Building on John’s post from last night, I have to ask what harm does the lead plaintiff have in the King case given what he just said in a newspaper:
Mr. King, 64……
Mr. King and three other Virginia residents are challenging the payment of subsidies in states like Virginia that depend on the federal insurance marketplace. They contend that the 2010 health care law allows subsidies only in states that establish their own marketplaces.
But Mr. King said that he was not really worried about the outcome of the case, King v. Burwell, because as a Vietnam veteran, he has access to medical care through the Department of Veterans Affairs.
The plaintiff’s theory of harm is as follows:
They don’t want to spend money on insurance nor on the mandate penalty. The presence of what they contend is illegal subsidies makes insurance affordable and therefore puts them under the obligation to either buy insurance that they don’t want or to pay the individual mandate tax. Their asked-for solution is to have the subsidies declared illegal which then makes the insurance unaffordable which means he would now qualify for a hardship exemption to the individual mandate.
However, assuming that what the New York Times is reporting is true, namely that Mr. King is eligible for affordable healthcare via the VA, the mandate still applies to him even if the subsidies get wiped out as he can afford VA care.
IANAL, but how the fuck does he have standing? Is there a betting pool that the case gets DIGed/Denied for Improvidently Granted? I would like to take 10:1 odds on that outcome.
Aren’t there other plaintiffs?
The folks at LGM and couple of other progressive legal web sites noted that there was a real “standing” issue in “Burwell” regarding the plaintiffs. That the court ignored it is one of the reason they fear the case was accepted with the sole purpose of gutting the law with the belief that Roberts would join the 4 votes from “Sebeilus.” My only hope is that either Kennedy or Roberts, or both, have gotten cold feet out of concern for what that this terrible decision would do to the reputation of the Supreme Court.
I’m sure there’s no shortage of bitter old people willing to be plaintiffs. We might as well get this over with one way or the other, no?
@beth: But actually finding a plaintiff that meets the following criteria is tough:
1) Not covered at working
2) Making enough money to qualify for subsidies but not enough to not qualify for subsidies
3) Not eligible for non-ACA insurance (Medicare, Medicaid, VA etc)
4) Live in a Healthcare.gov state
5) Willing to go through the entire process (not pleasant at all, PhoenixRising can speak professionally about this)
6) Willing to run naked without insurance for the entire process.
So you get a plaintiff or a set of plaintiffs that meet that criteria, and then you need to proceed in an appeals circuit that won’t shoot the case down in a fit of giggles… If the courts slow walk things, they make this a 2 or 3 year process, while a non-giggling court could speed things up. And given the continual die-off of Reagan/Bush I and Error appointed judges, the judiciary is getting more predisposed to laugh at these types of claims.
It is a long shot play where if it is shot down on a DIG, it ain’t hitting the Supremes again until 2017 at the earliest. I’ll take two more years of entrenchment and a bet on the actuarial tables to replace a reactionary with a moderate liberal.
@Richard Mayhew: There was a lot of discussion about standing before oral argument (all three of the plaintiffs are iffy), but the court exhibited zero interest in the issue in the arguments, so they’re not expected to go that route.
I love this part:
Coward. Ready to dodge any blame or personal responsibility for his actions.
“Lawyers” had assured him there would be absolutely no downside, for anyone!
@Richard Mayhew: but why would they have taken the case if the standing is so obviously problematic? It always comes back to that, that the 4 Reichtards took it specifically to have another whack at disemboweling the ACA.
This. Plus President Sanders will fight tooth and nail against this BS, just as President Oba has done.
@Richard Mayhew: But what gobsmacked me when the whole standing issue was raised was that three of the four plaintiffs didn’t qualify for #3. That 3/4 of this case rests on plaintiffs who have no standing, leads me to believe the following:
1. Republican plaintiffs attorneys are quite a dim lot if they cannot gin up qualified plaintiffs even under these conditions
2. The Republican judges on the courts that have let this case rise up this far don’t care about anything about the actual law when it gets in the way of their political agendas, making them the worst kind of “activist judges” there are.
3. Our republic is doomed, and it is self-styled “Republicans” that are dooming us.
I don’t recall that standing was raised as an issue before the Court took the case. But I could be wrong.
All four of the plaintiff have potential standing problems, but for a couple of them it could be an open question until their income for the year is determined. What is hilarious about this is that the lawyers don’t seem to have given a damn about the named plaintiffs. Far from following the process Richard outlined, they seem to have found some gullible people who hated Obama enough to sign on to a suit they didn’t even understand. The Mother Jones article says that one of them didn’t even remember joining the suit. Gathering the plaintiffs was as farcical as the arguments the lawyers are putting in their mouths.
