When Text And Context Collide


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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183 Responses

  1. Avatar Fnord says:

    Hang on. There’s no standing for having to pay a tax that then goes on to fund something illegal. That’s holding in Lujan and Allen. But I had thought there was standing if the tax is being applied to them illegally.Report

      • Avatar Fnord in reply to Burt Likko says:

        So the plaintiff’s argument here is that, were it not for the subsidies, he wouldn’t have to pay the penalty tax (since the cost would rise above 8% of income). So it’s a tax that’s only being applied to him because of the government’s illegal interpretation of the subsidy clause.

        That’s why the 4th Circuit found standing:

        The plaintiffs premise their standing on the claim that, if they were not eligible for the premium tax credits, they would qualify for the unaffordability exemption in 26 U.S.C. § 5000A and would therefore not be subject to the tax penalty for failing to maintain minimum essential coverage. Thus, because of the credits, the plaintiffs argue that they face a direct financial burden because they are forced either to purchase insurance or pay the penalty.
        We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule.

        To be clear, I think they lose on the merits, for the reason you explain. I just think they do have standing.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        I see: the argument goes, if there is no subsidy to King, then his income is just low enough that an exemption from the penalty applies; thus, an illegally-applied subsidy triggers an otherwise-legal tax.

        Still, it seems to me that the trigger event that determines whether he gets taxed or not is something King can control and the tax code merely incentivizes: he can buy insurance, or not.

        Another interesting thing is that whether one accepts the Fourth Circuit’s articulation of standing or not, it’s the individual mandate’s tax penalty that comes under fire; the legality of the subsidy only comes in to play when it gets linked to a different facet of the program. That, it seems to me, plays into the Government’s argument of holistic statutory analysis — if you look at only one facet of the program, only one sentence in the statute, the whole thing is in danger of being interpreted into a nullity.Report

      • Avatar Michael Cain in reply to Burt Likko says:

        Still, it seems to me that the trigger event that determines whether he gets taxed or not is something King can control…

        There are a number of reasons that this statement makes me nervous, although I admit that there’s not enough information available for me to understand if my concerns are real or not. For one thing, the range of incomes that we’re discussing here are pretty low. It’s one thing to tell a top neurosurgeon “lower your fee” or “take fewer cases”; it’s another to tell someone near the poverty line “earn less money so you don’t have to buy insurance.” The second is that the person may not have a choice. If, for example, you’re on a military pension (King is a Vietnam vet), your income is what the government says it is — there’s no option to say “Only send me 90% of the pension, please.”Report

  2. Avatar Don Zeko says:

    As usual, great post, but in the “stakes” section you seem to be confusing the Medicaid expansion and the establishment of state-run exchanges. Here’s the best summary I’ve found of the state of play on both issues. 27 States have fully federally established exchanges, while 14 have established fully state-run exchanges and would still receive subsidies if the plaintiffs succeed. The remaining 10 states have either “Federally-Supported” or “State-partnership” marketplaces, and it is not clear to me whether they would be denied subsidies or not.Report

    • Avatar Burt Likko in reply to Don Zeko says:

      Eligibility for the subsidies is dependent, in part, on giving effect to Medicare expansion. That’s not to say your information is less good than mine; my principal source was (as was yours) the Kaiser Family Foundation directly attempting to answer the question of who would be affected by the ruling, and how it derived the figures it did.Report

      • Avatar zic in reply to Burt Likko says:

        My state didn’t set up an exchange, but people in my state who purchase on the state’s federally-run exchange are receiving subsidies; so the two are, in practice as Obamacare works here, separate things.Report

  3. Avatar Saul Degraw says:

    Maybe I am being cynical but I usually only find that it is liberals and liberal causes that lose when the Supreme Court rules that the plaintiff’s lack standing. That is my reading of most justicability cases that I did in Con Law and Federal Courts. At least they were the examples given. Do you have any examples where conservative petitioners have been denied standing?

    This case is probably too politicized and well-reported to have the petitioners be denied standing even if that is what should happen. I’ve seen other articles (maybe Slate?) address the lack of standing issue.

    There is also the fact that an injury needs to be “distinct and palpable” and not “abstract and conjectural”

    Do you think there would be serious political fallout for suddenly cutting off the subsidies for 13 or so million people. Fallout for the courts, the people arguing this case/petitioners, the GOP, etc?Report

    • Avatar North in reply to Saul Degraw says:

      Well the politics is pretty much aside from the legal arguments. The courts are supposed to be apolitical.

      If the courts rule in favor of the plaintiff about 11 or so million low income to middle income people are going to have their subsidies stripped away mainly in red or purple states.
      No doubt the GOP won’t pass any kind of fix in congress that doesn’t have enough poison attached to it to bar Obama and his party accepting it.
      This will put the GOP at the state level in a real bind. Those people are going to be pissed and they’re not the nonvoting low information poor that the GOP can routinely ignore. I’m sure there’ll be much finger pointing at the Dems and no doubt it’ll be a blow for them but in terms of bread and butter politics it’s going to be a massive headache for red state and purple state republicans.

      I’ve read a number of proposals from GOP brains (like Ramesh) on what to do to deal with it but after pretty spot on analysis of the problem their proposals to fix it mostly amount to “The ghost of Regan makes Obama loses his goddamn mind and let us gut or completely revise the ACA in exchange for rescuing the GOP from a political bind” (and if that seems one sided to you it sure as hell seems one sided to me).

      So if I did think the Chief Justice was viewing this matter politically I’d see it as an opportunity to wing the ACA (at best) in a manner that will pour misery all over his own party/ideology while leaving the Blue states pretty much unscathed while badly damaging the reputation of the supreme court. Politically speaking I’d think Roberts would balk at that pretty hard.

      But again I don’t like to think the courts are primarily politically motivated.Report

      • Avatar morat20 in reply to North says:

        Politics is actually part of this case, as legislative intent is a factor in statutory interpretation and politics was sorta involved there. The plaintiff’s claims on intent are, frankly, pretty thin. They’ve got Gruber (not a Congressmen), some debate stuff/proposed bills (not anything final), a claim about Nebraska (refuted by Nelson himself), and a lot of pounding on the table. It’s almost entirely “Even if nobody said ‘Only state created exchanges get it’, nobody actually said ‘Everyone gets it’ either!”

        Whereas the defendants have — well, a lot of Congressmen who voted for the bill saying “um, no”, and several states with federal exchanges saying “No, we were never told that. At all. We never thought that. It never even crossed our minds to consider that that was a possibility. In fact, if that was a possibility, we’d have to sue because stripping them from us without letting us know that would happen is unconstitutional.”Report

      • Avatar LeeEsq in reply to North says:

        Courts at their best are not primarily politically motivated. Judges are human though and often bring their own politics and policy desires into their decisions for good and ill. Naturally, what is a natural and wise decision to one person is a nakedly political one to another.

        I think King v. Brunwell demonstrates the recklessness of the ACA’s opponents among Republicans. They hate it and the concept of universal healthcare so much that they are willing to damn the consequences and do anything possible to get rid of it. I believe one of the people behind King called the destruction of the ACA a necessar purge of the republic or something like that. They simply hate the concept of the welfare state. Their belief is that life is tough and any attempt to make it a bit more fair is unjust.

        My one hope is that Roberts is not a hack. He is a deeply conservative man and does his best to champion what he believes but he balks at openly and nakedly political decisions. Roberts likes to be more subtle. My one fear is that if the ACA opponents have their way, the GOP won’t suffer much in the way of political damage but will unleash a lot of chaos and suffering.Report

      • Avatar Saul Degraw in reply to North says:


        I’m a legal realist. I don’t know how you separate politics from the Supreme Court or any other court. Many judges are elected, if they are not elected they are picked by someone who was elected (a Governor or a President), states judges that are not elected are generally up for retention elections.

        All these elections get political and judicial elections (straight up or retention) are hot and do have results. The famous examples are how groups went against Rose Bird for being anti-Death Penalty in California and the election in West Virginia where getting one guy off the bench and another guy on resulted in a big victory for Massey coal.Report

      • Avatar North in reply to North says:

        That may be Saul, but the Supreme court justices aren’t elected and are appointed for life. Even if one assumes the court is nakedly political they’d have to be nuts to try and take down the ACA on this issue.Report

      • Avatar Saul Degraw in reply to North says:

        I think Lee is right. These is nakedly legal litigation and that is often allowed in the United States but it is still from people with an ideological bent exercising a veto point. To be fair, this is something that everyone does because they can.

        The fear I have is that a liberal decision on gay marriage will allow them to have cover from any blowback on gutting the ACA.Report

      • Avatar North in reply to North says:

        If 11 million people lose their subsidies in red and purple states you can be absolutely certain that their GOP led governments are going to be hearing from a lot of very angry people and they’re not gonna be mollified that the nice gay couple next door can get hitched.Report

      • Avatar Saul Degraw in reply to North says:

        But would they be hearing from people who voted for them or not?Report

      • Avatar Kim in reply to North says:

        yeah, but nobody cares about the poor, anyhow.Report

      • Avatar North in reply to North says:

        Saul, Kim, you are mistaken on this. The people we’re talking about here, who’re getting subsidies that’d be taken away, include some poor people but mostly they are the middle and lower middle class. These most emphatically are people the GOP has gotten votes from. The poor, keep in mind, would have gotten into the ACA via the medicaid expansion. They already got shafted when the GOP states turned down the medicaid expansion so this decision doesn’t really shaft them much further.

        It is the lower middle and middle class who’ll be taking it in the crotch if the subsidies get yanked and if eleven million of them plus their friends and family begin screaming that’s going to make some electoral noise. The GOP state level politicians are not going to be able to just ignore that.Report

      • Avatar LeeEsq in reply to North says:

        North, I disagree with this a lot. I think you are really underestimating the degree of radicalism in the current Republican Party along with the hatred of Obamacare. State level GOP politicians tend to be more radical. I also think you are overestimating how many voters are going to put two and two together in order to figure out that a plantiff victory in King means soaring health insurance premiums for them or who won’t reflexively blame Obama and the Democratic Party.Report

      • Avatar j r in reply to North says:

        They hate it and the concept of universal healthcare so much that they are willing to damn the consequences and do anything possible to get rid of it. I believe one of the people behind King called the destruction of the ACA a necessar purge of the republic or something like that. They simply hate the concept of the welfare state. Their belief is that life is tough and any attempt to make it a bit more fair is unjust.

        That is a whole lotta unsourced speculation about the internal motivations of others.Report

      • Avatar LeeEsq in reply to North says:

        @north, I submit the following as evidence that the Republicans have no intention of fixing the ACA if the SC finds for the plaintiffs in King. House Republicans have demanded that Obama turn over his “secret” plan on what to do if the Supreme Court finds for the plaintiffs.


      • Avatar Gabriel Conroy in reply to North says:

        These is nakedly legal litigation

        Well, most litigation does involve legal matters….. 🙂

        North, I disagree with this a lot. I think you are really underestimating the degree of radicalism in the current Republican Party along with the hatred of Obamacare. State level GOP politicians tend to be more radical.

        I think this mis-states most of North’s point. It’s not that the GOP isn’t so opposed to ACA, but that if the ACA falls in this pending case, then the GOP will have to pay the piper or face losing elections. In effect, I think he’s agreeing with you more than you seem to realize.Report

      • Avatar North in reply to North says:

        Lee, I don’t think that the GOP will pass a fix. Far from it. The national GOP is insulated enough from the number of people we’re talking about that they can hunker through it.

        What I suspect you’ll see is a renewed surge for states, especially purple ones, to put up their own exchanges. The GOP have been very slowly losing ground on that in the past and I’d expect this to really put the screws to them on the state level to do it. New Jersey, for instance, would have to either put up an exchange of the GOP will be out of office.

        But my basic point is that a King victory would be hitting a constituency that the GOP doesn’t reflexively dismiss as they do the extremely poor or minority communities.Report

  4. Avatar morat20 says:

    Some of the amicus briefs were really interesting.

    Several states (pdf here) talk at length about Pennhurst.

    “That claim has no plausible basis in the text of the statute. What is more, under the Pennhurst doctrine, Congress must give States “clear notice” of conditions imposed under cooperative-federalism programs. There was no such clear notice here. To the contrary, State officials reasonably assumed that premium-assistance tax credits would be available in every State, regardless of who created the Exchange.
    Petitioners’ interpretation should also be rejected because it would raise serious questions under the
    Tenth Amendment. Petitioners attribute to Congress a novel kind of coercion that threatens State citizens
    and State insurance markets as a means of pressuring State governments to take action. Not only is
    such a scheme antithetical to the Act’s cooperative-federalism model, but the constitutional-doubt canon
    counsels against attributing such a coercive intention to Congress. ”

    Which, if I’m reading that correctly, suggests that the IRS ruling of “no subsidies” would itself be subject to a very clear challenge under Pennhurst as unconstitutional. (Which is probably going to upset some people if, under a new President, those IRS rules get changed)

    Not to mention that’s several states, right there on record, stating “The plaintiff’s claims about the history of the law are BS. Nobody ever thought that we’d get denied subsidies.”

