As everyone knows, the Supreme Court has agreed to take on the King appeal. This is the 4th Circuit case where the appeals court ruled that the Moops did not invade Spain, and the IRS can send tax rebate subsidies to anyone who has an income of less than 400% of federal poverty line that are bought on Healthcare.gov. I don’t have much to say that is not said by either Neil Seigel or JoeyFisher at Balkinization:
Halbig and King (plus the Indiana and Oklahoma cases) are different. I can accept as reasonable, even if ultimately unpersuasive, the argument that the relevant provisions of the ACA are ambiguous. What I cannot accept as reasonable or responsible, however, is the argument—accepted by the D.C. Circuit panel majority in Halbig—that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished when it passed the ACA: self-destructively limit the tax subsidies that make health insurance affordable for millions of Americans to those who have the good fortune of happening to reside in states that set up their own health insurance exchanges.
Yes, the statute provides that the subsidies are to be calculated in part based on the cost of the monthly premium for the health insurance plan that an individual buys “through an Exchange established by the State under [Section] 1311” of the ACA. 26 U.S.C. §36B(b). But for goodness sake, that is an odd place in the statute for Congress to say—no, for Congress to whisper—that subsidies are not available in federally facilitated exchanges, thereby placing the viability of the entire statute in jeopardy if state officials decline to create exchanges. The part of the law that determines who is eligible for the subsidies—as opposed to how they are to be calculated—does not distinguish between state and federally facilitated exchanges. See 26 U.S.C. §36B(a).
More importantly, Section 1311 purports to require each state to establish an exchange: “Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)[.]” The section then defines an “Exchange” as an entity that necessarily has been established by a state: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” See also § 1563(b) (stating that “[t]he term ‘Exchange’ means an American Health Benefit Exchange established under [§] 1311”). Section 1321 later makes plain that Section 1311 must be taken stipulatively, not literally. That is, a state may, as a matter of fact, “elect” to establish an exchange or not, and if it does not, then the federal government “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements” (my emphasis).
In other words, the part of the ACA that uses the “established by the State” language asserts by definition, regardless of the fact of the matter, that the state is establishing the exchange.
As a matter of statutory interpretation, the plaintiffs’ argument in King/Halbig—that the ACA as a whole clearly requires no subsidies to go to anybody in a state with a federal exchange—is sufficiently implausible that I think it is fair to characterize it as fundamentally a political argument….while a challenge to an IRS regulation interpreting the language of the ACA is, on its face, simply a matter of statutory interpretation, it seems pretty clear that the King case is about more than that—not only in the eyes of the plaintiffs but also in the eyes of those who voted today to grant cert….The most cynical interpretation is that this is not high politics, but low politics. In other words, the principle is that Obama’s Affordable Care Act must fall because Obama and his party must lose….Or maybe the principle is not Lochner revivalism. Maybe instead it is about federalism. This interpretation proceeds as follows: view King through the lens of the Medicaid expansion portion of the Court’s decision in NFIB v. Sebelius. In some ways that’s the closest fit. In that portion of the case, many Justices seemed inclined to turn the Affordable Care Act into a very different kind of federal-state program than the one enacted by Congress—one in which the states could decide for themselves whether they wished to expand Medicaid or keep it as it was. The plaintiffs in King, similarly, would create a system, never contemplated by Congress, that would allow states to opt in—or not, as they choose—to the federal subsidies for purchasing health insurance on the exchanges. Just as many states now refuse the Medicaid expansion, states would be empowered by King to block all federal subsidy money for their citizens by declining to set up a state exchange.
Baud
If the result of this case were to increase business liability rather than deny millions health coverage, the Court would easily adopt the government’s interpretation of this language.
Valdivia
I am really not very optimistic about this case. The worst part is how ridiculous it is and that this is the fig leaf they will use to try and undo ACA. ugh.
Iowa Old Lady
@Valdivia: Yeah, at some point, you have to stop saying they’re stupid and start saying they’re evil.
JPL
GA will opt out. Wouldn’t insurance rates soar in states that opt out? Many of the states with exchanges are healthy states, so couldn’t the ACA stand alone in those states?