On much more positive news, Conservative heads will be exploding all day on internet, radio, and TV because Pope Frank decided not to hold back:
“Pope Francis called Thursday for a bold cultural revolution to correct what he calls the “structurally perverse” economic system of the rich exploiting the poor that is turning Earth into an “immense pile of filth.”
For the first time in 15 years, I feel like going to Mass again. http://news.yahoo.com/pope-urges-revolution-save-earth-fix-perverse-economy-100612403.html#
We need a public policy concept of “moral hazard”, where conservative activists take excessive risk with programs that millions of people rely on for survival because they’re insulated from the effects of their actions.
Jeb Bush goes in, re: Social Security. Easy for him to roll the dice, huh?
“It’s all upside!”
I still have serious question that this dude is a Nam vet. Like I said, I’m 65 1/2 and I’m very a young Vietnam Vet. He’s 64. It doesn’t matter but it pisses me off.
Snarki, child of Loki
Since Mr. King thinks that the whole ACA subsidy is relevant to him, perhaps Obama should take him at his word, and ask the VA to check into whether he is legitimately claiming VA health benefits.
It would be so, so sad for Mr. King to be tossed off the VA plan just when the subsidies were pulled out from under him, wouldn’t it?
@Baud: There were quite a few articles about it (Think Progress and Mother Jones) and the issue was raised in arguments, Justices ignored it for the most part. I want to say RBG asked a question about it no other Justice would play.
Right. But I was asking whether when it was first brought to light. I thought it happened after the Court decided to take the appeal from the Fourth Circuit.
@Baud: I think a few of the health wonks did notice that and blogged about it. But obviously the Court didn’t care either way. I don’t think it was even an issue in the lower courts no?
My only hope is that either Kennedy or Roberts, or both, have gotten cold feet out of concern for what that this terrible decision would do to the reputation of the Supreme Court.
In this age of “in your face” decisions by politicians, killer cops, etc., I don’t think standing is a concern (as there are gazillions of others out there who could replace the plaintiff WITH standing).
I also think an unpopular decision against the ACA would be right in line with the current attitude of those in power.
@Snarki, child of Loki: Well, he’s on the cusp of qualifying for Medicare, so no matter what _he_ still gets his government health care.
Not to my knowledge.
That’s why I am so spooked, too. I don’t think standing was clear for the other plaintiffs either.
I pay $597 a month not including co-pays, deductible, etc. My plan is almost $2,000 a month without the subsidies so insurance is definitely out of reach for me if I have to pay full price. Haven’t workplace plans benefited from tax breaks for years? Don’t people who get their healthcare from the VA benefit from taxpayers? Why are those of us who do not have employer or government provided health care singled out?
@Baud: As far as I know, the first questions arose from a pair of Wall Street Journal articles in early February. Mother Jones and other publications enlarged on that. However, I just came upon a Balainization article that says the government did challenge the plaintiffs — but get this:
‘The General Counsel of the Competitive Enterprise Institute, which is funding the challenge, issued a dismissive response [to the standing questions]. “The factual issues regarding the plaintiffs’ standing,” he said, “were examined at the outset of this case, and we stand by the affidavits they submitted.” That response is far too cavalier. First, the declarations of the two Vietnam veterans each averred without qualification that, “I am not eligible for health insurance from the government or any employer.” If, as the press reports indicate, both are eligible for Veterans’ benefits, that statement is wrong. Second, the plaintiffs submitted their declarations in September 2013, claiming harm based on their projected income for 2014. But now, in 2015, they—and only they—know what they made last year. They can readily address whether they were or were not subject to the individual mandate, and whether they will be subject to it in 2015.
‘Nor is it valid to suggest, as the CEI General Counsel did, that standing to sue is already settled because the Government contested the issue “at the district court and appellate levels, and it lost each time.” Those rulings rested on declarations that have now been called into question. The Government could not be expected to have looked behind those declarations. One can only imagine the wails that would have emanated from the Petitioners’ camp if the Government, for example, had sought to obtain their records from the Veterans Administration.’
So the suit becomes even more dishonest.
The encyclical can be read in its entirety (in English) here.
It’s worth reading.
@Baud: For some reason the Courts at all levels just blew right past it. Don’t know if it was raised by the Govt though. I am sure they would though.
@Peter: Thanks for that answer. I was sure the Govt would have raised standing.
