I’ve said before I’ve swung from thinking the ACA subsidies are available in all states by a 6-3 decision OR they are gutted by a 5-4 decision.
In either scenario, I see the four liberal judges writing a fairly brief and caustic opinion that can be summarized as “Why the fuck are we wasting our time on a minor drafting error case that is advanced by sociopaths, liars and con-men. The law is simple, coherent and not batshit insane when read in its entirity, so of course the subsidies are legal in Healthcare.gov states.” The other two judges in the positive scenario will write a paen to the majesty of cooperative federalism where the law clearly states that subsidies only go to state run exchanges BUT the threat was not clearly communicated therefore, the subsidies have to flow to all states.
I’m reading through SCOTUSBlog live recap of oral arguments and I’m feeling better on this scenario:
Third update: Kennedy raises a critical question for the petitioners.
Justice Kennedy raised a question…. He pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges. That’s true not just for the headline reason covered by this case – that their citizens would be denied benefits – but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular state….
Congress did not intend to blow up the state level insurance market, and they wrote a 900 page bill to advance the interest of not blowing up state level insurance markets….
The Justices focused their questioning for the remainder of Michael Carvin’s argument for the petitioners on whether his interpretation of the statute had put an “elephant in a mousehole,” i.e., whether it would have made any sense for Congress to put such an important condition for receiving subsidies inside a technical formula for calculating the amount of the subsidy.
Standing is being waived as a concern from what it seems… so it seems like the Justices on all sides want to get to merits.. including the liberals, so as a WAG, I am thinking that there is a split with both factions thinking they can get to five.
I’m actually feeling vaguely optimistic.
UPDATE: And a bit more analysis from SCOTUS BLOG
Justice Kennedy was very attentive to the consequences of the reading that petitioners urged. He seemed to realize that state legislators would be in an impossible position under that reading – more or less forced to “adopt” or “endorse” the ACA system in order to avoid unmanageable consequences in their states. His plausible conclusion was that Congress either did not intend to put them to that choice, or that the statute shouldn’t be read to have done so, because that’s not typically how our constitutional system works. Instead, the federal government makes and administers federal laws without forcing the states to do some of the work for them. Kennedy seemed to be thinking that this provision should be read more like the typical case, and rather unlike the kind of unusual provision the petitioners suggested.
No subsidies but guaranteed issue and community rating destroys an insurance market for anyone who is not deathly ill. That is the death spiral that all the insurance wonks are very well aware of.
I was hoping you would weigh in and am glad you are feeling optimistic. It will be such a disaster for millions if the subsidies are overturned.
“Vaguely optimistic” is as close to hopeful as one can get with these guys – ever since Bush v. Gore I am resigned to thinking that they could reinstate slavery just because they feel like it.
@Betty Cracker: I am wondering how MSM will manage to blame both sides, if what you say comes to pass.
@Mr. Longform: I have always wondered why the Democrats didn’t put up much of a fight. You can bet the Republicans would have if the shoe was on the other foot.
Easy case made hard because of politics.
Standing would only yield a Groundhog Day scenario: the wingnuts would go looking (again) for [probably even less defensible] plaintiffs and venue-shop until they found a sympathetic court to push the circus act back up to SCOTUS. Merits at least takes the argument out, puts it on the table, and spotlights whether SCOTUS is a judicial body or merely the newest partisan club for wingnuts.
Is it possible that Roberts or Kennedy are going for a merits argument now because they recognize the anti-ACA furor is b#llsh!t but fear that a Teahadi pResident would appoint a more wingnutty justice than Scalia or Thomas to replace Ginsburg?
It would be great if the court kills this case and sends a strong message that they aren’t going to tolerate shitty law from now on.
Maybe I can get a unicorn too.
@Baud: Nonexistent case made presentable because of politics is more like it.
@Betty Cracker: Also glad Mr. Mayhew weighed in, just received a report from my local congressman that the ACA is causing premiums to skyrocket and insurance companies are collapsing. His suggestion that health savings accounts and being able to shop across state lines for the cheapest insurance will solve all our problems.
