Coming Attraction: Argument Digest

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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87 Responses

  1. Avatar morat20 says:

    It’s been fun to watch.

    If I understand correctly, the petitioners have another set of brief’s to file this week or next? I hope so, because the ones filed a few weeks ago (from the US government, multiple states, etc) were pretty…well, devastating.

    I’m pretty fond of the one that, with some exasperation, points out that if the petitioners claim is correct, Congress therefore requires the creation of federal exchanges that no insurance plan can qualify for, that no one can use, and then requires detailed reporting on the empty exchanges with no insurance companies and no people.

    I’d find myself deeply amused if this was punted back downhill over standing — given that, if we just assume the Court is blatantly partisan, those most likely to rule against the government are ALSO predisposed to really rigid standing requirements (and have happily used that to punt cases before).Report

    • Avatar Michael Cain says:

      Does the case go back if the plaintiffs lack standing, or is it just dismissed? Sending it back to a lower court with instructions for the attorneys to find a set of plaintiffs that actually have standing seems odd.Report

      • Avatar morat20 says:

        It gets Das Boot, if I understand. Just flat out rejected — not on merits, so the lawsuit can be brought again if clients with standing are found.

        I think one of the four might just barely qualify. I know one’s eligible for Medicare (thus not required to be on the exchanges), and two for the VA (same deal). I think the last’s problem is his/her official address is a motel zoned ‘not for long-term residency’ which means his or her actual residence in a federally set up exchange state is highly questionable.

        *sigh*. I have a hard time taking the plaintiff’s case seriously, because so much of what they’re arguing requires either just outright ignoring large swathes of settled precedent (like the Court’s duty when it comes to ambiguity in a law, or the deference due to Congress and the Executive when interpreting ambiguous laws) to the simple fact that the clause in question is only ambiguous if you ignore the ENTIRETY of the ACA other than that one clause.

        Ignoring the entirety of a statute to interpret one tiny section of it is a big, huge, giant no-no.

        Honestly, I think the people behind this lawsuit were surprised someone accepted their argument at all — and that’s why their plaintiff’s claims of standing are so poorly vetted.Report

  2. Avatar Stillwater says:

    Looking forward to it, Burt. I read the briefs filed last year (the first two, I think) and the gummint’s case sounded pretty dang compelling. Circumstantially! So a lot is gonna rest on “plain language of the text” arguments and all that. My prediction: 6-3 in favor of gummint with an opportunistic Scalia jumping to the opposition solely to rage against the machine.Report

    • Avatar Michael Cain says:

      Having watched hurried last-minute drafting happen (at the state level), and how the election of Sen. Brown made it impossible to run the PPACA through a conference committee (the usual place for tidying up the language), I’ve been surprised that there aren’t more — and more problematic — drafting errors.Report

      • Avatar Stillwater says:

        That’s a good point. My own view is that writers of language perfectly attaining the inclusive/exclusive divide in a complicated bill would have to be collectively omniscient. I’m always impressed that they get as much correct as they in fact do.Report

      • Avatar Morat20 says:

        It also doesn’t really matter. Long-standing precedent has been to look at the ‘whole of a law’ — taking a single bit out of context just isn’t done. Adler and Cannon’s contention requires ignoring the entirety of the rest of the law, which is a…fundamental mistake.

        Furthermore, you’ve got stuff like Chevron (which says when it comes to ambiguity in a law or part of a law, all the government needs is a reasonable interpretation) and then there’s the fact that Courts are (again by long standing tradition and precedent) supposed to salvage laws in cases like this, resolving ambiguities in favor of saving the law. (Which was, in fact, used in the first ACA case!).

        The idea being that the Court isn’t there to nitpick, it’s to determine Constitutionality and legality. They’re SUPPOSED to give deference to the Legislative branch, not be — well — grammar Nazis (metaphorically). Because the role of the Legislative branch is to make law, and striking down a law over a misplaced comma or other minor drafting error, when the intent is clear, is not what the Courts have ever done.Report

  3. Avatar zic says:

    There was a piece in Mother Jones a while back about the four individuals named in the case, and that they might lack standing. I’d been meaning to ask about it here:
    http://www.motherjones.com/politics/2015/02/king-burwell-supreme-court-obamacareReport

    • Avatar zic says:

      (Sorry, @morat20 , I did not see that you were talking standing, too.)

      The couple in FL might have standing; self-employed, purchase their own insurance, would save a bundle if they purchased in the exchanges.Report

      • Avatar Morat20 says:

        I admit, I’m having a hard time in finding ‘harm’ in giving someone money.

        They’re REQUIRED to purchase the insurance — that’s not under scrutiny. Their claim of harm is, um, they’re being given subsidies? And that harms them, somehow. Weirdly.Report

      • Avatar zic says:

        By this logic, public schools would be a harm, no? And food stamps. And let’s not forget first responders, the firemen who’s training is subsidized so that they can be first on the scene to contain hazardous waste spills.

        Plus, if the court asked, at least one of the people, named in the case, does not think the suit would prevent is a harm. She had know notion what they signed.

        Legally, I wonder if that has any merit? They were recruited, and at least two have almost no comprehension of why.Report

      • Avatar Stillwater says:

        By this logic, public schools would be a harm, no? And food stamps.

        Yeah, that’s the argument. And it’s not bat-schight crazy. Someones have to pay for all that stuff, yeah? The argument can’t be refuted by mockery, seems to me.Report

      • Avatar Mike Schilling says:

        I admit, I’m having a hard time in finding ‘harm’ in giving someone money.

        It takes away their ambition.Report

      • Avatar Brandon Berg says:

        @stillwater Yeah, that’s the argument. And it’s not bat-schight crazy. Someones have to pay for all that stuff, yeah? The argument can’t be refuted by mockery, seems to me.

        For some reason, being a taxpayer does not give you standing to challenge government spending, even though it clearly does impose a cost on you. Given that constraint, Morat’s question is legitimate: How do they, as recipients of the subsidy, have standing to sue? I have no idea.Report

      • Avatar morat20 says:

        For some reason, being a taxpayer does not give you standing to challenge government spending, even though it clearly does impose a cost on you.
        Well, practically because it keeps the crackpots from clogging up the courts suing over ever penny spent on everything.