@raven: Raven under VA rules ‘Vietnam Era’ means anything up to Dec 31, 1976, or well after the shooting stopped. Something I know well because I enlisted on May 22, 1977 and got screwed out of the GI Bill because not being a ‘war-time’ vet.
And Richard this is backwards:
“namely that Mr. King is eligible for affordable healthcare via the VA, the mandate still applies to him even if the subsidies get wiped out as he can afford VA care.”
There are multiple descending categories that qualify one for VA care, some that kick in no matter how much you earn (wartime service connected injuries being the highest), while the lowest is for certain low-income non-wartime vets. (Like me). But there is not “afford it” at least for this category, I earn so little that I have no co-pays for anything. Plus coverage by the VA qualifies as “minimum acceptable coverage” under ACA categorically. So it is not a question of King affording anything, if he is enrolled with the VA he doesn’t have standing at all that I can see.
It could be that the VA is covering only service related issues (which could be covering the biggest, most expensive issues in his life, until he gets Medicare), but he doesn’t have comprehensive health care through them. Since he’s being described as a Vietnam Era vet, it doesn’t sound like he retired with the full package, but I don’t know what someone from back then may have been entitled to. My husband is dealing with the VA now as a recent vet, and they’ll take care of his service connected joint problems for the rest of his life, but they wouldn’t cover something like an appendectomy or a broken leg.
From the NYTimes link:
David M. King is an awful, awful man. He lives in Fredericksburg, VA, 45 minutes south of the beltway (non-rush hour).
More from him:
10:1 David M. King has his ass firmly planted in front of Fox News and reads those awful email lie chains and has a very small social circle of those not a rightwinger like himself.
No empathy in Mr. King.
And the reason you want to say it? Because it’s true:
Plus a 64 year old would have been born in 1951 and been draft eligible by 1969 and potentially in country by 1970. My brother, born in 1953 served two tours in Vietnam as a crew chief in a dust-off Huey in those years and there were plenty of bullets flying.
Maybe I’m too cynical, but I can’t believe anyone here is bothering with the standing “debate.” It was obvious when they accepted the case that Roberts and the rest of his radical judicial activist brethren were unconcerned with any reasonable/realistic impediments.
So my memory is still operational!
Roberts and cold feet. Unfortunately, Roberts seems to love to point out that the problems the Court’s decisions cause can easily be remedied by simple acts of Congress. Of course, he’s either the dumbest person alive or he knows that the Republicans in Congress will never accede to solving most of the problems the conservatives on the Court create, because the problems are the Republican goals (see Voting Rights Act).
A slightly safer, but still thin, hope for Roberts is that he won’t want his name — i.e., The Roberts Court — attached to a decision that 1) causes millions of people to lose health care coverage and 2) is so obviously a partisan political ploy. His record here is mixed — or it may be, assuming that was one of the reasons he voted originally to uphold the PPACA.
I have no idea how the Court will decide this case. I’m pretty sure that Thomas, Scalia, and Alito will vote to end the subsidies. Kennedy’s vote may depend on how Roberts leans, but despite certain exceptions, Kennedy has shown himself willing to join the lunacy on numerous occasions.
If the Court guts the subsidies, the only likely upside will be the public farce that ensues as the GOP tries to deal with the fallout. Their inability, even unwillingness, to govern could be on display for the whole world to see. Sadly, that kind of incompetence and misfeasance is unlikely to translate into as many Democratic votes as we might hope. When faced with adversity, too many left-leaning voters just give up
First read-through of that sentence had me reaching for my nitro pills. Don’t do that!
(Yes, I know they were not your own words.)
@Elizabelle: The fact that he quoted the pen and phone thing tells you all you need to know. Fox News junkie. Awful awful man as you say.
@Valdivia: Yeah. I have never heard the “pen and phone” formulation before.
Pen and the sword, sure.
He’s awful. Hope he loses his case and gets shunned by nonrightwingers.
Awful cruel man, who seems to understand he may not have standing but went ahead anyway. (Could they sanction his attorneys for that?? The same one who told him overturning ACA would be no big deal?)
@Bruce Webb: My sentence construction is clunky, but since King is VA eligible, he has access to health insurance at or below the hardship exemption limit as a percentage of his income, therefore the mandate still applies to him even without subsidies.
@raven: If he’s 64, then he was born in 1950 or 1951, so he would have been 19-20 in 1970. Hardly seems a stretch to see him serving in Vietnam.
Someone should ask him how his PTSD is doing. Still disabling him and allowing him to draw a pension as well as VA health care?
Another church shot at, this one in Memphis. Nobody hit.
@Elizabelle: Obama has used it a few times but only an obsessive who was told this was some outrage of the Constitution would even remember it.