@schrodinger’s cat: They thought it was the noble thing to do — that a fight that implicated the SCOTUS would tear the country apart. In hindsight, better a bitter, protracted fight than the disastrous Shrub administration, which the country may YET not survive, but such was the mindset at the time…
@Mike R: I know your congressman is a liar, and I’m sure he’s also a Republican, if you’ll pardon the redundancy.
This exchange at GoS sums it up for me:
what of “I hate the Kenyan” as a legal doctrine?
That seems like the main argument for the plaintiffs here.
by Cartoon Peril
lends great weight to that “doctrine” for predictive purposes.
That majority block sees nothing but black and it makes them CRAZY.
Kennedy wanted to destroy the entire ACA with a transparently bullshit argument about how taxes didn’t legally count as taxes if Congress didn’t call them taxes the last time around, so I doubt it.
I suspect that Kennedy is being more swayed by the talk of how removing subsidies will destroy the insurance markets in states that don’t have exchanges. Kennedy is at his core a business-friendly Justice, and the idea of throwing a market into chaos just because of a poorly defined word in a law is probably going to rub him the wrong way – especially when you add in the fact that the precedent it sets for future court battles based on poorly drafted legal documents that would mostly be costly for corporations. Because you know that there are plenty of laws out there that the FCC or the FTC have to interpret, and if any yahoo can just call those interpretations into question on the flimsiest of excuses it’s going to make for a lot of work for the Court and a lot of money spent by his buddies who own corporations to fight off the lawsuits.
I suspect Gore didn’t want the job.
With the crew on this Court, you can never be sure, but I cannot think of a single precedent in the entire history of U.S. jurisprudence where such a massive class of people were stripped of such a valuable government benefit based on the Court’s rejection of an agency’s statutory interpretation. I don’t believe it’s ever happened before (anyone?anyone?) and we’ve had some pretty wingnutty court lineups in the past.
John Roberts does NOT want to be remembered as a radical. For that reason, I say we win this one (about 80% sure).
@Betty Cracker: Were they being noble or were they just too timid to fight? Republican officeholders, including the ones on the Supreme Court have no problems in doing stuff that would tear the country apart.
I’m also glad you weighed in and are hopeful. I was so convinced that Hobby Lobby would be decided differently that I have been pessimistic about the Supremes ever since. The trend of the questioning sounds promising, although ignoring the standing issue doesn’t. It’s so sad to see the Supreme Court tailoring its arguments to political considerations, aren’t they supposed to be neutral and all? Just consider the law in the light of the law? Naive, I guess.
O/T, I am getting very worried about the Republicans and the Social Security disability fund. It is scheduled to run out of money soon and they are acting like those of us on it are a bunch of moochers who need to go out and get a job. It really pisses me off, because I worked 17 years after doctors told me I couldn’t, but evidently that’s no excuse.
I am lucky enough to have known I would be disabled, so I could save every penny towards that future, and be left a paid-off house in Southern California by my very wise mother, so it won’t be a disaster for me, but I keep thinking about all the 30-somethings who have RA, with kids to feed and no savings, what will they do?
@Mike R: I would ask him to explain why, if this is true, so many insurance companies have filed briefs supporting the government’s side in this.
Democratic voters don’t like it when Democrats get mean, so Democrats don’t get mean. Republican voters hate it when Republicans are noble, so Republicans don’t do noble. This is also why Democrats resign from office when found to be involved in a (non-bullshit) scandal while Republicans usually double down – Democratic voters punish Democratic politicians who don’t play by the rules, Republican voters often punish Republican politicians who try to play by the rules.
We get what we vote for – elections are basically a selection process and we’ve basically selected for good-government politicians who try to find consensus while Republicans have selected for drown-the-country-in-the-bathtub politicians who if they accidentally stumble into a consensus have to repudiate their previous stances and stake out a space further to the right lest their voters think that they’re giving into the liberal hoards or something.
The Hobby Lobby decision was the definition of radical.
@EconWatcher: It’s difficult to predict. Who would of thought that Boehner would allow a foreign leader to dictate policy.
@NonyNony: Sometimes you have to fight for what you believe in. Playing goody two shoes doesn’t always work to your advantage.