        But also because “harm” and “costs” aren’t the same thing, and also harms generally can’t be generic but have to specific. “I pay taxes for things I don’t like” is too generic — that’s true of everyone, and can’t possibly NOT be true for any penny of spending, therefore it’s a non-starter.Report

      • Avatar Brandon Berg says:

        Sure, but this creates a situation no one has standing to challenge a law that may collectively be costing taxpayers billions of dollars or more. On the other hand, this is largely a moot point, given that the Supreme Court has collectively chosen to ignore the plain meaning and historical context of the Constitution in favor of just giving Congress free rein to spend money however it sees fit.Report

      • Avatar morat20 says:

        Sure, but this creates a situation no one has standing to challenge a law that may collectively be costing taxpayers billions of dollars or more.
        You might wish to argue with conservative judges, who are the ones who have been basically making proving standing harder and harder.

        But why would you, as a taxpayer, have standing to sue over spending? If the spending is unconstitutional, then someone’s rights are being violated in some way — whether an individuals, a corporations, or a state’s. In which case, someone DOES have standing.

        You seem to be bitter that there is no individual citizen’s veto, that one can’t personally sue Congress to stop spending they don’t like. Yes, that’s by design. You elect representatives to make those decisions for you, and those decisions are done by majority vote in Congress and subject to signature or veto from a President.

        I’m afraid that “My tax money is being spent in ways I don’t like, therefore I should be able to sue” is not now, has never been how things work. I don’t know why you seem to think you SHOULD have standing in that case. It’s never been that way, and in fact it’s explicitly spelled out that your elected Representatives are the ones to decide spending — your input into the process is called “your vote”.

        You’re asking for an America that never was, that is flatly opposed to the way the US government works (now OR then), and in fact wouldn’t actually work even if you COULD get it done.

        As I said — every penny the government spends, there is at least one American who doesn’t want that penny spent. Whether it’s on food stamps, Defense department, health research, or landscaping the White House. If individuals had the ability to define that as ‘harm’ there would be no government at all.

        A state of affairs that would get really bad, really quickly.
        On the other hand, this is largely a moot point, given that the Supreme Court has collectively chosen to ignore the plain meaning and historical context of the Constitution in favor of just giving Congress free rein to spend money however it sees fit.
        “Plain meaning” means “The way I interpret it”.

        It means that for you, it means that for me. There is no “objective truth” of the Constitution. It was written vaguely so it could get enough votes to pass. It’s literally vague and open to interpretation by design.Report

      • Avatar Kimmi says:

        Brandon,
        are you operating under the presumption that US courts are under maritime law?
        *ducks*Report

      • Avatar Jaybird says:

        As much as I am sympathetic with the argument that any given person might not have standing to oppose a particular law, I’m less sympathetic with the argument that nobody should have standing to oppose a law because, hey, this is how the system works and if you don’t like it, get a new representative.Report

      • Avatar morat20 says:

        Jaybird,

        Spending bills — which is the topic — aren’t actually laws in the first place.

        Actual laws always impact someone, who then has standing if they can show that the impact was somehow harmful. (This can be a state, a corporation, or an individual).

        But the fact that we spent 50 million on, oh, NiH research? That’s not a law — that’s a budget. Not even the people who got (or were denied) funding get to sue. (Well, unless they can show that somewhere in that budgetary decision making their Constitutional rights were violated or some other law was violated).

        So no, no one really has standing to sue over budgets and spending. They can only sue over what that spending is used for, if they can prove harm. And harm isn’t “Because I don’t like it, darnit”.Report

      • Avatar Jaybird says:

        Given that lawsuits take forever and that there are a million ways to play games with a lawsuit anyway, perhaps “standing” is a way to make sure that the process itself isn’t abused.

        But I’d kinda prefer a system where the plaintiff was determined, legally, to have not been harmed (get a life) than one where we agree that even though, in theory, she may have been harmed but, TS, she didn’t have standing to complain about it.Report

      • Avatar Kolohe says:

        “So no, no one really has standing to sue over budgets and spending”

        Except for Idaho potato farmers and the elected government of the City of New York.

        http://en.wikipedia.org/wiki/Clinton_v._City_of_New_YorkReport

      • Avatar Gaelen says:

        @jaybird
        It works in your preferred way. Anyone can bring a lawsuit. But, that suit will be dismissed unless the person has standing–an injury or harm, harm is caused by the complained of action, and a favorable ruling will remedy the harm.

        With respect to standing in suits challenging government spending (other than on religious grounds), there is a long line of cases holding that the person is not harmed merely because money was spent in a way they disapproved of. In essence, they are determined, legally, not to have been harmed.Report

      • Avatar Jim Heffman says:

        “I admit, I’m having a hard time in finding ‘harm’ in giving someone money.”

        I think that you need new shoes. No, no, don’t argue–I know about shoes and you really need a new pair. Seriously, the state of your shoes (and shoes in general, for that matter) is utterly disgusting. And since I’m the one putting this requirement on you, it’s only fair that I compensate you for it. So I’m going to give you twenty bucks to go buy the shoes.

        Except that I want to make sure you buy the proper sort of shoes–I don’t want you to just waste this money on trash, after all! And you know those shoe guys will sell you the cheapest thing in the store just to fleece you. And I think that the best kind of shoe is the wingtip; easy operation with no confusing laces or straps, well-suited for walking, running, and light sports or manual labor activities, dressy enough to be worn with slacks or a suit but not so dressy as to be inappropriate for casual situations. And I think that red and green is a nice color combination, and I’ve done statistical studies showing that patent leather is the most durable material available, so I’m going to say that you can’t use the money to buy any kind of shoes other than red and green patent-leather wingtips.

        Also, it’s important that you keep your shoes maintained; well-shined and clean, and if the soles start coming away you need to get them fixed immediately. And, of course, this will all cost money, so I’m making a condition of the purchase be that you also buy the shoe seller’s protection and extended-warranty plans.

