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.
Stop teasing me ...
At this point I think the Dems would be begging for this to get tossed before it destroys their party.
Might have to do more. Pray.
After the gymnastics Roberts went through to declare that the federal government could force individuals to buy insurance, I wouldn’t hold my breath.
my thots too...
We are allowed hope if you assume that:
1. Supreme Court Justices can read plain English.
2. They care about the Rule of Law.
3. They are not subject to blackmail by Obama.
Given what we know about the current batch of Supremes, I give us about a 50/50 shot at success. At least 4 don't give a hoot about the Rule of Law and there is a high likelihood that at least one can be blackmailed.
good chance the court will say the ACA means whatever the Sec of HHS says it means
I think that’s a fair interpretation, but it’s not the only one.
An alternate could be that those gymnastics specifically and directly condemn the ACA, and that further, Roberts aim was for an election turned out like the one this past Tuesday. Elections have consequences.
I don’t particularly have faith in the latter one, but it is at least plausible.
I’m not an optimist, but it’s possible that we will win this one. The political motive to twist the law and the Constitution is gone in this second case, and the issues are different. Roberts and Kennedy could both rule in favor of the rule of law, for 6-3.
Doesn’t the ACA law clearly say that subsidies can ONLY go to exchanges that are established by States - NOT those established by the Federal Government?
If so, its a simple case of merely following the law, isn’t it?
You’d think so, wouldn’t you?
We will know in about 6 months...when ObamaCare comes into full force.
Don’t hope....not yet anyway.
I do not believe judges are those ‘neutral’ arbiters of law that are storied for their dedication to truth, justice, and the American way. I think they are bald-faced politicians.
That said, the republicans have a few judges on the scotus bench. I would classify Kennedy among them.
So, you want to rewrite the law and fix it, and you don’t have any leverage over a veto-prone president. What do you do? You bring the other arm of your coalition, the Scotus, with you to the bargaining table. “Listen Barack, we’ll let you keep your legacy if you let us rewrite it. It’s killing the economy and we want to fix it. If not, we’ll just strike it down. Will you negotiate it or will you allow the only piece of legislation with your name on it to be...poof...gone?”
So, I see a rewrite in the works.
And I thought the original ruling would be a no-brainer too.
Fool me once shame on you. Fool me again shame on me.
Equal protection demands that if they rul against the irs, then the Aca be thrown out.
While snooping around the DUmp on election night I noticed they make it a point to always call it “ACA”. Now if this is their favorite President’s signature achievment and the biggest deal to ever come out of Washington in 200 years, wouldn’t they be the first to call it “Obamacare’ in honor of their fearless leader?
I have long thought that Roberts was giving the Democrats the rope to hang themselves. Too many of his other decisions were right down the Constitutional line.
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