The Danger Lurking in a Possible Supreme Court Victory for Obamacare ("President Ted Cruz")

The Nation ^ | March 5, 2015 | George Zornick

[2ndDivisionVet]

When the Supreme Court heard arguments in King v. Burwell on Wednesday, it was forced to consider whether just a few words in the Affordable Care Act—“exchange established by the state”—meant that people living in states with federal exchanges shouldn’t be receiving any subsidies to buy health insurance.

If the justices ultimately don’t think the language is clear either way, they could still invoke what’s known as the Chevron deference to uphold Obamacare in its current form. In 1984, Chevron v. Natural Resources Defense Council established a precedent that courts should defer to relevant agencies if a legislative text does not make intent obvious, so long as the agency’s interpretation is based on a “permissible construction of a statute.”

In this case, applying Chevron deference would mean ruling the Affordable Care Act text isn’t clear on who should get subsidies—something the government vigorously argues is wrong, and that it is clear—but also ruling that the IRS could permissibly read the ACA in a way that allows subsidies and tax credits for people who live in states with a federal exchange. Everything would go ahead as normal.

This is not a purely theoretical outcome. It’s actually what the US Court of Appeals for the Fourth Circuit ruled [1] in King v. Burwell before it reached the Supreme Court. (That court found that the government had only a “slightly” stronger position about the meaning of the contested phrase and that the law is “ambiguous,” but that the IRS should be allowed to proceed with nationwide subsidies.) Justice Anthony Kennedy brought up the Chevron deference during arguments Wednesday, though he appeared reluctant [2] to apply it.

So you might see the potential problem here: if the Court does apply this logic to its final ruling, couldn’t President Ted Cruz come into office and direct the IRS to interpret the ACA in the opposite fashion—and thus strip subsidies away from millions of Americans, thereby sending the dread Obamacare into a death spiral? This might be an attractive option for him, since he could do it unilaterally without any cooperation needed from Congress.

The short answer is: yes. But there are legal and political realities that would likely prevent that from ever happening.

Chief Justice John Roberts brought up [3] this very possibility during oral arguments Wednesday, asking US Solicitor General Donald Verrilli whether “a subsequent administration could change that interpretation.”

Verrilli essentially conceded it could, but immediately pointed to the legal problem. Remember, the agency (in this case the IRS) can only base its interpretation on a “permissible construction” of the ACA, and Verilli argued that this hypothetical Republican administration “would need a very strong case” to change the IRS’s interpretation, especially given the hugely disruptive effects that would follow.

If President Cruz went ahead anyway, another long legal challenge would probably result, except with the roles reversed: there would be another challenge to the government’s interpretation of “exchange established by the state,” but it would be brought by progressive defenders of the health care law on behalf of people who lost subsidies for health insurance. Another messy, protracted legal fight would follow, while people in many states struggled to pay for health insurance in the meantime.

But political realities might prevent this from ever happening in the first place. The genius of the conservative challenge in King v. Burwell is that if it succeeds, Republican politicians have some level of plausible deniability for all the chaos and loss of coverage that would follow. Republicans would basically argue “Hey, it’s not our fault. The authors of Obamacare wrote an unclear law and the Supreme Court tossed part of it.”

Also, in a courtroom, it’s a little easier to make a theoretical, legal argument that the intent of the lawmakers who wrote the ACA is both unclear and immaterial. But President Cruz would have to make a much more direct case in the public square: he would have to argue that he truly thinks the ACA wasn’t meant to provide any subsidies to people in states with a federal exchange, and then with the stroke of a pen effectively strip heath coverage from millions of people—and own the damage all to himself.

It’s exceedingly unlikely that even the most determined foe of Obamacare would do this. The political fallout would be far too extreme, and the move might lose on a court challenge anyhow.

So if the Court does uphold the ACA under a Chevron deference, proponents of the law can probably rest easy—but they could never be quite sure King v. Burwell was the final word.

*********

[1] http://www.dailykos.com/story/2015/03/02/1367790/-King-v-Burwell-Chevron-Deference [2] http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/things-we-learned-at-todays-oral-argument-in-king-v-burwell/ [3] http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-114_lkhn.pdf [4] https://subscribe.thenation.com/servlet/OrdersGateway?cds_mag_code=NAN&cds_page_id=127841&cds_response_key=I14JSART2 [5] http://www.thenation.com/blog/200073/gabby-giffords-returns-capitol-hill-push-background-checks

[2ndDivisionVet]

When they're constantly talking about something ("President Ted Cruz") they both fear and anticipate it. I'd love to see the real, internal polling that we peasants aren't allowed to see. It must be eye-opening.

[Baynative]

[struggle]

PLEASE MAKE THIS A REALITY.

[2ndDivisionVet]

Letting OJ carve the turkey at Thanksgiving.

Tax advice from Martha Stewart.

A Venezuelan made pregnancy tester.

A bar of soap in the YMCA residence washroom.

Al Gore’s meteorology club.

German sympathy.

Golden Corral lobster.

[Personal Responsibility]

Ambiguous: Clear language that does not mean what a liberal wants it to mean.

Clear: Ambiguous language as defined by a liberal.

Get it?

[loveliberty2]

The very idea that a Chief Justice might consider risking violation of constitutional principle and liberty for future generations on the possibility that a wrong decision by this Court might be righted in the future, based on some dubious "Chevron" precedent is, in the words of Madison, "chimerical."

What a foolish risk of the liberty the U. S. Constitution was designed to "protect" from all foes.