        Unfortunately all of this is going to cost a lot more than twenty dollars, but believe me, you really need red-and-green patent leather wingtips with the longest warranty the seller offers and prepaid shining services. So you’ll just have to make up the difference yourself. Hey, though, don’t forget–I’m giving you twenty dollars. So whatever it is you pay, it’ll be twenty dollars cheaper than you would have paid if I hadn’t helped! That definitely means these are price-competitive with the cheap junk you used to buy before I got involved.

        Wait, what do you mean you don’t want the money? It’s free! Also I already called the store and had them order a pair of red-and-green patent-leather wingtips, because I told them you’d be buying some! Oh, you think it’s too expensive? Well, guess what, I just made it illegal for you to not buy shoes that are not equal-or-better to red-and-green patent-leather wingtips with an extended warranty and prepaid shines. See you at the shoe store, you cheap jerk. I swear, people get so ungrateful when you give them free money!Report

      • Avatar morat20 says:

        Jim,
        The bulk of that rant has already been litigated. Neither the individual mandate nor the regulations defining acceptable insurance policies is in question.

        Solely whether or not the plaintiffs have to accept the subsidies.

        Which is the ‘harm’ in question. They allege they are harmed in the following manner:

        They allege the IRS subsidies are illegal. if they are illegal, they (the plaintiff’s) can’t get them. if they can’t get them, then the insurance is not affordable (per their income), which means they are then exempt from the requirement to purchase insurance (it’s too expensive for them), which means they don’t have to.

        So in short, their ‘harm’ is that they are forced to buy insurance because with subsidies it is affordable. But the mandate to purchase insurance, if affordable (same calculation!) is already constitutional. I’m perplexed as to how they can suffer a harm in that case.

        I’m required to buy insurance unless the cost of the insurance was more than a certain percentage of my income. They’re alleging harm because their insurance is discounted (by the subsidy) to below that percentage, and thus are required to purchase it. In short, they’re suffering the ‘harm’ that has already been established as perfectly legal!

        It’s ridiculous.

        (The filed brief for the plaintiff’s is pretty awful. Lots of table pounding, light on actual…anything, really. Their whole case for the intent of Congress is a Gruber quote, a pre-debate spitballing session, and a draft bill that was rejected. Oh, and some out-of-context statements that are refuted by the speakers themselves (members of both parties) in filed briefs) That’s…ridiculously thin. Doubly so when they’re having to claim it’s unambiguous and obvious. Which it has to be, otherwise they lose.)Report

      • Avatar Brandon Berg says:

        “Plain meaning” means “The way I interpret it”.

        It means that for you, it means that for me. There is no “objective truth” of the Constitution. It was written vaguely so it could get enough votes to pass. It’s literally vague and open to interpretation by design.

        If you were just to admit that you don’t actually care about the Constitution because it gets in the way of your policy preferences, that would at least be respectable, as long as you didn’t turn around and appeal to it when it suited your purposes.

        But when you start spouting this nihilistic horseshit about how nothing ever really means anything, as if words didn’t have generally accepted meanings; as if we knew nothing about the historical context; as if it made any sense at all to argue that the Supreme Court managed to discover some hidden meaning in the Constitution that somehow managed to elude everyone, even its authors, for 150 years; the only real question is whether you’re being intentionally disingenuous or just running your mouth about something you don’t understand.

        I’ll also note that you are, in this very thread, saying that the challenge should be laughed out of court on the grounds that the law obviously doesn’t say what the challengers say it does.Report

      • Avatar morat20 says:

        What you consider the ‘plain meaning’ of the Constitution is different than what I consider the ‘plain meaning’. Since I’m assuming you’re not a hypocritical liar (something you’re struggling with extending to me, but whatever), I can conclude “reasonable people disagree”.

        Since we’re staring at the same text, and if we assume we’re reasonable people disagreeing, then we’re stuck with ‘plain meaning’ is “how I interpret it”.

        It’s not nihilistic for me to recognize this plain truth. (I don’t think that word means what you think it does).

        Unless I should assume people who disagree with me on the Constitution’s meaning are all lying hypocrites? Maybe you all are, but it seems a bit unlikely. I admit, the world would be SIMPLER if everyone who disagreed with me was a lying knave.

        If you want to pretend it’s black and white, feel free. Nobody here is gonna take you seriously if you go into a spit-flecked rant about how anyone who doesn’t agree with your interpretation of the US Constitution is a nihlist, hypocrite, liar, or whatever.

        Good lord, man. The people who wrote the bloody thing didn’t even agree on what it meant.Report

      • Avatar Kimmi says:

        morat20,
        And we’d be well advised to realize that Jefferson and Adams were abroad, and Hamilton was too busy storming out of the proceedings to actually contribute meaningfully.

        Half of the drivers of the Constitution are people that history class fails to even give a simple mention to. I grew up in PA, and Morris wasn’t even mentioned!Report

      • Avatar Kimmi says:

        Brandon,
        Do you disagree with Hamilton’s read of the constitution simply because he wasn’t terribly effective at contributing to the final document?
        http://www.press.uchicago.edu/Misc/Chicago/910687.htmlReport

      • Avatar Jim Heffman says:

        “There’s no plain meaning to the Constitution, it’s meant to be interpreted as appropriate for the times!” they say, right up until we start talking about the Second Amendment’s well-regulated militia, at which point the Framers obviously meant an officially-recognized force that followed government orders and clearly didn’t mean individual citizens.Report

      • Avatar Jim Heffman says:

        “their ‘harm’ is that they are forced to buy insurance because with subsidies it is affordable. But the mandate to purchase insurance, if affordable (same calculation!) is already constitutional. I’m perplexed as to how they can suffer a harm in that case.”

        The point of my example was to show that subsidies don’t necessarily make something affordable for someone of extremely limited means.

        You can fall back on “well the Supreme Court said it was OK”, and I can cite the Dred Scott decision.Report

      • Avatar Don Zeko says:

        @jim-heffman quick, what is the “general welfare?” What does it mean to regulate interstate commerce? What constitutes a necessary and proper step necessary to carry out every other grant of power in the document? These phrases are simply not capable of having an unambiguous, specific, plain meaning.Report

      • Avatar morat20 says:

        Jim,

        Your example is unfortunate in that THAT argument has already been litigated and lost. You’re making an entirely different argument than the case before the court.