JPL
@Baud: Well duh!
Valdivia
@Iowa Old Lady: yep. agreed.
The Dangerman
Obamacare drives people to the voting booths from the Right; going into 2016, I don’t think the Court will do anything to blow it up.
Gene108
Joey Fisher is wrong. His points two and three are irrelevant. His point number one is correct. Obamacare must fail, because any lasting or potentially lasting successes of the Negro in their White House must be destroyed, the “earth” under which these accomplishments exist must be scorched and salted, so they may never see the light of day again.
This is the mindset of the white supremacists in overturning gains made by African-Americans during Reconstruction, and this is the mindset of the modern Republican Party, who are both the spiritual, and in some cases the literal, descendants of those white supremacists.
Republicans in the judiciary get this mindset drilled into as they do their time in the Federalist Society, which is the bootcamp through which all Republicans, who want jobs in the Federal judiciary, must graduate from.
Movement conservatices are Leninists, who want to use superior organization to infect their minority views in the rest of America and the judiciary is just another political organ that must be co-opted for the
revolutionmovement.Chris
Christ, they’re really going to do it, aren’t they?
Nothing this country throws at me can surprise me anymore, and yet…
MomSense
I had fun explaining to my kids that the fate of our ability to see the doctor or be protected in case something terrible happens is completely dependent on three assholes and the mood of 2 others who are also known to be assholes.
I thought Republicans hated “activist judges”.
Gene108
@Baud:
If it succeeds it will increase the business liability for hospitals and other healthcare providers, but those seem to be acceptable collateral damage to deny Obama and the Dems a political victory.
Lurking Canadian
@Iowa Old Lady: This, unfortunately. This is just monstrous evil. Would-be mass murderers clad in fancy black robes. These people are too over the top to make plausible villains in a Bond movie.
Chris
@Gene108:
There’s a popular line from the Israeli hard liners that “we will have peace when the Arabs love their children more than they hate Jews.”
I might quibble with that line in its original context, but in re the American right wing, I don’t think there’s a better summary of their voting patterns.
Hill Dweller
Charles Blow has a solid article in the NYT talking about Republicans wanting to erase Obama from history.
MomSense
I’m also considering moving to a state that is not run by an ignoranus. Our economy is under performing all the other states in New England and I just don’t see much of a future for myself or my kids here.
Elizabelle
@MomSense: If this trend keeps up, I am seriously thinking of living abroad for a few years.
Want to stay and fight for 2016. But that does not go well, I am out of here.
constitutional mistermix
Bush v Gore redux. It’s going to happen.
MomSense
@Elizabelle:
I would go abroad if I could. I’m so done with this. Yeah a 2016 match between Bush and Clinton is not exactly the hill I want to die on.
Chris
@Lurking Canadian:
@constitutional mistermix:
The Supreme Court: America’s ayatollahs.
Elizabelle
@Hill Dweller:
Charles Blow, NYTimes today: The Obama Opposition:
Well, that and that too many conservatives and “independents” accept, unquestionably, that “government is the enemy”, when it’s the only realistic counterbalance to unregulated capitalism and ginormous multinational corporations.
Obama is a thinking man’s president when too much of the electorate is irrational, some is frankly stupid, and the middle class has a justified sense of unease about their economic prospects.
ETA: And conservative Republicans are radically reactionary and some congresscritters are literally personality disorders on the hoof.
Chris
@MomSense:
I am thinking same, after I’m done with school. Of course, I’m hoping to end up back in Washington, which would be amazing both professionally and for the better safety net, so fingers crossed.
MomSense
@Chris:
Fingers crossed! Toes, knees, ankles and eyes also, too.
Chris
@MomSense:
Ah, that’s what I’ve been doing wrong. Forgot the eyes.
Barbara
Start thinking this through now: live by the technicality, die by the technicality. States should delegate the operation of their exchanges to the federal government. Hence, healthcare.gov will be the state’s exchange (via delegation to the feds). Nothing in the ACA says they can’t do it like that. Those Republican governors who refuse to do even that will literally be fucking their citizens and their health care providers through the backside like, as there will be for many of them, no tomorrow. Obviously, this is war.
