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You are here: Home / Open Threads / Coercion and Kennedy’s concerns

Coercion and Kennedy’s concerns

by David Anderson|  March 5, 20157:15 am| 57 Comments

This post is in: Open Threads

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Justice Kennedy’s questions yesterday about coercion were favorable to a government win for the following scenario:

Both sides agree that the feds really wanted states to establish exchanges.  The feds were dangling lots of HHS money and significant regulatory autonomy to states that said yes.  The question is how the law deals with states that say no.

The government’s position is that there is a fully functional backup federal exchange.  The state loses some regulatory flexibility that it can regain by establishing a state exchange at some future date.  The state insurance market is functional as the three legged stool of community rating, mandate and as subsidies works.  No harm, no foul.

The asshat and sadist argument by the plaintiffs is that the subsidies can not flow to residents of the refusal state.  However other federal regulations such as community rating still applies.  Therefore a refusal to establish a state exchange destroys the state insurance market for individuals.

The blowing up the state insurance market is the coercion that Kennedy was questioning as that is an absurd result of anuncommunicated threat.

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57Comments

  1. 1.

    Baud

    March 5, 2015 at 7:22 am

    The whole thing is absurd without the subsidies. But it’s too much to ask for conservatives to care about the people who would hurt, so let them focus on states rights.

  2. 2.

    J.A.F. Rusty Shackleford

    March 5, 2015 at 7:23 am

    Thanks for the analysis. Let’s hope you’re right.

  3. 3.

    seabe

    March 5, 2015 at 7:32 am

    It’s incredible to me that this is the most convincing argument to Kennedy.

    The exchange about “only qualified individuals” being eligible was gold in how many backflips Carvin had to do to explain how “established by the state” can mean federal exchange just fine, but not when it comes to subsidies.

  4. 4.

    satby

    March 5, 2015 at 7:33 am

    Seems like our corporate overlords have quietly communicated their desire to the tools on the SC that they aren’t in the mood to lose all those sweet, sweet subsidy dollars if the court rules the wrong way. They all know throwing this back to the Republican Congress is begging for disaster and chaos. So to keep the cash flowing and to cover for the inability of the wingnuts to actually govern, they’ll find by a bare majority, for the ACA.

  5. 5.

    Iowa Old Lady

    March 5, 2015 at 7:35 am

    Scalia’s assertion that Congress would fix things was stunning to me. He can’t possibly believe that, can he? And yet, it’s such a ridiculous assertion.

  6. 6.

    dmsilev

    March 5, 2015 at 7:37 am

    @Iowa Old Lady: I doubt he really believes that. It’s convenient for him to pretend to believe that, though, so that’s what we get.

  7. 7.

    Baud

    March 5, 2015 at 7:38 am

    @dmsilev:

    This.

  8. 8.

    Richard Mayhew

    March 5, 2015 at 7:41 am

    @satby: Honestly, I believe it will be 6-3 for the government. The four liberals will write an opinion that boils down to epic trolling of Scalia’s textual interpretation book plus a WTF are you wasting our time with this crap. Roberts can write the controlling opinion, joined by Kennedy, on Pennfield/Dole concerns (I think it would be Roberts as I think Kennedy gets the gay marriage opinion to write).

    The three sadists will write an opinion that could be lifted from user diaries at Red State.

  9. 9.

    Baud

    March 5, 2015 at 7:45 am

    @Richard Mayhew:

    The three sadists will write an opinion that could be lefted from user diaries at Red State.

    That there could be the 2016 Democratic campaign slogan all by itself.

  10. 10.

    satby

    March 5, 2015 at 7:48 am

    @Baud: and I wish they’d use it.

  11. 11.

    Elizabelle

    March 5, 2015 at 7:53 am

    @Richard Mayhew:

    I read that first as “loser diaries from Red State.”

    Same thing.

    I hope you’re right about 6-3; will even settle for 5-4. Obamacare is the only thing that’s getting me insurance.

  12. 12.

    debbie

    March 5, 2015 at 7:54 am

    @Iowa Old Lady:

    I’ve been hearing that they do have a plan ready to go; they just won’t share it. Can you imagine the uproar if and when they do bring it out and it turns out to be the same old free market trickle down garbage?

  13. 13.

    Iowa Old Lady

    March 5, 2015 at 8:00 am

    @debbie: They have a plan but won’t share it? That sound suspiciously like my brother saying “I know but I won’t tell you.”

  14. 14.

    Tim F.

    March 5, 2015 at 8:01 am

    I had the sneaking concern that Kennedy was talking himself another direction entirely. If the language is coercion and coercion is unconstitutional, he could well decide to nuke the bill again.

  15. 15.

