people from getting healthcare in the first place is a lot easier than kicking millions of people off their healthcare once they have it.

        • Pat

          Who cares about the people? Think of the insurance companies, random!

          • random

            By ‘people’ I mean “potential Republican voters”.

            Roberts don’t care about the insurance companies. He cares about the Republican Party not losing elections.

            • Lee Rudolph

              By ‘people’ I mean “potential Republican voters”.

              Clearly you wouldn’t mean “actual Republican voters”.

      • DAS

        The politics have changed, and Roberts is a political animal (in all senses — not just in terms of being a GOP partisan but also in the broader sense of being strategic about maintaining the authority of his institution). The first time around, the GOP needed “ObamaCare” on the books in order to run against it. So politics (the GOP needs “ObamaCare” on the books) aligned with the desire not to undermine the authority of SCOTUS (repealing the ACA for partisan reasons) — and the ACA had to stay.

        This time around, while insisting the Moops invaded Spain would undermine SCOTUS’s authority, the politics are murkier. On the one hand, if the Moops win, the ACA becomes worse and the GOP, being effectively a Leninist organization, is able to highlight the contradictions and run even harder against the ACA in 2016. OTOH, insisting the Moops invaded Spain may not be the most useful campaign position for the GOP, so the SCOTUS ruling may save the GOP from its own insanity.

        • matt w

          the GOP needed “ObamaCare” on the books in order to run against it

          This is far too cute. “LOL ObamaCare was such an abomination against liberty that it was THROWN OUT BY THE SUPREME COURT” works at least as well as a line of attack.

          • random

            Neither of those things work as a line of attack.

            If 5 Republican judges kick millions of people off their health care and sentence thousands of people in GOP-controlled swing states to die a painful and unmedicated death, all which can be rectified by people in that state just voting for a Democrat, that’s not something you can spin your way out of.

            Roberts was appointed by Karl Rove for the purpose of preserving the electoral interests of the GOP. Ruling any other way jeopardizes those interests.

            • matt w

              We were talking about NFIB, not King–the first time around, did the GOP need ObamaCare to run against in 2012? At the time nobody had health care through Obamacare, so it wouldn’t have kicked people off the rolls, and there wasn’t any quick fix if it got overturned.

              • random

                did the GOP need ObamaCare to run against in 2012?

                They certainly seemed to think so, seeing as how opposition to it has been the centerpiece of their entire electoral strategy for the last 5 years and they’ve spent hundreds of millions of dollars in advertising against that one program.

            • DAS

              Are those millions of people going to ever vote GOP however SCOTUS may have decided this latest case? OTOH, do the people who do vote for the GOP really care about millions of (poor, possibly “melanically enhanced”) people loosing their health insurance or thousands dying?

              OTOH, a Moops victory would mean the GOP could campaign against a mandate that doesn’t do anything to ensure that people can actually afford to pay for their health insurance. In fact, given how confused people are about the ACA, there could even be a “keep the SCOTUS and ObamaCare away from my ACA” talking point along the lines of “keep government away from my medicare”.

              But I do agree with you about Roberts. He’s in there to do what’s best for the GOP. And sometimes even to save the GOP from itself.

              • random

                There’s polls on this one.

                No, there’s no plausible way for the GOP to explain to the average voter that 5 Republican judges ruling in favor of a Republican plaintiff to strike down a program called “Obamacare” but only in Republican-controlled states after the Republicans voted 50 times to repeal “Obamacare” and ran hundreds of millions advertising their intent to dismantle “Obamacare” is somehow, magically, the fault of Obama.

                Several of the more realistic Republicans have already pointed this out, and the CW among those Republicans is that the most likely result if things had gone down different today would eventually be a handful of blue-state Republicans voting with Democrats for some kind of clean fix.

          • DAS

            That may get the mouth breathers riled up, but it doesn’t necessarily get them out to the polls in the same way that “You need to elect us to STOP OBAMACARE” gets them out.

  • stryx

    I look forward to the interpretation by the plaintiff’s council describing how the argument they made with such great detail and care was ignored by the SC.