    In related news: Adler is pounding the table like CRAZY on Volokh on this subject. He’s even gotten back up to direly warn that those liberals are threatening Roberts with blackmail like op-eds. (Title of the post: “Lobbying the Chief Justice (again): Nice little Supreme Court you got here; too bad if anything was to happen to it”).Report

    • Avatar Mike Schilling in reply to morat20 says:

      Hacks gonna hack.Report

    • Avatar j r in reply to morat20 says:

      In related news: Adler is pounding the table like CRAZY on Volokh on this subject. He’s even gotten back up to direly warn that those liberals are threatening Roberts with blackmail like op-eds. (Title of the post: “Lobbying the Chief Justice (again): Nice little Supreme Court you got here; too bad if anything was to happen to it”).

      If by “pounding the table like CRAZY,” you mean citing specific instances of people writing that Robert’s ruling threatens to compromise the court’s legitimacy and his own legacy, then yes, he is pounding.Report

      • Avatar Mike Schilling in reply to j r says:

        How dare they criticize Chief Justice Roberts as if he were some mere public servant who was answerable to the people.Report

      • Avatar morat20 in reply to j r says:

        *snort*. Did you even read it? He’s acting like op-eds are some form of court-packing. Of blackmail or intimidation, even. That’s farcical, and frankly if he’s resorting to that he must feel he’s screwed.

        In any case, what he’s not screaming about is the behavior he’s been doing for a year now. (You know, writing op-eds, explaining how it’s the death of America if the courts don’t agree with him, etc).

        And lastly — well, that bit requires you to have read VC during the time right before the decision on the original ACA case was handed down. It was really obvious that Robert’s deliberations were leaked to someone, as there was a spate of posts about “undue pressure on Roberts” from liberals (in the form of op-eds). In short, Adler himself got advance notice that Roberts was gonna rule against his broccoli case, and started pushing every button he could to put pressure on Roberts to flip back, mostly by darkly warning that Roberts was being ‘influenced’ by some shadowy figures.Report

      • Avatar Kim in reply to j r says:

        Roberts blinking doesn’t necessarily mean he was blackmailed.
        Besides, it takes money and ongoing interest to blackmail powerful figures.
        (That’s actually one of the benefits of the Supremes. They’re harder to
        justify blackmailing… I mean, blackmailing Obama? of course that makes dollars and cents.
        He makes tons of decisions that affect your bottom line. Yellen too…)Report

      • Avatar j r in reply to j r says:

        *snort*. Did you even read it? He’s acting like op-eds are some form of court-packing. Of blackmail or intimidation, even. That’s farcical, and frankly if he’s resorting to that he must feel he’s screwed.

        I’ll just leave this here from a Slate piece cited in the post:

        A decision favoring the plaintiffs in King would mirror past decisions striking down laws against child labor. It would inflict needless cruelty on millions of the most vulnerable Americans, and it would do so with no basis in law. It would also raise serious doubts about the impartiality of the Supreme Court. Undermining Obamacare is the Republican Party’s top policy priority, and all five of the justices who are most likely to vote with the King plaintiffs are Republican appointees.

        If the justices are willing to cross this line once, it is likely that they will be willing to cross it again and again. A future president, in other words, could confront a dilemma that no president has faced since Roosevelt.

        He’s not acting like anything. He is pointing out that lots of progressives are putting out a narrative that implies Robert’s risks the court’s credibility and his own legacy by finding the wrong way. And in doing so, they are trying to put what pressure they have to use. That is well within their rights, but it’s odd to criticize Barnett (or call him a hack) for pointing it out.

        Also, it’s a Randy Barnett post and not Adler, so yes, I did “even read it.”Report

      • Avatar morat20 in reply to j r says:


        I know that. The point was someone at the VC got leaked info on internal deliberations and tried to pressure Robers by useing that to accuse…liberals of getting leaked info on internal deliberations and using that to pressure Roberts.

        And also to lay the groundwork for “We was betrayed”.

        So seeing Alder go back to “Them darn liberals keep writing op-eds and claiming partisanship is just WRONG and UNAMERICAN because it pressures judges” while writing op-eds and claiming partisanship (if it goes against him) is…hilarious. He’s got a history of projection like this.Report

      • Avatar morat20 in reply to j r says:

        Darnnit…Adler’s been flooding the zone so much over there that I missed Barnett sneaking that one in.

        Bluntly put, the VC in general has to have giant balls to whine about ‘putting pressure on Justices’ after what happened during the ACA deliberations.

        Secondly, the headline was farcical, inflammatory, and worth of mockery. Op-eds = “Nice court you have there, shame if something happened to it”?

        Again, between that and Adler’s increasingly frantic output is a pretty solid sign he feels he’s not gonna win. (And Adler and Cannon were the ones behind this lawsuit, so he’s invested)Report

      • Avatar Dave in reply to j r says:


        I’ll just leave this here from a Slate piece cited in the post:

        Having first read the quote, I knew it was Ian Millhiser before I even had to look.

        He wrote a book? Heaven help us.Report

      • Avatar j r in reply to j r says:

        Secondly, the headline was farcical, inflammatory, and worth of mockery. Op-eds = “Nice court you have there, shame if something happened to it”?

        Yes. How dare someone express a legal and political opinion with which you disagree in print! The nerve.Report

      • Avatar morat20 in reply to j r says:

        Yes. How dare someone express a legal and political opinion with which you disagree in print! The nerve.
        I can’t decide if you’re tolling or just being obtuse.

        But I’ll lay it out plainly: The belief that people writing op-eds and saying things like “If the decision goes X, that’ll be plainly partisan” is somehow akin to threatening the court is stupid (“nice court you have there, shame if something happens to it”). It’s the opinion of idiots.

        It is something only a moron or the desperate would say. In this case, it is a hypocritical moron or hypocritical desperation, because they are indulging in exactly what they are decrying.Report

      • Avatar j r in reply to j r says:

        I can’t decide if you’re tolling or just being obtuse.

        I guess those are possibilities.

        Here are some more possibilities. You are reading way too much into a tongue-in-cheek line buried at the end of a blog post. And what you are characterizing as whining, isn’t actually whining. It’s just a blog post pointing out all the plaintive hand-wringing that some progressives are doing in response to the possibility that the court may find for the plaintiffs.

        Barnett is just quoting what others wrote first and offering a characterization and a pretty accurate characterization at that. If you get the sense that Roberts might feel legitimately threatened by the pieces that Barnett quotes it’s only because you’ve chosen to believe that’s what Burnett is implying. In fact, he doesn’t say that people are actually threatening Roberts. He is saying that people are lobbying Roberts and including an implicit threat about the state of his legacy. And again, that is the literal truth.

        Those are all possibilities that you might want to consider. Or you can just think that I’m trolling you. Either way is fine with me.Report

      • Avatar Michael Drew in reply to j r says:

        “it’s odd to criticize Barnett (or call him a hack) for pointing it out.”

        A couple of things here. First, to the extent that @morat20 is criticizing Barnett “for” doing anything, it’s not for just “pointing it out.” It’s not for just saying, “Look, people re doing that.” It’s “for” issuing what @morat20 thinks are more-dire-than-justified condemnations of them for doing it (especially in light of what Morat deems similar criticism of courts by Barnett on other issues). (Actually, I think it’s fair to say that what Morat initially did was in fact to “point out” what Barnett has been swing – there was barely any criticism in the first comment, though there was in the next.)

        But beyond that, there is a difference between criticizing someone “for” doing something, and criticizing what they did. It’s different to say, “This is a terrible novel,” and “You’ve done a terrible thing by writing this novel.” I don’t see where Morat criticized Barnett “for” writing these things. He’s criticized what he wrote. He says what he wrote is farcical, and think he must feel that chances of his getting his preferred outcome on the case are “screwed” for him to be doing so. But he doesn’t say that Barnett has done something wrong by having this view of what he’s said. He hasn’t criticized him “for saying it” [or “pointing it out”].Report

      • Avatar Dave in reply to j r says:


        Randy Barnett is one of my favorite constitutional law scholars bar none and as relieved as I was that the ACA was upheld in NFIB v Sebelius (I work in healthcare, it would have been a clusterfish if it was struck down), I was just as thrilled to see the Commerce Clause justification get tossed into the trash where it most certainly belonged.

        However, I think he gets a number of things wrong in his post. First, Justice Owen Roberts did not switch his vote in response to FDR’s pressure. The final votes in West Coast Hotel v Parrish and the NRLB v Laughlin Jones had already been cast before FDR threatened to pack the court.

        Second, while I think Roberts switch to uphold the ACA had a political element to it, I don’t think it was motivated by political pressure from the left but rather understanding a) that the individual mandate had a constitutional basis as a tax even if the gov’t make the argument; b) that striking down the mandate and leaving the rest of the law intact was a recipe for a disaster of epic proportions (hospitals were most afraid of this) and c) striking down a law of the scope of the ACA, which covers so much more than the individual mandate, was probably not a viable option especially given (a). All I have to say is that I’m glad I was not a judge on that court for that case. As much as I hated the Commerce Clause argument, I don’t think I would have pulled the trigger if I could have found a way not to. That’s just me.

        Third, just because Roberts did switch his views after Progressives complained about what happened during oral arguments does not mean that was the reason for his switch. I may be repeating my second point here.

        Fourth, are the liberals on the Supreme Court going to feel threatened when conservative pundits cite the threat to the Supreme Court’s legitimacy if same sex marriage bans are struck down by the Court? Hell, are any of the liberals here going to point to conservative pundits and accuse them of “threatening” left-leaning judges? I highly doubt it.

        I have no interest in defending the opinions of the likes of Millhiser or Greenhouse, both of whom I rarely agree with, but Barnett’s arguments are weak sauce. It’s too partisan for my tastes, and I say that as a huge fan of his constitutional scholarship. I gotta call it like I see it.Report

      • Avatar Michael Drew in reply to j r says:

        the individual mandate had a constitutional basis as a tax even if the gov’t make the argument

        The government most certainly did make the argument, just not in press conferences in 2010. They made it in litigation in 2012, and won. And I think they might have made it in 2010 in various places explaining where their authorities to make the law came from, though I’m not 100 on that. (More Congress than the admin there, and likely in various formal government documents that few people pay attention to, not, as I say, in press conferences selling the bill to the public.)

        Hopefully it never mattered for one second to “the Chief” that this argument was not featured in press conferences in 2010.Report

      • Avatar Dave in reply to j r says:


        I’m less concerned about the public case made for the mandate and more concerned about what was presented during oral arguments, and if I recall, and I may be wrong about this since I haven’t visited this issue since listening to the oral arguments, the government leaned heavily on its Commerce Clause justifications (and did a terrible job making its case – typical Verilli I suppose).

        I don’t remember much being said about the taxing power during oral arguments, but my memory could be a bit fuzzy as well.

        I do recall the tax argument getting a lot of press prior to the court case though so yes I do agree with you there.Report

      • Avatar Michael Drew in reply to j r says:


        You may be thinking of the particular day on which the CC claim was argued. There was a whole separate morning when the tax power was argued. I think it was Breyer who made a joke about how today you will be arguing it is a tax; tomorrow you arguing it isn’t (or something like that).

        …Oh wait, crap, the separate day was for the anti-injunction act argument now that i think about t. But that joke referenced that they had briefed the tax power and everyone knew they’d argue it. It may not have been the major focus of the day, but that’s largely dependent on what the justices focus on.

        It certainly didn’t lead the government’s case for the mandate – they did want to win on the CC – but they certainly argued the taxing power.Report

      • Avatar Mike Schilling in reply to j r says:

        Hell, are any of the liberals here going to point to conservative pundits and accuse them of “threatening” left-leaning judges?

        Of course we are, just like we insisted that John McCain wasn’t a natural-born citizen and that anyone who doesn’t listen to an Obama speech should be lynched.Report

      • Avatar j r in reply to j r says:

        He’s criticized what he wrote. He says what he wrote is farcical, and think he must feel that chances of his getting his preferred outcome on the case are “screwed” for him to be doing so. But he doesn’t say that Barnett has done something wrong by having this view of what he’s said. He hasn’t criticized him “for saying it” [or “pointing it out”].

        I’m always ready to be wrong, but when someone criticizes Barnett/Adler as “pounding the table like CRAZY” or calls him a hack, we may have crossed over into criticizing someone “for saying it.”

        Also, as you point out, there is the whole issue of reading something and then pretending that you have some special access to their internal motivations. Arguments of that nature are almost never objectively verifiable and, instead, a very plain attempt to characterize that person as especially unstable, illogical or nefarious.

        None of this is to say that Barnett is absolutely right on any of this. The point is simply that he is citing what others are actually writing; he’s not just flinging unwarranted accusations.Report

      • Avatar Michael Drew in reply to j r says:

        I’ve been speaking to what @morat20 has said. I don’t think he said he was a hack. If you want to just direct what you’re saying to Mike’s saying that, okay. Though, to me the phrase “Hack’s gonna hack” doesn’t necessarily criticize the hack for hacking. That’s what a hack is gonna do. It’s just saying he’s a hack – that his arguments are frequently wrong and that at some level he knows it. But at some level that’s political and legal advocacy for you. I can also see an argument that calling someone a hack is an implicit criticism of them for being a hack, rather than a criticism of their arguments for being wrong, and a simple assertion that on some level they know it. But I think ultimately, if it’s “a hack’s gonna hack” is more acceptance of all of that than criticism for it.

