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You are here: Home / Anderson On Health Insurance / The ACA survives at the Supreme Court (Part Trois)

The ACA survives at the Supreme Court (Part Trois)

by David Anderson|  June 17, 202111:34 am| 87 Comments

This post is in: Anderson On Health Insurance

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This morning, the Supreme Court in a 7-2 decision ruled that none of the plaintiffs in the suit Texas v California had standing to sue, and therefore the suit that had sought to toss the entire ACA should never have been brought or ruled upon. The ACA survives.

BREAKING: The Supreme Court rejects the constitutional challenge to Obamacare in 7-2 opinion. The court tosses the lawsuit because the challengers do not have legal standing to sue. https://t.co/meuQgPE50Z

— SCOTUSblog (@SCOTUSblog) June 17, 2021

The theory of the case that the plaintiffs brought was that the Republican tax cut bill signed in December 2017 zeroed out the individual mandate penalty and therefore made the mandate more coercive and not a tax. From here, they argue that the individual mandate is unconstitutional. And they then argued that the individual mandate was critical to the rest of the law, and thus it was not severable from any part of the law and the entire law must then be tossed.

The court’s majority opinion, written by Justice Breyer, said a zero dollar mandate penalty with no enforcement mechanism is not an injury, it is effectively a statement that puppies are awesome and ice cream is yummy, and thus the individual plaintiffs had no particular injuries. The state plaintiffs have no standing because their complaint is about other aspects of the ACA that causes paperwork requirements and policy outcomes that they don’t like, and it can not be traced directly to the individual mandate that a state by definition never paid.

There are a few other legal challenges to the ACA; most notably the role of the bodies that places some services into the no cost sharing tier of essential health services. But right now the ACA insures 30 million people and it is here to stay.

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Reader Interactions

87Comments

  1. 1.

    Cermet

    June 17, 2021 at 11:37 am

    So even Barrett and Kavanaugh came on board to agree with the ruling; wonders never cease.

  2. 2.

    MontyTheClipArtMongoose

    June 17, 2021 at 11:38 am

    This decision came about to push Breyer to stay in the Supremes rather than retire. Chief Justice Shakes is pretending comity on the high court to ensure the next Supremes opening, as with Scalia & Ginsburg vacancies, is filled by a GQP president.

  3. 3.

    p.a.

    June 17, 2021 at 11:40 am

    Yep, another bullet dodged (this one seems more like a .22 hand-thrown by a little league pitcher).
    But considering they’re still trying to kill Social Security 80+ years on, “it ain’t over ’till”, fuck it’s never over!

  4. 4.

    patrick II

    June 17, 2021 at 11:42 am

    I am so proud to be an American because our very civilized institutions managed to not take healthcare away from millions of people during a pandemic.

  5. 5.

    David Anderson

    June 17, 2021 at 11:43 am

    @Cermet: Standing rulings are catnip for conservative judges when they want to dodge a case.

  6. 6.

    Spanky

    June 17, 2021 at 11:50 am

    David,
    I believe the actual ruling states that “ice cream is awesome and puppies are yummy”.

    That opinion was written by Barrett.

  7. 7.

    Enhanced Voting Techniques

    June 17, 2021 at 12:01 pm

    @MontyTheClipArtMongoose: Or they think Biden isn’t joking when he jokes about increasing the number of justices,

  8. 8.

    Major Major Major Major

    June 17, 2021 at 12:07 pm

    Alito didn’t surprise me but Gorsuch kinda did. Curious what the dissents actually say–objections to the standing question? Do they opine on the actual substance?

  9. 9.

    brantl

    June 17, 2021 at 12:08 pm

    I am always impressed by the grasp-at-anything sophistry of the right wing judges, when they know they have to rule against their mob.

  10. 10.

    Another Scott

    June 17, 2021 at 12:27 pm

    @Major Major Major Major: There was only Alito’s dissent which Gorsuch joined.  He didn’t have anything different or qualifying to say in the dissent.

    I would hold that the States have demonstrated standing to seek relief from the ACA provisions that burden them and that they claim are inseparable from the individual mandate.