    • Ruviana

      Needs moar CAPS.

    • rea

      or counsel

      • Shakezula

        Zing!

  • Aaron Morrow

    Should I be celebrating the survival of disparate impact, or has Kennedy successfully limited it?

    Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. decision
    http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

    • West of the Cascades

      You should be celebrating. Yes, Kennedy and the majority limited it, but it’s still a theory that’s more easily proved than disparate treatment (showing discriminatory intent is very hard). It’s important because a ruling the other way could have opened the door to eliminating disparate impact claims in civil rights cases — read how the four dissenters bash Griggs v. Duke Power, the case that is the basis of disparate impact jurisprudence.

      • Gwen

        If they found disparate impact here, wouldn’t any limiting language be just dicta?

  • SP

    You know nothing, Scott Lemiuex.
    For the ACA!
    (Cobloggors stab Scott repeatedly with shards of vodka and ketchup bottles)

    • SP

      (Note: Comment not meant to be actual endorsement of murdering Lemieux.)

      • Peterr

        Good think you cleared that up, or the local constabulary might want to have a word with you.

        See “Wayne LaPierre’s head on a stick, Erik Loomis and

        • SP

          Yes, that was the joke- I am aware of all internet traditions.

      • JustRuss

        So….we’re not putting his head on a pike?

        • guthrie

          Do you know how hard it is to find good striaght 16ft lengths of wood these days?

          • Bruce B.

            Sorrowful days are these, when blog commenters no longer thrill at the prospect of an excuse to go mug caber tossers again.

  • D.N. Nation

    https://twitter.com/BillKristol/status/614082933415124992

    I love these guys sometimes. When they’re not advocating for the deaths of thousands of Americans, mind you.

    • David Hunt

      So you hate them all the time, then?

      • D.N. Nation

        Oh yeah, I guess so.

    • joe from Lowell

      Now he’s just screwing with us.

    • random

      I don’t need BK telling me this is going to happen to know that its not going to happen.

      (some enterprising blogger needs to collect all the best GOP responses to this in one place.)

    • brugroffil

      I repeat my question from yesterday: is there a single thing Bill Kristol hasn’t been wrong about? Ever?

      • D.N. Nation

        https://www.youtube.com/watch?v=6U7rOUSvYM8

        Bill Kristol version: “We’re doing just fine! Looking great. It’s the liberals who are the ones who are losing.”

      • D.N. Nation

        https://www.youtube.com/watch?v=6U7rOUSvYM8

        Bill Kristol version: “We’re doing just fine! Looking great. It’s the liberals who are the ones who are losing.”

      • joe from Lowell

        There are things he hasn’t been wrong about yet. The jury is still out on some of his predictions, so technically, yes. Bill Kristol has not been wrong about the health care reform memo.

    • John Casey

      Given Bloody Bill’s track record of total wrongness on every significant public issue, I find his tweet quite reassuring.

  • joe from Lowell

    Scott once wrote, in response to my comment that Supreme Court predictions are worthless, that predicting the Supreme Court was actually easy.

    I take him at his word – that’s probably true, 95% of the time.

    Except for the really important, high-profile cases.

    • Yes, because the vast majority of the time, the Court’s response is “cert denied”.

      • joe from Lowell

        Heh, good point!

        But I meant the cases that they actually hand down decisions on.

    • timb

      As Richard Posner has said, that’s cause the SCOTUS is not a law Court; it’s a political Court

      • joe from Lowell

        I’d say it’s both, and most of that 95% is the Court doing its “day job” as an appellate law court. That’s where you see the splits that have nothing to do with the political polarization.

        • timb

          As Poser notes, no other Court gets to pick its cases. His certainly doesn’t. and, trust me, when you have a case they wish did come up there, you can tell. He did everything but yawn during my oral argument

  • tsam
    • tsam

      The money shot:

      “Our Founding Fathers didn’t create a ‘do-over’ provision in our Constitution that allows unelected Supreme Court justices the power to circumvent Congress and rewrite bad laws,” Huckabee said in a statement provided to The Washington Post.