        That can’t be their definition of harm, because it’s already been decided that being required to buy insurance under those terms (total cost under some % of income) is Constitutional.

        These people are claiming that the can’t afford it without subsidies (the cost is higher than that % of income noted above), but that with subsidies the cost falls within the established %, and thus they have to buy it.

        But buying it isn’t considered harm, as long as it’s within that % of their income. That’s been settled. You can’t claim harm when subject to a legal and Constitutional law.

        So their harm argument boils down to “Subsidies make me switch categories and I didn’t want to” which seems mighty thin given the government decided those categories in the first place, and their argument does NOT extend to ALL subsidies — just the federally backed ones. So it’s not a harm if your state made the exchange to get bumped, but is if it didn’t.Report

      • Avatar Mike Schilling says:

        Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
        Section 2. The Congress shall have power to enforce this article by appropriate legislation.

        Means that Congress has no power to enforce this article in a way that makes the states in the habit of violating it feel sad.Report

      • Avatar Jim Heffman says:

        “buying it isn’t considered harm, as long as it’s within that % of their income. ”

        um

        That is what the whole case is about.

        The question of “is it considered harm to force citizens to purchase insurance” has not actually been discussed yet. NFIB v. Sebelius was about whether or not it was Constitutional to levy a fee for not purchasing insurance.Report

      • Avatar Dave says:

        @don-zeko

        quick, what is the “general welfare?” What does it mean to regulate interstate commerce? What constitutes a necessary and proper step necessary to carry out every other grant of power in the document? These phrases are simply not capable of having an unambiguous, specific, plain meaning.

        So?

        Who says it requires the plain meaning of the text to argue that the Constitution limited the powers of the federal government? That’s the horribly wrong way to go about things, and I don’t care which side of the fence people are on.

        Understand the structure of the Constitution and how it was created and then the conversation starts to get interesting.Report

      • Avatar Brandon Berg says:

        @don-zeko quick, what is the “general welfare?”

        This isn’t some great mystery. It’s discussed at length in Federalist 41. The short answer is that “promoting the general welfare” is merely a summary of the specific powers enumerated in the rest of that sentence. The long answer:

        Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

        ”But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

        But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

        This is a very solid case against the blanket-power “interpretation” for a couple of reasons. The first is that Madison’s argument here is pretty compelling. It wouldn’t make any sense to say, “Congress can do whatever it wants to promote the general welfare” and then go on to enumerate a bunch of specific powers already implied by the general power. It wouldn’t make sense to lift the “general welfare” language from the Articles of Confederation—under which everyone agrees that the Congress had very limited powers—to grant powers far in excess of what the very same language granted the Congress of the Confederation.

        There’s also the issue of what this tells us about the political context of the time. There were some people pushing for the blanket-power interpretation of “general welfare,” but they were antifederalists pushing this as an argument against ratification. Madison referred to this as an attack on the Constitution, because it never would have been ratified with the understanding that it was granting the Federal government such broad powers.

        The same arguments apply against the blanket-power interpretation of the interstate commerce clause.

        There are gray areas where reasonable people can disagree, of course (e.g. do air and and water pollution count as commerce between the states?), but there is simply no way an honest, informed person can conclude that the Constitution authorizes most of the things the Federal government does today.Report

      • Avatar Dave says:

        @brandon-berg

        but there is simply no way an honest, informed person can conclude that the Constitution authorizes most of the things the Federal government does today.

        Before morat or the other liberals jump all over you with painful and wrong counterarguments, let me make a couple of points.

        I agree with your arguments, but I don’t think you took the best approach. There is a way to settle this debate in your favor in that respect, but it needs a better method.

        The bad news is that it doesn’t make your last comment necessarily correct either. Like I said to @don-zeko , once we discuss the Constitution’s structure, the conversation gets interesting. That doesn’t mean anyone’s side gets everything it wants, and that’s because the debate is settled outside of the text itself. It has to be, but it can be because what’s not specifically mentioned in the Constitution, sovereignty, was so critical to the Constitution’s development, that the text has to be considered in light of it.

        The biggest problem with that is two fold: 1) it answers the argument historically; 2) it answers nothing today.

        I’d explain this further, but right now it’s sitting in the drafts section at about 4,000 words.Report

      • Avatar Dave says:

        @brandon-berg

        To clarify, I meant better in a way that doesn’t focus as much on the text, even with the history because all your opponents will do is hang on the text and the vague nature of it and keep the argument going in circles forever.

        Hit them between the eyes with sovereignty and it’s lights out. 😉Report

      • Avatar Brandon Berg says:

        @dave But to answer the question historically is to answer the question period. If the text of the Constitution does not have a fixed meaning, then we don’t really have a Constitution at all, just nine people making up whatever they feel like.

        This “living Constitution” bunk is so ridiculous that I simply don’t believe that anyone actually believes it. You can’t argue with someone who insists that it’s legitimate to just make shit up.Report

      • Avatar Jim Heffman says:

        “It wouldn’t make any sense to say, “Congress can do whatever it wants to promote the general welfare” and then go on to enumerate a bunch of specific powers already implied by the general power.”

        Although this does provide the government’s argument in the case at hand; the idea that legislation and the Constitution must be taken as a whole and their intent considered, rather than separating out distinct elements and claiming that they justify this or that decision.Report

      • Avatar Dave says:

        @brandon-berg

        This “living Constitution” bunk is so ridiculous that I simply don’t believe that anyone actually believes it. You can’t argue with someone who insists that it’s legitimate to just make shit up.

        Honestly, given some of things I’ve read here, I feel your pain. Come on. Are we really discussing the constitutional views of Alexander Hamilton as if they should matter? Are we to believe that the anti-Federalists that switched their votes said “Alex, you’re a big government type, but we’ll compromise and vote for it anyway”. Um…no.

        But to answer the question historically is to answer the question period. If the text of the Constitution does not have a fixed meaning, then we don’t really have a Constitution at all, just nine people making up whatever they feel like.

        Again though, the problem with this approach is that the text never had a fixed meaning. People thought the Alien and Sedition Acts were constitutional. The debates over the first Bank of the United States are well known as well. Even if I don’t think that the meaning of the text circa 1789 could in a million years justify Wickard v Fillburn, the problems I see with hanging our heads on the text is that it’s a hamster wheel.