"Posterity! you will never know how much it cost the present generation to preserve your freedom! I hope you will make a good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it." - John Adams, Letter to Abigail Adams, 1777

What an awesome responsibility the Justices of 2015 have to Adams and the other Framers of America's Constitution to "make good use" of the opportunity they have now to "preserve" freedom for future generations by preserving the Constitution's separation of powers and limits on government power!

If they "do not," then history will record their action as a betrayal of the trust of all the brave men and women who have been willing to sacrifice everything for freedom's cause--from 1776 to now.

May they feel the heavy cloak of responsibility they bear for the freedom of those future generations, and may their opinions recall those ideas of individual liberty so beautifully articulated by the Framers of the Constitution they are sworn to uphold.

"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

[PapaNew]

States, get ready to nullify Obamacare as an unconstitutional federal act unless after you have done a good-faith analysis of the applicable texts and original understanding and intent, you find the act as constitutional. (It is not, but clearly outside the bounds the framers intended for the Commerce Clause, if that is what they are using as constitutional justification.)

[2ndDivisionVet]

[loveliberty2]

One additional quotation to consider, here:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government fromreflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even know ­ ledge of their sentiments, can warrant their represen ­ tatives in a departure from it prior to such an act."

[Logical me]

This communists controlled Supreme Court will go in favor of Obamacare. Why would anyone suspect any difference. America is finished and will never reverse anything.

[Amendment10]

Patriots may have to ultimately peacefully confront activist justices with the following previously posted excerpts from previous case opinions relevant to intrastate healthcare. I would demand the resignations of all the justices too since corrupt Congress can’t be trusted to impeach these traitors. The Supreme Court is long overdue for a reboot imo.

Regarding the Obamacare insurance mandate for example, note the fourth entry in the following list, the excerpt from Paul v. Virginia. In that case the Court had essentially clarified that the feds have no Commerce Clause power to regulate insurance regardless if an insurance policy is negotiated across state borders.

• ”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [emphases added]” —Gibbons v. Ogden, 1824.

• “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.

• “Inspection laws, quarantine laws, health laws of every description [emphasis added], as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln., 1837.

• ”4. The issuing of a policy of insurance is not a transaction of commerce [emphasis added] within the meaning of the latter of the two clauses, even though the parties be domiciled in different States, but is a simple contract of indemnity against loss.” — Paul v. Virginia, 1869. (The corrupt feds have no Commerce Clause (1.8.3) power to regulate insurance.)

• “Direct control of medical practice in the states is obviously [emphases added] beyond the power of Congress.” –Linder v. United States, 1925.

Also note that regardless that federal Democrats, RINOs and corrupt justices will argue that if the Constitution doesn’t say that the feds can’t do something then they can do it, the Supreme Court has addressed that foolish idea too. Politically correct interpretations of the Constitution's Supremacy Clause aside, the Court has clarified in broad terms that powers not delegated to the feds, expressly via the Constitution, the specific power to regulate intrastate healthcare in this case, are prohibited to the feds.

”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.

[oldbrowser]

It almost seems like the supremes are beating a dead horse called liberty.

[The_Reader_David]

Obamacare was a horror of a law, bad enough as written, but has been made far worse by regulatory interpretations given by the Obama Administration. Day one of a GOP administration the contraceptive mandate along with most of the requirements placed on insurance policies to meet the standards of the law can be stripped out by a simple executive order without Congress acting to repeal it (assuming it’s still in place after King v Burwell is decided), since they exist only by the invocation of numerous clauses in the law abrogating Congress’s responsibility to legislate with the words “as the Secretary [of HHS] shall direct”, along with changing the regulatory ruling on the subsidies if SCOTUS keeps it alive by this trick.

[WhyisaTexasgirlinPA]

“An elevator ride with ray rice...” ROFL

[OneWingedShark]

States, get ready to nullify Obamacare as an unconstitutional federal act unless after you have done a good-faith analysis of the applicable texts and original understanding and intent, you find the act as constitutional.

From Justice Thomas’s Dissent in Raich:

“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits.”

The same is true of forcing commerce.

[WhyisaTexasgirlinPA]

Why aren’t we hearing reports of those who now have their much touted insurance, free of charge on the backs of taxpayers, who now OWE the first $6000 for their deductibles before they get any services? Funny how the media has been silent on that aspect

[Sacajaweau]

There's a missing piece here. I believe it is in a specific section dealing with state exchanges. If it included a Federal Exchange, he should have made reference to the same.

I have to find the actual text to back this up.

[Hostage]

The crux of their argument is stuck in a bed of scaremongering.

> “Verilli argued that this hypothetical Republican administration “would need a very strong case” to change the IRS’s interpretation, especially given the ***hugely disruptive effects*** that would follow”

No, President Cruz would not need a strong case at all. He would simply provide transitional budget proposals for DHHS to put all the subsidized back on to Medicaid where they came from to begin with.

You see, what they’re trying to do is to put out this narrative in the media that if you hold them to account on their own wording and their own intents and destroy the monstrosity they’ve created, well then ... “Woe is me, the world is going to end!”. And their comeback is “you don’t want to take away all those people’s healthcare now do ya?” What a lame crappy argument.

People are going to get their healthcare no matter what. Before Obamacare, clinics were required by law to serve those who walked through their doors.

Obamacare does not provide new care. It provides the unions, especially General Motors unions with a new funding source for their healthcare and retiree healthcare. That new funding source is on the backs of the young and healthy American workers. Those workers are paying for union healthcare because the employers over-promised and couldn’t deliver. People forget that many unions are exempt from Obamacare requirements.

So let’s sit back and watch the scam unfold.

[Sacajaweau]

So the reason the Fed exchange wasn’t ready....was because there wasn’t to be a Fed Exchange?????

[WhyisaTexasgirlinPA]

Those are nice too!