    IOW, Alito wants to strike the law down and Gorsuch is on board.

    HTH.

    Cheers,
    Scott.
    (“Who is still NAL.”)

  11. 11.

    Spanky

    June 17, 2021 at 12:33 pm

    @Another Scott:

    I would hold that the States have demonstrated standing to seek relief from the ACA provisions that burden them

    The claim of a “burden” hasn’t withstood scrutiny, right?

  12. 12.

    The Other Bob

    June 17, 2021 at 12:34 pm

    Isn’t it actually CA v. TX, not TX v. CA?

  13. 13.

    LongHairedWeirdo

    June 17, 2021 at 12:36 pm

    @Cermet: It’s not surprising. They can claim they were reasonable, for not making a ruling that would be farcial, if not so horrible. They can also say it’s a horrible, terrible law, but they weren’t asked to judge the merits.

    This also allows them not to dissent from the notion that the mandate penalty was ruled, in the first case, to be a tax-equivalent, and thus the mandate is satisfied if you pay the tax (currently $0.00) or have insurance. That makes it look as if they give a flying fornication at a rolling doughnut about stare decisis.

  14. 14.

    Another Scott

    June 17, 2021 at 12:37 pm

    @Spanky: Not to anyone sensible, but Alito spent pages 26-57 of the PDF file screaming that it’s obvious and that everyone else on the court who disagrees is a stupid commie.

    Cheers,
    Scott.

  15. 15.

    Barbara

    June 17, 2021 at 12:41 pm

    @The Other Bob: They sometimes change the order if the original plaintiff is the appellee, as Texas was, because it won at the appellate level. I hate having that Fifth Circuit decision out there, but once they lose on standing they won’t go any further.

  16. 16.

    LongHairedWeirdo

    June 17, 2021 at 12:41 pm

    @p.a.: That is also why I’m sympathetic to people who don’t want to abolish the filibuster. The Republicans can do a *lot* more damage without the filibuster, than Democrats can repair without it.

  17. 17.

    Barbara

    June 17, 2021 at 12:42 pm

    @Another Scott: ​Following faithfully in the steps of Scalia who never got over thinking of himself as the smartest person in the room no matter what the subject.

  18. 18.

    Baud

    June 17, 2021 at 12:44 pm

    @Barbara:

    Nah. Alito doesn’t pretend to be an intellectual like Scalia.  He’s very honest and upfront about what he’s there to do.

  19. 19.

    Ken

    June 17, 2021 at 12:45 pm

    @Another Scott: Alito spent pages 26-57 of the PDF file screaming

    He needs to calm down before he has a stroke.  Or maybe not.

  20. 20.

    West of the Rockies

    June 17, 2021 at 12:51 pm

    Texas loses.  AGAIN.  Why doesn’t Texas mind its own damn business about how other states count their votes and provides insurance to its citizens?

    For a state that claims to love going it alone, it sure is always in everyone’s business.

  21. 21.

    Omnes Omnibus

    June 17, 2021 at 12:53 pm

    @David Anderson: Standing rules are a baseline for any court.  You have to have some skin in the game to file a suit.  I know that people like to talk about “technicalities” like they are some kind of trick, but they actually matter.  You have to have standing.  Courts need an actual case or controversy – they don’t do advisory opinions.

  22. 22.

    Another Scott

    June 17, 2021 at 12:54 pm

    @Ken: Looks like his father, Alito Sr, lived to be 73.  His mother lived to be 98.  Hard to predict which longevity genes he got.

    Cheers,
    Scott.

  23. 23.

    Omnes Omnibus

    June 17, 2021 at 1:02 pm

    Two SCOTUS threads and less than 50 total comments.  This must be a record.

  24. 24.

    Spanky

    June 17, 2021 at 1:05 pm

    @Omnes Omnibus: It’s a weird day on this blog, for reasons I canna fathom.

  25. 25.

    Another Scott

    June 17, 2021 at 1:05 pm

    @Omnes Omnibus: Not enough RICO.