I would add, the Petitioners would have stood a much better chance if this case were being heard before the subsidies kicked in. But they are asking the Court to turn the world, as it now is, upside down. I don’t see lining up five votes for that.
Jim, Foolish Literalist
@the Conster: IANAL, but besides the ruling in CU, didn’t Roberts pretty much tell the plaintiffs to go re-write their appeal so he could rule the way they (and he) wanted him to?
Was your congressman aware of that premiums went up by much more before the ACA?
Did your congressman realize that pre-existing conditions would still prevent Americans from getting health insurance even though there are HSA’s and shopping across state lines is allowed?
I believe Citizens United is the most radical court decision of my lifetime, and maybe in the last 100 years, but the thing is, the average Joe doesn’t even know it exists, and it changes the world in the way the wheels turn underground, where he can’t see. But in this instance, many millions of Joes and Janes will see something very tangible taken from them by a semantic argument at the Supreme Court. That’s the kind of radicalism that I think Roberts will in the end not be able to countenance.
@Mary G: Good question. I know Orrin Hatch held hearings over the summer, and I know they’d love to kick everyone off the program. They want church soup kitchens to pick up the slack. Goodwill stores and the Salvation Army is apparently their solution.
David in NY
What I’m hearing about what Kennedy asked was mostly good. That makes five. Toobin says at least one of his comments “cuts both ways” but from what I’ve heard so far, they were mostly to cut against the petitioners (anti-ACA).
Kennedy’s position that if read the petitioner’s way, the law would seem to be coercing states to do something by 1) commanding them to establish exchanges and 2) punishing them by loss of subsidies if they don’t, would be unconstitutional. Ironically, support for this would lie in Roberts’s opinion in the prior ACA case, which invalidated the portion of the law that would have used financial coercion on states to get them to change their Medicaid coverage. (Richard might check me on those last details).
the most interesting case of the day is the shitstorm hatched by the Alabama State Supreme Court saying that “You’re not the boss of me” to the USSC and any other federal Court judge who rules against their religious arguments.
That is begging for SC smackdown. … followed by asking how many divisions/regiments the Supreme Court has in Alabama to enforce their tyranny.
a hip hop artist from Idaho (fka Bella Q)
@BGinCHI: I want a unicorn and a pony.
@NonyNony: Bingo! You hit the three point shoot for why that nut job may vote in favor of ACA.
@schrodinger’s cat: Playing goody two shoes doesn’t always work to your advantage.
Depends how you define “your advantage.” For many Democratic voters, they define their interests as feeling good about their own sense of nobility. So giving up policy accomplishments in exhange for “losing honorably” is something they consider to be a fair tradeoff.
@Patrick: You’re assuming he isn’t just straight up lying. That’s a bad assumption.
For instance, there’s never been a low preventing you from buying across state lines. The problem has always been that BC/BS of New Jersey never bothered getting their policies in alignment with New York insurance rules because there was no market incentive to do so. He’s proposing something that currently exists but is failing the free market test. The only way to deliver what he claims consumers should be able to do is to either put a regulatory mandate on insurance companies compelling them to sell policies that comply with other state requirements, or to tell all 50 states that they can no longer regulate at the state level and must go with a set of federal guidelines – something like what a federal exchange would do.
In other words, he’s proposing a big chunk of what’s in the ACA.
@Tyro: You don’t win elections by being noble and too goody goody.
And slightly OT (because we’re talking about SCOTUS here), but I think teasing out Ben Carson’s reasoning, he is suggesting that everyone who mastürbates is gay.
With the usual caveat about the danger of reading too much into oral argument, I can see this going 6-3 for the gubmint. Kennedy would write a plurality opinion, joined only by Roberts, deciding the case on cooperative federalism grounds. None of the liberal justices would join that opinion, but they would concur in the judgment, with Kagan most likely writing an opinion that shreds every major argument made by petitioners.
The dissenting opinion will be by Scalia, and in it he will repudiate or ignore everything he wrote in his book on statutory interpretation and in his opinion in Utility Air Regulatory about reading statutory language in the context of the statute as a whole, because reasons.