    D58826

    March 5, 2015 at 8:09 am

    A question for the legal eagles on this thread. From what I’ve read SCOTUS has a long history of saying that a statute has to be interpreted by reading the entire law not just a phrase here or there. One of the cases I member involved Chevron Oil. Justice Scalia even wrote a book on the subject. Now if the court decides 5-4 that the 4 words outweigh all of the rest of the law, will this result in a precedent that can be used going forward to challenge other laws? I’m sure Obamacare isn’t the only law with sloppy wording, this is the US Congress we are talking about. The sausage metaphor certainly applies. Or could this be a Bush v Gore decision that isn’t supposed to be a precedent because we don’t want it used against a law passed by a Republican Congress and signed by a Republican President, no matter how badly drafted..

  16. 16.

    Baud

    March 5, 2015 at 8:15 am

    @D58826:

    Almost every major piece of legislation has ambiguities. No way the analysis of the challengers here is used across the board. It would wreak havoc.

  17. 17.

    Baud

    March 5, 2015 at 8:17 am

    @Tim F.:

    That would be beyond nuts. I don’t see Roberts destroying his legacy by signing on to that, even assuming Kennedy is considering it.

  18. 18.

    D58826

    March 5, 2015 at 8:20 am

    @Baud: That was kind of my point. If the ambiguities in other laws can be ignored then why not this one in Obamacare? And if the precedent is there then someone is going to try and use it in some other cases.

    I realize the Scalia wing doesn’t care about legal principles in this case and it all about destroying Obamacare and Obama but a decision to invalidate the law based on 4 words doses open a potential Pandora’s box for future mischeaf

  19. 19.

    Baud

    March 5, 2015 at 8:23 am

    @D58826:

    No, you’re absolutely correct.

  20. 20.

    Hildebrand

    March 5, 2015 at 8:24 am

    @D58826: Bingo. You cannot deny precedence, no matter how hard you try (and no matter what you say in your opinion). Bush v. Gore will come back to haunt somebody at sometime, but it is such a specific case that the same circumstances will be tough to replicate. This, on the other hand, would be almost immediately tested.

  21. 21.

    Matt McIrvin

    March 5, 2015 at 8:25 am

    @Baud: It wouldn’t be used across the board, just for laws passed by Democrats.

  22. 22.

    Baud

    March 5, 2015 at 8:26 am

    @Matt McIrvin:

    Yep.

  23. 23.

    D58826

    March 5, 2015 at 8:38 am

    @Matt McIrvin: I think it would be used by the 1% whenever their interests were at stake. Now as a practical matter the laws that impinge on the 1% are usually passed by the Democrats but that isn’t always the case. I’m sure the 1% would love to destroy the clean water act and the law creating the EPA. Those were passed by a Democratic congress but signed by Nixon.

  24. 24.

    Cervantes

    March 5, 2015 at 8:42 am

    @Iowa Old Lady:

    In this context, Scalia’s definition of “fix” is not the same as yours.

  25. 25.

    bemused

    March 5, 2015 at 8:48 am

    @Iowa Old Lady:

    lol. Scalia is quite pleased to say this knowing very well how Congress would “fix” it. Scalia is a fixer himself, fixer as defined by Merriam-Webster Dictionary: person who intervenes to enable someone to circumvent the law…

  26. 26.

    azlib

    March 5, 2015 at 8:50 am

    @satby:

    Seems like our corporate overlords have quietly communicated their desire to the tools on the SC that they aren’t in the mood to lose all those sweet, sweet subsidy dollars if the court rules the wrong way.

    That is what I figure as well. With community ratings and the mandate requirements, you have to have subsidies to have a functioning market. Without subsidies, the market goes BOOM!

  27. 27.

    EconWatcher

    March 5, 2015 at 9:01 am

    I’d be a lot more worried about this if it weren’t for two things: 1. Roberts blinked last time, because in the end he could not stomach the political fallout and potential damage to the Court’s legitimacy; and 2. The pressure on him is even worse this time, because millions of people are now receiving those subsidies and would have them yanked, with the explanation that the Supreme Court interprets a few words of a massive law differently than the expert agency charged with implementing, something for which I believe there is no precedent in the long history of American law.

    He will blink again.

  28. 28.

    Punchy

    March 5, 2015 at 9:03 am

    @Baud: Missouri is trying to pass a bill BANNING anyone in the state from accepting the federal subsidies. That’s not a typo….they’re trying to make it illegal for individuals to collect Obamacare subsidies in MO.

    I cannot fathom the level of assholeishness required to dream up such legislation.

  29. 29.

    richard mayhew

    March 5, 2015 at 9:06 am

    @Cervantes: Fixing the ACA like fixing a dog is Scalia’s fix

  30. 30.