    Twitter user strongly criticizes what they believe Supreme Court decision says

    — FBIDidARICO!Hat (@Popehat) June 17, 2021

    Cheers,
    Scott.

  26. 26.

    Ruckus

    June 17, 2021 at 1:17 pm

    @West of the Rockies:

    They say they go it alone so that all the dirty commies will leave them alone. Then they go after all the dirty commies. Or whatever the left is today.

  27. 27.

    Elizabelle

    June 17, 2021 at 1:17 pm

    @Baud:  Scalito.  The snack chip from hell.

    I remember the kabuki of his confirmation hearings.  Dreadful man.

    President Biden:  pack that Court!

  28. 28.

    cmorenc

    June 17, 2021 at 1:30 pm

    The durability of the ACA against fierce efforts to undermine, repeal, or overturn it confirms conservative fears that once social programs the middle-class in America regard as beneficial to them get successfully established, they are extremely difficult to uproot, and even a conservative-majority SCOTUS hesitates against uprooting the program.  GOP conservatives have desired and intermittently plotted to figure out some way to undemine  and uproot social security ever since it was created 85 years ago, but so far in vain.  Not that they won’t keep trying under one subtrufuge or another to attack both the ACA, and less directly social security (e.g. by trying to turn it into a low-income eligibility program).

  29. 29.

    Frankensteinbeck

    June 17, 2021 at 1:31 pm

    @Ken: ​

    He needs to calm down before he has a stroke.

    I think he has had one or more already. My peanut gallery diagnosis is that the guy is showing cognitive decline, particularly a degradation of his social filters. Alito has always been a hack, but lately his dissents are ‘grandpa ruins Thanksgiving again’ territory.

  30. 30.

    fake irishman

    June 17, 2021 at 1:34 pm

    Hey all,

    University of Michigan Law Professor Nicholas Bagley has a really good thread breaking down the opinion here, which includes a good overview of Breyer’s opinion, as well as a lot of justified shade dumping on Alito’s dissent. This is not unexpected, but a major relief; the fact that they actually tossed this on standing before even considering the merits is good. This ain’t a technicality; this is “GTFO of my court room,” which is what the District Court judge in Texas and the Fifth Circuit should have said years ago. The opinion isn’t “sadly we have to reject these claims” it’s pointing and laughing derisively at the states and consultants who claim they have standing to sue without any actual, you know “injury”

    FWIW, I think that Breyer’s authorship of this opinion has nothing to do with whether or not he will choose to retire. There are enough dark conspiracies out there without us inventing new ones.

  31. 31.

    burnspbesq

    June 17, 2021 at 1:36 pm

    @Barbara:

    but once they lose on standing they won’t go any further.

    You’re underestimating Paxton’s willingness to file frivolous claims against the eebil Fredrul gubmint. Texas Republicans eat this shit up, and until the courts start dropping Rule 11 sanctions on his head, he has no incentive to stop.

  32. 32.

    fake irishman

    June 17, 2021 at 1:40 pm

    @burnspbesq:

     

    This is true about Paxton. This particular avenue on the ACA is now closed to him, and I suspect he’ll shy away from it for awhile but he’s got plenty of other shit to shovel. His most recent lawsuit over the Biden administration’s (entirely justified) revocation of the state’s Section 1115 Medicaid waiver is …special.

    It sure would be nice if we could have a trial over that felony he was indicted for in 2015.

  33. 33.

    Benw

    June 17, 2021 at 1:41 pm

    Good news!

  34. 34.

    burnspbesq

    June 17, 2021 at 1:46 pm

    @fake irishman:

    Next year. Maybe. In his home county. He’ll walk. Who says jury nullification isn’t a thing?

  35. 35.

    Jim, Foolish Literalist

    June 17, 2021 at 1:55 pm

    @Elizabelle:

    President Biden:  pack that Court!

    He couldn’t do that if wanted to. And he doesn’t want to.

    He is President because he ignored this kind of emo sloganeering.

    Court reform is a good idea. It will be a long, difficult political and legislative process, not some Green Lanternist “stroke of a pen” fantasy

  36. 36.