        Still, even with this indeterminacy, I think there is more than enough evidence supporting a very strict construction of the text, if only through the very act of creating the Constitution itself. It wasn’t words like “necessary and proper” that drove the interpretation but rather the need to reinforce the boundaries between the separate sovereignty of each of the states and the sovereignty of the newly formed national “We the People of the United States”, created when the ratifying states transferred a portion of its sovereignty to the new government and effectively pooled it.

        Take that emphasis away and the case for strict construction weakens considerably. It was an interpretive methodology supporting a given set of values more than anything else, and I don’t think the Framers looked at it any other way.

        In a way, I’m taking a middle road position that’s sure to make everyone unhappy. 😉Report

      • Avatar Don Zeko says:

        @brandon-berg It certainly shows from the way you discuss this that you can’t get inside the headspace of people who disagree with you. I agree, by the way, that a great deal of constitutional law rests on the meaning of much of the constitution not being fixed in any permanent way. But that doesn’t mean that it’s meaning is as fluid as you suppose, because it can only be changed through the slow operation of a court system that is well insulated from electoral pressure and made up of judges who are professionally obligated to at least make a show of respecting precedent and the text. So it may be “making things up,” but it’s making things up in a slow and deliberate way that is only going to respond to sustained and substantial shifts in what people want out of the document. The process is at least as important as the “Thou Shalt Nots” in a constitution.

        And besides, if you’re looking for fixed meaning, what is your alternative? That we apply every aspect of the constitution exactly as it would have been applied in 1788 except where it has been modified by an actual constitutional amendment? This both locks us into governmental forms that can’t adequately adapt to changes in society, technology, and the economy and creates historical contradictions in our attempt to apply these rules as they were originally intended, whatever that means. For example, what do we do with incorporation? Is there a federal right to free speech that applies against conduct by the state governments? If so, is it the right to free speech as understood in 1788 or as understood in 1865? Beyond that, this mode of analysis is at least as rootless as liberal approaches when it comes to constitutional questions related to aspects of the modern world that didn’t even begin to exist at the dawn of the republic.Report

      • Avatar Don Zeko says:

        @jim-heffman That sort of construction makes perfect sense, and you see it all the time. If you’re, for example, setting out mitigating circumstances to be considered in a death penalty sentencing decision, you first spell out explicitly a bunch of things that you absolutely want judges and juries to take into account, and then you add a catch-all provision for the other things like that that might arise in a case but that you can’t anticipate when drafting the statute. Certainly the federal government doesn’t have a general police power in the constitution, but that hardly forces us to accept that everything the founders thought the feds could ever legitimately do from 1788 to the end of the republic was spelled out explicitly in article I. There was vagueness and wiggle room from the beginning, which is why there were disputes about the extent of the federal government’s power immediately.

        Also, why are you still talking about King v. Burwell as if it’s a constitutional case, rather than a statutory interpretation case?Report

      • Avatar Dave says:

        @don-zeko

        There was vagueness and wiggle room from the beginning, which is why there were disputes about the extent of the federal government’s power immediately.

        Have you ever read the notes to the various state ratification debates?Report

      • Avatar Don Zeko says:

        @dave No, I haven’t. Do you ask because there are bombshells in there that undercut what I wrote? I’ll grant that the Federal Government certainly turned out to be a lot more powerful than many people thought it would be at the time of ratification.Report

  4. Avatar Mike Schilling says:

    Im going to go out on a limb and predict that if the case is actually decided by the Court, Alito, Scalia, and Thomas are all going to find for the plaintiffs, while Breyer, Ginsburg, Kagan, and Sotomayor are going to find for the other side. What the law actually says and what the relevant precedents suggest is going to be completely irrelevant, except to help them choose the rationalizations they use to support what they wanted to do in the first place.Report

    • Avatar Morat20 says:

      Law and precedent is pretty clear. This was a freakin’ joke of a lawsuit until someone bought it, because it’s the sort of argument a first year law student with a hangover would bring up.

      The rebuttal briefs really are savage. I counted at least there or four separate and independent, primary, long-standing, Court practices or precedents cited that should get this laughed out of any court.

      But, you know — it’s summed up by the fact that the plaintiff’s interpretation requires the US government to set up exchanges that no insurance company can qualify for, that no citizens of that state can use, and keep detailed records on the tax subsidies those non-existent people get on the insurance plans that can’t exist. Not as an accident — that this is a deliberate PLAN. Congress just set out to do something nonsensical because, um, something something.Report

      • Avatar Mike Schilling says:

        Congress just set out to do something nonsensical because, um, something something

        They took the AUMF as a binding precent.Report

      • Avatar j r says:

        So your defense of your interpretation of the law is that congress wouldn’t do something nonsensical?

        That is far from an unassailable position.Report

      • Avatar morat20 says:

        So your defense of your interpretation of the law is that congress wouldn’t do something nonsensical?

        That is far from an unassailable position.

        It is if you know what ‘nonsensical’ would mean in this context. It doesn’t mean ‘won’t work’ or ‘I disagree with it’. It means ‘directly contradictory to the stated intent of the law’.

        Nonsensical has to do with internal consistency, not goals, end results, or methods.Report

      • Avatar j r says:

        It means ‘directly contradictory to the stated intent of the law’.

        That’s fine, except that to get to the “stated intent of the law,” you have to ignore the contrary parts of the law.

        And by nonsensical in this instance, what I mean is pass a law that contains instances of language that works at cross purposes. And that is exactly what happened.Report

      • Avatar morat20 says:

        And that is exactly what happened.
        No, it’s really not. It’s so unambiguous, in fact, that not a single Congressman — opposed or supporting the bill, nor a single State (whether they established an exchange or did not), nor the CBO, nor the IRS, not anyone read it that way until years later. (And only then, after multiple other legal challenges had been exhausted.)

        And the ONLY way to read it in an ambiguous way is to isolate a single clause from the entirety of the law, which is akin to doing math problems by ignoring order of operations.