        But no, I don’t think that saying that someone, especially a lawyer, is pounding the table like crazy over something is criticizing them for doing that. The joke goes, “If the facts are on your side, pound, the facts. If the law is on your side, pound the law. If neither facts nor the law are on your side, pound the table.” That’s not a criticism of lawyers, certainly not any particularly harsh one, it’s just an observation or quip. It’s what they do, to one degree or another. So Morat is saying by implication that neither the facts nor the law are on Barnett’s side here. That’s a criticism of his argument, not a criticism of him for doing what he’s doing. It’s saying, lawyer’s gonna lawyer (and that’s okay), but the way this lawyer is lawyering suggests he has no merits to argue.Report

      • Avatar morat20 in reply to j r says:


        Yeah, I thought the ‘pounding the table’ thing was pretty common knowledge. (I had that exact quote in mind).

        I don’t believe the plaintiff’s have either fact nor law on their side, and are thus reduced to table pounding. I perfectly understand moving to work the refs on this one, but found it laughable that he’d work the refs by…accusing other people of working the refs. Especially given the past history at VC over this exact issue.Report

  5. Avatar Gaelen says:


    Did you not find the governments textual argument persuasive? To my mind it was much better than I would have thought based on the coverage of the case I had read.

    From my admittedly less thorough skimming of the briefs, there seems to be a reasonable textual argument that the Exchanges established by a state under Sec. 1311 must comply with Sec. 1321. The requirements in Sec. 1321, task the secretary with writing regulations for the Exchanges, and require the states to either (1) create conforming Exchanges, (2) get a waiver, or (c) have the federal government do it for them. And Sec. 1321 requires, if no conforming plan is implemented, the “secretary to establish an Exchange within the State.” Those three options are the flexibility in creating Exchanges from the title of Sec. 1321.

    Basically, and counter to your point above that the states did not “opt” to have the federal government create the Exchange in their place, by failing to comply with Sec. 1321B(b)(1) and (2), they did opt to have the federal government operate an Exchange within their state under Sec. 1321(c). Whether they wanted the federal government to set the Exchange up or not, the law is the law, and the secretary was required to operate an Exchange in the state.

    Another way of thinking about would be if a state set up an exchange that complied with Sec. 1311, but failed to comply with the secretaries regulations under Sec. 1321, and failed to get a waiver from the secretary. Would that plan be eligible for subsidies? Under the Plaintiff’s reading of the statute it would. I submit that it would not–ie. that the Exchange of the act is one that complies with all statutory and regulatory requirements. That in turn, points to an interpretation of Plaintiff’s phrase that requires the court to look to both Sec. 1311 and 1321 to determine what is meant by “Exchange established by a State under Sec. 1311”–and the plain meaning of those three sections, read as a whole, counts federal exchanges as qualifying for subsidies.Report

    • Avatar Burt Likko in reply to Gaelen says:

      IMO, @Gaelen, the plaintiffs lack standing, and the Government’s interpretation of the statute holstically is at least reasonable. It doesn’t need to be decisively persuasive in the arena of Chevron deference, only reasonable in the face of ambiguity.

      So I don’t need to dig down further into the weeds of statutory interpretation than that to dispose of this case, because there is no active case or controversy before the Court, and even if there is, Chevron compels the Court to defer to the interpretation given by the administering agency (here, the IRS).Report

      • Avatar Gaelen in reply to Burt Likko says:

        Oh I agree, I just thought that the governments textual argument gets no play in the media, and it’s not a bad argument. There’s a great deal of importance placed on “established by a state,” but rarely a mention of the statutory context.Report

  6. Avatar Kolohe says:

    “If Congress doesn’t like how a President interprets an ambiguous statute, it can pass a clarifying or correcting law.”

    You *really* want to give the Executive that much power? That’s going to be handy when President Walker bombs Iran under the authority of the 2001 AUMF and they’re ain’t going to be 67 votes in the Senate to tell him ‘no, that’s not what the 9/11 resolution was about’.Report

    • Avatar Kim in reply to Kolohe says:

      It worked for President cheney, why wouldn’t it work for president walker?

      If there’s nothing else congress agrees about, it agrees about listening to the military.Report

    • Avatar Burt Likko in reply to Kolohe says:

      Want has nothing to do with that scenario. Especially if the person who wants a different outcome is on the bench.

      Avoiding that outcome is dependent solely on the willingness of someone with stars (or anchors) on her epaulets to risk her career by saying “That’s an unlawful order, Mr. President,” and getting her troops to side with her despite the threat of mutiny prosecutions.Report

      • Avatar Kolohe in reply to Burt Likko says:

        Do you want Honduras? Because that’s how you get Honduras.

        In 239 years and counting, the US military has never refused a direct order of the elected executive. And that’s a good thing, maybe the best thing.

        (ok, yeah, with one exception. But those guys only have a few forts named after them in the lower part of the continent. And they really didn’t replace Lincoln’s will with their own; they just didn’t want to listen to him anymore, so they quit)Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Yeah, I read that bit by Yglesias too. This post has been in my to-do queue for a long time so I didn’t comment on it. And I figured it would only be a matter of time before someone else did anyway.

        Short version of my response: you’d have to be crack-smokingly stupid to want war between the USA and Iran, whether you’re the USA, Israel, or Iran. It’s not possible for any of them to actually win; the best any of them could hope for would be to survive. It is known. So the prospect of overt war with Iran strikes me as a particularly improbable outcome to events.

        A cold war, a containment campaign, covert activities and espionage, sustained terrorism, lots of diplomatic tension — that can be sustained for a very long period of time and all of the actors involved can afford it, and it produces the same political advantages that an actual war would. The political, military, and economic incentives point to maintenance of the status quo with only superficial tweaks from time to time.Report

      • Avatar Jim Heffman in reply to Burt Likko says:

        ” you’d have to be crack-smokingly stupid to want war between the USA and Iran”

        I remember when it was utterly ridiculous to suggest that the USA might invade Iraq a second time.Report

      • Avatar Kim in reply to Burt Likko says:

        Yes, I blame Cheney’s crack smoking for both.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Do you think I came up with the phrase “crack-smoking stupid” on my own, @jim-heffman ?Report

      • Avatar Jim Heffman in reply to Burt Likko says:

        I didn’t know who came up with it, but you’re rolling it out like it means that attacking Libya I mean attacking strike>Syria I mean attacking Iran is so completely impossible that it’s useless as a hypothetical.Report

    • Avatar morat20 in reply to Kolohe says:

      You *really* want to give the Executive that much power? That’s going to be handy when President Walker bombs Iran under the authority of the 2001 AUMF and they’re ain’t going to be 67 votes in the Senate to tell him ‘no, that’s not what the 9/11 resolution was about’.
      What’s the alternative? Court rulings on EVERY regulation the government passes — not for Constitutionality, but to determine with a semi-colon somehow cans a regulation whose clear intent is obvious to everyone (courts, defendants, and plaintiff’s included?)

      Chevron deference (and all the rules of statutory interpretation and several other precedents) is there because otherwise the courts would be inundated with crap, because frankly no law is unambiguous if you’re willing to pay a lawyer enough to parse it finely. They have no interest in the role of ‘vetoing by typo’. It’s not their job, they don’t want it to BE their job.Report

      • Avatar Kolohe in reply to morat20 says:

        Where was this deference in Massachusetts vs EPA?Report

      • Avatar morat20 in reply to morat20 says:

        I think Chevron was dismissed because the Courts decided the EPA’s stance was arbitrary or something.

        Chevron has exceptions — the easiest being if the statute is not ambiguous, Chevron doesn’t apply. I think part of the decision was the Courts stating the law was very clear that the EPA must regulate such gases.

        Then there was the arbitrary or capricious bit that struck me as a little like “I know it when I see it” which is not exactly a great guideline.

        In any case, I recall the opinion discussing Chevron — so it was applied, it just wasn’t controlling.Report

      • Avatar Jim Heffman in reply to morat20 says:

        “Chevron has exceptions — the easiest being if the statute is not ambiguous, Chevron doesn’t apply. ”

        Well, whether or not the statute is ambiguous is kind of what this whole case is about, isn’t it?Report

      • Avatar morat20 in reply to morat20 says:

        Of course. However, I’d point out that a circuit court split is pretty good evidence it’s ambiguous.

        I happen to think it’s not ambiguous at all — read in context with the rest of the statute, the meaning is plain.

        But as I’ve said — the problem for the plaintiffs is that they need it to be unambiguous. Ambiguity means Chevron applies and the IRS rule is deferred to unless it triggers some other exception.

        There’s three possible states — the statute is unambiguous (the IRS way), unambiguous (plaintiff’s way), or ambiguous. In two of them, defendants win by default. (Either because it’s plainly written and the plaintiff’s are wrong, or because it’s ambiguous but the plaintiff’s lose because the IRS rule only has to be a reasonable interpretation).

        In my opinion, trying to claim the line unambiguously bars subsides for the states is a really, really hard case to make. Everything seems against it — the line in context of the rest of the law, the placement of that line (it’s buried in calculations, and not in the section dealing with the results of the feds establishing an exchange), and there’s nothing in the Congressional record to support it — nor is there any record of any of the states interpreting it that way.

        It’s really, really, really hard to claim it’s ‘unambiguous’ and that Congress obviously intended the subsidies to be denied to the states when those very same states filed briefs that boil down to “Say what now?”Report

    • Avatar Michael Drew in reply to Kolohe says:

      When/if (and I think @burt-likko is being nearly insanely sanguine here. Watch Bibi’s speech. He’s all but against a deal in principle. Our closest ally in the region, if not our closest ally period, is almost all-out lobbying us to get off the diplomatic track and get mentally on board the military track with Iran. The president (of the United States – the sitting one) this week put “military action” (not just “all options”) on the table. Military action – war – is sitting squarely in the middle of the table along side all other options for dealing with Iran’s nuclear program. Make no mistake about where we sit on this.)

      …But when/if a president orders military action to deal with Iran’s nuclear program, I don’t think she will cite the 2001 (or 2002) AUMF to justify it. At least not alone, or as the primary legal authority.

      You ask what will be the main legal authority cited? I’m not sure. I can research that if you want. But I don’t think it will be the 2001 AUMF.Report

      • Avatar Kolohe in reply to Michael Drew says:

        The Obama administration would just cite its inherent Article 2 authority, like it did in Odyssey Dawn (with UN diplomatic top cover), and the attacks that started late last summer against ISIS (without that top cover).Report

      • Yeah, that was my first assumption. Not 100 on it, but, yeah I think so.

        In reality, I’m pretty sure a president could get an Iranian-nukes AUMF out of Congress by COB on just about any day they’re in session if he got the request in by lunch.Report

  7. Avatar Mike Schilling says:

    I admire your idealistic belief that this case will be decided on its merits, but I don’t believe it for a second. The issue is so politicized that there’s about the same likelihood of defection from the usual teams as in Bush v. Gore.

    I’ll make you a wager:

    1. Alito, Scalia, and Thomas find for the plaintiff.
    2. Breyer, Ginsburg, Sotomayor, and Kagan find for the government.
    3, I won’t try to predict Roberts or Kennedy.
    4. I win if all of these are correct. You win if any are wrong.

    Loser writes a post on any topic chosen by the winner.Report

    • Avatar North in reply to Mike Schilling says:

      If it’s decided on politics I see no way that Roberts would find for the plaintiff. He had a far stronger shot at taking the ACA down before and passed on it. This just wings it.Report

    • If you want a bet, dude, then make a bet. Predict all Nine.

      I say the Chief votes for the Government. NFIB and Yates both suggest that he will.

      Now it’s for you to call Kennedy, and then we’ll have some action.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        So we agree on the seven I predicted?Report

      • Avatar Kim in reply to Burt Likko says:

        Kennedy finds for the Plaintiff. That’s my bet, on the only schmoo who doesn’t matter.Report

      • Kennedy sides with CJ Roberts and the liberals. He’s not going to go on the record voting in favor of screwing over millions of people and 30+ states over a drafting error. Scalio, Alito, and Thomas will write a blistering dissent that basically boils down to NFIB was wrongly decided.Report

      • Avatar North in reply to Burt Likko says:

        +1 Michael Cain. Kennedy and Roberts side with the liberal wing. The ACA proceeds unmolested. GOP politicians fulminate publicly and privately mop their sweaty brows and thanks God(ess?) for the decision turning out that way.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @mike-schilling : I make a counter-proposal for the bet. I predict that the Government wins, narrowly. Further, for bonus points, I predict a fragmented Court, with all Nine ruling and writing as follows:

        1. Breyer writes a 3-vote plurality, joined by Ginsburg and Sotomayor, finding for the Government on a broadly-focused, contextually-driven statutory analysis.
        2. Roberts writes a concurrence, joined by Kagan if she does not abstain. Concurrence rules in favor of the Government on Chevron deference grounds, not reaching a level of statutory analysis deeper than noting the Government’s interpretation is reasonable.
        3. Scalia writes an excoriating 4-vote dissent for himself, Kennedy, Thomas, and Alito, accusing the plurality of judicially amending the law to fit their own policy preferences.
        4. Thomas writes a separate dissent, of two pages or less, amounting to “I agree with Scalia on that long, colorful dissent, but the plain meaning of ‘established by the State’ excludes exchanges established by the federal Government, and no further analysis or discussion is necessary and the plaintiffs should have won.”