      • Boots Day

        Shorter Mike Huckabee: More judicial activism!

      • mds

        “Our Founding Fathers didn’t create a ‘do-over’ provision in our Constitution that allows unelected Supreme Court justices the power to circumvent Congress and rewrite bad laws,”

        So … he’s in favor of this decision, then?

        • tsam

          He’s in favor of starting his own version of ISIS. Read that however you like.

          • Joseph Slater

            The way I want to read that involves the show “Archer” but there’s no way Huck could pull that off.

      • Joshua

        “Our Founding Fathers created a ‘do-over’ provision in our Constitution that allows unelected Supreme Court justices the power to circumvent the electorate and install Republicans to the White House and rewrite elections we don’t like,” said every Republican ever.

    • Peterr

      The Post must have left out the part where Huckabee declared that Marbury v Madison was wrongly decided.

  • The Pale Scot

    Roberts will avoid ideology if it means being pro corporation.

    What’s the current score of persons vs corps on his watch?

    Something like 2,159,320 to 0?

    • Pat

      Yo, that’s the other way around – 0 to 2,159,320.

      • The Pale Scot

        Oopss

  • petesh

    If only they had also upheld gay marriage today, emergency rooms all round the nations would have been in serious trouble from the epidemic of head-exploding.

    • DrS

      It would have been nice, what with it being Pride weekend in many cities this weekend.

      I’m a little concerned about the possible backlash from the decision, so perhaps that is for the best. We had a multiple stabbing being investigated as a hate crime here in Sacramento this week.

  • random

    Why are you guys here and not lurking your (least) favorite right-wing communications medium?

    Dunno ’bout you guys but I need more wingnut tears in my diet.

    • timb

      How’s this

      Savor your dishonorable & temporary win. You aren't going to like how this plays out. @TheXclass @timb_116— Kurt Schlichter (@KurtSchlichter) June 25, 2015

      • dishonorable

        How dare we use the judicial branch for its stated purpose? Real men follow the code duello.

        • Denverite

          Dibs on Robert Strong!

      • Lurking Canadian

        Is he calling for 2nd Amendment solutions? So the next revenuer who tries to give him free money to pay for health care gets it?

        • slavdude

          I’ve always thought the phrase “Second Amendment solution” is pretty dumb. What does it mean? That people will walk around showing their guns? It sure doesn’t mean armed insurrection, which is how many people use it (and I know you’re using it in this way ironically).

    • Davis X. Machina

      The right wing sites are too predictable.

      I’m going left wing, with this contribution:

      Don’t laugh at these people. They were our allies! (At least on this issue.)
      This is terrible! This institutionalizes the ACA!
      How will we ever get to single payer now?

      Kill the Bill!

      • tsam

        Wow. That’s, um…wow.

        • Davis X. Machina

          Look, anyone who will heighten the contradictions is your ally, for as long as they’re heightening them.

          No enemies to the right!

          • tsam

            Heightening the contradictions–totally NOT a worthless and futile thought experiment.

            • Davis X. Machina

              We could have gotten rid of slavery a lot faster if we just skipped all those futile efforts to restrict its extension to the territories, and just annexed Cuba and Mexico.

    • Origami Isopod

      I went over to the Politico comments. I had to install Blog Killfile because there’s this one asshole reposting the same comment literally hundreds of times. But once I nuked him, the comment thread was a thing of beauty. Wailing wingnuts, and progressives pointing and laughing at them.

      • Origami Isopod

        AHAHAHAHAHAHHAHAHAHA!!!

        BTW if you want more people to laugh at check out Policy.Mic.

        • DrS

          I wonder what would happen if Roberts, seeing the writing on the wall regarding marriage equality, joins a 6-3 decision?

          That would be spectacular.

          • D. C. Sessions

            Actually, I suspect that there’s a good chance he will do just that so as to assign the writing of the opinion to himself and slip in a few cookies for later snacking.