    Joe Falco

    June 17, 2021 at 1:59 pm

    Would that the majority also ruled that the plaintiffs in the case be given a swift kick in the pants then hogtied onto the next freight train to their home state.

  37. 37.

    Lacuna Synecdoche

    June 17, 2021 at 2:03 pm

    Senators Chuck Schumer, Elizabeth Warren, Patrick Leahy, Ben Ray Lujan, Sherrod Brown, Richard Blumenthal, Et al. via SenateDems @ Twitter:

    The ACA is Here To Stay! [and other variations]

    Here To Stay – New Order

  38. 38.

    StringOnAStick

    June 17, 2021 at 2:04 pm

    @Jim, Foolish Literalist: Start first with approving as many federal judges as possible, then the splitting of that too large circuit court.  The former fills the open positions with non RW nutjobs, the latter lays the groundwork for a possible USSC expansion if the Senate changes to allow it, but it isn’t worth the expenditure of political capital right now when so much else is on Biden’s already extremely full plate.  Evil Mitch focused on filling those judgeship so aggressively for a reason, and we should follow suit.  The federal courts are overburdened so split that circuit, approve more judges and harp on how the too small number of courts and judges are rendering “speedy trial” an unconstitutional joke; sell it, make it palatable.  Then do it.

  39. 39.

    Major Major Major Major

    June 17, 2021 at 2:06 pm

    I like how Biden reiterated in a tweet today that the ACA remains a “BFD”.

  40. 40.

    fake irishman

    June 17, 2021 at 2:06 pm

    @burnspbesq:

    Yeah, I generally agree with your assessment — although Collin County has been changing quite a bit over the last seven years. (Paxton won by 8 there in 2018, vs 35 in 2014. That’s a huge shift even accounting for the different national environments)

  41. 41.

    Jim, Foolish Literalist

    June 17, 2021 at 2:12 pm

    @StringOnAStick: can Biden expand the circuit courts by EO?

    but it isn’t worth the expenditure of political capital right now when so much else is on Biden’s already extremely full plate.

    Right, it’s a bottom-up, not top-down process. That’s the problem with emo-proggery. It’s all tied up in Green Lanternist, cult-of-the-presidency fantasies, while the right makes hay with state legilsaltures and congressional districts.

  42. 42.

    catclub

    June 17, 2021 at 2:13 pm

    @Frankensteinbeck: Alito has always been a hack, but lately his dissents are ‘grandpa ruins Thanksgiving again’ territory.

     

    Hasn’t Thomas been doing that for 20 years, already?

  43. 43.

    Barbara

    June 17, 2021 at 2:14 pm

    @burnspbesq: I wasn’t referring to the litigants but to the court itself.

  44. 44.

    Another Scott

    June 17, 2021 at 2:22 pm

    @fake irishman:  Your Twitter link didn’t work for me. I assume it is this thread?

    1/ Per Breyer, the red states and the individual plaintiffs lack standing in the big case involving the Affordable Care Act. The case is dismissed.The holding here is one that I've discussed many times before, but let me walk you through it. https://t.co/eTYNpSHLeK

    — Nicholas Bagley (@nicholas_bagley) June 17, 2021

    Thanks for the pointer.

    Cheers,
    Scott

  45. 45.

    Jim, Foolish Literalist

    June 17, 2021 at 2:24 pm

    @Jim, Foolish Literalist:

    can Biden expand the circuit courts by EO?

    quick google says no. Lawyers?

  46. 46.

    Another Scott

    June 17, 2021 at 2:30 pm

    @Jim, Foolish Literalist:  Executive Orders apply to the Executive Branch.  IANAL, but there would seem to be obvious Separation of Powers issues if the Executive tried to do anything to the structure of the federal courts without explicit legislation.

    Cheers,
    Scott.

  47. 47.

    Mike in NC

    June 17, 2021 at 2:36 pm

    Wingnuts will never let this subject go, any more than they’ll ever stop trying to outlaw abortion, abolish Social Security and Medicare, defund public schools, put more guns on the streets, etc.