@? Martin: I think there is enough self-abuse in the petitioners’ arguments that it’s not totally OT.
ETA- maybe that’s what you were hinting at
No, what he wants is that an insurance company can choose what state gets to regulate it, and then sell to customers nationally based on that state’s regulation. That’s not something that insurance companies can do currently — their regulation today depends on where their customers, not where the company is.
@? Martin: I had no idea that if you went to prison as a straight person, you came out gay. I wonder how long it takes one to turn gay in prison.
@David in NY: Exactly — A government win will be 6-3.
That six will be composed of two factions. The four liberals whose entire shorter concurring opinion is the following:
And then Kennedy and Roberts writing the controlling opinion that the states can’t be co-erced in the way that the King petitioners’ reading would co-erce them, therefore, that reading is unconstitutional. I don’t see a 5-4 government win as I think Roberts wants to be on the winning side so that he can continue to chip away at the New Deal with controlling opinions.
A 5-4 government loss will have the four liberals writing the same opinion but in dissent, and then a controlling opinion of
“Fuck you, we’re unimpeachable”
Culture of Truth
They will likely decide on the merits, but even if they were to kick it on standing, which would be kind of win for the liberlas and conservatives on the court, their questioning would not reflect that.
With the usual caveat that you can never tell by questions, give what I’ve read it sure feels like there are 4 votes to uphold and Kennedy does not want to be remembered for buying into the extremely tortured logic of the plaintiffs. It was predictible, given his history, that Roberts would rule they way he did in Citizens United and the prior ACA case. Give those, I can see him as a sixth vote to uphold the law.
@burnspbesq: We’re on the same page
@Baud: then there would be states in which almost everyone was insured due to the advantageous regulations of that state that other Americans really want to buy but can’t. That state to my knowledge does not exist
@japa21: I do question his office quite often. But it is really an exercise in futility he no longer even gets a real challenge in general elections. This guy is pretty slick as in really oily, when he was first elected he sucked right up to good ole Tom Delay and learned how to grift very early on. He used to include me on his conference calls, but for some reason after we discussed one of Paul Ryan’s budgets I no longer get that access.
@schrodinger’s cat: Gore said in an interview that he pursued the case right up to where the next step would be armed rebellion. I’m going to go with that being a bit hyperbolic, but the Democrats were hampered by the fact that they generally want government to actually function. Republicans don’t seem to have that restriction on their actions.
That’s why I think that if subsidies are upheld, it will be 6-3, with Roberts and Kennedy joining the majority.
They’re more corporate handmaidens than movement conservatives, and less likely to hand down a ruling that would harm business interests.
@David Hunt: I was also thinking about how Democratic lawmakers treated Bush, after he was anointed and how the Republicans in the Senate and the Congress have treated Obama.
Basically, they want to turn health insurance into credit cards. Every credit card is officially based in South Dakota, because SD lets credit card companies do whatever the fuck they want. That’s what “sell insurance across state lines” really means — letting insurance companies shop for the state with the most lax regulations and set up shop there.
The same people who love to scream “state’s rights!” don’t want states to make their own laws regulating industry.
@JPL: so that should mean that those folks who are fervently under the belief that being gay is a disease and/or a lifestyle choice should be doing their damndest to decriminalize drugs because all we’re doing is manufacturing gay drug addicts?
@Mnemosyne (iPhone): exactly right. The common thread in each republican health coverage proposal is that none of them actually serve to cover everyone with health insurance.
@piratedan: You’ll have to address that question to Ben Carson.
@burnspbesq: Why do you feel so confident about Roberts? Apparently he didn’t ask many questions.
Put me down for a 6-3 denial.
I can see the wingers getting it to 5-4 on their version of the merits, but in this case the legislature’s ability to clarify the law (eg congress’s theoretical ability to pass new legislation specifically removing the subsidies from Federal exchange states) has to be viewed with a heavier weighting than it’s theoretical ability to amend it to preserve the status quo.
