Comment Rescue – King v. Burwell Edition

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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38 Responses

  1. Avatar Michael Cain
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    I’m very glad that I read Burt’s explanation of Marbury v. Madison the other day, before I tackled this.Report

  2. Avatar Michael Drew
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    I think the government may have been reluctant to want to start using the NFIB precedent against coercion, possibly out of still just not liking that it exists, but more seriously out of a desire not to commit to any positions on the point that may come back to haunt them later.

    Certainly they still disagree with Roberts on the merits of whether the Medicaid expansion posed federalism questions; this case may not be so clearly on the other side of a line about federal “coercion” of the states that they want to endorse that they want to use that argument completely electively.

    I’m guessing they’re still working through how they want to proceed on the coercion question in the world in which the NFIB Medicaid precedent exists.Report

    • Avatar Michael Drew in reply to Michael Drew
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      …Federalism questions I imagine they would concede, that is; fatal problems, no.Report

    • Avatar Don Zeko in reply to Michael Drew
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      At this point, my bet is that we get a fairly garbled finding in favor of the government. At least three liberal justices find that way either using Chevron deference or simply agree with Verilli that the statute can only be read as the IRS has, Kennedy concurs with a constitutional avoidance theory, possibly joined by Alito or Roberts, Scalia and Thomas dissent.Report

      • Avatar morat20 in reply to Don Zeko
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        As I said below, I think Kennedy concurs on either Chevron or just plain “not ambiguous in context” (there’s literally no precedent’s set either way. No major swings in how Courts view anything, really) and makes a note of the potential Constitutional issues under the plaintiff’s views.

        Not “definitely unconstitutional” but rather “raises issues under blah-blah, which is not before the Court at this time”.Report

  3. Avatar Michael Cain
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    I think the government may have been reluctant to want to start using the NFIB precedent against coercion, possibly out of still just not liking that it exists, but more seriously out of a desire not to commit to any positions on the point that may come back to haunt them later.

    I think there’s merit to this. Assuming that my simple-minded “If the stick is so big that no state will risk it” is an appropriate summary of the precedent, I’ve been wondering why no one has challenged the federal/state unemployment insurance program. No state is required to have a program that conforms to the federal minimums (or to have a program at all); but if a state chooses not to have a conforming program, employers in their state will, on average, see the unemployment taxes that they pay roughly double. The statute has a fall-back: if a state does not run a conforming program, the federal Dept of Labor will do so in that state. The feds are confident enough that no state will drop out that they are completely unprepared to operate such a program anywhere.

    Some years back a member of the Colorado General Assembly suggested on an open mic that perhaps it was time for Colorado to drop its UI program. The next day he was back on the mic saying that he had been contacted by employers in his district, and now understood why that was a terrible idea.Report

  4. Avatar Burt Likko
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    Re: standing. Brother @mark-thompson writes:

    At some point, someone will simply refuse to pay the mandate penalty, get an adverse ruling from the IRS, and then appeal that adverse ruling through appropriate channels.

    That’s probably right. And it’s also true that the issue wasn’t briefed by anyone, nor was argument solicited by the Court. So it may not be worth all the angst about standing. (But see here, noting this is third-party research on a seemingly unlitigated issue, so maybe take it with grain of salt.)

    No, after glancing through the transcript, I’m fascinated by the Kennedy questions, staring with his first:

    JUSTICE KENNEDY: Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral. We’ll have people pay mandated taxes which will not get any credit on ­­the subsidies. The cost of insurance will be sky­ high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument.
    MR. CARVIN: Two points, Justice Kennedy. One is the government’s never made that argument. Number two, I’d like to think ­­
    JUSTICE KENNEDY: Sometimes we think of things the government doesn’t.
    (Laughter.)
    MR. CARVIN: Well, I certainly hope you do in this case, but not on this question. What ­­ what I’m trying to, quite seriously, Justice Kennedy, convey is if this was unconstitutional, then the Medicaid statute that this Court approved in NFIB would be unconstitutional.

