Posted on 03/10/2015 5:12:49 AM PDT by Kaslin
On Wednesday the Supreme Court heard oral arguments in King v. Burwell, the case challenging the IRS's decision to pay subsidies to lower-income health insurance buyers in states with federal insurance exchanges -- even though the Obamacare legislation authorizes subsidies only in states with exchanges "established by the state."
The Obama administration is thus in the uncomfortable position of arguing that the president's signature law says what it doesn't say. Nevertheless, initial analyses of the oral argument suggest the government might win.
The four Democratic-appointed judges seemed determined to advance arguments that, if you look at the statute as a whole, Congress wanted to pay subsidies to lots of people, even if it didn't say so. A similar argument was made with considerable invective in a dissent in an identical case by D.C. Circuit Judge Harry Edwards, a Democratic-appointed judge who otherwise during a long career encouraged consensus and civility in a once-rancorous court.
Justice Anthony Kennedy's questions suggested there may be a fifth vote to uphold the administration's position. Justice Kennedy asked whether the "established by the state" provision might amount to an unconstitutional commandeering of the state governments.
Commandeering is legal shorthand for the widely agreed doctrine that Congress cannot command the states to adopt legislation. Instead, Congress typically offers the states money if they accept certain conditions. No highway and transportation money if you don't establish a 55 mile-per-hour speed limit, for example, or a minimum drinking age of 21.
Limiting subsidies, as the Obamacare statute does, to states that establish their own exchanges is thus not unusual; it's typical of how Congress gets states to do what it wants. But there are limits.
In the June 2012 National Federation of Independent Business v. Sebelius decision upholding the constitutionality of Obamacare, the Supreme Court also ruled, 7-2, that Obamacare could not compel states to vastly increase Medicaid spending or lose all Medicaid funds. Raising the ante, the court held, amounted to commandeering.
Did Justice Kennedy's questioning Wednesday indicate that he believes that the disparate treatment of states with and without state health care exchanges amounts to commandeering? Perhaps, though justices' questions are not always good guides to their ultimate conclusions.
But if it was, does that mean that Justice Kennedy would allow the IRS to read into the statute authorization of subsidies? Or does it mean that he would regard the provisions for subsidies in some states and not in others as null and void? We won't likely know until the decision comes down, probably in late June.
But beyond the legal issues, the very existence of King v. Burwell is remarkable politically. For the framers of Obamacare certainly did not expect 36 states to reject the blandishment of federal subsidies and refuse to set up state exchanges.
MIT Professor Jonathan Gruber explained why, in a now-famous videotaped talk back in 2012. "If you're a state and you don't set up an exchange, that means your citizens don't get their tax credits," he said. "If your governor doesn't set up an exchange, you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens."
When the videotapes surfaced last year, Gruber said that he had misspoken, "like a typo." But obviously he was just reading the statute as written, and obviously he expected that the states would find federal money too tempting to resist.
That expectation was based on some knowledge of history. Over the last half-century, states have usually been willing to jump through Congress's hoops in order to receive supposedly "free" federal money.
For example, after Medicaid was passed in 1965, 37 states joined the program within two years and by January 1970 only two held out -- Alaska, which joined in 1972, and Arizona, which held out until 1982. In the 1980s, as Congress (largely through the backroom work of Henry Waxman) increased the states' required Medicaid spending, many governors grumbled, but no state dropped out of the program.
In contrast, after the Supreme Court let states reject Obamacare's Medicaid expansion, 22 states did so. And 36 states refused to set up state health insurance exchanges, despite Obamacare's "established by the state" language.
Governors and legislators are responsive to public opinion, and their increased willingness to forego federal dollars shows an increasing mistrust of centralized command-and-control government. That's going to be a continuing factor in politics and government, whichever way King v. Burwell goes.
Talking about the law in relation to SCOTUS decisions is a waste of time.
Leftist judges will support the Leftist party line, period. The Constitution and Law are just obstacles they must circumvent or ignore.
This case is far more important than Obamacare itself. Too many people are focusing on what will happen to it based on the Court’s decision.
But the real issue whether or not a law means what its plain language says. If it doesn’t, that means the executive branch can interpret any law it wishes to accomplish what Congress is unable or unwilling to do, a gross usurpation of legislative authority.
In short, a ruling against King means that there is no such thing as law, and that the executive branch has unlimited and unchecked power to capriciously change what it calls “the law” at whim.
You can call a horse a cow, but just because you do, that doesn’t make it a cow.
That passage says what it says. It says that a subsidy is the lesser amount of the state exchange subsidy or the formula amount that the final cost of a monthly plan exceeds an applicant’s monthly income.