I see three opinions here. One with 4 justices basically saying of course this whole thing is ridiculous unprecedented bullshit, one with 3 justices going unfrozen caveman lawyer lamenting the destruction of all that is holy and good, and one with 2 justices saying this may indeed be the destruction of all that is holy and good, but that the legislature can and needs to weigh in one way or the other here, and that the status quo should be preserved until they do.
I actually think that’s the Rupubs whole play here, they’ll get a ruling that sort of says the ACA is sort of unconstitutional, but that their bee-bonnetted minions need to go vote early and often to help restore the rule of law etc. etc. I think they’d much prefer that to actually overturning the thing and be left holding the “now what?” bag.
I actually think that’s a good sign, especially if Kennedy was asking tough questions. If Roberts wanted to take down subsidies, my guess is that he would have been more forceful.
Arguments from “state’s rights” are almost always 100% bullshit. Conservatives are all about the Federal government stomping on the state government when it comes to forcing the states to do things conservatives want them to do, and all about the right of the state government to say screw you to the Feds when the state wants to do something conservatives want them to do.
When they say “state’s rights” you should replace it with “whatever it takes to win this argument”, because you can be assured that they are using the two interchangeably themselves.
There is Supreme Court precedent from the 1940s saying that the Commerce Clause doesn’t prohibit Federal regulation of insurance, but Congress decided it wasn’t going to.
Don’t know if you could get McCarran-Ferguson repealed in Congress as currently constituted, even if you wanted to. Also don’t know whether the current Supreme Court would follow South-Eastern Underwriters.
IIRC, Roberts wrote the Medicaid-expansion part of the opinion in NFIB, and while I don’t see him as an intellectual giant, I think he is principled enough to not reject something he wrote (and presumably believed) only three years ago.
If we survive this one, I’m just wondering what the next challenge will be. ACA was typed into law using unconstitutional font, maybe?
Because you know this is never going to be over…..
Oh why did Obama insist on Comic Sans?
It was unchartered territory in the modern era.
Gore had won court victory with Florida Supreme Court to continue the recount. Bush’s legal team appealed the decision to the SCOTUS and the vote went down 5-4.
I am not sure what other legal remedies Gore had left at that point in time other than to concede.
@burnspbesq: Read the SCOTUSblog liveblog of the arguments, including Ginsburg’s example of the plain English meaning of the word ‘such’ in everyday life. It gave me a fuller understanding of your comment a while ago that the plaintiffs’ case rests on not understanding the word ‘such’.
Maybe it wasn’t apparent in the SCOTUSblog’s summary, but seems like there should be more concern that if the plaintiffs win, it will be difficult to write any laws that will not immediately turn into lawsuit machines. Either nice simple three page laws some teabaggers want, or more complicated longer laws that try to explain what they mean.
Scalia’s questions indicated that he does not give a shit anymore. What standards does he have for when you should take a phrase out of context and make decisions based on that, or rely on ‘context’.
I don’t even like using the word ‘context’, since it has a mushy connotation. Seems to be that prior, and quite clear, language in the law clearly explained what should be considered a state exchange. Ignoring that is more than ignoring context, it is intentionally misreading the law by ignoring parts of what was written. It is a more basic problem than straining to interpret unclear language by some gestalt over context in figuring out what was meant when Congress wrote a law.
It would open up a double bind. The more Congress tries to explain, the more opportunities to manufacture inconsistencies, because more words. The less is explained, the vaguer many laws will be in the true sense of that word.
Distressing that this case is even heard before the SCOTUS, on the assumption that 4 of the justices think the plaintiffs’; arguments have any merit at all.
Won’t happen, but I think any justice who behaves like Scalia should be impeached for malfeasance.
Right. The Supreme Court is the final arbiter not because they are always correct but because they are last.
The only other option that Gore had after the mendacity of Bush v. Gore would be shouting “JUDICIAL COUP” and calling for massive demonstrations. Gore of course was not willing to go there and I don’t blame him.
The transcript is up.
Seems from his comment that Scalia’s standard for using plain meaning of English language of a whole statute is that it be ‘most elegantly written’.
Thanks. Copied it to my computer, will read it after I have a chance to belt down a few.
From what I have read so far, Breyer summed it up nicely:
‘ So what’s the problem? ‘
The Umlaut is not happy about this frivolity.