        A 5-4 or 4-4 win (with Kagan abstaining) for the Government is a win for me. Any other outcome is a win for you (including a 6-3 or greater win for the Government, so you need not root for King). That’s a regular win, with the stakes you described earlier — loser writes a post on the subject of the winner’s choice.

        Additionally, if my opinion breakdown is exactly right as predicted in detail above, then I get bonus points, and you not only write a post on a subject of my choice, but you also have to change your avatar to a (flattering) picture of Clayton Kershaw visibly wearing readily-identifiable Dodgers regalia such as a jersey or a cap, for a two week period after the opinion in announced.

        If you make a Justice-by-Justice prediction to go for bonus points too, I’ll accept a similar bonus point stake, substituting Madison Bumgarner in Giants regalia as my extra penalty. Declare your exact Justice-by-Justice opinion breakdown within the next 24 hours if you want this action.

        And I’m gonna call out Brother @mark-thompson too — he’s likely already very well aware of the cetacean gravatar stake I’ll ask of him if I get a bullseye.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        I expect a 5-4 win for the government (the two I didn’t predict splitting 1-1), so your counter-proposal is unattractive. But for future bets, I do have this lovely Kershaw image:


      • If you want a bet, dude, then make a bet. Predict all Nine.

        Does this mean that the only SCOTUS bets you’ll take are ones where your counterparty specifies every justice’s vote? I don’t know how that reads any other way. It seems to imply that it’s only a bet at all if it “predicts all nine.” Predicting the total for each position (plaintiffs; government) isn’t predicting all nine, it’ just predicting the score. If he predicts all nine and you predict all nine, it seems like there’s a high probability the bet will null out when you are both wrong. Or, you can just take the ~[Mike’s prediction] side, in which case it better be a pretty good payout for Mike. I.e., pays $20 for buck (or the non-monetary equivalents that you would bet: ten Burt L. posts on his topics if he wins, one Mike S. post on yours if you do, etc.).

        I say the Chief votes for the Government. NFIB and Yates both suggest that he will.

        Now it’s for you to call Kennedy, and then we’ll have some action.

        So, assuming Mike’s question is valid and you do agree on the other seven, it sounds like it’s now, “predict eight out of nine, and also you have to bet against whatever it is I say Roberts will do for there to be a bet.” And what if you get Roberts right and he gets Kennedy right? Was there a bet?

        But that’s not really “a” bet. Theres no way to get “a” bet out of all of that. And it’s not “predict all nine.” As I say, under “predict all nine,” “the” bet is “he predicts all nine and you bet against his prediction, and you win if he gets any part wrong,” for which you should pay large stakes and he a small price to get the bet.

        The Roberts & Kennedy thing is really just two bets: 1. you get Roberts right/wrong, get or have to pay something; 2. Mike gets Kennedy right/wrong, gets or has to pay something.

        My odds observation: Mike would be a fool to make those bets together where the Kennedy bet doesn’t pay out significantly more than the Roberts bet for the same ante. You’re asking to make the much easier call in this case.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        I’m predicting a 5-4 or 4-4 win for the Government. Doesn’t matter who votes how, just looking at the aggregate result. If the government wins by one vote (or a tie, as I think it’s possible Kagan recuses) I win. Any other outcome, I lose. I’ll stake a post of the winner’s choice, written by the loser, on that outcome, against the first challenger to accept.

        I simultaneously made a much more precise prediction, for a higher stake. So there would be four possible outcomes: 1) I get my precise prediction right, so I’d get a post from @mike-schilling AND he has to sport Dodger colors for two weeks; 2) I get the number right but the prediction wrong, in which case I’d get the post; 3) I get the number (and possibly the outcome) wrong, in which case he gets a post from me; or 4) he makes an exact prediction and gets it right, in which case he’d not only get a post from me but I’d have to change my gravatar to represent for the Giants for two weeks, something that would be moderately but good-naturedly humiliating to me.

        I don’t know what the equivalent would be for you, @michael-drew . I’ll entertain a roughly equivalent proposition should you care to make one.Report

      • Ah, so “predict all nine” just means predict the score, not what each will do. The sides can consist of whomever so long as the numbers are right. Got it.Report

      • Naw, I’m sceerd of this one. Especially with the case you make for Kagan as a (very unlikely I think, but still) potential wild card. Which I appreciated: very interesting. I was meaning to read up on Yates one of these days.

        ETA: I could definitely see Kennedy going either way, and I’m not sure enough of Roberts. Plus with Kagan in Yates… One or two but not three of those three need to vote with the government for you to be right.

        Given what you’ve said about Roberts, doesn’t this for you come down to you having a strong sense that Kennedy will vote with the petitioners? I’m not so sure of Roberts and I have no idea about Kennedy, which means it’s pretty much a crapshoot since they could criss-cross. So for me that makes more kinds of possibilities involving 5-4 for the government even than you think, so it seems like a bad bet. But I wonder: what part of Kennedy’s jurisprudence makes you confident he’ll be with the plaintiffs?Report

      • Avatar Kazzy in reply to Burt Likko says:


        Why is 4-4 a win for the gov?Report

        • Avatar Burt Likko in reply to Kazzy says:

          @kazzy Because it takes a majority of votes to reverse the decision under appeal. In this case, the Government prevailed before the Fourth Circuit, and that’s the decision SCOTUS is reviewing. So a tie means the Fourth Circuit’s ruling stands.Report

      • Avatar gingergene in reply to Burt Likko says:

        @kazzy 4-4 lets stand the most recent ruling from the lower court. (If you can’t definitively overturn it, the ruling on the field stands.)Report

      • Avatar Kazzy in reply to Burt Likko says:

        @burt-likko @gingergene

        Thanks. I didn’t know how it worked.

        Which brings up an interesting question…

        Suppose Kagan would prefer to see the ruling go a certain way but she feels the law requires her to decide the other way. That would incentivize her to recuse herself, no?Report

      • @kazzy A 4-4 is a win for the government because the result is that the 4th Circuit’s decision stands. However, I’m not sure that this is a complete victory for the government – technically, the decision has no value outside of the 4th Circuit other than as persuasive authority, and other circuits are free to rule differently. Realistically, I think most courts of appeals will follow the 4th Circuit, though, knowing that Justice Kagan has a right not to recuse herself if SCOTUS takes it up for a second hearing.

        As for my prediction, I think the government is going to win with at least a 2 vote margin, and potentially 6 or 7-2 or even 8 or 9-0.

        Because of that, I think Kagan will recuse herself – there’s no reason to participate if her decision is unnecessary, and a recusal avoids her having to explain the discrepancy between her text-driven opinion in Yates and her vote here. As it is, her questioning at oral argument was very context-driven, which is very much at odds with her surprising ode to textualism last week.

        I think it’s hard to see Roberts going against the government here, and if he’s the swing vote, then I’d be somewhat surprised if Kagan actually recuses herself – I don’t think she relishes the idea that some circuits will be able to undermine the ACA and disregard the 4th Circuit.

        Justice Kennedy’s line of questioning about constitutional avoidance is hard to square with the notion of him voting against the government, even if he conceded that it’s possible that the question needs to be reached. I’m putting up a post shortly about this line of questioning, which is really interesting. I think he either writes the majority opinion in a decision with 3, 1, or 0 dissents or a concurrence in any other outcome favorable to the government (including a 4-1-4 decision, which would be different from a 4-4 decision in that, despite it’s minimal precedential value, would at least be binding in its rejection of the petitioners’ interpretation).

        I think Alito and Scalia were taken off guard by Kennedy’s line of questioning and, when they’ve had a chance to reflect, are going to see that their responses to that line of questioning painted themselves into a corner they’re not going to like. Those responses suggest that they’ve pretty much conceded that the petitioners’ interpretation raises constitutional problems. They said that they can always rewrite the statute and give Congress time to fix the problems with the statute, but I think they’re going to find on reflection that this doesn’t get them very far – it address the notice argument the solicitor general made (which was a pretty good one), but doesn’t address the other federalism issues that Justice Kennedy raised. That means that they’re going to have to jump through a lot of uncomfortable hoops to rule for the petitioners – they’d have to both address the federalism issue and rule in the petitioners’ favor on that issue, which would somewhat undermine their own federalism jurisprudence in a case where their actual votes were effectively meaningless. They could also, I suppose, rule in petitioners’ favor on the interpretation question, but then find that interpretation outright unconstitutional, but that’s a terrible strategy for them for several reasons, not least of which is that it would foreclose the possibility of a GOP President adopting a rule using that interpretation in 2017.

        Their (including Thomas) easiest out is to rule in favor of the government on constitutional avoidance grounds, along with Kennedy, and hope that Roberts joins them. The other possibility is that they dissent but ignore the constitutional question altogether under the unstated rationale that the issue wasn’t before the court.

        I think Alito is in a better position to join with Kennedy than Scalia and Thomas given his concurrence in Yates.

        So I’m going to predict a 4 or 5-2-2 decision with a majority/plurality of Ginsburg, Sotomayor, Breyer, Kagan, and Roberts, a concurrence by Alito and Kennedy, and a dissent by Scalia and Thomas, though I wouldn’t be surprised by anything other than a victory for the petitioners. I could just as easily see a 5-3(or 4)-0 decision in which Kennedy writes the majority opinion joined by the other conservatives on constitutional avoidance grounds, while the liberal wing writes a concurrence on Chevron deference grounds. I could also just as easily see a 5 or 6-0-3 decision in which Kennedy writes the majority opinion and Scalia, Alito, and Thomas dissent, or a 4-1-4 opinion, or even a 3-2-4 opinion, in which he writes a concurrence.Report

      • @mark-thompson
        From memory, so quite possibly wrong, but didn’t some subset of the conservatives say in NFIB that the law has many moving parts that all have to be working for it to achieve its goal, so if one of those parts was unconstitutional, it was better to toss the entire law than to either (a) hope it would still work or (b) rewrite it from the bench? Couldn’t that same argument be made here?Report

      • @michael-cain That’s an excellent point. Like, outstanding. Not least because it clinches my theory about what Kennedy is up to here.Report

      • @michael-cain I take that back a bit. On further reflection, it probably doesn’t support my theory of what Kennedy’s up to here. But it’s still an excellent point.Report

  8. Avatar Jaybird says:

    But, it’s also reasonable to interpret the law as the plaintiffs suggest, so a future Administration under different leadership might direct the IRS to adopt the narrower interpretation urged by the plaintiffs here. Since there is ambiguity, a future President would be within his or her discretion to cut off subsidies to the 1321 states and only extend them to the 1311 states. And if Congress doesn’t like that, it can pass a law clarifying or correcting the President.

    Out of curiosity, how often has this happened in the past?

    Like one president interpreting this way, the next that way?

    “Executive Activism” it might be called by its opponents.Report

    • Avatar Burt Likko in reply to Jaybird says:

      If by this you’re asking how often have Presidents (or their subordinates) chosen to interpret laws and promulgate regulations at variance with the manner in which their predecessors chose to do so? Only with every change of Administration. Sometimes even within Administrations.

      If you’re asking how often has it been potentially so consequential? Not very often at all.Report

      • Avatar Jaybird in reply to Burt Likko says:

        Now that I think about it, the War on Drugs probably gives several examples… Bush and Ascroft’s idiotic vendetta against Tommy Chong’s glass “art”, for one.

        With that said, I’d be interested in seeing the top three examples of consequentiality for this sort of thing in history and whether they all show up in the 1800’s.Report

      • Avatar Kolohe in reply to Burt Likko says:

        The earliest example is probably how Jefferson didn’t enforce the Alien Act (of Alien and Sedition fame) and pardoned most of the people that were still caught up in it. (The rest of them expired right around the time Tommy took office, but the Alien act is still on the books)

        The biggest policy change upon administration turnover is that toward the southeast United States Indian tribes when Jackson took over from JQA, but Andy had enabling legislation. (likewise, he was able to kill the BUS because the charter had expired and he was able to veto enabling legislation).

        From then until the Civil War, the Whig party was such a soup sandwich of policies and politicians (and then slavery teared apart the Democrats) that the Presidency was at war with members of its own party in Congress more than it was able to set national policy through administrative dicta. And the biggest federal law enforcement issue of the time – fugitive slaves – was not really confronted directly by federal agents, (who only consisted of customs agents, postmasters, and military officers at the time), but by bounty hunters enabled by federal legislation. And countered by state governments who made those services illegal, until those laws were mostly struck down by federal courts.

        After the civil war, you had a half century of GOP rule, interrupted twice by Grover, who ideologically, was more like Mitt Romney than any other Democrat before or since. Battles between administrations were almost exclusively about spoils and tariff policy. (the only ‘administrative’ Cabinet departments – that is, those outside the Big 4 – until the end of the 19th century were Ag and Interior – and the Post Office Department) Each post-Civil War administration treated Native Americans pretty poorly, and, after Grant, allowed the states to treat African Americans pretty poorly.Report

    • Avatar morat20 in reply to Jaybird says:

      And, as noted upthread — if a new administration did so (overturned the current IRS rules, if upheld), there’s a collection of states whose amicus brief suggests they’d sue to overturn it under Pennhurst.

