Posted on 11/07/2014 11:43:33 AM PST by 2ndDivisionVet
In a significant setback for the Obama administration, the Supreme Court just agreed to review King v. Burwell, the Fourth Circuit’s decision upholding an IRS rule extending tax credits to federally established exchanges. The government had asked the Court to take a pass because there’s no split in the circuit courts over whether the IRS rule is valid. At least four justices—it only takes four to grant certiorari—voted to take the case anyhow.
As I see it, what’s troubling here is not that the Court took King in the absence of a split. Its rules permit it to hear cases involving “important question[s] of federal law that ha[ve] not been, but should be, settled by this Court.” It’s not remotely a stretch to say that King presents one such important question. On this, I part ways with those who claim that granting the case marks a clear departure from the Court’s usual practices.
No, what’s troubling is that four justices apparently think—or at least are inclined to think—that King was wrongly decided. As I’ve said before, there’s no other reason to take King. The challengers urged the Court to intervene now in order to resolve “uncertainty” about the availability of federal tax credits. In the absence of a split, however, the only source of uncertainty is how the Supreme Court might eventually rule. After all, if it was clear that the Court would affirm in King, there would have been no need to intervene now. The Court could have stood pat, confident that it could correct any errant decisions that might someday arise.
There’s uncertainty only if you think the Supreme Court might invalidate the IRS rule. That’s why the justices’ votes on whether to grant the case are decent proxies for how they’ll decide the case. The justices who agree with King wouldn’t vote to grant. They would instead want to signal to their colleagues that, in their view, the IRS rule ought to be upheld. The justices who disagree with King would want to signal the opposite.
And there are at least four such justices. If those four adhere to their views—and their views are tentative at this stage, but by no means ill-informed—the challengers just need one more vote to win. In all likelihood, that means that either Chief Justice Roberts or Justice Kennedy will again hold the key vote.
None of this bodes well for the government. That’s not to say the government can’t win. It might. As I’ve said many times, the statutory arguments cut in its favor. But the Court’s decision to grant King substantially increases the odds that the government will lose this case. The states that refused to set up their own exchange need to start thinking—now—about what to do if the Court releases a decision in June 2015 withdrawing tax credits from their citizens.
The case for certiorari could also be made that this case involves a key component of the ACA that affects millions of people in many states that will eventually get to the Court anyway. So, it would be better for all concerned to decided the case sooner rather than later.
The Court only takes about 200 cases a year, so they generally pick them on their perceived importance.
Bottom line is you really can't tell which way they are leaning just from the cert grant.
You would think, but I can see where the SC would twist that pesky equal protection clause in the 14th amendment into meaning the subsidies are legal even in the non exchange states. Their logic might be you cannot give subsidies to one class of people in certain states and not to an equal class of people in other states. Instead of deep sixing the law, the court expands it by judicial fiat.
Nah, they need to euthanize it now so Hillary can do it properly after her coronation.
Unless Roberts comes up with a novel “solution” like taxes.instead of mandates. Maybe redefining the word state to mean federal government in this case.
Very true words.
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
Informed commentary and all court filings and judicial opinions are available here:
http://www.forbes.com/sites/michaelcannon/2014/11/07/king-halbig-et-al-head-to-the-supreme-court/
“I don’t want to give Justice Roberts any credit, but it is possible that by refusing to strike down ObamaCare, Roberts might possible have destroyed the Democrat party.”
It certainly didn’t help them on Tuesday.
The problem is that the states just need to set up their own exchanges and Obamacare is going forward again. The feds will be pushing them to do so, and other than the cost of the website and staff, it won’t cost each state a lot. Not like expanding Medicaid will.
“Dare we hope?”
Don’t want to get hopes too high, but this could do it.
Basically, the law says one thing, and WITHOUT AMBIGUITY - which is that subsidies ONLY are to exist for states that set up “exchanges” and therefore no subsidies will exist for states that choose not to (and thus reverted to the federal system). Very simple.
As to whether this was a “mistake” in the law DOES NOT MATTER. The law, as written above, was the law that was voted on. It is NOT up to the courts to make assumptions as to what the law was ‘meant to be’ because they simply cannot know what went into it. For example, could the 60th vote in Senate have happened if the law had been written to also include the federal system? Maybe so, maybe not. I have read that there were some holdouts that insisted there be no subsidies in the federal system, but that doesn’t matter now - the law is what is WRITTEN ON THE BOOKS, not what some Democrat hack-judges want it to be.
So now the BIG BOYS take it up. We already know that at least 4 justices want to give this a serious review and are probably inclined to tell the Dems to take a hike. Maybe Roberts is one of them...if so, the Dems are in HUGE TROUBLE here, for if the law is upheld to be what is WRITTEN, then Obamacare is pretty much over for states like Texas and half of the remaining states...and will probably be put to sleep once and for all, nationally. This is a REALLY BIG DEAL and may actually end this nightmare, finally.
“Bottom line is you really can’t tell which way they are leaning just from the cert grant.”
We’ve been surprised before. With the last ACA ruling, for example.
“The problem is that the states just need to set up their own exchanges and Obamacare is going forward again. The feds will be pushing them to do so, and other than the cost of the website and staff, it won’t cost each state a lot. Not like expanding Medicaid will.”
Not happening in Texas, not with the bunch we’re swearing in, in January. Maybe other red states, but DEFINITELY NOT TEXAS.
You mean the magic morphing penalty that can change from a penalty to a tax and back???
I think one of the FReepers here put it best: The Dems would JUST LOVE to see the Albatross around their necks, known as Obamacare, simply go away. They have A LOT of white voters to try to recover in 2016, and being rid of Obamacare, without having to admit their failure, would be a dream come true for them.
...and, of course, it would be a dream come true for the country too.
The next GOP POTUS needs to add 6 more RABID RIGHT WINGERS to this motley collection of fools for a total of 15 “Justices”
FDR had the right idea,it’s the only way to ensure an agenda is forced through.
With the court and a compliant Congress in hand, a DC outsider as POTUS could PERMANENTLY ensure the marxists never control any branch of government again, and decimate the Federal apparatchiks.
Keep your day job. This has nothing to do with "equal protection" and the question of severability is not in play either. They are not being asked to declare the ACA unconstitutional. They are being asked to rule that the IRS regulation does not follow the letter of the law.
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