Obamacare’s Chances Of Survival Are Looking Better And Better

FIVETHIRTYEIGHT ^ | 03/06/2015 | Oliver Roeder

[SeekAndFind]

Solicitor General Donald Verrilli won Wednesday’s oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act. Or at least that’s what the wisdom of the crowd is telling us.

When we previewed the case, the predictors at FantasySCOTUS saw it as a 5-4 reversal, with Chief Justice John Roberts essentially sitting on the fence. (A reversal could result in the loss of billions of dollars in federal subsidies that are helping millions of Americans in more than 30 states purchase health insurance.) Now, they see it as a 6-3 affirm — in support of the government. (Note, though, that Roberts and Justice Anthony Kennedy are still seen as on or near the fence.)

Here are the shifts in the predictions over the course of the past few days. The plot represents a rolling average of the last 200 predictions entered by FantasySCOTUS players. The proportion of predicted votes to strike a blow to the ACA fell sharply Wednesday.

Jeffrey Toobin gives an overview of the oral argument — and his reading of the tea leaves — in The New Yorker. He suggests that Roberts’s relative silence may have been the most telling of all. The crowd agrees.

Roberts was seen as significantly less likely to vote against maintaining the ACA than he was before oral argument. Kennedy, another swing vote, also came away seeming less likely to vote against the ACA.

JUSTICE	REVERSAL CHANCE BEFORE	AFTER
Scalia	91%	93%
Thomas	90	92
Alito	88	91
Kennedy	66	50
Roberts	53	43
Ginsburg	17	12
Sotomayor	17	12
Breyer	17	11
Kagan	16	10

Oral arguments have thrown us off the scent before, however. In the previous major ACA challenge, Verrilli’s performance before the court was panned. “He was passive,” Toobin told Politico in 2012. “He was stumbling. He was nervous. I was just shocked.” But Verrilli emerged victorious then.

Despite the shifts on King v. Burwell, the outcome is still up in the air. Josh Blackman, FantasySCOTUS’s creator, told me: “Going into arguments, I thought the case was a tossup. Leaving arguments, I still think the case is a tossup. And it looks like the players of FantasySCOTUS agree: It is a tossup.”

[Bob434]

[[It doesn’t. FYI, Robert’s single question indicated his antagonistic position to the argument that the legal passage under question was ambiguous]]

I beg to differ- Roberts has indicated by his questioning that he believes it’s up to presidents to interpret the details of the case/HC law- I can’t remember exactly how he worded it, but it seemed to indicate he was going to allow the law, then let presidents repeal or reenact the law as they see fit- which is in lien with his previous statement about the passage of the HC law I nthe first place that the supreme court’s job is ‘not to protect people from poor choices in elections” or something along this line-

[Bob434]

[[Make no mistake -the Court is about to rule on it’s own relevancy here. Because if they rule that the actual law can be openly broken by an Agency’s claimed interpretative needs,]]

Again, just a further point- Roberts has indicated it seems that he is going to allow president can break or reinforce the law according to their interpretive needs- I wish I had book marked the article discussing Robert’s question and indication-

[cuban leaf]

This should have been closed for discussion in the first half hour.It was a no-brainer. We lost.

---

I’m not so sure.

If we DID lose, I’m anxious to see how they try to alter the plain definition of words. It will be high comedy if nothing else.

[Talisker]

I beg to differ- Roberts has indicated by his questioning that he believes it’s up to presidents to interpret the details of the case/HC law- I can’t remember exactly how he worded it, but it seemed to indicate he was going to allow the law, then let presidents repeal or reenact the law as they see fit- which is in lien with his previous statement about the passage of the HC law I nthe first place that the supreme court’s job is ‘not to protect people from poor choices in elections” or something along this line-

That's not at all what happened. Robert's question drew attention to the point that the Agency would be claiming to be making a "legal" interpretation of a law that had been sent back to them for being illegally ambiguous. He was pointing out the contradictory, and even hypocritical, nature of the claims of normalcy and appropriate due process the Government's Attorney was making.

In other words, his question led the GA to admit that he felt that if the USSC allowed a the situation to be ambiguous instead of ruling against the government outright, then the Agency would be thereby empowered to replace the Court in the determination of interpreting the legality of the matter.

This is how a Chief Justice points out that the government is asking the Court to invalidate it's own existence.

[stephenjohnbanker]

” I’m anxious to see how they try to alter the plain definition of words”

I presume you read the Roberts opinion. You can’t get any worse than that.

[tbw2]

When Roberts first voted in the majority “not constitutional” and then flipped his vote to “constitutional”, there were conspiracy theories he was blackmailed.
Now that we know the NSA has files on everyone, the feds hacked Congresspeople’s computers, spyware on Sharon Atkinson’s system, now the theory that the feds had blackmail on Roberts and used it is much more likely.

[Political Junkie Too]

And I thought it differently from that.

I heard him to ask if an ambiguous law means the President wins vs the law is kicked back to Congress to resolve the ambiguity?

In other words, an ambiguous law is an unenforceable law, and an unenforceable law is an unconstitutional law. The solution is not to let this president decide and then have the next president decide otherwise, the solution is to declare it either unconstitutional and kick it back to Congress to resolve the ambiguity or to say the law is as its written and no ambiguity exists.