            • Lee Rudolph

              Cookies, or Easter eggs?

    • MPAVictoria

      The RedState thread on this is just fantastic.

      http://www.redstate.com/2015/06/25/roberts-court-meet-new-boss-old-boss/

      I drink your tears. I drink them up!

      • random

        Delicious, salt-rich tears….

        Kilgore’s got a collection going here:

        http://www.washingtonmonthly.com/political-animal-a/2015_06/a_moment_of_schadenfreude056271.php

        • Duvall

          Welcome to the Cartman presidency, where the executive does whatever he wants, up to and including making IRS bureaucrats decide a multi-billion dollar issue.

          Isn’t that *most* of what IRS bureaucrats do?

        • The Huckabee comment is hilariously stupid.

      • Hogan

        If laws passed by Democrat congresses and signed by Democrat presidents are going to be allowed to function as intended, then I don’t know what country I’m living in any more.

      • guthrie

        Amusing comments, such as:

        karen1984 • an hour ago

        We have the Bush Family to thank for this mess. As presidents, they really stunk up a storm picking “conservative” judges

        Avatar
        Samsara • an hour ago

        Kennedy was appointed by Reagan.

        • Richard Gadsden

          I was tempted to point out that Alito was a Bush Jr.

  • NewishLawyer

    In more good news,

    http://www.bloomberg.com/news/articles/2015-06-25/housing-discrimination-lawsuits-backed-by-u-s-supreme-court

    The Supremes allow Disparate Impact theory in FHA lawsuits. Kennedy writing for the majority.

    Kennedy pulled two solids today. He also showed what a true Justice does based on his ACA vote. Kennedy followed the Courts precedent even though he was a dissenter during the original ACA lawsuit.

    • SIS1

      This outcome was a real surprise, given where Kennedy has been, and I think is far more important in the long term than the Burwell case.

    • timb

      THAT IS AWESOME

    • ajp

      On the one hand, I don’t think one deserves too much credit for doing the unambiguously right thing. On the other hand, when you have justices like Alito, Thomas and Scalia, maybe some positive reinforcement of Kennedy is a good idea. Not that he cares what I think.

  • SIS1

    This outcome was what I was expecting. Roberts had already ruled for the law, and Kennedy’s questions during the arguments were not that supportive of the plaintiffs.

    My take is the Kennedy joined the three dissenters in taking the case, but when the weakness of the case was fully exposed, he backed away.

    • random

      Oh I think if he thought ruling for plaintif would have unambiguously helped the GOP, he wouldna cared about whether the argument was good or not.

  • Brutusettu

    Scalia King of the Moops

    • Denverite

      Preferred convention is “Moops’ King.”

    • tsam

      I hate the Moop,
      And it is thought abroad, that ‘twixt my sheets
      ‘Has done my office. I know not if ‘t be true,
      But I, for mere suspicion in that kind,
      Will do as if for surety

    • King
      King
      King
      King of Moops
      Moops
      Moops
      As I walk through this world
      Nothing can stop the King of Moops
      And-a you, you are my oops
      And no one can cure you, oh no

  • Malaclypse

    While we are savoring wingnut tears, I give you the following: Vox Day is baffled why the Left, that doesn’t even exist, got Walmart to pull the Dixie Swastika, while he and his thousands of supporters can’t do a simple thing like get Irene Gallo and PNH fired because she described him accurately.

    • Malaclypse

      Also, too – Christ-hating Crusaders For Sodom is the best job title ever.

      • Rob in CT

        Seems like a perfect description of the modern Right, considering the sin of the Sodomites was being awful (including attempted rape) to poor people who needed help. Hospitality FAIL. YHWH – before mellow hippy Jesus even showed up – was displeased.

    • Ann Outhouse

      Did you see the commenter who threatened Walmart with cutting his weekly expenditures at their store from $100 to $50?

      Of course, true SJWs such as myself cut our weekly expenditures at Walmart to $0 years ago.

      I thought about posting that there but I’m in too good a mood about the ACA decision to be trolling idiots today.