    JPL

    March 5, 2015 at 9:08 am

    The only reason that I’m concerned is that four justices signed on to a case that should not be before the supreme court and those four are partisan hacks.

  31. 31.

    D58826

    March 5, 2015 at 9:10 am

    @EconWatcher: I kiknda agree with that about Roberts. On the other hand given that he helped gut the voting rights act and gave us both Hobby Libby and Citizens United his court is well on its way to be the worst since 1857 and Dred Scott. He might not care at this point

  32. 32.

    rikyrah

    March 5, 2015 at 9:18 am

    I still believe it will be 5-4 for the ACA.

  33. 33.

    JPL

    March 5, 2015 at 9:20 am

    GA legislature is voting on a religious liberty bill today which will allow discrimination in the work place. Lester Maddox was elected governor because of his beliefs. With the adoption of the law, he would have been allowed to discriminate on religious grounds. Another law was introduced to prevent public statues from being moved. We need to protect our history and all.
    Whackos are just getting crazier.

  34. 34.

    D58826

    March 5, 2015 at 9:25 am

    @Punchy: I could understand the GOP saying that they have the same goal as Obama and that is to provide qualify affordable healthcare to all Americans. But they would have used tools x,y,z rather than Obama’s choice of a,b,c. Since each approach gets us to the same goal and it is just a matter of designer’s choice then we will live with Obamacare. However that isn’t what they are saying and doing. They want to gut the law without a viable replacement.

    Now most of the opponents of Obamacare can not put a sentence together without telling us about their relationship with Jesus. I can’t understand how they can call themselves Christian and be so willing to throw millions of people to the medical wolves. It just seems to fly in the face of the Christianity that I learned in Sunday School. You know do unto others and all of that .

  35. 35.

    Patrick

    March 5, 2015 at 9:28 am

    I still cannot believe that the USSC, which supposedly has such smart justices, is wasting their time on this case. How many other laws can now be similarly parsed and now litigated? Is the 2nd amendment now in play?

    And Scalia belongs on FoxNews, not on the USSC.

  36. 36.

    JCT

    March 5, 2015 at 9:29 am

    @EconWatcher: Yes, because if his court was responsible for stripping existing health care benefits away from millions of people and creating significant chaos in the insurance market for a what amounts to semantics that is probably the only thing that the Roberts court will be remembered for…. nice “legacy”.

    After reading ScotusBlog yesterday I came away with the same impression as Richard, 6-3.

  37. 37.

    EconWatcher

    March 5, 2015 at 9:34 am

    @JCT:

    The ACA may actually emerge from this challenge politically stronger, because the general public has an odd way of confusing a Court decision upholding a statute’s legality with some kind of blessing on the merits of the law.

  38. 38.

    kc

    March 5, 2015 at 9:36 am

    Words can not express my contempt and disgust for the plaintiffs and their lawyers in this case.

  39. 39.

    Bobby Thomson

    March 5, 2015 at 9:36 am

    Close, Richard, but there can’t be coercion with a threat that is never communicated.

    The most favorable interpretation of Kennedy’s comment is:”Let’s say you’re right and Congress wanted to incent states to set up exchanges by denying subsidies. If that’s true, the ‘stick’ goes too far by destroying the state’s entire insurance market. And because that would be ‘coercive’ under the brand new constitutional principle we just made up to tube mandatory Medicaid expansion, I gotta go with the principle that courts should avoid a statutory interpretation that makes the statue unconstitutional.”

    If that’s what he meant, this is game over, man, game over. AEI loses.

    But because Kennedy is the dumbest member of the Court, it doesn’t necessarily mean that. After what they pulled with Medicaid expansion, I wouldn’t rely on logic and precedent to predict what this Court will do.

  40. 40.

    Bobby Thomson

    March 5, 2015 at 9:40 am

    @D58826: Given that he signed onto those opinions, I think it’s safe to say that Roberts doesn’t give a shit about what some later and presumably liberal historians might think about him. Anyone who still clings to that is smoking something. He might take a tactical loss to set up bigger victories down the road, like Rehnquist.

  41. 41.

    Bobby Thomson

    March 5, 2015 at 9:44 am

    @Tim F.:

    I had the sneaking concern that Kennedy was talking himself another direction entirely. If the language is coercion and coercion is unconstitutional, he could well decide to nuke the bill again.

    Not unfounded, and that could still happen, because Kennedy is, putting it charitably, kind of stupid.

    But he did refer to the principle of constitutional avoidance, which should lead to a different result.

  42. 42.

    JPL

    March 5, 2015 at 10:00 am

    Roberts is key imo, and his vote rests with Kennedy. If he can coerce Kennedy to agree, subsidies will continue in all the states. I just don’t think Roberts wants to go it alone.

