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“Moops, Er, I Meant to Say Snake Oil is Delicious!”



I’ve already taken a few whacks at Michael Cannon’s unique theory that if a party wins a special Senate election that party’s platform must therefore be enacted by the Supreme Court of these voters have been disenfranchised. In a new piece, I observe that this argument also happens to be self-refuting:

The idea that the Supreme Court is required to follow the returns of special Senate elections in Massachusetts is…novel. The idea that the court is required to allow these results to trump the results of national elections is even dumber.

But it’s even worse than this. With this sentence, Cannon is spitting out his own snake oil. Remember that the premise of the King v. Burwell lawsuit was that the plaintiffs were allegedly just asking the court to enforce the law that Congress wrote. Cannon was the most aggressive proponent of the ludicrous, dystopian science fiction version of the ACA, claiming not just that the letter of the law required that subsidies not be available on federal exchanges, but that Congress also fully intended to establish federal backstops that it knew would fail.

In a refreshing, if inadvertent, moment of honesty, Cannon is conceding the obvious: the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to “enfranchise” the people who voted against the bill. And this is something that should always have been obvious from the fact that Cannon could not find any supporter of the ACA who could back his irrational reading of the law. In a constitutional case, this might not tell us much. But in a case involving statutory interpretation, the uniform rejection of the theory advanced by the bill’s opponents — both contemporaneously and in 2015 — should have been dispositive.

The fact that King was based on an almost comically transparent historical sham surely helps to explain why Roberts rejected the argument of the plaintiffs so forcefully. He declared that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” and foreclosed a different interpretation of the law by a future Republican administration. It also helps to explain why Justice Anthony Kennedy joined the majority even though he voted in 2012 to strike down the law in its entirety. The contempt the court showed for the people who brought the suit certainly wasn’t the product of any love for the ACA.

Although it must be admitted that if someone is going to make up a massive historical lie, it should be in the service of a truly noble cause, like stripping millions of people of their health insurance.

This would all just be black comedy…except that this crap actually got three votes from Supreme Court justices.

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