Davis X. Machina
@MomSense: Surely the great gusts of Freedom! blowing through the pines is enough to keep you here…
Chris
@Elizabelle:
I don’t think ANYONE expected the kind of scorched earth opposition he got. Not to this degree. You’d have to go backto Lincoln for this level of lunacy.
d58826
@MomSense: Only if the judge was appointed by a democrat or is deciding in favor of the 99%.
Roberts took a pounding from the right for his opinion in 2012. This is his chance to get back in the good graces of the wingnuts.
Paul (@princejvstin)
The operative words the Republicans have used since President Obama was elected are “Delenda Est”.
dmsilev
@Barbara: The problem is that many states apparently don’t have any objection to fucking their citizenry over. See the Medicaid expansion, in which the Feds were paying for basically the whole thing and yet many of the conservative governors and legislatures gave it a raised middle finger.
Elizabelle
WaPost yesterday. Essay by David Tedrow of Durham, NC, recovering liver transplant patient:
Without Obamacare, I would have died. I’m scared the Supreme Court is going to gut the part that saved me.
Mike E
@Elizabelle: It recalls that line in Shrek by Lord Farquad, which sums up a conservative’s total lack of empathy:
“It’s bad enough being alive when nobody wants you, but showing up uninvited to
a weddingthe White House…Guards, seize himINPEACH!”Elizabelle
@dmsilev:
You’ll be amused to hear that some anti-Obamacare types are trying to say “hey, the GOP governors wanted to do this through Medicaid.”
Which is an outright lie, but someone from the wurlitzter is spinning that platter. They realize they have to say something other than: not a penny from my pocket for someone else, but everything I get from the government is MINE. Gimme.
Chris
@dmsilev:
Ideology trumps all.
They’re not greedy. They’re sociopathic. They’re not doing this because they’re too cheap to pay a few more dollars in taxes. They’re doing it because they honestly believe you deserve to die. And me and all the rest of us too.
Barbara
dmsilev: It’s outrageous. No disagreement with you at all. We can only do what we can do. Given my view that many people are voting their so called relative advantage (I would rather be poorer so long as I am still relatively less poor than the black guy) I don’t feel like prognosticating the electoral success or failure of those who, like Sam Brownbeck, for instance, will piously pronounce how virtuous it is that other people not named Brownbeck will die as a result, but it’s become more difficult for me to care year by year. Eventually, people have to figure this out.
d58826
Richard a question – if the court invalidates the federal exchange, can the state exchanges survive? In other words will there be enough customers in the state exchange states to make it worthwhile for the insurance companies to continue to participate. .
Second question – If I remember correctly the funding for the risk corridors must be approved by Congress periodically. Since the GOP has no intention of doing that, will the loss of the risk corridor mechanism deal a fatal blow to the states that have their own exchanges.
I think the process here is death by a thousand cuts. The GOP knows that they can’t repeal the law as long as Obama is President. However if they can take enough pieces out of it then the law will collapse on its own. The GOP can then say. With a straight face, see the law failed. Most voters and certainly the MSM will not notice the fingerprints on the knife that the GOP planted in the law.
MomSense
@Davis X. Machina:
I think the pines are too tall. We will probably have to cut them all down so we can enjoy the sweet, sweet freedom breezes.
And as a special freedom bonus, the cleared out land would be perfectly suited for another Walmart.
Elizabelle
Paul Krugman takes aim at the Supremes’ overreach too, today, NYTimes:
Death by Typo
The Latest Frivolous Attack on Obamacare
Matt McIrvin
@The Dangerman:
But this is blowing it up in a way that will drive people to the voting booths to repeal it.
Consider: a lot of people who currently get Exchange plans with federal subsidies are going to suddenly have those subsidies yanked. What’s going to be the effect on them? Their Obamacare premiums will suddenly go up a whole lot–and Obamacare will still require them to be insured or pay a penalty!
They’re going to hate Obamacare so much. They’ll vote Republican to yank this terrible law that is costing them money.