        Legally, you don’t do that. You never do that. It’s a fundamental mistake. And since giant swathes of the same statute clearly assume that federally backed exchanges get subsidies, you can’t call it ‘ambiguous’. Any apparent ambiguity is resolved simply by reading the rest of the law.

        Or if you want a better example: It’s the legal equivalent of taking a sentence out of context, and using it to prove the opposite of the original statement.Report

      • Avatar LWA says:

        @morat20
        ” It’s the legal equivalent of taking a sentence out of context, and using it to prove the opposite of the original statement.”

        Theology schools offer advanced courses in doing just that.Report

      • Avatar j r says:

        Or if you want a better example: It’s the legal equivalent of taking a sentence out of context, and using it to prove the opposite of the original statement.

        We are not talking about a statement. We are talking about a piece of legislation. When you look at the way that legislation gets put together, that distinction matters.Report

      • Avatar morat20 says:

        We are not talking about a statement. We are talking about a piece of legislation. When you look at the way that legislation gets put together, that distinction matters.
        No, it doesn’t. heck there’s even a term for it — Noscitur a sociis. If a word or phrase is ambiguous, you refer to the rest of the statue to resolve it. The entire rest of the statute clearly considers federally established exchanges identical to state exchanges (in fact, they ARE state exchanges run by the feds). Which is why the plaintiff’s spend so much time hammering the table on Gruber, because they’re trying to prove Congress totally meant to withhold subsidies. (Their evidence: Gruber, a rejected draft bill. That’s it).

        The fundamental principle of statutory interpretation is to look at the whole of a law to determine it, not isolated clauses.

        Seriously, you can find all this by googling “Statutory interpretation” — the plaintiff’s brief requires tossing two or three fundamental principles of interpretation.Report

      • Avatar j r says:

        The fundamental principle of statutory interpretation is to look at the whole of a law to determine it, not isolated clauses.

        That’s fine, but the whole of the law includes those “isolated clauses.”

        And statutory interpretation is exactly what to courts are supposed to do and exactly what the courts are doing in this instance. Maybe the merits lean one way, but to argue that this is a joke runs directly contrary to the fact that two courts already agreed with the plaintiffs, one court went with the government but noted the ambiguous wording, and the Supreme Court decided to hear the case.Report

      • Avatar morat20 says:

        Statutory interpretation isn’t just a buzzword — there’s a whole host of rules and procedures that have come into place over a very long time, mostly because the role of the judiciary isn’t to nitpick laws (in short, no court wants to be stuck constantly having to send perfectly good laws back because some bored lawyer found that he could construct an argument to cause problems).

        So AGAIN — the point you’re just refusing to deal with — is that this clause, in isolation, is ambiguous. The clause in context of the REST of the law is not. Therefore, the ambiguity is clearly and cleanly resolved in favor of the interpretation that fits the rest of the law.

        There’s two ways to resolve this single clause — one way in which Congress denied subsidies to federally created exchanges. (This is, btw, probably unconstitutional because Congress didn’t give due warning to the states. Which means that had the IRS done so, states could — and judging by the fact that Texas is filing on behalf of the government here WOULD HAVE — brought suit with the end result being the courts ordered the subsidies extended to the federally created exchanges!). The other is that Congress intended subsidies to the federally created exchanges.

        You agree with that? It’s binary. Subsidies or no subsidies. Assume the ambiguity, two possible results.

        Now place it in context with the rest of the law. The law goes on to require that the Federal Government create exchanges for any state that does not. Furthermore, the law states the ONLY insurance options that can be on the exchanges — both federally created and state created — must be eligible for subsidies. To avoid taking the tax hit, customers MUST have subsidy eligible (again spelled out) insurance. And further, the federal government must track the types and numbers of purchases of insurance on the federally created exchanges.

        So if you resolve the ambiguity as “No subsidies” the law STILL goes on to require the Feds create state exchanges that no insurance plan can qualify for (because no one in that state can receive subsidies), and that no citizen may purchase (it will not count as being insured under the law) and then track these sales and data that don’t exist.

        If you resolve this as ‘yes, subsidies’ then the law details that the Federal government create exchanges that act in place of the State exchanges.

        Bog-standard statutory interpretation says you go with “yes subsidies” because going the other way yields an incoherent result.

        So again: In the context of the law, it is very clear that federally backed exchanges would receive subsidies. And according to standard judicial procedure, the very first way one handles an ambiguous clause (looking at the law as a whole) neatly answers the question.

        Which is why the plaintiff’s briefs try really, really hard to try to make a case for Congressional intent, while glossing over the rest of the language. That their intent argument boils down to “Congress made a really nasty threat, and just didn’t tell anyone at all” is pretty damning.Report

      • Avatar j r says:

        @morat20

        Your argument is circular. You’re saying that the law has to be interpreted in one way, because it doesn’t work if you interpret it in the other. Maybe it’s just a poorly written law that was drafted in a slapdash manner.Report

      • Avatar Morat20 says:

        our argument is circular. You’re saying that the law has to be interpreted in one way, because it doesn’t work if you interpret it in the other. Maybe it’s just a poorly written law that was drafted in a slapdash manner.
        Not circular. Context dependent. Jesus, it’s plain reading comprehension.

        If you read a paragraph with the word “cleave” in it (which can mean to both split apart OR push together), do you throw up your hands and claim the writer just wrote in a slapdash manner? Or do you read the rest of the sentence (or paragraph) to figure out which one makes sense?

        That’s how interpretation with laws work — that’s how it’s worked for a very, very, very long time. If you’ve got some bit that can be read more than one way, the FIRST thing a court is supposed to do is look to the rest of the law and say “Does one way make more sense with the rest of the law”?

        Call it ‘reading comprehension for courts’ if you want. Same idea. It’s not exactly novel. It’s not in dispute, there’s no one screaming to get rid of that practice. Well, except when doing so wins them the case right in front of them — but they’re probably a bit biased, hmm?Report

      • Avatar Stillwater says:

        You’re saying that the law has to be interpreted in one way, because it doesn’t work if you interpret it in the other.

        No, Morat is saying that on any interpretation of the ambiguous language reading it as entailing that federal exchanges prevent subsidies leads to an incoherence. I agree with him, actually, at least insofar as the evidence I’ve seen to date is relevant to that issue.