  48. 48.

    Frankensteinbeck

    June 17, 2021 at 2:36 pm

    @catclub:

    Alito is a hack who is descending into frothing ‘fuck you, libtards!’ territory.  Thomas is a loon and has always been a loon.  The guy is nucking futz.  The rest of the conservatives merely have hideous interpretations of actual law, with every once in awhile a descent into “Because I wanna.”  Those are much more rare than you would think.

  49. 49.

    Barbara

    June 17, 2021 at 2:41 pm

    @Another Scott: I am still angry that the Fifth Circuit let it get this far. What a complete failure as an appellate court to get this so fucking wrong because they wanted to legislate from the bench.

  50. 50.

    Steve in the ATL

    June 17, 2021 at 2:44 pm

    @The Other Bob: it changes around depending on who filed the appeal.

    Smith sues Jones: trial court case is Smith v. Jones

    If Smith wins and Jones appeals, then court of appeals case is Jones v. Smith

    If Jones wins and Smith appeals, then court of appeals case is Smith v. Jones.

    The next appeal could be either Smith v. Jones or Jones v. Smith for the same reasons.

    And so on, all the way to SCOTUS in extreme cases.

    Very important: it’s “v.”, not “vs.”.  Ok, not so important but that’s still how it is.

  51. 51.

    Steve in the ATL

    June 17, 2021 at 2:46 pm

    @Omnes Omnibus: ​
     I’m busy lawyering today, but will digest these decisions later with a bottle of Caymus.

    I’ll let someone else address “less than” v. [ha!] “fewer than”.

  52. 52.

    Mike in NC

    June 17, 2021 at 2:46 pm

    OT: Was on the road most of the morning and early afternoon. WaPo reports the president has signed the Juneteenth holiday into law. Will look for a follow-up on the evening national news.

  53. 53.

    Another Scott

    June 17, 2021 at 2:52 pm

    @Barbara: Indeed.  Especially given how few cases the SCOTUS takes up these days, they shouldn’t have given them a reason to take the case and waste everyone’s time.

    Cheers,
    Scott.

  54. 54.

    Barbara

    June 17, 2021 at 2:54 pm

    @Omnes Omnibus: Article III standing arguments are probably not all that interesting or comprehensible to non-lawyers.

  55. 55.

    Baud

    June 17, 2021 at 2:56 pm

    @Frankensteinbeck: 

    This is the most succinct and accurate description I’ve ever seen.

  56. 56.

    Baud

    June 17, 2021 at 2:57 pm

    @Steve in the ATL:

    Don’t most federal appeals court keep the trial court order? The SCT always puts the petitioner first.

  57. 57.

    fake irishman

    June 17, 2021 at 2:58 pm

    @Another Scott:  correct Sorry!

  58. 58.

    marcopolo

    June 17, 2021 at 2:59 pm

    @Mike in NC: Yes and congrats to federal employees who will now have a vacation day tomorrow which did not exist on Monday!  Lucky ducks.

  59. 59.

    Cermet

    June 17, 2021 at 3:01 pm

    We have all seen extremely insane rulings that the inferior judges used to justify outrageous rulings: they address previous law – what precedent?, then shit rained via their mouths, then some more who gives a f**k??? about precedent and sanity, so we rule against the American people to stick it to liberals – sign rightwing nut jobs.

    I am very happy they threw this out – the whiners wasted a great deal of time and the Inferior court spanked the fifth very publicly

     

    I’m one of those ducks … . Ok, we are lucky – should have waited a year so all ducks could be put in a row …so to speak.

  60. 60.

    fake irishman

    June 17, 2021 at 3:01 pm

    @Barbara:  agreed. That ruling (and the hearing) was egregious even by Fifth Circuit standards (aka “The Circuit where all nice things go to die”). I expected better out of Elrod.

  61. 61.

    JoyceH

    June 17, 2021 at 3:02 pm

    @LongHairedWeirdo: ​
     >

    That is also why I’m sympathetic to people who don’t want to abolish the filibuster. The Republicans can do a *lot* more damage without the filibuster, than Democrats can repair without it.