      And unlike Adler and Cannon, they’ve got an argument that’s serious from the get-go. (There’s solid precedent for it, at least).Report

      • Avatar Kolohe in reply to morat20 says:

        The response to the Pennhurst line, I imagine, is that the federal government isn’t putting any obligations on the states. The one obligation on the states has already been tossed out. The states can set up exchanges, or not, but the subsidies/taxes, if there are any go directly to the people.Report

      • Avatar morat20 in reply to morat20 says:

        No, when the decision was made to make their own or use a federally backed on, they weren’t told that “using the Feds” denied their citizens subsidies. This is a substantive policy, with major impact. Per Pennhurst, Congress can’t ‘hide’ such things (and given this entire thing turns on a line buried in the depths of how subsidies are calculated, you can’t get more hidden).

        So it punishes states who didn’t set up their own exchanges by denying their citizens subsidies, while keeping the rest of the stuff (mandate and the like) alive. That’s a really killer burden. States might have a remedy for that, once they’re told, but the unconstitutional part is that they weren’t told at all.Report

      • Avatar Citizen in reply to morat20 says:

        In the end I don’t think it will matter. The gutless wonder of a GOP is already invested, and will fold as Democrats origami fodder. The bubble will grow and blow years into the future.Report

    • Avatar trizzlor in reply to Jaybird says:

      The wrinkle here is that neither party actually wants to law to be written this way. If they did, one or the other would have drafted an amendment that says “yes, we really meant “state” and not “The State”” and had Congress vote on it (perhaps in place of one of those 50 repeal votes). What the GOP wants is for the law to be interpreted in this way by a blame-able third party. So, even in this very case, it’s pretty unlikely that a President Romney would have interpreted this statute differently than a President Obama.Report

  9. Avatar Will H. says:

    re Yates:
    More history:
    This makes the second successful defense of sec. 1519. The first was in Delaware a few years ago. (Good faith reliance on advice of counsel was the defense there.)

    This is the same statute David Kerner was sentenced under for hacking into Sarah Palin’s e-mail account. (The hacking carried a max of a $5000 fine; destroying the evidence carries up to 20 yrs.)

    This is the Arthur Andersen statute, and it was written specifically to deal with that difficult prosecution.
    To recap, the 24/7 shredding of documents following the Enron collapse was not unlawful, as Arthur Andersen was a non-party on whom a subpoena had yet to be served– no duty to preserve. That’s changed.
    It really doesn’t fit with most of SOX, and it best understood as part of the make-over of the obstruction chapter.
    Internal Revenue had a statute that covered non-pending investigations, and the FBI wanted one. This is the one they got.

    Probably the most prominent of sec. 1519 prosecutions remains former Sr. VP of Finance of KB Homes, Gary A. Ray.

    I would say, at most, this is a fairly significant victory for the civil liberties / anti-police crowd. Temporary at best, but still significant.
    Destruction of evidence in a non-pending investigation, such as destroying a door with bullet holes in it showing the shots fired, is now lawful. The prohibition extends exclusively to writings– for the time being.
    I don’t expect it to stay that way for long. The next statute passed to replace the function of this one will likely be even more Draconian.

    Looking forward to going through the opinions though.Report

  10. Avatar Jim Heffman says:

    “it’s a little bit more unusual to see a higher-level analysis of the political blow-for-blow, the horse-trading and compromises inherent in the wrangling-through of difficult and complex legislation.”

    I don’t find that surprising, considering that the whole reason for this case is whether or not Congress meant what they wrote, and a big part of determining that is going to hinge on what they were saying at the time.

    Although, of course, we’ll hear all about how the only people who matter are the members of Congress at the time, aka “shut up about Gruber”.


    I’m not really digging on the whole “standing” argument, because it doesn’t really address the issue. It’s like winning a footrace because your opponent tripped and broke his ankle.Report

  11. Avatar Michael Drew says:

    the States did not opt to have the Federal government act on their behalf – it’s pretty clear from the politics surrounding the implementation of PPACA that the states that haven’t set up exchanges did not so “opt.” They wanted nothing to do with PPACA.

    Consider the basic sense of the ACA’s scheme for creating state exchanges: “An Exchange will be created on behalf of the people of your state. You can opt to create it on their behalf yourself, or you can opt to have the federal government to create it on their behalf.”

    If a state opts not to create it and one is consequently created by the federal government according to a legitimate power that it can exercise, how has it not opted to have it be created?

    There obviously could be an argument (not necessarily a compelling one) to be made against this that depends on the meaning of the term “opt” and maybe “have created.” But I don’t think it’s just obviously clear absent good argument that “it’s pretty clear that none of them opted to have the Federal government act on its behalf.” And I don’t see such a good argument in the OP.

    The challengers here aren’t contesting the federal government’s ability to establish these exchanges on behalf of states – and that’s what the “federal” exchanges are: state exchanges created for states by the federal government. They’re merely contesting whether he law as written provides subsidies on exchanges created by the federal government (on behalf of states).

    If the federal government can legitimately create the exchanges on states’ behalf without giving any options, as this suit doesn’t challenge, then they can legitimately give states (only) the options either to create them themselves or have them created by the federal government on their behalf, with no other options (since they could just create them for all 51+ “states” legitimately with out providing any other option). If states don’t opt for the first option, they have opted for the second option by default.

    You can want nothing to do with any of your options, but if they’re legitimately being restricted, your choices among them are still what you “opt’ for. You can want nothing to do the law, for example, but if it’s a legitimate law, then the choices you make that are consistent with it are still what you opt to do.

    Sometimes, if the restriction of your options is illegitimate, having your options restricted by an external entity might mean that you have not opted when you choose an option they are allowing. If an attacker is holding you at gunpoint, demanding that you either give him $1,000 from the ATM or give him your car and you choose to give him your car, I could (certainly) see an argument that you have not “oped” to give him your car. But if the restriction is legitimate, then you are left with a set of options, and if you take one, you have opted for it. You’re standing in a store holding an item. Your first-best preference would be to walk out of the store without paying for it. But you’re restricted by the law from doing that. Your other options are either to buy the item for its price, or to levee the store without it. If you choose to leave the store without it because it’s your next preference to stealing the item, then you have opted to do that, without question.

    This case is like standing in a store with an item you haven’t paid for yet, deciding what to do. The federal government can legitimately give states these options: to create an insurance exchange on behalf of the people of your state, or to have the federal government to create on on your behalf. If states choose the latter, they have opted for it.

    What the significance for the case is of all of this, I’m not really clear on, either in general or from the OP. But it was significant enough to lead your analysis of the government’s case with, so I addressed it.

    Separately, while I do think that standing is an issue in the case because of other coverage that it turns out some of the plaintffs had (VA, etc.) that obviously neither plaintiffs’ counsel nor the government were aware of until after the briefs were filed (and, sure, ding the SG for that, because it’s clear you want to ding him for something), I think you have the standing analysis you do do wrong. (Obviously, I could be wrong here).

    My understanding is that Cannon et al. did their plaintiff search on the basis of finding someone in an income range where, without the subsidies, the cost of insurance compared to their income would be high enough that they would not come under the individual mandate. (Possibly, even more comprehensively, the IM may not by law even apply in states/areas/cases where subsidized insurance is not available, regardless of income(?). I don’t think that’s right; I’m pretty sure it’s the income thing. Regardless, I’m quite sure that, at least in theory, King would not under the law have faced the IM penalty absent the subsidies.) So the harm is that the existence of the subsidies (he asserts illegally) creates a situation where King must either opt to purchase (subsidized) insurance, or else incur a penalty (rather than avoid any outlays as a result of the law at all).

    Now, if your view is that being subject to the IM can’t ever be taken to be a harm because now (after NFIB) it’s just being expected to “pay one’s taxes” (except it’s not a tax, even though it’s enough like a tax to be authorized by the taxing power, so that’s not the case), then that may not matter to you. But you still missed, if I am not mistaken, the basic thrust of the plaintiffs’ argument that the subsidies trigger a harm to him (denial of the ability to opt not to purchase health insurance without penalty).Report

    • Avatar Don Zeko in reply to Michael Drew says:

      Re: standing – The irony here being, of course, that as with the initial challenge to the ACA, the legal arguments against it are entirely a result of Democratic efforts to make the law more friendly to principles of federalism, choice, free enterprise, and competition than other potential methods for accomplishing the same policy objective. If, rather than requiring the plaintiffs to purchase insurance with a subsidy, the government simply bought insurance for them, there is no doubt that they would lack standing to challenge the government’s attempt to provide them with goods.Report

      • Avatar j r in reply to Don Zeko says:

        There may be some irony here, but it ain’t exactly functioning as you claim. Yes, congress and the administration could have avoided the challenge to the individual mandate had they simply called it a tax in the first place. That choice, however, was not about being “more friendly to the principles of federalism, choice, free enterprise and competition.” That choice was made so that congress and the administration could continue to claim that they would not raise taxes on anyone but the highest earners.

        And likewise, the Democrats in congress and the Democrat in the White House could have passed a version of health care reform that moved to a single payer system, but they didn’t. They didn’t choose this version of reform, which keeps insurance companies in their central role in this system and which fails to permanently end the doc fix or to tackle malpractice abuse, as some sort of concession to the right. They passed this version, because this is the version that the majority of them wanted.Report

      • Avatar Don Zeko in reply to Don Zeko says:

        @j-r that’s not what I meant. It’s not whether or not the mandate was called a tax. If, instead, the Dems had passed a more lefty version of health care reform (through an alternate congress that does not exist and has never existed) that simply provided insurance to everyone in more or less the same way Medicare provides insurance to seniors, the grounds to challenge it in NCIB v. Sibelius and King v. Burwell would disappear. But such a law would be not leave room for different states to tinker with implementation, would not give private companies a role in the system, would not give individuals the ability to choose between different plans, etc., all things that Conservatives would rather have than not have in any given health care reform legislation.Report

      • Avatar Don Zeko in reply to Don Zeko says:

        @j-r sorry, i did a poor job of reading your comment before responding. I would say, though, that the preference of mainstream Democrats for the type of reform that was actually enacted is largely a result of past failures to reform health care.Report

      • Avatar j r in reply to Don Zeko says:


        In one sense you are right, but in another, “so what?” Yes, there are any number of mainstream Democrats who would be converted to the cause of single-payer health insurance if the political needle where to ever move far enough in that direction to make it single-payer health insurance viable political goal. There are not, however, so many mainstream Democrats willing to risk their political careers by campaigning on and fighting to move the needle in that direction.Report

    • Again: I understand the argument. I’m unpersuaded, for reasons I’ve already articulated in the OP and elsewhere in comments.Report

      • I didn’t suggest the problem was that you didn’t understand the argument (though it wasn’t entirely clear you did, either), nor even that you must necessarily be persuaded by it. It’s just simply the case that it’s not clearly incorrect absent good argument that it is incorrect, as you pretty much claim. (That’s what saying “It’s pretty clear that’s wrong” means as opposed to, “Okay, that’s one view that could be reasonable, but here’s why I think that’s wrong.) And it’s the case that you don’t provide any good argument why it’s incorrect. It could be incorrect, but you don’t provide any good argument for that view that survives my response that treats what it means to opt for choices under various kinds of restrictions on one’s options. Being legally barred from stealing doesn’t render opting not to steal not opting, etc.

        You could explain your understanding of what it means to opt that makes it “pretty clear” the states didn’t if you want to, but you don’t in the OP.

        You also don’t come back to why it might matter for the larger discussion at all, which I remain curious about.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        It’s disingenuous to say that when I hand my wallet over to the guy who’s mugging me, I’ve “opted” to give him my wallet. There’s nothing willing or even particularly volitional about my action. My only other “option” is to resist and put my life in jeopardy, which is not a reasonable choice. It’s not so much an option as compliance with an enforceable command.

        This was a big part of the reasoning in the part of NFIB that the Chamber of Commerce and AEI and their allies won. We usually like to say that Obamacare survived NFIB but a good chunk of the Medicare expansion component of PPACA was rendered invalid because the conditioning of continued Medicare and Medicaid funding on acceptance of the expansion was found to deprive the states of a meaningful political choice. They had no reasonable option but to agree to the expansion, and SCOTUS agreed that the “choice” was illusory, so it invalidated that portion of the law.

        In the case of the creation of exchanges, the political record to me looks like the states were choosing between “We want to opt in to Obamacare” or “We want to opt out of Obamacare.” The third option, “We want to do nothing and let Obamacare come to us,” was not something that it seemed anyone, either those who wanted opt in or those who wanted to opt out, was advocating for.

        It’s important to me because it begins the Government’s argument with an unforced, self-inflicted wound to the Government’s credibility almost right out of the starting gate. It takes a degree of mental effort thereafter to look past that and realize that the statutory analysis is actually meaty and intellectually creditable. Seems to me that good advocacy rings of the truth from beginning to end. This brief doesn’t do that, even if it urges a result that seems right on the law. It bugs me because I felt similarly after reading the Hobby Lobby brief from Verrilli’s office.