Whaddaya mean? The only way to remove any doubts for the troglodytes would be carving the whole thing in stone! Hell, crayons on parchment would be a clear sign of it being unconstitutional.
Michael Carvin appears to be racist, sexist, cynical to the point of nihilism, and openly and narrowly partisan. A real winner.
Quite a respectable guy to be arguing in front of the Supreme Court.
But perhaps the whole paragraphs of quotes here were taken out of context.
Or is this a case where context is not important?
Lawyer Arguing Against Obamacare: Statute Written By ‘White Women And Minorities’
According to TPM Michael Carvin, the attorney arguing on behalf of the plaintiffs in the King v. Burwell case, said this challenge is different because the argument against the law centers on a statute that was “written by white women and minorities.”
@burnspbesq: Feel free to add your thoughts after reading the fifty plus pages.
@jl: beat me to it. What a nice guy. His family must be so proud of him.
What i want to know is – if this ruling somehow goes against the ACA, what is the proper reponse? I feel like rioting in the streets may not go far enough.
As bad as I thought he was in the oral argument in NFIB three years ago, Verrilli was awesome today.
Carvin didn’t say anything like that from the lectern today.
Did he spit in the direction of RBG, Kagan, and Sotomayor when making that point?
Article on King v Burwell at Lawyers Guns and Money blog.
If you follow the link to the whole piece at Gawker, there is a link to what I think (IANAL) is a very good piece by Abbe Gluck at SCOTUSblog on why the plaintiffs’ case flunks badly on textualist grounds.
But Scalia today said that the legislation was ‘not the most elegantly written’, so by his textualist logic, I guess that means he does not feel the need to subject himself to the inconvenience of reading the whole text of the law.
For King v. Burwell Day
March 4, 2015 | Scott Lemieux
over 95% of the population will be unharmed by such ruling. I do not expect rioting.
I believe it will be 5-4 for the ACA.
Above all, Roberts is a Corporate ho
I do not mean to say that I think there will be rioting. What i mean is that a ruling in favor of the plaintiffs would be so insane, so extreme that a rational and calm reponse would not be warranted. Basically, if this case goes south, it may fundamentally change my view of the country i live in, so how am I supposed to respond to this new political reality? I honestly am looking for ideas because I do not know the answer.
An evil part of me wants to see what a 5-4 case against the subsidies would bring. Would the States that set up exchanges be subsidized by taxes generated in those that didn’t? Would the tax penalties for not having insurance still apply in those States without an exchange? I can’t see why not, since the IRS is Federal and its rules apply equally across all the States. Would voters in those red States suffer as a result? And suffer even more in the coming years as the tax penalties get bigger? Will the “Elections Have Consequences” facts finally break through to them?
And that’s why the new status quo is likely to remain in place: politics. They want to have it to campaign against, just like abortion. It brings out their base in a way they like. The Republican Justices know what’s what, who butters their bread, and they like how the apple cart is rocking.
According to a writer at Slate. Sotomayor appears to have led Kennedy to ask his important question on coercion:
@Mr. Longform: I’ve been hoping they would reinstate primogeniture
Denniston weighs in.
@burnspbesq: Thanks for link.
I am upset that the Court did not throw on the case and stop the oral arguments after Breyer explained the language in the text and then asked ‘So what’s the problem?’.
Interesting that standing doesn’t seem to be an issue, when it was the one and only issue when citizens wanted to challenge the government’s intelligence-gathering driftnet. The reasoning was that a citizen didn’t have standing unless he could prove he’d been harmed (not just snooped on, but harmed), but no one could prove harm unless they had been convicted on wrongfully-obtained evidence, but that evidence couldn’t have been wrongfully obtained as long as someone in the intelligence community said it had been legally obtained. Besides, is any court going to listen to the pitiful whining of a duly-convicted jailbird? That catch 22 really is the best one they have.
Scalia’s principled textualism: I find a phrase that gets me the conclusion I want and I read the rest of the law accordingly.