    That’s why I’d like to see the filibuster REFORMED rather than abolished. A process whereby someone who wants to block legislation has to at least take his feet of the desk and leave his office to do so.

    If they changed the rules to require 41 votes to sustain a filibuster, rather than 60 votes to break it, that would still give the minority party the ability to block something truly awful that they felt passionately about, but not able, or at least not willing, to be able to block everything just due to simple jackassery.

  62. 62.

    Omnes Omnibus

    June 17, 2021 at 3:04 pm

    @Steve in the ATL: OMG!  And that’s one of my pet peeves.  I will go slam my fingers in a drawer as punishment.

  63. 63.

    germy

    June 17, 2021 at 3:06 pm

    Alito and Gorsuch say that the Supreme Court should implement the policy goals of members of Congress who had voted to repeal the ACA entirely. (Conveniently leaving out the fact that such a proposal failed to actually pass through Congress.) https://t.co/Lv9IJQDUBZ

    — Eric Kleefeld (@EricKleefeld) June 17, 2021

  64. 64.

    lowtechcyclist

    June 17, 2021 at 3:07 pm

    @Major Major Major Major:

    I like how Biden reiterated in a tweet today that the ACA remains a “BFD”.

    Before this year, it was probably the most famous thing he’d ever said.

  65. 65.

    Barbara

    June 17, 2021 at 3:09 pm

    @Baud: Yes. This is a Supreme Court practice.

  66. 66.

    Big R

    June 17, 2021 at 3:10 pm

    @Omnes Omnibus: 

    American courts don’t provide advisory opinions. Well, federal courts don’t provide advisory opinions.

    A “certified question” is, by definition, an advisory opinion, even if it resolves an actual case in another court.

  67. 67.

    Old School

    June 17, 2021 at 3:12 pm

    @lowtechcyclist:

    Before this year, it was probably the most famous thing he’d ever said.

    What’s surpassed it?

  68. 68.

    Omnes Omnibus

    June 17, 2021 at 3:15 pm

    @Big R: Go ahead and file a certified question somewhere.  Let me know how it goes.

  69. 69.

    germy

    June 17, 2021 at 3:16 pm

    Pundits and court watchers invested in the Legitimacy of the Institution will point to decisions like this as evidence that the Court is Not In Fact Political. But the median vote on the Court affects caseflow — states and individual litigants will bring all kinds of crazy challenges from the right, and some of them will go to far even for the Trump Court. On the other hand, much more reasonable challenges from the left won’t be brought because everyone would recognize them as a waste of money, or the Court will just refuse to grant cert from a negative decision by a Republican-dominated Circuit Court. When evaluating the ideology of the Court, you can’t just look at who wins but what kinds of cases the Court is taking and not taking.

  70. 70.

    M31

    June 17, 2021 at 3:16 pm

    @Old School: “Will you shut up, man?” is my bet

  71. 71.

    Citizen Alan

    June 17, 2021 at 3:16 pm

    @Mike in NC:  Perfect timing. I just got the email 15 minutes ago that the courthouse where I work will be shut down tomorrow for Juneteenth.

  72. 72.

    mrmoshpotato

    June 17, 2021 at 3:20 pm

    @Another Scott: No idea what this is related to, but it struck me as hilarious.

    Oh good, Federal Cooperating Witness Expert Twitter is here. This will be lovely.— FBIDidARICO!Hat (@Popehat) June 16, 2021

  73. 73.

    Old School

    June 17, 2021 at 3:24 pm

    @M31: That was a good one.

  74. 74.

    germy

    June 17, 2021 at 3:27 pm

    Washington, D.C., circa 1936. “U.S. Supreme Court interiors. Stairwell looking down.”

    This photo makes me dizzy.

  75. 75.

    ?BillinGlendaleCA

    June 17, 2021 at 3:28 pm

    @lowtechcyclist: Noun, Verb, 9-11.

  76. 76.

    Villago Delenda Est

    June 17, 2021 at 3:30 pm

    Paxton is a dipshit.  End of story.