But either way, ambiguous law does NOT mean the President decides.

-PJ

[X-spurt]

What happens with that if there’s a TIE?

Good question.

Sadly, many here look at this as a game of checkers or tic-tac-too, rather an in-depth chess game it really is.

[X-spurt]

This case before the SCOTUS is not as to the constitutionality of the nobamacare law itself, which kagan would be in conflict, but rather is to the constitutionality of the Executive Branch to make or change laws without the consent of Congress.

[X-spurt]

Well thought and well said.

[depressed in 06]

The only right left in America is the right to be robbed by the dependent classes.

[Sans-Culotte]

When Roberts first voted in the majority “not constitutional” and then flipped his vote to “constitutional”, there were conspiracy theories he was blackmailed.

The only problem I have with the "Roberts was blackmailed" theory is that it is difficult for me to conceive of anything worth getting blackmailed over in Washington. We've had a horndog president getting oral sex in the White House, a D.C. mayor caught snorting coke (and now they want to build a statue of him), a congressman whose boyfriend ran a rent-boy operation out of his apartment, and so forth. Unless Roberts was filmed killing and eating a baby, I don't see what they can have on him.

[tanknetter]

The whole blackmail thing to me falls apart on the notion that material capable of blackmailing the Chief Justice into changing his vote on a single (if incredibly important) issue wouldn’t be used instead to pressure him to resign.

Its not like Roberts hasnt been fairly center-right on most of the other issues before the court. Why settle flipping him for a single victory on Obamacare when Obama could get appoint a fifth Liberal Justice as well as a new Liberal Chief Justice?

Occams Razor applies, IMHO. Roberts was either concerned about the non-partisan appearance of The Court, or wanted to teach the American public a lesson about the consequences of their electoral choices.

[tbw2]

There is the possibility that his adoption of his children from Ireland was illegal.

[cuban leaf]

I presume you read the Roberts opinion. You can’t get any worse than that.

---

It was pretty bad, but this is much more plain. It will be interesting if they find for the FedGov.

[b4its2late]

I hope you’re right.

[Talisker]

Roberts referred to “Chevron,” a 1984 decision that actually allows an Agency to interpret ambiguous laws within certain fairly strict parameters. Is based on the idea that in complex issues, laws overlap and can seem somewhat contradictory, but that that is an inescapable situation and so should be accepted, and more, that it should not invalidate the law but allow the Agency to interpret it “within reason.”

While it is heavily cited by the government to support power grabs, it is obviously a very dangerous ruling in the wrong hands. Roberts indicated his understanding of that danger by asking the GA if he “accepted” Chevron, perhaps at all but certainly in this case.

At that point the GA went into full shifty lawyer mode. Because if he said yes, and accepted the easy solution of arguing that the IRS (in this case) should adjudicate the implementation of federal subsidies, then (as Roberts pointed out), the next administration could simply reverse that interpretation. So instead he suggested that the Court simply rule that it is not an ambiguous situation at all.

However, Roberts has his own shifty lawyer mode, and that was the answer he wanted confirmed. Because in fact, there is NO legal ambiguity in this matter - the law is perfectly plain and clear, and has a demonstrable history of Congress writing it specifically as it is written.

What has, therefore, created the claimed “ambiguity” is the fact that the federal government had deliberately broken that law and gone ahead and provided subsidies to millions of people they had no authority - by the actual law inner consideration here - to make payments to. And now, the government is literally pointing to the results of their breaking the law and claiming the fact that they could successfully break the law and make those illegal payments means that the law they broke is ambiguous!

But that’s not the topper - what Roberts got the GA to admit is that he wants the Court to legalize this illegality by ruling the law is not ambiguous (which it isn’t) but actually means the OPPOSITE of what it clearly and simply says. Because if the government broke it, then it has therefore BEEN interpreted as the opposite of its plain meaning BY the fact it was illegally broken!

It’s EXACTLY like claiming that candy bars should be free BECAUSE so many are stolen, that the size of the theft and the numbers of people who would go without candy bars if stealing them was illegal MEANS that the criminal statutes against stealing candy bars should be legally interpreted as the OPPOSITE if what they say - BECAUSE they’re so widely broken.

And, of course, if such a ruling is actually made, then, quite literally, the Court erases itself, because it literally would be ruling that no matter what law is passed, it only actually means whatever the government actually chooses to DO, even if it does the exact opposite of the law - in fact, ESPECIALLY if it does the exact opposite of the law. So, in such an environment, the Court literally would be ruling that it would cease to exist as the interpreter of the law.

And that’s what Roberts was pointing out with his question.

[cuban leaf]

I presume you read the Roberts opinion. You can’t get any worse than that.

---

It was pretty bad, but this is much more plain. It will be interesting if they find for the FedGov.

Thing is, what a lot of people are forgetting is that plenty of people involved in creating this law have gone on record stating that they intentionally left the FedGov exchange concept out of it to give states incentive to start exchanges. Now the fedgov does it without authority of any kind and they argue the law says they can?

That is just stupid.

[stephenjohnbanker]

Beyond stupid.

[cuban leaf]

Great post! It also gives me hope.