Deeply Divided Supreme Court Drops Few Clues About Obamacare Ruling
TPM, SAHIL KAPUR
Scalia suggested that the provision in the law was “clear” that the subsidies are restricted to state-run exchanges, regardless of what that means for the rest of the law.
“If it can only reasonably mean one thing, it will continue to mean that one thing even if it has untoward consequences for the rest of the statute,” he said.
Edit: dude, it can only ‘reasonably mean one thing’ if you don’t read the first part of the statute.
I am not so sure that “corporatist” sympathies would lead Roberts or Kennedy to uphold the ACA. Sure, insurance companies benefit if the ACA subsidies remain in effect in federal-exchange states; but if they’re struck down, the ACA employer mandate in those states effectively disappears as well (since it’s keyed to the availability of an affordable exchange alternative), and corporations can pull their employees’ health insurance with impunity. Might that not outweigh the damage to insurance firms?
Thank you for bringing this up, as I’m in a similar situation, living exclusively on Social Security DI after having worked for 26 years, the last 6 years of which were excruciatingly painful, as a Toolmaker, and then suffering a partially debilitating stroke at age 53. The thought of losing this benefit scares the living sh*t out of me, because I’m still too young for straight SS.
Needless to say, I’ll be watching this issue very closely, all the while reminding my Tea Partying relatives of who’s to blame for the funding mess, though I’m sure they’ll see fit to hold the Dems and Obama responsible. (Just because!)
There is considerable doubt as to whether at least three plaintiffs actually have standing, but the procedural posture of the case makes arguing about standing problematic.
The original decision that is on appeal is a District Court order granting the Government’s motion to dismiss. It’s basic Civ Pro (so basic that even i remember it) that in ruling on a motion to dismiss, the court assumes that all of the well-pleaded allegations in the complaint–including the allegations that relate to standing–are true. Carvin was lying when he said there was fact-finding about standing, and Verrilli properly flagged that lie for the Court.
The Justices made it clear that they don’t want to have to engage in fact-finding, and Verrilli didin’t seem interested in having thecase DIG’ed and bounced all the way back to the District Court in order for there to be discovery on the standing question.
ETA: standing is linked to mootness in this case.
The case was filed in 2013. Plaintiffs alleged that they had standing because they estimated that they would be eligible for subsidies in 2014. It’s now possible, in 2015, to determine with certainty whether or not those estimates were correct. If they weren’t, then there was no injury sufficiently concrete to give rise to a case or controversy.
Real Americans only write laws using Zapf Dingbats.
“Kill the Bill!”
“Ten Reason to Kill the Bill”
Scalia: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue?…
Verrilli: What, this Congress? Your honor… (laughter fills the courtroom)
Verrilli’s snark is telling. And the Supreme Court needs to recognize that THIS Congress – this inept, backroom-fighting Congress that can’t even trip over itself the right way – is NOT going to do anything to fix the law to prevent “these disastrous consequences” aka the massive collapse of the insurance industry and the sudden loss of insurance for 8-9 MILLION Americans. Even if the Court issues a specific instruction for the questionable wording of ONE MEASLY SENTENCE to be better worded for clarification, this Congress will refuse to, convinced to let the ACA fall apart in order to make Obama look bad.
” Even if the Court issues a specific instruction for the questionable wording of ONE MEASLY SENTENCE to be better worded for clarification, ”
If they can misread this bill as currently written, how will any attempt at clarification of the supposedly questionable wording help? Just as likely create a pretext for the next BS lawsuit.
Yeah, you can believe what you want, but this Court is comprised of a majority who will rewrite any law for any reason at any time.
If you think any different, remember that this is essentially the same court that decided Bush v. Gore and the big change was replacing O’Connor with Alito.
The Raven on the Hill
I hope you are right. Though, I fear a decision that preserves the ACA but further weakens Federal authority and enhances “states rights.” That would be very John Roberts.
@jl: “Maybe it wasn’t apparent in the SCOTUSblog’s summary, but seems like there should be more concern that if the plaintiffs win, it will be difficult to write any laws that will not immediately turn into lawsuit machines.”
Isn’t that this Court in a nutshell? The law is the loser, even when particular cases are decently decided.