        It’s much like watching the running back from your favorite team fumble and have to fall on the ball so as to keep possession rather than executing a rush for positive yardage.Report

      • It’s disingenuous to say that when I hand my wallet over to the guy who’s mugging me, I’ve “opted” to give him my wallet. There’s nothing willing or even particularly volitional about my action. My only other “option” is to resist and put my life in jeopardy, which is not a reasonable choice.

        Yes, and I made that point. But a different scenario is one in which the option you want is rightly illegal. Does a person who wants to steal but doesn’t because it is illegal not opt not to steal?

        Yes, the Medicaid expansion was (ridiculously) deemed too coercive. But that round of litigation featured presumably all the major arguments about whether the federal government broadly overstepped its authorities under federalism in the ACA, and no one even advanced the argument, much less was it endorsed by the courts, that the structure of the federal government providing a choice to states of either setting up exchanges or having them set up for them offered a false or unduly coercive choice to states. That was the round where those kinds of questions were dealt with, and no one even alleged that. So this action was legitimate by the federal government. Those who sought to pursue all the major arguments why ACA was an invalid use of federal power never even brought that one up. It’s not a false choice, it’s just a choice: a way that the federal government can legitimately restrict the options of the states.

        So it’s a legitimate restriction on options, like laws against stealing are. When you choose not to steal because of the prospect of being punished under the (legitimate and right) laws against stealing, you have opted not to steal. This is like that, certainly wrt to legitimacy if not even also rightness. The states face a legitimately-restricted set of options, from which they can’t but choose (i.e., if they do nothing, X will happen). They can opt to choose from among those options.

        Opting does not require being able to choose your first-preferred option from an unrestricted universe of options.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Why are you confusing prospective intent for retrospective outcome? It’s not a question of preference, it’s a question of characterizing a political actor’s volition.

        Virginia (e.g.,) did not “opt to allow the Federal government to create its exchange.” Much more accurate to me to say that Virginia “refused to set up its own exchange.” Perhaps only slightly less accurate to say that Virginia “failed” to set up its own exchange.

        The result of its failure was imposition of a federal exchange. Being subject to another’s imposition is not the same thing as “opting” for that outcome. There’s no volition or even assent implied in being imposed upon.Report

      • But Virginia knew what the result of not setting up its own exchange would be. It wasn’t “create an exchange on your state’s behalf yourself, or ???”; it was “create it on their behalf yourself, or you can opt to have the federal government to create it on their behalf.” You’re right that Virginia did refused the option to set up the exchange, but thereby they opted for the government to do it. Those options were clearly given, and the restriction placed on other options was legitimate. Sometimes we face (legitimately) structured or limited choices in life; it doesn;’ follow that when our first-best option isn’t available within that structure, any choice me make isn’t us “opting” for it.

        The person who is being mugged and is forced to give the mugger his watch doesn’t opt to do so. But that’s because it is an illegitimate restriction of options – an imposition. But we don’t say that the person who opts not to steal because it is illegal isn’t opting not to steal, do we? Or is that what you say?

        The dictionary says that to opt is “to make a choice; choose” (http://dictionary.reference.com/browse/opt). We could say that if the ACA had simply given the states the option to set up exchanges and said noting about what would happen if they did not, then it wouldn’t be right to say that states who opted not to set up exchanges thereby opted to have the federal government to create them on their behalf. But the ACA spelled put exactly what would happen, and restricted those options legitimately. The states knew that to opt not to set up exchanges was to opt to have the federal government create them on their behalf. When they opted (chose) not to create them, they were opting (choosing) to have the federal government do so on their behalf. The choices were clear, and the restriction of choices was legitimate. It was opting, just like it is opting when you opt not to steal because the options are clear (even though limited).Report

      • …Incidentally, while clearly the claim is in there for some reason, I think it’s mostly for pretty ancillary rhetorical reasons. Do you have a view about whether this point is important for the case?Report

    • Avatar Jim Heffman in reply to Michael Drew says:

      “You can want nothing to do with any of your options, but if they’re legitimately being restricted, your choices among them are still what you “opt’ for.”

      So if I don’t cast a vote for the US President it’s the same as though I’d voted for the winner?Report

  12. Avatar Burt Likko says:

    Oral arguments are underway as I post. Eric Citron and Tejinder Singh of SCOTUSblog have some fantastic updates.Report

    • Avatar morat20 in reply to Burt Likko says:

      Their latest update talks about Kennedy’s line of questioning.

      If I understand it right, Kennedy is basically poking around at this hypothetical: If the petitioners are correct (and the subsidies are denied to federally created backstops), would that not lead to an unconstitutional outcome due to the ‘penalty’? In short, he seems to be asking “If we assume your reading is right, would we not have to rule that the subsidies are universal to all exchanges in any case, to keep the law Constitutional?”.

      The thought of the Supreme Court finding that “Cannon is right, the subsidies are for state backed exchanges only — however, that limitation is unconstitutional and so we strike that limitation down” would be amusing. (Although honestly, I’d expect that more in a footnote if they rule against the petitioners anyways. Along the lines of ‘We don’t want to see this under another President, only the other way around, because that’d run into this specific issue”).Report

      • Avatar Jaybird in reply to morat20 says:

        One problem that judges (usually) know to keep in mind and people cheering for this or that outcome (usually) don’t keep in mind is how judges aren’t only ruling on this case before them, they’re ruling on cases they haven’t even dreamed of 5-10 years in the future.

        As much as I (usually) mock reliance on precedent and stare decisis, I admit that the concept does have some non-silly defenses.Report

      • Avatar Michael Drew in reply to morat20 says:

        It’s worth pointing out that exchanges without subsidies arguably leave states in a worse position vis-à-vis private health markets than the pre-ACA status-quo ante, which didn’t feature a major federal program that could be continued or discontinued at the federal government’s whim.

        This is unlike the Medicaid expansion, which didn’t threaten to leave states in any worse position than the pre-Medicaid status quo ante. Congress could end Medicaid tomorrow, no questions asked. So they ought to be able to add reasonable conditions to it, such as that it needs to cover more people and more care, offering full payment for that care for a number of years, followed by 90% coverage in perpetuity. Congress perhaps should not be able to threaten to do positive damage to the insurance markets of the states in order to force buy-in to a new heath-care regulatory scheme.

        Kennedy may try to say that the same principle requires both. And, indeed, because the precedent from NFIB is more protective of states against coercion than this scenario would minimally require to be deemed invalid (i.e., because they found the other scenario invalid and it was a less severe threat), in fact he might be right that precedent might require that this kind of threat is not allowable (though that could mean he would invalidate the whole scheme, but more likely that he would read it not to issue that threat to states).

        But that doesn’t mean that the same principle would/should govern both situations. They got the Medicaid expansion wrong in NFIB. Congress could repeal Medicaid tomorrow; it was a program they elected to establish, and one they can elect to discontinue. They could replace it with a similar program with terms that cover more people and ore things. That would be identical to what they did. So they should have been allowed to do what they did.

        What Congress perhaps can’t do is threaten positive harm to states in order to induce behavior. They perhaps can’t threaten to impose a regulatory scheme that they know can only work with a certain set of critical components in place, and then threaten to withhold one of those components while imposing the others, producing chaos and harm. That should be the principle to decide this case on cooperative federalism principles. That principle would have allowed the Medicaid expansion to fall stand! stand!, but it might require a scheme where a critical component of a regulatory scheme is withheld to fall – or it might compel a judge not to read statute to impose such a harmfully incomplete scheme if he can reasonably do so.Report

    • Avatar j r in reply to Burt Likko says:

      This part is very interesting:

      The second point is that the government’s reading “is compelled by” the structure and design of the statute–specifically that it was designed to ensure state flexibility in setting up exchanges, to avert death spirals, and to provide affordable care for all. He argued that in light of these goals, Congress simply could not have intended for the statute to function as intended.

      That provoked an immediate and sharp response from Justice Scalia, who said that “of course” Congress could have enacted a statute that functions the way petitioners describe. Justice Scalia then engaged the Solicitor General in a back and forth about whether statutes can ever be written in less-than-optimal ways, and about whether they can ever be nonsensical. The argument implicit in the questioning was that even if Congress wanted to enact a law that works, it doesn’t mean that it actually did so.

      What Scalia is getting at here is the exact question that I have. I keep seeing those defending the government’s case making the claim that the law can only work in the way that the government interpreted it, because any other interpretation renders the law unworkable. Short of asserting some version of Congressional Infallibility, it is entirely possible that congress can pass a law in which different parts of the law contradict and work at cross purposes. And in fact, that appears to be exactly what has happened in this case.

      So @burt-likko, my question is this: why does the government feel compelled to hold that line instead of retreating to the much more defensible position? Why say that the law cannot be interpreted any other way instead of saying that the government’s interpretation is simply the one that makes the most sense? It does not appear to me to be an obviously superior strategy, but then I’m not a lawyer. What are the downsides to admitting the ambiguity? Is the government worried that the court could kick the law back to congress and instruct them to amend it, which they know is impossible in the present environment?Report

      • Avatar Kim in reply to j r says:

        Indeed, Congress can pass laws that are utterly stupid and improbable. It can also have inserted language after the law was passed, without attribution nor vote. This has happened in recorded memory.

        Sometimes, our government outgrows its britches and needs a spanking.Report

      • Avatar greginak in reply to j r says:

        Because if you have two choice, one of which i reading a law so that it doesn’t work and one in which it does seems like a pretty simple choice. Now if there is tons of evidence that the law should be read in the way that it doesn’t work maybe that is the way that it should be read. But there isn’t tons of evidence in this case. In fact all sorts of groups including many states, the Supremes themselves and both the D’s and R’s never read the law as reading in the way it doesn’t work. There isn’t tons of evidence that the law should be read in the that it doesn’t work. In fact it seems like it should be a really high bar to cross to read the law in a way that will lead it to fall apart.Report

      • Avatar Kim in reply to j r says:

        The supreme court’s job is to interpret laws, not rewrite them on toilet paper and send them back with corrections to Congress.

        That’s an editor’s job.Report

      • Avatar morat20 in reply to j r says:

        Scalia’s right in that the ‘Congress wouldn’t do that because that’s stupid’ is not a complete defense. Congress can do stupid things. Congress can, you know, get it wrong.

        However, while it wasn’t mentioned in the oral arguments, at least one of the amicus briefs goes into serious detail on the very point Scalia raised — that is, not just that it was stupid and contrary to the stated intent of the law, but that Congress was fully aware of that problem and working to avoid it.

        And as greginak mentions — if there are two equal paths, one of which reaches the stated goal and the other does not, why on earth would the courts assume that the intended one is the one that does not reach the goal at hand? Perhaps Congress WAS deliberately breaking the system, but absent any evidence you should assume they were not.Report

      • Avatar Burt Likko in reply to j r says:

        I agree that, in theory, Congress can pass a nonsensical, self-defeating, and even counterproductive law. It’s not SCOTUS’ job to save Congress from itself.

        Now, bear in mind that this comes with a big caveat: SCOTUS must assume that Congress was doing something, it must assume that Congress had a policy goal in mind, and it must strain to interpret even clumsy drafting in light of that. SCOTUS should not immediately pounce upon a facile interpretation of a clumsily-drafted statute without giving due consideration to other reasonable interpretations, and it should favor the reasonable interpretation that makes the most sense in light of what the law, as a whole, is apparently (or often enough, explicitly) trying to accomplish.

        This describes, I think, the “more defensible position” you wish the Government had adopted, @j-r , and indeed that is roughly where I think the case will ultimately come to rest: there is more than one reasonable interpretation of the statute, so the executive gets to decide how to interpret it and the courts must defer to whatever reasonable interpretation the executive gives to it.

        So why is the Government staking out and trying to defend territory that is more difficult than that to defend? Like I say, I’m the wrong guy to ask. But if you can get an answer from @donald-verrilli I for one will be fascinated to read it.Report

      • Avatar Citizen in reply to j r says:

        This is not a nation of laws, (or men). It is a nation of Assets Under Management. To consider that courts operate outside of that is foolish.Report

      • Avatar Jaybird in reply to j r says:

        And as greginak mentions — if there are two equal paths, one of which reaches the stated goal and the other does not, why on earth would the courts assume that the intended one is the one that does not reach the goal at hand?

        I’ll bring this up again: I suspect that the original theory was that only one or two states, both of them red, would fail to set up exchanges. Take that, Texas! The people in Texas would therefore revolt against their stupid party in charge thus turning the state bluer. That’s a win-win.Report

      • Avatar Kim in reply to j r says:

        That might work in Kansas. It could even, maybe, work in Utah. But Texas? Texas is cussed stubborn, and would just walk off in a huff. Maybe even try to declare itself independent.

        Best thing you can say about Texas is that they didn’t elect a lawn gnome to be mayor (I’m looking at you, Cleveland!)Report

      • Avatar j r in reply to j r says:

        This is not a nation of laws, (or men). It is a nation of Assets Under Management. To consider that courts operate outside of that is foolish.

        In all seriousness, I am kind of interested in what you mean by that. Could you say it in English, so that I might understand?Report

      • Avatar Michael Drew in reply to j r says:

        @burtlikko @j-r

        I think you guys are kind of having a discussion about whether the government should be arguing that the law “Really means that” (what they say it means), or whether they should just be asking the Court to “Please just allow it to mean that, or to be applied that way, because not to do so would produce bad to even absurd results, and laws shouldn’t be interpreted to do that where it can be avoided.”