Stop hitting yourself, Obamacare! Why does this horrible law keep hitting itself? Etc.
Kathleen
@Iowa Old Lady: Indeed. But both sides….
///snark
gene108
@Chris:
It is not that their belief people deserve to die. It is an unavoidable consequence of the path they choose to achieve victory and power in politics.
If providing universal healthcare would give the modern Republicans victory and power, they would do it in a New York minute, but they see – and the last six years has rewarded their judgement – that their path to power is to obstruct and demoralize people; and if a few thousand people die because they do not have Medicaid expansion in their state that’s a small price to pay for winning an election.
Kathleen
@Elizabelle: Thank you! Mr. Blow nailed it.
Chris
@gene108:
I’m not convinced that they would. At this point, I think most of them have truly drunk the kool aid and believe every word.
MomSense
@Chris:
I think it is a combination of true believers and cynical sociopaths. We are well and truly fucked.
Chris
@MomSense:
Yes, but the cynical sociopaths wouldn’t be heading the way they are if they didn’t see votes in it for them…
… actually, I don’t think gene and I are disagreeing now that I see it that way. The politicians may only be doing it out of self-interest and not conviction; but the reason it’s in their self-interest to be sociopaths, is because a massive chunk of this country’s voters reward them for sociopathic behavior. Which really just kicks the responsibility over another level – “they” want us to die, it’s just that “they” refers to the 27%er base.
(Though again, at this point I’m sure plenty of politicians believe it as well).
Hal
Many people might hate Obama, but they will still sign up for, and use, their health insurance. They just won’t give Obama any credit. I wouldn’t underestimate the backlash to the Supremes and Republicans if Obamacare is overturned. We also don’t know if Roberts is actually in on this. It takes four Justices to decide to hear a case, and from what I heard on Chris Hayes show, it was the four you think.
Back when the original decision was coming down, I said Roberts would be concerned with his legacy as Chief Justice. I still think that is a concern of his, so I wonder if he is really willing to join in with the other four conservatives when a decision in favor seems to fly in the face of all previous legal precedent. Not that that seems to matter much to this iteration of the court.
Matt McIrvin
@Hal:
It’s kind of remarkable, given that, as various legal scholars have noted, this flies in the face of Scalia’s preferred version of textualism.
catclub
@Gene108:
This is the part that continues to surprise me.
catclub
@gene108:
The interesting thing is that both the Democrats and the Republicans are wrong about this.
This healthcare bill will not suddenly make the Democrats unbeatable. And the GOP misbelieved this even more than the Democrats, hence their opposition to it. The _push_ for a healthcare bill was a much better vote getter than the _resulting_ healthcare bill. (Even if the resulting bill had been far better than it is.)
Matt McIrvin
@catclub: If you want to win elections, what you want is for nothing to ever get better, but for there to always be the possibility of improvement if people vote for you. But politics isn’t just about winning elections; it has to be for something.
d58826
@Hal: If the 2014 midterms had gone the other way I think Roberts might vote with the liberal wing to protect his legacy. Give the midterms, I think he will view his legacy (and he has maybe 30 more years to build it) lies with his natural home on the right. He will vote with the 4 usual suspects to gut the law. After all destroying the New deal and the rest of the 20/21dst century safety net is what his entire political career has been about.
Seanly
@Chris:
I did. We white Americans are by far a terribly hateful & fearful group of people. Oh, definitely not all of us, but enough to create this last 6 years of gridlock and idiocy.
My brother still thinks a female president would have it far worse than Obama because of most Americans’ underlying sexual repression. I think it would be very difficult for anyone to attract the level of vitriol and nearly bubbling surface of outright hatred that Obama garnered from 40% of the electorate.
Archon
We have a confused, apathetic, irrational electorate. There were a whole lot of people that benefited greatly from Obamacare that either didn’t vote or happily voted for the Republican candidate that talked about getting rid of it “root and branch”. Based on that I would be wary in assuming that if the Supremes did blow up Obamacare in a partisan fashion there would be some political price paid by Republicans.