  43. 43.

    Just Some Fuckhead

    March 5, 2015 at 10:09 am

    Kennedy voted to kill ACA about two years ago and now he’s going to save it? I don’t see that happening. But I guess it could, since Kennedy is a stupid drunk.

  44. 44.

    MomSense

    March 5, 2015 at 10:13 am

    Is it ok for me to say that I deeply resent that I even have to spend a second wondering whether I will be able to continue to insure myself and my family?

    All this speculation about this justice said this so I think it will be 6-3 for the government and that justice made a face that indicates 5-4 against the government is making me crazy. Maybe we should insist they send different color smoke signals like the Vatican.

    Also too I try not to hold grudges in my personal life but I am extremely upset at every single person who didn’t see a difference between Bush and Gore in 2000.

  45. 45.

    EriktheRed

    March 5, 2015 at 10:16 am

    @Iowa Old Lady: He likely doesn’t believe it and even more likely doesn’t give a shit about the consequenses.

  46. 46.

    Ruckus

    March 5, 2015 at 10:23 am

    @Iowa Old Lady:
    And even if they were going to “fix” it and put it back to what it is now, why the hell bother? It’s a ludicrous argument not worthy of a school yard debate let alone an SC decision. But then it is Scalia.

  47. 47.

    Baud

    March 5, 2015 at 10:25 am

    @MomSense:

    I really hate that people in your position have to go through this anxiety.

  48. 48.

    Patrick

    March 5, 2015 at 10:28 am

    @Ruckus:

    Furthermore, Congress could have fixed it yesterday (or any day over the last two years for that matter) if they wanted to. But today’s Congress is beyond dysfunctional and thus it haven’t been fixed and won’t ever be fixed. It is outright scary that a sitting justice on the USSC is so far removed from reality that he can’t see that.

  49. 49.

    Ruckus

    March 5, 2015 at 10:31 am

    @Patrick:
    He’s not removed from reality. He makes his own. Unfortunately that’s what he gets to do. The rest of us have to suffer because his reality isn’t like anyone else’s.

  50. 50.

    MomSense

    March 5, 2015 at 10:42 am

    @Baud:

    Thank you.

  51. 51.

    rita forsyth

    March 5, 2015 at 10:57 am

    I am never comfortable when religion is used in policy discussion, however this must be said Kennedy is a devout catholic (its said of him) so am I: where do the teachings of Jesus enter his rulings? Bah humbug he will answer for his rulings someday, his is a twisted
    mind. The ghost of Christmas Past will haunt him along with all the people who die becuse of the loss of their Health Care.He already voted against the Affordable Care Act.

  52. 52.

    catclub

    March 5, 2015 at 11:06 am

    @JPL:

    those four are partisan hacks.

    That means either Roberts or Kennedy is one of the four. Which one? I am starting to think RBG could have signed onto cert as a ‘bring it on’ act.

  53. 53.

    Cervantes

    March 5, 2015 at 11:17 am

    @rita forsyth:

    Kennedy is a devout catholic (its said of him)

    Six of the current nine are Catholics. Four attend mass regularly: Scalia, Thomas, Roberts, and Alito. Kennedy and Sotomayor are the two others.

  54. 54.

    philpm

    March 5, 2015 at 11:33 am

    @Punchy: You just have to live in Missouri to understand. We’re retroactively becoming a full part of the Confederacy here.

  55. 55.

    pseudonymous in nc

    March 5, 2015 at 12:22 pm

    Roberts likes nudging things rightwards, hence the finesse on the original ACA ruling that turned Medicaid into a state plaything for wingnut governors and legislators. He doesn’t seem to go for slash-and-burn rulings.

    You could almost imagine another bit of Roberts bench-legislating to say that federal subsidies for states without their own exchanges need to be approved by the states in question in order to be non-coercive, and let’s see which Koch/ALEC-funded legislatures are going to shoot their own dicks off and vote for that.

    @MomSense:

    Is it ok for me to say that I deeply resent that I even have to spend a second wondering whether I will be able to continue to insure myself and my family?

    It is more than okay. If SCOTUS fucks this one up, then I would like a permanent siege of the court building by people who have been denied basic security by a bunch of sadists.

  56. 56.

    The Golux

    March 5, 2015 at 3:04 pm

    @Iowa Old Lady: The Repubic-hairs have a plan in the same sense that Saddam had WMDs.

  57. 57.

    Fred

    March 5, 2015 at 5:54 pm

    @MomSense: I never thought about it before but I would much rather drink a beer with Al Gore. Can you imagine sitting across from Bush’s smirking face and listening to him try to construct a coherent sentence for the amount of time it would take to drink a beer?

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