        Maybe it’s just a poorly written law that was drafted in a slapdash manner.

        Maybe, but that’s a different argument than the one Morat is making and responding to, seems to me. I mean, Morat could concede what you’ve suggested but still maintain that attributing coherence to the provisions in the law, rather than the opposite, is a requirement of the courts.Report

      • Avatar j r says:

        If you’ve got some bit that can be read more than one way, the FIRST thing a court is supposed to do is look to the rest of the law and say “Does one way make more sense with the rest of the law”?

        I’m not a lawyer and I don’t really care about the ACA one way or the other. I do, however, no something about policy and the political process. Your whole contention hear rests on the idea that the entire law is absolutely clear and coherently speaks with one authoritative voice, except for this one little clause, which if taken seriously renders the whole statute absurd. And that is just not true. The language appears in multiple places. And the practice of the federal government trying to force the states to action by withholding subsidies is far from an uncommon practice; it’s how the drinking age got moves to 21, for example.

        At the very best, the statute is ambiguous. Parts of it read as if it were meant to authorize HHS to set up qualifying exchanges and offer tax credits to all states and part of it reads like it was meant to withhold credits from states that didn’t comply. And that is largely because of the way the thing as drafted and passed: in a hurry How are you going to argue that there is one unambiguously clear legislative intent in a 900-page monstrosity that I would bet almost no one who voted on it actually read? If the Supreme Court argues in favor of the government, you’ll hear no complaint from me. The courts are doing their job. And it’s unfortunate that they have to this job, but that’s what happens when congress becomes this dysfunctional place that can only pass laws by resorting to shenanigans and instead of passing clear and unambiguous statutes ends up delegating and increasingly large share of the action to unelected bureaucracies. That’s not how democracy is supposed to work.

        Also, I took your advice and did some Googling on statutory interpretation. And the the thing that I learned in the first five minutes is that the “FIRST thing” that a court is supposed to do is not to look at the rest of the law and make determination of which way makes the most sense. Rather, the first thing that a court is supposed to do is to look at the plain language or plain meaning of the statute and interpret accordingly. So, there’s that.Report

      • Avatar zic says:

        @j-r this is all fine and good except for one small detail — the behavior of the people who are actually in the United States Congress. From the laws adoption until this blew up, they behaved in certain ways. After the 2010 midterms, they house, for instance, has repeatedly voted on repealing PPACA. Like, before the end of Obama’s time in office, I’ sure they’ll have voted to repeal over 100 times. Maybe more. Why the hell wouldn’t they have been going after the federal exchanges all along if they didn’t think it was the laws intent?

        You know they thought the federally-run exchanges was part of the law. That’s line not even a question here.

        So if the courts are all politics, if actual law no longer matters, they you’re argument here has actual merit. But if the legislative intent is the real point here, there is no doubt what the legislatures that have sat since PPACA thought the law intended. None whatsoever.Report

      • Avatar j r says:

        @zic

        The point is that the plain meaning of the text contradicts the supposed legislative intent. Maybe legislative intent deserves to win the day. I have no problem with that.

        The point still stands that the reason that the plain language contradicts the legislative intent is cause none of the damn legislators likely bothered to read the damn legislation.Report

      • Avatar Gaelen says:

        @j-r

        Can you point to any other section of the the act that even hints that only exchanges specifically established by the state are eligible for subsidies?

        From my reading (or skimming) of the briefs, there are only two, both in USC 36B, which deal with tax credits for premiums during covered months.

        On the statutory interpretation issue. It is true that plain meaning is the first rule of statutory construction. But, with that said, when the clause at issue point you to another statutory provision you go to the other statutory provision to make sense of the first clause.

        And here’s where the Governments brief has, in my opinion, the better of the argument. The phrase used by the petitioners is “established by a state pursuant to (what became USC 18031).” USC 18031 is the requirement that states set up exchanges, while USC 18041 gives to options for states to meet the requirement of USC 18031. One option is to let the state set up an exchange, the other is to let the federal government do it. There is plain meaning argument for the government here–and it’s not a bad one. In common language it is that the phrase at issue, “established by a state,” can be satisfied by either have the state set up an exchange directly, or by letting the state have the federal government to it.Report

      • Avatar Mike Schilling says:

        I’m not going to try to predict him or Roberts. Not because I think they’re more principled, just that their politics are more complicated.Report

      • Avatar Michael Cain says:

        Kennedy doesn’t matter, Roberts is the deciding vote. He bent over backwards the first time to be sure the PPACA survived. The optional Medicaid expansion bit was a sop to the conservatives, but he knew full well that within a few years all states would accept it because of state hospital associations’ pressure on the elected officials. He’s not going to let the law be maimed now, to the detriment of the big insurers and hospital chains.

        At least, that’s my story and I’m sticking to it.Report

      • Avatar morat20 says:

        I keep coming back to the same conclusion. (Not only that, if I were to ascribe Robert’s a partisan motive it would be ‘corporatist’ and the ACA is good for business in general).

        Mostly, though, it’s a really thin reed (the case) upon which to strike something down that he’s already dealt with.

        I just can’t figure out who the 4 votes for cert were. Thomas, Scalia, and Alito for sure.Report

      • Avatar Jaybird says:

        Maybe Roberts hates Obama and he thinks that the PPACA going through is going to do harm to Obama’s legacy?Report

      • Avatar morat20 says:

        Jaybird,

        He had a stronger case with the idiotic broccoli argument. Honestly, you should skim through the briefs. They’re really interesting, especially the pro-ACA response. There’s three or four entirely separate legal arguments about this.

        Some of the people filing on behalf of the government are interesting. Surprising number of red states, for instance.Report

      • Avatar Michael Cain says:

        I just can’t figure out who the 4 votes for cert were. Thomas, Scalia, and Alito for sure.

        If you give me a couple of glasses of wine, you can convince me that it was Roberts and the four liberals, with an agenda of “Let’s put this thing to bed right now.” You can also convince me that it’s getting the same treatment that the same-sex marriage cases are going to get: the decision is already settled, we’re just going through the motions. Sorry, I’m a cynic this afternoon.Report

      • Avatar Michael Cain says:

        Surprising number of red states, for instance.