Especially when considering a lot of lefties would cloud the issue by rehashing the public option/singer payer unicorn that Obama could have passed if only he “tried harder”.
Cervantes
@Seanly:
What does he think about female governors vs. male governors?
Cacti
@Hal:
This.
I know people have mentioned that Roberts took a lot of grief from the right wing for the first decision, and may want to get back in their good graces.
But that’s the thing about being a Supreme Court Justice. You have a lifetime appointment and are near impossible to remove. Roberts has an eye on history and legacy rather than immediate gratification of the political right.
d58826
@Cacti: A rather slender hope for a law that has seen major improvements in the lives of millions of Americans. Killing the law will result in death panels just not the way Caribou Barbie intended
Ruckus
@MomSense:
Rethuglicans hate “your” activist judges. They love their activist judges.
gene108
@Seanly:
I think in some ways Hillary has to be the first female President, because there’s a certain “who wears the pants in the family” mentality embedded in the minds of many people, when men are seen to not be as successful as their wives, but this would be reduced because Hillary is not eclipsing Bill’s professional accomplishments.
d58826
Just a further thought on the Robert’s legacy. It only takes 4 justices to grant cert. and the chief justice certainly can’t ‘order’ the other justices not to grant the motion. On the other hand if Roberts is concerned about the Courts reputation and his legacy, why would he want such a weak and transparently political case on the court docket? If he votes with the fab four, history may very well lump that decision in with Dred Scott and Plessy as being one of the worst decisions ever. If he votes with the liberals he enrages the right again and the court is still tarred with having accepted a case that is a political hatchet job. By accepting the case, win or lose, it tells the right that no matter how ridiculous the legal rational there are 4 justices who will accept any case that embarrasses Obama. They will continue to file lawsuits in the hopes of getting lucky, like they did with Hobby Lobby. If Roberts had told the 4 that he was voting with the liberals and they were going to lose, they might not have granted cert. Just to avoid being made to look like fools
Obviously if 6 months from now there is a split among the circuit courts then granting the motion would just be what the court does when that happens. The legal rational of the case would still be worthless but SCOTUS would not look quite some much like a branch of the GOP. (note I said not quite so much)
Barbara
@Seanly: I disagree with your brother. All men, white men included, live with women, have daughters, sisters, and mothers. Sure, it may sometimes seem like women are from another planet, but it’s a planet most men generally like to visit when they can. There are many more women who are senators and governors. I don’t know I am right but I strongly suspect that I am. Racism is visceral in the U.S.
Tenar Darell
I think if I lived in one of the anti-exchange states, I’d start having “die-ins ” in front or inside the state capitols. Adding more people as they died, as consequence of coverage not expanding. Basically a cross between performance art, and movement building. You could leave/post people’s names in a banner too…. Maybe you could mail each state senator and representative letters from people who died without Medicaid or insurance too. Kind of like “Dear [name], when you read this I will be dead. I died without Medicaid or insurance as a charity case at the local hospital that is closing because they could no longer operate without the ACA expansion funds….” Make those f*ckers feel the pain they are causing. Inundate their offices with guilt, and horrific descriptions. (Use ActUp and the AIDS quilt as an example maybe)?
Sean
Moops!!!
cckids
@Seanly:
I think it will be difficult too. Sadly, I think there are a lot of Republicans who will see that as “Challenge Accepted”.
richard mayhew
@Cacti: that is actually the best hope… Avik Roy in a tweet made a good point:
Roberts owns PPACA for good and bad… and that is a thin reed to rest on
Citizen Alan
@d58826:
Why does the highest ranking judge in the country with a lifetime appointment need to get in the good graces of anyone? I’m not saying he won’t vote to destroy the ACA because, well, he’s a dick. But if he doesn’t, there is literally nothing the wingnuts can do to him except not invite him to parties or something.
Matt McIrvin
@richard mayhew: There’s Mr. Dooley’s observation: “th’ Supreme Coort follows th’ election returns.”
Azrev
Question: How many people receiving ACA subsidies live in states that are running their own exchanges?
Dr. Morpheous
@Tenar Darell:
I think it’s a great idea.