      • random

        I really do try not to shop there.

        But sometimes, it’s 3am and you really really need a gallon of milk, a leaf blower and some crafts supplies.

        They got you over a bag when that happens. Where else you gonna go?

        • Ann Outhouse

          If you must, but at least buy the electric-powered leaf blower,

        • Origami Isopod

          But sometimes, it’s 3am and you really really need a gallon of milk, a leaf blower and some crafts supplies.

          Kinky.

        • JustRuss

          You need a leaf blower at 3AM? The neighbors must love you.

        • Karen24

          Or it’s 3 am and you’re in East Jesus, TN and really need toothpaste. Or, as I did last spring, you’re in Gunnison CO and really need Feminine Hygeine Products and your husband needs Coke Zero. Desperate times, man,

    • brugroffil

      I’m sort of confused by the conservative responses to Walmart’s actions–was anyone on the left even explicitly calling for Walmart to remove that stuff?

      • BigHank53

        No. Mr. Roof merely peeled back the flag scab to show the festering infection of racism underneath, and a lot of people didn’t like what they saw.

        • David Hunt

          Or in the case of Wal-Mart, realized that potential customers wouldn’t like what they saw and decided it was good business to dump the flags…for now.

      • Ann Outhouse

        Does it matter? Wingnuts hear all sorts of things we never said. Just like they know all sorts of facts that aren’t true.

        • kayden

          Amen to that. They’re delusional.

    • Schadenboner

      He really needs to change the name of his shit-tier blog because I’m continually confused if people are referring to the The Vox (which I actually think is pretty decent, TO THE DISMAY OF SOME ON THE LEFT THIS SITE) or this floridly psychotic author genre-fictionist.

  • Steve LaBonne

    Moors, bitchez!

  • Ann Outhouse

    So Lemieux’s SCOTUS predictions are about as accurate as his hockey and baseball predictions.

    • jim, some guy in iowa

      “expect the worst, hope for the best- then you’re either proved right or pleasantly surprised”

      I would have totally gone around the bend long ago without that guiding light

  • Sebastian Dangerfield

    While the holding as to the meaning of the subsidies provision of the ACA is unambiguously good (and well executed), this is Roberts, so of course there is a poison pill, to wit, the first holding of the case, which roughly works out to be: “No Chevron deference for important stuff.” Look for this to come up in environmental cases, antitrust, you name it.

    • Steve LaBonne

      But not using Chevron in this case means the subsidies have significant protection against (FSM help us) a future Republican president, no?

      • JKTH

        True but if there’s a Republican president, they’d likely be able to repeal the whole thing anyways.

        • random

          They’d be able to, but why would they?

          At that point the purpose of their token opposition to the ACA is already accomplished anyway, and they have enough power to just make up some other issue to distract the rubes.

          • Denverite

            I think it is more likely than not that if a GOP president didn’t do all he could to repeal the ACA he’d be primaried during his reelection campaign.

            • Malaclypse

              I think it more likely that the ACA will enter the same grounds as abortion – an effective fundraiser, and something to snip away at, particularly for the poor, but actually ending it has too many liabilities to be worth it.

            • random

              Keep in mind that the only guy in the GOP to be primaried in the last election was a guy who voted to repeal the ACA over 40 times.

              The only people dumb enough to primary a sitting President in their own party over Obamacare 4 years after Obama leaves office are the same people dumb enough that a sitting GOP President can distract them with other shiny baubles anyway.

    • Manny Kant

      But the ruling is *better* than Chevron deference, isn’t it? The point is that you don’t even have to get to Chevron, because the law itself, as a whole, is clear that there need to be subsidies in the federal exchange states, even if the individual passage is ambiguous.

      • Denverite

        The issue is that SCOTUS added some teeth to the whole “Chevron doesn’t apply to really important parts of legislation not expressly delegated to an agency” exception that before was pretty much undefined and therefore inapplicable. Litigants can now use that to cause all sorts of mischief wrt agency interpretations.