        Some of the red-state governors know what they are about. Put yourself in their place. If the SCOTUS rules that credits are only available through state-run exchanges, and the national GOP (ie, Congressional Republicans) holds to its position that it won’t simply fix the ACA language, what are you going to do? Use every trick you can, and call in every favor the state legislators owe you, to get a state exchange up and running. If it’s up by the end of the year, the IRS will certainly take the position that your state’s citizens get tax credits. Your life is much simpler if the SCOTUS rules for the IRS in this case.Report

      • Avatar Dave says:

        @michael-cain

        The optional Medicaid expansion bit was a sop to the conservatives,

        The anti-commandeering doctrine isn’t what I would call a sop.Report

      • Avatar Michael Cain says:

        @dave , certainly reasonable people can have different opinions on this. I say it’s sop for the following reason. The opinion basically said, if the deal is such that no state would refuse it, then it infringes on their sovereignty, right? No state refuses to participate in original Medicaid because the deal is too good to pass up (eg, the feds pick up 74% of the cost of Medicaid in Mississippi). No state refuses to run a conforming unemployment insurance program because the tax consequences for employers are too dire to seriously consider. So there’s examples of both a carrot that’s too good to pass up, and a stick that’s too bad to consider getting hit with, and both pass muster. But this time Congress went too far?Report

      • Avatar Dave says:

        @michael-cain

        That’s completely reasonable to me.Report

      • Avatar Mike Schilling says:

        It goes along with the argument that the VRA is invalid because it gets too many votes.Report

      • Avatar Dave says:

        @mike-schilling

        Mike, it goes along the lines of the federal government not being constitutionally permitted to force the states into deploying resources to carry out federal law.

        That’s less about the Voting Rights Act and more about say Printz v United States.

        Preclearance is a whole other animal, but I haven’t spent enough time on the subject to opine. to me, what the Court got wrong in Shelby was that it believed the restrictions weren’t necessary when it seems to me they were.Report

  5. Off-topic, but I’ve heard that a public employees union fair-share case is wending its way through the federal courts as a sort of Harris v. Quinn part 2. Does anyone here know the status/name of that case and if it’s slated to be heard this term? I’ve tried (but not that hard) looking a little for it, but can’t seem to find it.Report

  6. On topic: As a supporter of the PPACA, I strongly hope the decision is subsidy-favorable (whether that means not finding standing or ruling that the subsidies apply, I don’t know). That said, from what I understand, the plaintiffs, if they have standing, have a case.Report

  7. Avatar A Compromised Immune System says:

    I’m still having a hard time grasping how a case got to this point. All we have is a pedantic fringe group of right-wingers arguing that the phrase “the state” is not a synonym for “the government.”Report

    • Avatar Morat20 says:

      While ignoring the other places where it’s clear that ‘Federally created exchanges’ are in all ways equivalent to the state ones. In fact, they ARE the state ones — just run by the Feds on behalf of the states.

      At least one state mentioned in a brief that they let the Feds create their exchange because it was cheaper and easier, not because they had some aversion to the Exchanges. In fact, a lot of their brief revolves around the point that SCOTUS has held before that if Congress can’t yank the rug out from under States like that. If not hosting the exchange lost them the tax credits, Congress was required to clearly communicate that.

      Which makes this case hilarious, because if the IRS had ruled the other way, a dozen or more states would be suing under THOSE grounds and have a very strong case for SCOTUS to require the Fed-created exchanges be eligible for subsidies.Report

  8. Avatar greginak says:

    I’m getting on a plane soon so i probably wont’ have a chance to check back on this but why should that stop me from throwing out this question. If legislative intent doesn’t matter, as some like Mark have said, then doesn’t that also mean whatever Gruber said also doesn’t matter? Seems like either both matter or neither.

    What am i missing or have i just ended all discussion of this topic by my piercingly insightful question. Hmmm i doubt i want to know the answer to that.Report

    • Avatar Morat20 says:

      What Gruber said didn’t matter anyways. He’s not a Congressmen, he didn’t get a vote, and he didn’t dictate the bill from Mt. Sinai.

      His opinion matters only slightly more than mine. The people whose opinions, when it comes to intent, that matters are the Congressmen who voted, the President who signed it, the state Governors (and Legislatures) that made the choice between the two.

      Ancillary documents generated by them (CBO scores, etc) are also pertinent.

      Intent matters highly for the plaintiffs (they must show the clause is unambiguous, both alone AND in context of the whole law — and to according to several State briefs, they also have to prove that Congress clearly told the States that the subsidies depended on who established the exchanges). The government wins on ambiguity (it’s either resolved through the rest of the law, or Chevron applies). Intent there is simply to counter the plaintiff’s claims, and in case the Courts decide to include intent to some extent when determining if it’s ambiguous or not.Report

  9. Avatar morat20 says:

    So, the latest (and last) plaintiff’s brief has been filed.

    I’ve got to agree with LGM — it’s filled with an awful lot of pretty much random italics. (I say this as a serial abuser of the italic font).

    It did NOT even cover standing (which is pretty brassy now that the issue’s in the air), and contains no knockout punches. It basically doubles down on “Congress made a threat to the States in the forest, and nobody heard, but many years later we found tree rings that indicated something was said, ERGO IT WAS PLANNED ALL ALONG”.

    Looks like that’s going to be the key turning point of the case — they’ve got to convince SCOTUS that Congress intended the subsidies as a carrot/stick approach and always intended to deny subsidies to federally-created exchange states.

    On the plus side, they’ve got Gruber, a rejected draft bill, and some spitballing sessions. On the minus side, they’ve got…pretty much every state (Red and Blue), the entirety of the folks who voted for it, the IRS, and everyone else saying “What? That was never the case”.

    The State briefs are actually huge. The fact that the states subject to this proposed threat didn’t know about it? That hurts the plaintiff’s case badly. Doubly so because there’s already established precedent that such major policy bits like that can’t ‘blindside’ the state. As I said before, if the IRS had denied the subsidies you’d have a much stronger case for suing to force them to offer them because the consequences of having the Feds run your exchange was not clearly communicated to the StatesReport