I don’t know about the standing issue after the fact and how his lawyers could be sanctioned for it.
It was Obama’s formulation (January, 2014):
Monstrous and tyrannical.
It’s a wonder he wasn’t impeached that very afternoon.
I am wounded, perhaps fatally.
He’s a yr to a year and a half younger than you but if he went in at 17 or even 18 he could have easily gone in country. Next, he seems to be, not knowing him personally, an asshole. So it is possible that he is claiming to be a Vietnam vet for having served during the war. Most of us that didn’t get sent in country are careful to state we are Vietnam ERA vets. But not all. I personally know of one asshole who wrote a first person editorial about his being a medic in a specific unit and many heroic things he did. Except he didn’t. He got called out by guys who were there and lost his job as president of the corp I worked for. That was of course just one of the many reasons he should have lost his job, being the asshole he is.
@Cervantes: I was talking about *him* not you. I remember it because I am political junkie, meant in the best of ways!
I know. I was just funnin’ ya, is all.
Well, over 450 years was a good run.
Not to worry.
As I expect you know, I have been wounded, perhaps fatally, before!
Socialized medicine for me but not for thee
it’s pitiful that this case hangs on who John Roberts’ true Master is : Big Business or the Right Wing, because they are not one in the same in this case.
On a positive note, Obama is going to be on WTF soon.
@Cervantes: Interesting that liberals/moderates probably looked at that reporting and focused on the issues PBO wants to act on. Message: Obama wants to make some progress. On economic recovery and opportunity, on education, on helping businesses, which could be local and could be yours.
Rightwing focused on the process.
They can’t combat the ideas — progress comes, despite their best efforts to turn it back — but they can glue up the process. Call it illegitimate. Tie it up in court.
Lizard brains. Mr. David M. King is exhibit A.
SCOTUS time BJ people. 4 boxes so 4 decisions.
it’s pitiful that this case hangs on who John Roberts’ true Master is : Big Business or the Right Wing, because they are not one in the same in this case.
And it’s pitiful Roberts is hanging out behind his “I am just an impartial jurist, an umpire or ref” persona.
He’s a tool.
@Valdivia: “SCOTUS time BJ people. 4 boxes so 4 decisions.” What does that mean?
@WaterGirl: They have 4 boxes so 4 decisions are coming down today. That’s what SCOTUSBlog says. http://live.scotusblog.com/Event/Live_blog_of_opinions__June_18_2015
I’ve heard about that YouTube video. No way am I clicking on it.
Holding: Texas’s specialty license plate design constitutes government speech, and thus Texas was entitled to refuse to issue plates featuring the proposed Confederate Veterans’ design.
I miss the days when I awaited Supreme Court rulings with genuine interest, and not with apprehension and terror.
Another GW Bush legacy. He destroyed the Supreme Court’s reputation and somewhat its legitimacy with his appointments of Roberts and Alito. Who are nothing BUT Republican tools.
Yes, and Clarence Thomas agreed …
How many Confederate veterans could possibly still be driving?
@Valdivia: Subject matter jurisdiction cannot be waived. If it isn’t raised by the parties at the outset, it can be raised by the trial judge. It can also be raised by appellate judges at any time.
If a party lies in an affidavit, the party can be sanctioned under both Rule 11 of the FRCP and the court’s own inherent power to sanction. If the lawyers either knew or should have known the party is lying — they have a duty to investigate — they can be sanctioned too.
That doesn’t mean that the Supremes will decide the case on that issue, of course. It just means that they could and that the trial judge could impose sanctions on remand.
Gin & Tonic
Looks like the ACA decision is not today.
@Gin & Tonic:
Yes. And Dylann Storm Roof’s 9 murders in Charleston took all the wind out of release of Pope Francis’s encyclical on climate change today. Didn’t see that mentioned on Fox or elsewhere yet (but could have missed it).
NY Times: Pope Francis, in Sweeping Encyclical, Calls for Swift Action on Climate Change
@Ruckus: I was 10 when it ended, so I have a different perspective. My dad went. I had my first discussion with him about it two years ago.
Most guys who went in country seem to not talk about it at all.
The ones who constantly mouthed about it were the ones who inevitable got outed as being statesiders.
#FastTrack has been attached to a measure supporting public safety workers. President of Int’l Assoc of Firefighters still opposes the bill
Boy, I sure I hope the President’s trade deal is super-duper and worth this scorched earth divide and conquer approach he is using.