        And I think Verrilli is staking out a “strong” version of the latter, some thing, “Please let this law really mean that, because we shouldn’t just interpret laws not to produce crazy results, but we should interpret them to actually mean the things that don’t produce the crazy results.” So he’s arguing that this canon of interpretation shouldn’t just determine the way the law is applied, but it should inform what the law’s meaning is actually interpreted to be. Whereas @j-r would prefer he not try to apply the canon to the question of how to construct the real meaning of the law (but instead ambiguity should be recognized as ambiguity), but to instead apply it to the question of how to apply the law.

        That would be my interpretation of why Verrilli would stake the claim. I think he’s arguing that point because of things like the relish people like Scalia show at the prospect of perhaps one day holding the “meaning” of a law against its application, where the canon against producing absurd results is being applied to prevent those absurd results. If the canon is not applied to the meaning, then if the meaning is ever just right (somehow both constitutional but also clearly commanding of absurd results), potentially Scalia could hold the “meaning” of a law against its application in a way that produces absurdity – to his delight, for whatever reason. But if the canon in question is applied to the meaning itself, then that result is much, much less likely.Report

      • Avatar Michael Drew in reply to j r says:

        …Actually, I take that back. It’s not just a strong version of the latter, it is in fact the former. (You’re right about that.)

        But I think those are the reasons.Report

      • Avatar morat20 in reply to j r says:

        I’ll bring this up again: I suspect that the original theory was that only one or two states, both of them red, would fail to set up exchanges.
        It’s a somewhat pointless suspicion. It doesn’t matter how many or how few. Congress set up a federal backstop. (Which is not unique to the ACA, btw.)

        Plus, from my memory of the actual political process at the time — it was REALLY clear, long before it was signed into law, that a lot of states weren’t going to make their own exchanges. Some because of politics, some for other reasons. (I think at least one it was simply because for small states, it was easier and cheaper to have the feds do it).

        Google-fu has failed me, so I can’t grab the contemporary CBO projections — but even they suspected more than one or two states would fail to set up an exchange.Report

      • Avatar Michael Cain in reply to j r says:

        I suspect that the original theory was that only one or two states, both of them red, would fail to set up exchanges. Take that, Texas! The people in Texas would therefore revolt against their stupid party in charge…

        This only makes sense if it was being done by leadership in some very secretive and underhanded way, because they had to hold on to Sen. Ben Nelson of Nebraska’s vote in order to break the filibusters. Nebraska is, in fact, much more the type of state that would find the alternatives to a state-operated exchange — the federal exchange, a state-federal partnership, a joint exchange with neighboring states — attractive for practical reasons.Report

      • Avatar Michael Drew in reply to j r says:

        …Well, wait, now I’m not sure again.

        I think I was right the first time.


        …Yes, now I’m sure.

        It’s not “This can clearly only mean one thing by its plain meaning and anyone who would argue otherwise simply is misinterpreting it!”

        It’s, “The rules of interpretation say we should not just apply it so that it doesn’t produce absurd results, but that we should assume that is actually what its meaning is and that it was Congress’ intent for it to mean that.” Which does allow that there could be ambiguity on the page, but also is an augment about how to apply a canon of interpretation: to actual primary meaning, not just to application.Report

      • Avatar Citizen in reply to j r says:

        @ jr
        There is no legislating in an oligarchy. It’s just theater.

        Corruptissima re publica plurimae legesReport

      • Avatar Citizen in reply to j r says:

        @ Kim,
        It’s not like the FBI is busting up independence meetings over penny ante stuff. Shaking down folks at gun point at opportune moments.

        I guess this is one of those social norms that prove elements of the FBI do in fact suck.Report

      • Avatar Kim in reply to j r says:

        if you want to get a hacker roughed up, call the FBI.
        If you want to get a gunrunner roughed up and thrown in jail, call the secret service.
        If you want to tazer a sovereign citizen, call the bailiff.Report

      • Avatar Michael Cain in reply to j r says:

        This only makes sense if it was being done by leadership in some very secretive and underhanded way, because they had to hold on to Sen. Ben Nelson of Nebraska’s vote…

        Skimming through the transcript and Sen. Ben Nelson’s name comes up, with him asserting that the possibility that Nebraska could lose the tax credits if they didn’t set up their own exchange was never even hinted at to him.Report

      • Avatar Kim in reply to j r says:

        Michael Cain,
        at least one state just wants to pass a law saying “the federal exchange is our state exchange”
        Poof. Done.Report

      • Avatar Michael Cain in reply to j r says:

        If I’m the plaintiffs determined to kill the PPACA at any cost, I can think of half-a-dozen arguments about why saying the federal exchange is your state exchange doesn’t make it so under the language of the statute. In the transcript, there was discussion about staying any ruling for long enough to allow the states to establish their own exchanges — and all of it carried (at least to me) a heavy flavor of the state would have to do a whole lot more than just make such a declaration.Report

      • Avatar j r in reply to j r says:

        OK, but why would the plaintive’s interpretation produce “absurd” results? It might produce results that the legislators and wonks that drafted the bill did not want it to produce, but that’s not absurd. Put another way, it may results that look absurd, but it’s not absurd in any metaphysical sense.

        I’m not so sure that I buy @jaybird’s theory, but suppose for a moment an alternate timeline in which exactly what he describes happens. Let’s say that the administration interpreted the law in accordance with the plaintiffs view and all but one or two states followed suit and established exchanges. For one thing, I have no doubt that any number of people arguing that the ACA can only be interpreted one way would in that alternate universe be applauding the ingenious design of a system that successfully incentived the states to expand Medicare and set up exchanges (granted, this is neither here nor there). The important thing is that in such a scenario the plaintive’s interpretation is quite clearly not absurd, because it would have created a workable solution.

        If I walk into a casino and put a $100 on red and the roulette wheel lands on black, I don’t then get to argue that I obviously meant to put it on black, because my intention was to win. Not saying that is what happened in this case. Just saying that the argument that the language is ambiguous, but we meant to structure it and chose to interpret it this way is a much stronger argument than we couldn’t have possibly meant the other way because the other way is absurd.Report

      • Avatar morat20 in reply to j r says:

        Absurd in this sense is a bit more technical. For instance, an interpretation is often see as absurd if it leaves several other parts of a statute pointless. (Hence the talk about how no plans could qualify for fed-backed exchanges and no citizens could purchase insurance on them — why did Congress detail their existence if they would be empty and useless?)

        It’s also considered absurd if it works against the stated purposes of the law, or contradicts an element of the same law.

        Basically “absurd” kinda really means “Reading it that way raises a LOT more questions than it answers” (the “lot” is why “absurd” and not just “wrong”).

        The Courts start with the assumption that Congress is not lying about it’s intent, is has passed a law consistent with that intent. (In short, the law should work as Congress intended. That doesn’t mean it “works” in that it’s real world effects are as Congress wants — for instance, Congress can intend a specific tax cut increase revenue, but that doesn’t mean it will.).

        So there shouldn’t be a bunch of pointless, surplus bits that don’t even work logically with what Congress wanted. Bits of the law shouldn’t contradict other bits. Things like that.Report

      • Avatar Michael Drew in reply to j r says:

        Everything doesn’t rest on “absurd.” “Terrible,” “nutty,” “improbable,” etc. count too.

        Resultss that it just seems highly unlikely were actually intended. Like a regulatory scheme that relies on a there-legged stool only having two legs in… well, really any states. A state is a lot of people.

        In this case, the issue would be, and the theory is that, that saddling states with that was meant to induce action from them that the feds want. And the court already found that coercion even less severe than that was too severe to be constitutional under federalism. So that’s the way the circle is definitively squared here.

        But the canon applies where unconstitutional (by precedent) results are not the stakes, but merely clearly adverse results that it is unlikely Congress intended, where an interpretation that produces results that are better by the lights of what the evidence suggests were the broad aims of the legislation is available – and the text at least ambiguous enough that that interpretation is not foreclosed.Report

      • Avatar Michael Drew in reply to j r says:

        …Note that my comment didn’t specify absurdity as necessary, but cited “bad to even absurd results.”Report

      • Avatar Michael Drew in reply to j r says:

        …Btw, there are answers to much of this. We should read up on the avoidance canon and related matters. I’m giving what my impressions of it are, but obviously there are technical answers (though also to some extent the underlying thrust of it is somewhat still up for discussion, as Alito’s questioning of Verrilli and his response shows to some event), and I’m sure I’m not describing them accurately. I don’t think I’m too far off, but there’s a lot of specifics that are pretty well-established on all of this.Report

      • Avatar j r in reply to j r says:

        And the court already found that coercion even less severe than that was too severe to be constitutional under federalism.

        I’d like to hear more about this. What’s the jurisprudence? I was under the impression that the federal government deploys these sorts of carrots and sticks often. For instance, part of the reason that the drinking age in all fifty states is 21 is because the federal government withheld highway funding from states that kept it under 21. And I always thought that was a crappy use of federal power, so it would be nice to know that this sort of thing is no longer passable.Report

      • Avatar Michael Drew in reply to j r says:

        It does, and it’s a fair question as to exactly why and what limits there are or should be on what kind of coercion they can use to get states to do things.

        But such a limit was found relating to the ACA three years ago. The Feds were disallowed from changing the conditions upon which receipt of Medicaid funds (which are block-grant style funds that come with a list of conditions attached for how they can be used) relied. This is fully elective, federal program that states can opt into as long as they meet the attached conditions which Congress could end at any time. But apparently Congress can’t change those conditions and raise the amount of the block grant to pay for the greater requirements, while leaving it an all-in/all-out option. The new conditions and new funds have to be offered as an increment that can be separately accepted or rejected, with the former terms now apparently untouchable (presumably unless Congress just ends the program?).

        Form whatever option of that limit you want. but I don’t think it’s particularly reasonable to see wanting to change the terms of the overall program as an all-in/all-out proposition as more or even as coercive as it would have been for Congress to impose on states that wouldn’t opt into ACA an incomplete regulatory scheme that would do certain and obvious damage to the states’ health insurance markets compared to the status-quo-ante.Report

      • Avatar Mark Thompson in reply to j r says:

        @j-r I’ve been critical of the Solicitor General for doing things like this in the past, but here I think their position makes a lot of sense. Taking the weak position here, even if it’s the position most likely to command a majority of justices, would mean conceding that a future administration could wipe out the subsidies to the states. And the court is well aware of Chevron deference, which the government also fully briefed and argued as a fallback position – this isn’t an issue where the Court really needs to be heavily educated since the Chevron doctrine is such settled law. So in this case, unlike other cases where I’ve been critical of them for taking overly strong positions, there’s just not much reason to push the weaker position, even as there are really strong policy reasons for pushing the more absolutist position.

        Don’t get me wrong – I completely agree with Scalia that the “absurd results” doctrine doesn’t really work here. But I also absolutely understand why the government is pushing it, or something similar to it, as it’s primary argument in this case.Report

    • Avatar aaron david in reply to Burt Likko says:

      I would like to repeat the thanks @burt-likko here deserves. I am not a lawyer (still have my soul) but think he has done a fantastic job.Report

      • Avatar Burt Likko in reply to aaron david says:

        Much appreciated, @aaron-david . I wish I could have made it briefer or spent some time looking at interesting amicus arguments but things like life and my day job kind of got in the way. All the same, my goal is to inform, my assumption is that y’all are intelligent enough that I don’t need to dumb the subject matter down, and my pleasure is seeing people exchange ideas about it.Report

  13. Avatar greginak says:

    Not relevant to what the SCOTUS should do but this seemed just so special. From a WSJ profile of one of the lawyers for the petitioners:

    “Mr. Carvin is optimistic about his prospects in the current suit. He said the loss in the 2012 case, which contended Congress lacked the constitutional authority to require individuals to carry insurance, came in part because it was tough to prove what the framers would have made of the overhaul the modern health-care marketplace. He also said he faced legal precedents that, to many conservatives’ chagrin, have increasingly deferred to Congress.

    In contrast, Wednesday’s argument involves “a statute that was written three years ago, not by dead white men but by living white women and minorities,” Mr. Carvin said. ”

    Ummm yeah, Mr Carvin has a way with words.Report

  14. Avatar morat20 says:

    Wow. Reading through the transcripts — good lord, how do lawyers manage to make a point? It’s like some weird mix between grilling a witness and a speech.

    You can see (Carvin, in this case) start to make a point only to get interrupted and judges firing questions at him, but half the time he doesn’t really get out more than a ‘yes or no’ before there’s another question.

    I guess that’s why they file all the briefs (you know, so they can make their points) but that leaves me wondering what the point of oral arguments is? To put one guy for each side out there to question for things the judges find pertinent but they didn’t feel was well covered by the briefs?Report

    • Avatar Kim in reply to morat20 says:

      Pretty much. if the judges think that you didn’t do a good job countering their Very Important Argument, they’ll give you the opportunity to do so in open court. This allows actually important issues that the judges are concerned about, to get a fair hearing before a decision gets made.