If the state exchange subsidy is ZERO then there can be no subsidy NO MATTER what the other amount is. Zero will always be the lesser amount unless the formula cost is zero or a negative number, in which case the subsidy would still be zero.
So, since this is a formula to be worked out, and the term ‘state exchange’ has a real meaning, then the Courts can say whatever they want about who meant what, but the bottom line is that the words say what they say.
Why don’t they fix this instead of pretending that ‘mandate’ doesn’t mean mandate, that ‘state exchange’ doesn’t mean state exchange?
Be honest, Kennedy, Roberts, et al, and kick it to the curb saying it needs to be fixed, and that counting on the court to pretend that words there actually aren’t there only increases disdain and rejection of this government. Inject truth into the equation.
Michael Barone excuses these four Democratic-appointed judges (justices) by providing a rationalization for their determination to get to a preordained result. How much longer will conservative commentators search for rationalizations to excuse the liberal wing of the Supreme Court and the liberal judges of the inferior courts?
When will it become plain to those at least who should know if not to the great masses of Americans who do not pay attention to these matters, that the leftists on the court have long since abandoned allegiance to the virtues of blind justice and have retained only the pretense? It is time that we openly proclaim that the Supreme Court has been infiltrated and misprisoned by the left. Recognition of this fact by the general public is not an unalloyed benefit to conservatism because it will have a tendency only to increase cynicism and cynicism is the handmaiden of leftist "transformation" of America.
Conservatism should recognize and expound this obvious reality in conjunction with an Article V reform of the judicial process and of the Supreme Court itself. We should not merely complain and thereby foster more cynicism, we should supply the remedy.
Several states that originally set up exchanges have scrapped them (after wasting millions of taxpayer dollars).
The CBO projects that premiums will spike, so even people who are getting subsidies may not be able to afford it.
It’s a mess.
Indeed. The Rule of Law was a nice concept while it lasted. But these days a simple term like "exchanges established by the state" actually mean NOTHING and can be ignored if it suits 5 judges out of 8.
Because they know they don't have the votes to "fix" it, so the Supreme Court will take on the role of SUPER LEGISLATURE and fix it for "us".
The Supreme Court as the Savior of lousy legislation.
The Constitution is no longer a "living document". It is a "DEAD LETTER."
ObamaCare is in terms of policies, a huge crony corporatist scheme with the government having companies put costs on policies that must cover everything and the government kicking money the companies’ way. (It boggles the mind how this is better than just letting companies sell policies.)
In terms of control, it is cradle to grave ceding of power over life/death decisions to your federal death panel. (It's not nanny state when they want to kill you as soon as possible. It's death cult. Doesn't take a genius to figure out that it's not a positive development.)
I read a transcript of the exchange and at some point the governments lawyer says the IRS can interpre “state” as meaning fed/state, the law allows for it.
Then Roberts asked if the IRS under a new administration could interpret state to mean only “states” as the word implies.
It’s going to fun when the SC rules that laws don’t mean what they say.
What do you have in mind for judicial reform?
Then Roberts asked if the IRS under a new administration could interpret state to mean only “states” as the word implies.
This whole argument is irrelevant. Chief Justice John Roberts said, “It is not our job to protect the people from the consequences of their political choices.”
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Is Obama's lawyer telling the Supreme Court the following: "If not a single one of the 50 states opened up a marketplace, the ObamaCare law states very clearly that anybody in those 50 states could still get a tax subsidy by enrolling in the federal government exchange."
1. If the law clearly states---according to Obama's lawyer---that the federal government exchange tax subsidy would be open to anyone even to those persons who live in a state without its own exchange, then why would any state be motivated to open up its own exchange, when it could easily pass the cost and headaches of an exchange to the federal government's own exchange?
2. It makes no sense to me for a state to open up its own exchange, if the federal government, according to Obama's lawyer, would automatically give subsidies to all applications to its own federal exchange, if a state did not have its own exchange.
3. As I see it, the only way that the states would ever consider opening its own exchange is if the federal government somehow put tremendous pressure on the states to do so.
4. And the key pressure would be this: Enrollees could receive tax subsidies only if their state opened up its own exchange.
5. The Supreme Court Justices should have asked Obama's lawyer this question: "Are you telling us that if not a single state opened up an exchange/marketplace, the ObamaCare law says that the federal government exchange would then automatically grant subsidies to all enrollees from all 50 states?"
6. Protecting the federal government: I think that the authors of the ObamaCare law tried to protect the federal government (1) from the possibility that not a single state would open up its own exchange and (2) from the nightmare that thousands of enrollees would overwhelm its own federal exchange if there were no state exchanges by emphasizing in the law that enrollees could get tax subsidies ONLY if they joined a state's exchange.
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