        Without looking at the CAA to see how it delegates the ability to define a pollution source, it would be questionable to me whether the Chevron doctrine would even have been applicable in Chevron itself.

        • Sebastian Dangerfield

          Bingo. This is the tribute Roberts demanded for his vote, no doubt.

        • UserGoogol

          Is Chevron really that much of a barrier to judges ruling how they want? In this particular instance it posed a difficulty to the conservatives because the “moops” argument requires a very debatable reading of the text, but in general, deciding that their preferred reading of the text is the correct reading of the text is what judges do all the time. If the law is deemed unambiguous, then Chevron doesn’t apply.

    • sharculese

      But isn’t this exception going to favor robust interpretations of statute over limited ones? I can’t think of a situation where you get to “this provision is central to what Congress was trying to do and it means they want the EPA to sit and twiddle its thumbs.”

    • sleepyirv

      I dunno, there has been rumblings on both sides of the Court to chuck Chevron. It probably won’t be a terrible result. (Or at least, Chevron doesn’t constrain conservative justices anyway, so it’s something of a moot exercise.)

  • Thanks to today’s decision, Blogging is About Trust. Otherwise it would have been about Tpust.

    • Lee Rudolph

      Otherwise it would have been about Tpust.

      You have verified your русские корни.

      Parsnips, by preference.

  • Joe_JP

    Obama talking about the ruling & ACA itself now:

    https://www.youtube.com/watch?v=4BPy3zwSukw

  • Lurking Canadian

    All snark aside, this is a big Biden deal. Thank goodness the forces of good won this one.

  • Hot damn! 6-3! Snark and tedious analysis can wait. I’m just relieved.

  • burnspbesq

    (hoist from below)

    And so it came to pass that when word of the decision of the Supremenesses reached the Land of Cleve, the citizens of that fair land were much afraid, as they stood in the great Public Square discussing it among themselves. “We shall surely feel the wrath of the Great Goddess Chevron for harboring the infidel Adler in our midst,” one said. “She will send the Moops among us to drink our milkshakes and gay-marry our boyfriends,” one of the women was heard to say. It was quickly decided that the infidel Adler must be banished from the Land of Cleve forever, and a delegation was sent to storm the gates of the Western Reserve and bring him to the Public Square to face the people’s justice.

    Meanwhile, another delegation was sent to bring the wise men LeBron and Kyrie to the Public Square to assist the people in their deliberations. And lo it came to pass that Kyrie, the devoted servant of the great wise man K, came up with the answer.

    “Thou shalt take him in a sailing ship to the far end of the Canal of Welland, where thou shalt put him in a small boat, alone, and set the boat loose upon the Next Lake, where the current will take it along the northern shore to the mysterious land of the Torontonians, where he will be eaten alive by the fearsome monster Bob Ford.”

    And the people saw that Kyrie was a wise man indeed. And so it was done.

  • Shakezula

    Shapiro says it was a 50/50 decision. These people are hopeless.

    • If we prorate by ego size, that may be true.

    • Malaclypse

      Karl Rove’s math.

    • Schadenboner

      This from the people who were predicting a Romney victory.

      UNSKEW FRACTIONS!

  • Gwen

    To his credit (?) I am fairly sure that Scott’s main purpose in sounding the alarm on King was:

    * to rally the troops in case the Moops prevailed
    * to “work the refs” to demonstrate how Moopery was foolish

    Whereas Shapiro, Adler, etc. who were “certain” that the plaintiffs position was “obviously correct” — these guys were just kool-aid drinking knuckleheads.

    • Rob in CT

      Yes, and I think he did a fine job of it.

    • random

      I’m pretty sure he was just succumbing to some not-entirely-unjustified pessimism.

      • Gwen

        The good news is that is covered by Obamacare.

  • Barry Freed

    Just want to add my shouts of Hooray! to the mix.

  • dilan

    I think Roberts got it exactly right.

    I had a lot of arguments with conservatives and libertarians about this case, and also read a fair amount of their commentary about it. And the principle that Roberts upheld is one that is fundamental to statutory construction but which I became convinced conservatives reject because of their anti-government priors.