I’ll be looking for those “650,000 middle class jobs” they promised, along with the international “minimum wage” and “right of collective bargaining” which I guess they will somehow impose on Vietnam? That might be tough to enforce, considering we don’t even enforce labor laws in this country.
Gin & Tonic
@CONGRATULATIONS!: Most guys who went in country seem to not talk about it at all.
True that. I’m close with a couple of ex-SF guys who did 2-3 tours in VN. It’s the last thing they want to talk about.
It is a crying shame.
@Gin & Tonic: Of course not. The ACA decision and the gay marriage decision will come out the last week of the month.
@Cervantes: Missed that. Thank you! Will skim/read.
@Kay: I don’t understand why this is the thing the President is willing to go scorched earth about. I keep thinking that there must be something we don’t know – that this is the only way we can stop China from taking over the world, or whatever.
But if there is something, then the President needs to treat us like grown-ups and tell us what threat this will save us from.
I find myself very perplexed and it’s very frustrating.
Which is why David Brooks has devoted his career as professional apologist/Trojan Horse for conservative ideology to throwing the ball back at the little guys.
It’s what he does. Look here! Not at THAT moral hazard.
I resent them framing TAA as some kind of progressive “victory”. They’re reauthorizing a program that was always a fig-leaf for pro-trade deal Democrats and is chump change in the scheme of things. They gave 50 million dollars to Teach for America last year, for God knows what, probably executive salaries at that bloated non-profit. The idea that 450 million dollars for “displaced workers” is incredibly generous is absolute, utter bullshit.
That’s what they’re getting in exchange for this? Something they’ve had since 1974? I mean, come on. It’s insulting to peddle this as an “exchange”.
Distraction, I suppose, but here goes:
And with that I’m off for the day.
Have a good one.
A Ghost To Most
Yes, I am a Vietnam War Era Veteran (74-78), and I am only 59.
@Ruckus: I smells a rat.
Indeed. I liked their quote from Jeb!, who tries harder and harder each day to prove he’s a fucking coward. He won’t stand firm for his religion or his party when the two obviously disagree.
This is a great opportunity to hammer the fuckwits who say the Pope should keep politics and religion separate, tell them that if that’s what they believe then they need to STFU about gay marriage and abortion.
My point is they can find 50 million dollars in funding to replace teachers with temps and now 450 million in reauthorization is portrayed as great progressive victory.
I don’t even think they’ll get TAA. They’ll get a promise to get TAA.
This is not a priority. If it were, it would look like one.
@Bruce Webb: Please, I don’t need this shit explained to me. There were 50 fucking Americans in Vietnam in 1973 and none after that.
@Kay: You are shitting me. What the fuck is he trying to pull here? This smacks of desperation.
My take is the court only took this case to hurt Dems/help Republicans. There was never any valid legal reason for them to take the case, but there were political ones. Now that it’s fairly clear gutting subsidies based on nonsense could hurt Republicans quite a lot, I’m fairly confident they’ll duck and run from doing that.
Gotta hand it to them, these guys are good at destroying public confidence in democracy and it’s institutions. Venal, but effective.
There is standing as long as the court decides there is standing. As the court of final appeal if SCOTUS’s opinion is the only one that counts at this point.
Obviously this upsets me so I’m out. I can’t discuss it today.
I don’t think they know how bad it is. It’s regional, sure, but regions matter. I didn’t go but my husband told me our LOCAL Democrats passed a resolution opposing TPP Tuesday.
Although the doctrine of standing is rooted in the “case or controversy” clause of Article III of the Constitution, it is a rubbery doctrine with a large gray area between clearly having standing and clearly not. Deciding cases with uncertainty about standing ends up being more about political considerations of the law, including the more traditional logic of being careful about exercising court power to invalidate laws. So decisions on standing often have primarily a practical or political basis rather than some clear legal logic . That seems to be what is going on here – the desire to meddle means concerns about standing are ignored.
This case is going to turn on the political considerations of Kennedy and Roberts. They could easily go either way. And they can easily toss aside logic in reaching their decision – they already have a history of doing that.
@dmsilev: Late to saying: that was very very funny :)
You’re correct. Standing was not raised in the District Court, which is where it should have been raised. Part of the problem is that the case made it all the way to the Supremes on a motion to dismiss. For purposes of a motion to dismiss, all of the well-pleaded allegations of the complaint are assumed to be true.
If the Supremes really cared about the standing issue, they could issue a very narrow ruling, vacating the order of dismissal and remanding the case to the District Court for further proceedings. I don’t know anyone who expects that to happen.
@raven: 1970 wasn’t 1973. Buy a calendar. Or get some anger counseling.