Discussion for article #233963
âI think he is wholly unpersuaded by governmentâs textual arguments and
reluctant to grant deference, but concerned about the possibility of a
federalism problem,â Jonathan Adler, a law professor and architect of
the lawsuit, told TPM, saying that Kennedy could uphold the subsidies on
the basis that he agrees with the plaintiffsâ view of the provision
while declaring it unconstitutional. âI didnât see how he sides with the
government without doing something like that.â
In other words, Adler is casting this in the worst light possible because heâs a total freakinâ yahoo dumbass who thinks all parts of any law should be read as non-sequiters. As usual.
Iâd love to see how many conservative supreme court rulings could be be turned on their heads by selecting individual lines from them.
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I donât understand how Kennedy could vote to uphold the subsidies while declaring it unconstitutional. I canât seem to get a grasp on this deal.
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At least a couple of the Supreme Court Justices have got to be wondering about precedent and how many US laws have language that can be similarly parsed. I mean, donât they take the âspiritâ of all the text of the Second Amendment to justify individual gun rights?
Edit: I know Tobin is much disparaged here, but he thinks the ACA will survive. He explains why in The Yorker. Link:
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Just a heads up: If history is an indicator, atomizing textsâbreaking down the text to tiny fragments, isolating them, and trying to wring meaning out of themâgives way to mystical Kabalism, a practice of reading not the letters that make up words, but the spaces around* the letters*. Those blank spaces, not the letters drawn in ink, convey the textâs true meaning, to the just and able interpreter of the text.
So, sadly, the real meaning of the text is withheld from those of us limited to reading merely the letters themselves.
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Letâs see if I have this right. If I donât get insurance, I might pay a fine. If I get insurance through a state exchange, I might get subsidies. If my state doesnât have an exchange, the feds are offering subsidies through their exchange. How is that coercion?
It seems like the state would be forcing me to go to the fed to get access to coverage and, by forcing the feds to not provide subsidies, forcing me to pay higher premiums. WTF?
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Like living between the panels? (Super idea.)
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This is all a bunch of bull because the die has been cast. This DEATH PANEL, er, âcourtâ will vote 5-4 to uphold King and kill the subsidies.
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He is not declaring the subsidize unconstitutional. He would say that how the government wants the statute to be read is wrong and the challengers are correct (how that works I still have no idea as the law is fairly clear as a whole). However, in acknowledging they are correct about their interpretation of the law, the law being read that way is unconstitutional. Therefore, since that would imply coersion the whole thing would pretty much revert back to where it is now. Basically as if he sided with the government from the get go.
The only difference is somewhat academic.
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I am sure you could do it to nearly any law.
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It is coercive to the state and their insurance markets. Not to the individuals, that can be forced to some degree. The issue is if the subsidize are removed from those markets but a mandate is in place than many people will still not buy insurance but insurance companies are still required by law to cover everybody.
Basically, sick people would try and join up at high cost and it would cause a rise in rates for the entire insurance market in a state. Basically the âdeath spiralâ everybody talks about. So, if the subsidize were used as a carrot to get the states to obey and start their own exchange it is pretty much a gun to the head situation and that is not ok.
Given that is not the âor elseâ statement in the law it should not even matter. The enforcement is start one or the fed will do it for you. I do not get why that was not understood more. As some of these questions seem that everybody is ignoring that aspect of the law.
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Thank you. I donât know why I find this case so bewildering. I guess the nits being picked here are just so small.
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Then again, depending on how crazy he decides to be (and whom he can get to go along) he can argue that this makes the entire subsidy structure unconstitutional because thereâs no way to do it within the text of the law (ha!) without violating the constitution. And that would let them kill subsidies for everyone while crowing about how fairness has compelled them to this unfortunate result.
I do kinda wonder how they separate pretty much knowing how theyâre going to vote from the outset from the need to pretend theyâre actually asking substantive questions and pondering weighty issues in a case like this.
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At best, weâre probably looking at one or two opinions concurring with the liberals.