    The principle dates back at least to 1872, when it was enacted as part of the California Civil Code on contract interpretation (contracts are interpreted using the same basic principles as statutes):

    “A contract must receive such an interpretation as will make
    it lawful, operative, definite, reasonable, and capable of being
    carried into effect, if it can be done without violating the
    intention of the parties.” California Civil Code Section 1643.

    “Operative” is the key word here. The basic idea is simple. Interpretation of written instruments is, fundamentally, about effectuating the intent of the drafter. And ALL drafters intend that their contracts be lawful and binding, and their statutes ameliorate the issues to which they are addressed.

    Thus, if you have an ambiguity in a contract, and one interpretation renders the contract unenforceable and the other one renders it enforceable, you choose the one that renders it enforceable, unless it is wholly unreasonable.

    Same with statutes. See Ashwander v. Tennessee Valley Authority. If there’s one interpretation that renders a law unconstitutional, and another one that renders it constitutional, you choose the latter interpretation unless it is wholly unreasonable.

    That principle makes this an easy case. As Roberts says, the purpose of this law was not to send state insurance markets into death spirals. It just wasn’t. It was to expand private health insurance coverage by forcing everyone (other than those on Medicaid) to purchase it through the exchanges, and to subsidize those who couldn’t afford it so that they could comply with the mandate. You all know what I think of that goal, but no reasonable person can look at the mandate-subsidies-exchanges portion of this law and conclude that wasn’t the goal.

    So there’s a statutory ambiguity. Interpret it one way and the statute serves the stated goal perfectly. Interpret it the other way and it makes health insurance even worse in states that turn down the exchanges, by imposing all sorts of regulations that will require insurance companies to substantially raise, not lower, their rates.

    Here’s where I have had problems with conservatives and libertarians. All across the spectrum, from establishment types like Megan McArdle and Ross Douthat all the way to the biggest tinfoil hat wearing “the entire US government is unconstitutional” types in comments threads, they simply DON’T BELIEVE THAT STATUTES SHOULD BE CONSTRUED TO BE OPERATIVE, because of their anti-government priors. They simply would like a system where every statute is null and void unless it is perfectly drafted, where drafting errors are used as a way to punish Congress, and where courts make no reasonable attempt to discern congressional purpose but rather enforce statutes exactly as written and “give Congress what it deserves” when any sort of an error was made.

    You can see why that would appeal to an anti-government conservative or libertarian. And this case was just the perfect vehicle to allow them to express this belief. And so many of them did.

    In the end, I think the conclusion that statutes should be construed to be operative is an absolutely mundane legal rule. It’s obvious. The whole point of the Constitution, after all, was to facilitate lawmaking so that the Congress could solve national problems. That’s what the framers said. And statutory interpretation is supposed to be about effectuating the intent of the legislature.

    But to most of the right and probably all libertarians, statutory interpretation shouldn’t be about that. It should be about making it very hard for Congress to solve national problems, because they think we should still be living under the Articles of Confederation. Thankfully, today, that viewpoint lost. It should always lose.

    • Pat

      Well, my only quibble here is that the anti-government conservatives only feel that way about statutes drafted by Democrats. They don’t hold the Patriot Act to the same standard.

      But you’re absolutely dead on here.

      • dilan

        I suspect on national security stuff they just don’t think the Court should even reach these sorts of questions. They would oppose challenges to the Patriot Act on procedural grounds (standing, state secrets, etc.).

        But yes, of course conservatives are not consistent on this issue. There are plenty of examples of them ignoring statutory text in favor of statutory purpose (e.g., the Eleventh Amendment). But the argument still appeals for them, and King v. Burwell was the perfect vehicle for the conservative/libertarian id on this issue to come out.

  • ringtail

    Rush Limbaugh bloviating on the decision.

    I honestly can’t believe the vitriol and hyperbole. Then again, I don’t frequent any right-wing cesspools online or otherwise.

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