      Sometimes it’s just used as an “I don’t like your arguments, and I’m going to be ideological and witty at the same time.”

      Except for Thomas, who doesn’t speak.Report

    • Avatar Burt Likko in reply to morat20 says:

      The transcript is available directly from SCOTUS. Hasn’t been reviewed or proofed by the court reporter yet, but they always do a really good job.

      And yeah, it’s pretty unusual for a lawyer to be able to get more than two sentences completed and halfway through the third before one of the Nine start asking questions. Well, Eight And A Half — Thomas is there but he’s only opened his mouth to make an utterance one time in his entire career on the High Court, and that was two syllables to contribute to a joke already underway amongst his Brethren.Report

      • Avatar Kim in reply to Burt Likko says:

        This just reminds me of a very funny joke from Lexis Nexis, after a witness exploded on the witness stand. (court recorder, naturally wrote: “rest of reply garbled due to witness exploding” no, that’s not the joke).
        [This might, perhaps, be why it’s generally NOT a good idea to give comedians payment in expensive legal whatsits.]Report

      • Avatar morat20 in reply to Burt Likko says:

        After scanning the transcript, some quick thoughts:

        1) Roberts was strangely quiet. I would have thought he’d have asked more questions.
        2) Kennedy (him and Roberts likely to be swing votes) seemed very concerned about whether the plaintiff’s reading of the law would amount to unconstitutional coercions on the state. (Which is yet another time when the Courts have a particular duty, that is to salvage the law if at all possible).
        3) Scalia and Alito were the ones questioning the government most skeptically, but they also noted they kept running into a wall on ‘If we reverse the IRS rule, the states and citizens are potentially in for a pounding, one that might not have a practical remedy.” (They noted Congress could fix it, and of course the 34 states could create their own exchanges. I think the government disposed of the latter, noting there simply wasn’t enough time after the ruling. The former is not something he can really address).Report

      • Avatar Kim in reply to Burt Likko says:

        at least one of the states just wants to pass an (admittedly preemptive) law declaring that the federal exchange is their state exchange. And another state wants to market their state exchange to other states.

        So, it really doesn’t hold water — there are relatively straightforward fixes to “stupid text tricks”Report

    • Avatar Michael Cain in reply to morat20 says:

      My three sessions on the staff for the Colorado legislature’s Joint Budget Committee gave me a much greater appreciation for the difficulties the lawyers face here. Being the staffer presenting a set of recommendations for part of the budget and having two or three committee members (or drop-in members of the General Assembly who weren’t on the budget committee) conduct an argument in the form of lengthy questions asked of the staffer was… interesting. Especially when they would jump backwards 20 pages in the presentation material, then to something from a previous meeting, then… I recall more than one session where, once the argument had died down at least to the point that they were simply glaring at each other, I could pick up:

      Me: “Madam Chairman?”
      Sen. Keller, smiling: “Yes, Michael?”
      Me, pleasantly, pretending the last 20 minutes had simply not happened: “Starting on page 57, staff has prepared an analysis of decision item #3…”Report

  15. Avatar Michael Drew says:

    It’s looking like 6-3 government, or else 5-4 government with Kennedy & Roberts voting the reverse of what we might have expected.

    Which is to say, it’s hard not to read Kennedy here as being a lot more… I won’t say friendly to the government, but let’s say forced into the government’s corner than maybe was anticipated.

    Kennedy could certainly turn around and say that the text is too clear for avoidance to command a reading that allows the subsidies, but, man, that’s not sounding terribly likely to me right now based on this.Report

    • Yep. I’m pleased with the prediction I made yesterday: four liberals for the government, three conservatives against, Roberts for the government in order to avoid screwing all those big corporations and Kennedy for the government in order to avoid screwing millions of people in 34 states. Not that Roberts or Kennedy will say openly that those are their reasons…Report

  16. Avatar JHemenway says:

    While I have read many of the arguments regarding this case and can contribute little in the way of providing additional information, there is one paragraph under “The Government’s Argument” that caught my attention.

    “Uncharitably, one might point out that nearly all of these states are in substantial part by Republicans…none of them “opted” to have the Federal government act on its behalf.”

    This is the major premise of most arguments made by government wishing to grow. If anyone opposes a program to help those that have not provided for themselves either by choice or circumstance(since they are not separated per politics and not actually wishing to solve problems), they are considered uncharitable. Tax is not charity. A mandate is not charity. But, these elected officials in red/ purple states are accused of being uncharitable. It is often argued that it is the official that is heartless, yet they are elected by a population that wish to be represented. I am in a low income bracket which very well could be mostly if not fully subsidized yet I do not wish for someone else to have to be forced to be charitable in my name. I would rather have the control to decide the best options for my situation and have those options available. As options are eliminated from healthcare such as catastrophic plans and coverage’s are mandated to certain levels, people are being forced to be more charitable than should be necessary (if you agree with the original premise of forced charity). It is becoming ever more difficult to have a belief of providing for yourself as officials litter your path to success with legislation. Are these programs providing charity if they make the charity necessary by increasing the burden to achieve success? This is why I see the only ruling that mattered per the ppaca was on the individual mandate. I Believe the rest to just be political fodder for ages to come.

    PS- Mr. Likko, Thank you for your diligence in piecing together so many parts into a comprehensible image.Report

    • Avatar greginak in reply to JHemenway says:

      The ACA, or any uni HC, isn’t charity. It’s a way of providing options and abilities to all people. Without some system, like the ACA in this case, millions of people did not have the option of buying health insurance and the health care that comes from having it.Report

    • Avatar zic in reply to JHemenway says:

      Charity — providing care to uninsured people who get gravely ill — is one of the reasons our health care costs have run amok. Obviously, there was not enough charity.Report

  17. Avatar JHemenway says:

    The charity reference is per Likko’s commentary under “The Government’s Argument”. My submission is merely a refutation to this argument. When money is given to another to provide something they can’t or won’t prioritize for themselves, you are correct greginak, It is not charity. It is a redistribution by way of tax. To affect 100% of population to aid, in some estimates, 3% is heavy handed. There could be many possible solutions without mandating the entire system. To say otherwise is an either/or fallacy.
    People will always become gravely I’ll and ultimately expire. Technologically there are ways to extend life in numerous circumstances if cost is of no circumstance. Unfortunately it is. To what degree and in what instances are others to be made charitable or pay tax to cover the expenses of others?Report

    • Avatar Jaybird in reply to JHemenway says:

      Hey, JH. Pleased to read your comments. Hang out more.Report

    • Avatar greginak in reply to JHemenway says:

      I don’t know where you are getting the 100% and 3% numbers. 40 million or so people used to be uninsured. Our entire health system had, and still has, serious problems with growing cost. It wasn’t sustainable. Even if we didn’t care to try to insure those who were screwed under the old system, we needed some change since costs were spiraling out of control. But even so most people havn’t been directly, or even indirectly, much affected by the ACA.Report

      • Avatar JHemenway in reply to greginak says:

        As healthcare is now mandatory for all, It effects 100% of the population. Per http://kff.org/health-reform/fact-sheet/summary-of-the-affordable-care-act/ we see how directly areas are affected.

        Enlarging the pool has not dropped rates, in fact I had a 5% increase while being a young healthy person with no pre-existing conditions and never having to have had any treatment since I was 12 and broke my arm (which I didn’t have coverage to treat but was affordable enough then to just pay out of pocket).

        According to http://www.whitehouse.gov/the-press-office/2014/04/17/fact-sheet-affordable-care-act-numbers the percent of people now covered directly as a result of the ACA is 6%. If you start filtering those that lost their policy due to coverage requirement changes and then re-enrolled (which are counted as new enrollees) and the fraud that has yet to be fully accounted, we are going to see substantially lower numbers. not to mention that 5 million of that 6% from the white house site are those that have purchased compliant care outside the ACA marketplace. If you don’t count them as they get no subsidy than you are at about 4%.

        At best 20 million are covered as a result of the ACA and the white house says 5.7 will not be covered due to states not being charitable. Where do you get the 40 million uninsured number? As I remember that number has flip-flopped several times between 20 and 40 million.

        I have never stated that there weren’t things to be solved with a growing problem in healthcare. My biggest statement toward this end is that the ACA is an extremely heavy handed approach.

        What are some of the unintended consequences of this legislation? What effects will it have on business that is now forced to shoulder the expense instead of voluntarily. What of the effects on employment with the 30hr work week? The problem hasn’t really been solved, has been shifted.

        Lest I veer too far from the only thing to which I had sought to argue “the charity argument” I will not further follow areas I don’t have readily handy documentation and sources. But thank you for calling me on my details, I do not want to provide incorrect information and should be able to support my conclusions.Report

      • Avatar DavidTC in reply to greginak says:

        If you don’t count them as they get no subsidy than you are at about 4%.

        You seem to believe the only part of the ACA is the subsidy.

        A large section of the ACA is that insurance companies can no longer deny coverage based on pre-existing conditions. People who are now able to buy insurance but were not able before the ACA certainly ‘count’ as people insured under the ACA, regardless of subsidies.

        Enlarging the pool has not dropped rates, in fact I had a 5% increase while being a young healthy person with no pre-existing conditions and never having to have had any treatment since I was 12 and broke my arm (which I didn’t have coverage to treat but was affordable enough then to just pay out of pocket).

        Let’s average that with me. Medical insurance for me used to literally be infinitely expensive, as in, I could not purchase it at any cost. It is now a finite number.

        So, averaging one 5% increase and one infinite decrease, and we get rates having dropped by infinity. Holy crap. That’s, basically, the most successful government program in the entire history of the world!

        I am, of course, joking with the math, but here is an actual fact for you: As someone who did not have health insurance before the ACA, but had and *paid* his own medical expenses, I was, in fact, subsiding people *who had insurance*. (When insurance companies talk about ‘negotiating rates’, what they actually mean is ‘setting it up so they pay less’, and thus people *without insurance* paid more.)

        Incidentally, I have to point out that insurance was going up by *more* than 5% every year long before the ACA. It is amazing you think a 5% increase is even slightly relevant, and equally amazing you aren’t aware that the rate increases have decreased under the ACA. (They’re still going up, just not as fast.)

        the fraud that has yet to be fully accounted

        I find your random allegation of fraud rather dubious. Are you asserting that people have *fraudulently* purchased insurance? Why exactly would that they do that? Or are you asserting that insurance companies are fraudulently report more insurance sales than they actually had?Report

      • Avatar JHemenway in reply to greginak says:

        @davidtc I am having trouble finding data or a graph over time of those losing healthcare due to pre-existing conditions and would enjoy the study it you can provide.
        Yes, I am still looking for hard data myself for medicaid enrollment fraud (will post as soon as I do) but is surely exists where income has to be reported as a qualifier for benefit.

        “You seem to believe the only part of the ACA is the subsidy.” per one sentence you are able to extrapolate that i believe that? If you only read that sentence than I can understand your reasoning, but the info that I sited shows no other ACA influence including subsidy. as there is no obvious connection to the ACA it is speculative that that group is now enrolled due to the ACA and could be counted or discounted.

        My 5% increase and your “Medical insurance for me used to literally be infinitely expensive, as in, I could not purchase it at any cost. It is now a finite number” is absolutely too small a sample size… But Kaiser shows 5% individual 4% family here http://kff.org/report-section/2013-summary-of-findings/Report

      • Avatar zic in reply to greginak says:

        Oddly enough, the number was 1 in 7 people, and was reported in a study conducted by the energy department.


      • Avatar Stillwater in reply to greginak says:

        My biggest statement toward this end is that the ACA is an extremely heavy handed approach.

        Yeah, maybe. But no one offered a viable alternative other than the status quo. Personally, I’m a big fan of guarantee issue and community rating (which sorta require a mandate) but I’d’ve preferred to see catastrophic come into play a bit more. The preexisting condition known as “employer sponsored healthinsurance” probably had a lot to do with making Bronze plans the baseline, tho.

        And regarding preexisting condition denials more generally: usetabe you could only get coverage for a preexisting by getting on an group plan thru an employer. One of the things the exchanges were intended to accomplish was to allow folks to get coverage independently from their workplace. That’s a huge bonus, seems to me. But it’s of a piece with the mandate and all that other stuff.

        On the other side of things, one of Jaybird’s gripes about the ACA is the no lifetime cap on payments. That was legislated, acourse. And it’ll be costly. But end of life care in general is costly. (Hell, my father in law just had a valve and pacemaker installed and he’s 78. Not sayin it’s time for him to go. Just sayin that 40% (something like that??) of all medical costs are incurred by folks over 65 years of age.)Report

      • Avatar zic in reply to greginak says:

        @stillwater says,

        And regarding preexisting condition denials more generally: usetabe you could only get coverage for a preexisting by getting on an group plan thru an employer. One of the things the exchanges were intended to accomplish was to allow folks to get coverage independently from their workplace. That’s a huge bonus, seems to me. But it’s of a piece with the mandate and all that other stuff.

        I’ve actually been wondering about this and if there’s a link to the growing improvement in job numbers. I’m not quite sure how to track it down, however, if anyone has any suggestions, feel free to pipe up.Report

  18. Avatar jon hemenway says:

    Thank you Burt Likko, as time permits I will enjoy being part of such a community.Report