  77. 77.

    mrmoshpotato

    June 17, 2021 at 3:35 pm

    @germy: You’re getting sleeeepy.

  78. 78.

    Redshift

    June 17, 2021 at 3:36 pm

    @LongHairedWeirdo:

    That is also why I’m sympathetic to people who don’t want to abolish the filibuster. The Republicans can do a *lot* more damage without the filibuster, than Democrats can repair without it. 

    I used to believe that (it’s the Capra story we’ve all been raised on), but once I was prompted to look more at the actual historical record, bad things being stopped by a filibuster are vanishingly rare, and good things being blocked by it are commonplace. Just the list of civil rights laws and anti-lynching laws blocked by filibusters is extremely long.

    On the particular subject that makes it relevant to this thread, the ACA wasn’t saved by a filibuster; the repeal failed to get 50 votes.

    The filibuster is does not have the same effect on both sides; it makes it harder for people who want government to do things, and easier for those who want to prevent it from doing things. Republicans don’t want to do anything at the federal level other than cut taxes for the rich and confirm judges, so the filibuster only hurts our side.

  79. 79.

    artem1s

    June 17, 2021 at 3:43 pm

    Apart From THAT!

    best tweet I’ve seen on the ruling today!

  80. 80.

    Jim, Foolish Literalist

    June 17, 2021 at 3:59 pm

    @Redshift: as Chris Hayes pointed out, the R’s have effectively eliminated the filibuster for the things they care most about: tax cuts and judges.

    and the original gerrymander that is the US Senate is already an anti-majoritarian check on the will of the majority.

  81. 81.

    James E Powell

    June 17, 2021 at 4:05 pm

    @Jim, Foolish Literalist:

    And the Republicans will eliminate the filibuster for anything else if it stands in the way of something they want to do.

  82. 82.

    ellie

    June 17, 2021 at 4:08 pm

    @Lacuna Synecdoche: Thank you for this! I love New Order but have not heard this version.

  83. 83.

    Another Scott

    June 17, 2021 at 4:08 pm

    @Redshift: Well said.

    In addition, ultimately the majority must be able to rule.  Anything else is anti-democratic.  The minority twisting archaic rules to prevent action does not protect us from bad things – it makes bad things more likely (via selective twisting of the rules).

    Yes, it sucks sometimes when the majority does bad things.  That’s why it’s important to elect sensible people to public office – so that there’s less chance of bad things happening.

    Cheers,
    Scott.

  84. 84.

    WaterGirl

    June 17, 2021 at 4:20 pm

    @artem1s: That is too awesome.

  85. 85.

    artem1s

    June 17, 2021 at 4:32 pm

    @lowtechcyclist:

    I like how Biden reiterated in a tweet today that the ACA remains a “BFD”.

    Before this year, it was probably the most famous thing he’d ever said.

    MALARKY!

  86. 86.

    steve g

    June 17, 2021 at 5:25 pm

    @JoyceH:

    Another way to reform the filibuster would be to make it 60%, not 60 votes. As it stands, senators who are not present are effectively voting no, which is exactly the opposite of the original intent of a filibuster. If you want to filibuster, you should at least have to be present! As a percentage, the votes needed would go down if senators were not present.

  87. 87.

    Geminid

    June 17, 2021 at 6:38 pm

    I am not surprised that Chief Justice Roberts has voted again to uphold the ACA. This issue seems like one of those “if you break it you own it” situations. You don’t have to read Mr. Andersons excellent posts on health care policy to realize this is one hell of a complicated system, with literally life and death consequences to choices made by both legislators and the judges who review their work. Congress may have passed an imperfect law, but if it did that wouldn’t be the first time. Roberts knows how hard it would be to wade into this morass and start working out what government intervention is permissable and what is not. And as some commenters have pointed out, dissenter Alito’s position ultimately calls into to question the validity of Medicare and Medicaid. Roberts would like to preserve the Supreme Court as it is. If the Court ever struck down Medicare, the question wouldn’t be whether to add justices, but how many.

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