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It would not surprise me if Kennedy came out with an opinion roughly as you describe, all bent, deformed, torturous and twisted.
Neither would it surprise me if CJ Roberts were to sign onto that, without additional comment. That way the result would serve a lot of positives:
- avoid hurling the Court into a pit of condemnation from which the current majority may not be able to rescue it,
- not just retain but possibly even enhance potential future value to the Federalist Society concept of federalism by thousands of cuts to New Deal liberalism
- send the GOP back to its happy stoopid people fund raising to repeal âObamacareâ >
- even as the ACA system works itself into the national culture and id like Medicare
- avoid throwing the health care insurance industry into chaos
- avoid the risk of striking a thunder blow to the economy at a time when so many economists have already expressed serious concerns over a repeat of the September 2008 meltdown
- provide cover for CJ Robertsâ earlier decision
- and more.
Itâs âintellectuallyâ conceivable that this could end up being even an 8-1 win for the ACA. But for a variety of political reasons, I donât think thatâs whatâll happen. I think Alito/Scalia/Thomas will come out with one, or one âmore-or-lessâ decision, whereby Thomas is selected as the named author of the Constanza line (âSorry all you Bubble People out there: the card reads MOOPS!â), Alito writes something that purports to agree but substitutes baffling legalistic fog and a bunch of language that really has nothing to do with the case but they winger majority figures putting on record will prove useful in the future in all sorts of other cases, Scalia writes something that goes OTT in praising Thomas but actually ducks behind the cover of Alitoâs mostly-in-agreement bafflingly-claiming-mild-dissent, Kennedy will write more or less like youâve described, and Roberts will dip a finger or toe into each and every one of those other winger opinions, while saying heâs siding with Kennedy in the result, so ⌠4 libs plus Kennedy with just a touch of Roberts, and opposing all that a mess of mess from the rest which Roberts will find some way to praise effusively without actually abandoning his signing on to Kennedy.
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Iâve stopped reading Tobin since he got the screaming meemees in Round 1. I strongly recommend Millheiser as much better.
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I guess the reasoning is that Kennedy could strike down as unconstitutional the sentence that conservatives claim limits subsidies to states that established their own exchanges, doing what Congress could do with a minor technical fix if it wanted to. Whether heâll be able to resist the temptation to destroy Obamaâs most significant achievement is another question. He does seem concerned about the âdeath spiralâ that is certain to occur if he did.
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Iâd guess itâs about 6-3 the other way. I think Kennedy and Roberts will keep the federal subsidies intact. Even Alito might. I do see Thomas and Scalia voting the other way though.
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If Kennedy was being political only, he would recognize that shooting this down will actually hurt Republicans. But he seems to be making legal arguments, and I think he will keep the federal subsidies coming. I think Roberts will join him too, and Alito is even possible. I could be wrong, but I think this is at least a 5-4 victory for the ACA, and could even go to 7-2.
If it goes the other way, Republicans look bad, and frankly there might even be a huge push nationwide for single payer since not only will some people be uninsured, but many will see costs skyrocket.
The Republicans donât really want to kill the ACA. They just want to talk about it, make it an issue. Like abortion. They donât want to overturn Roe vs Wade, they want to talk about it and make it a divisive issue.
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Much ado over nothing. There is a very simple administrative remedy regardless of what the SCOTUS proclaims. All the states running their own exchanges employ contractors in that process. HHS simple needs to offer a contracting services agreement to the states that are using the Federal site. In fact there are already several gradations of âstate ownershipâ of the exchanges among those 38 states using healthcare.gov. Depending on exactly what the SCOTUS says, some of them probably are already sufficiently in charge of their âown exchangeâ to not be affected. And the others could instantly be in charge of âtheir own state exchangeâ but signing a no-cost contracting agreement with HHS.
Not every right wing governor would immediately go along with that, but there would be a lot of pressure on them to buckle under. After all, Anthem, UHC, the hospitals and many other parties have a lot to lose of the SCOTUS screws this us.
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