    I don’t think Carvin (Petitioners’ counsel) did himself a whole lot of good here: it’s res judicata that the Medicaid (note, not Medicare) expansion analyzed in NFIB is constitutional and the subsidy-mandate link simply isn’t the same statutory linkage at issue in King. But Kennedy also had a hard question for the Solicitor General, which produced this:

    JUSTICE ALITO: But, General Verrilli,before we get too immersed in a number of provisions of this, could you respond to a question that was asked during Mr. Carvin’s argument. If we adopt Petitioners’ interpretation of this Act, is it unconstitutionally coercive?
    GENERAL VERRILLI: So the ­­ here’s what I would say about that, Justice Alito. I think that it would be ­­ certainly be a novel constitutional question, and I think that I’m not prepared to say to the Court today that it is unconstitutional. It would be my duty to defend the statute and on the authority of New York v. United States, I think we would do so. But I don’t think there’s any doubt that it’s a novel question, and if the Court believes it’s a serious question ­­–
    JUSTICE KENNEDY: Is it a…. I was going to say does novel mean difficult? (Laughter.) Because it does seem to me that if Petitioners’ argument is correct, this is just not a rational choice for the States to make and that they’re being coerced.
    GENERAL VERRILLI: So what I ­­–
    JUSTICE KENNEDY: And that you then have to invoke the standard of constitutional avoidance.
    GENERAL VERRILLI: Well, what I was going to say, Justice Kennedy, is to the extent the Court believes that this is a serious constitutional question and this does rise to the level of something approaching coercion, then I do think the doctrine of constitutional avoidance becomes another very powerful reason to read the statutory text our way.
    Because I do think ­­and I do think with respect to the point that Your Honor’s making, remember, it’s not just ­­ it’s not just a situation in which there is onerous conditions, onerous consequences for State residents. It’s also a profound problem of notice here, that, you know, if you read Petitioners’ ­­– if you take Petitioners’ reading of the statute, then the idea that States were given added –­­ you can’t possibly justify this as adequate notice to the States.

    It’s reading tea leaves at this point, but I think Kennedy is telegraphing that he intends to vote for the Petitioners (King) on federalism grounds, along reasoning that was really only tangentially addressed in the parties’ briefs. (Which just makes me regret not having time to dig into the briefs of the amici that much more.)

    It’s also something of a marvel that shortly after that second exchange I quoted, starting on page 55 and going almost uninterrupted for two entire pages afterwards, Verrilli is able to speak without interruption or question, and both before and after that he gets the ability to make (seemingly, comparatively) long responses to a half dozen questions from Scalia and Alito. That’s a combination of pretty substantial degree of respect from the whole bench, and evidence that all Nine were really, really interested in the Government’s position on those points: oral argument turns out to potentially have substantial value to add to the deliberations.Report

    • Avatar morat20 in reply to Burt Likko
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      “JUSTICE KENNEDY: Is it a…. I was going to say does novel mean difficult? (Laughter.) Because it does seem to me that if Petitioners’ argument is correct, this is just not a rational choice for the States to make and that they’re being coerced.”

      I don’t see how that’s Kennedy leaning towards King, so I’m missing your point somewhere. He seems to be saying that King’s view is potentially unconstitutionally coercive, if so then Kennedy would be disposed to vote against King’s view, right? (Constitutional avoidance)

      Now, if he thinks (1) the statute is unambiguous and (2) King is correct then wouldn’t the proper response be to strike down the limitation on subsidies to State-created exchanges only? Thus removing the coercion in the most minimal fashion.

      I can’t see how any of this makes him lean towards King. He seems to think the limitation on subsidies would be a serious constitutional problem, which means the solutions all revolve around either King being wrong on some grounds, or the limitations on subsidies being unconstitutionally coercive. Either outcome would result in….well, exactly like the IRS is treating it right now.Report

      • Avatar Burt Likko in reply to morat20
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        Because he’s saying that he understands the Petitioner’s ancillary claim that the States don’t have a rational choice but to create Exchanges: the consequences of not creating them (denial of the subsidy and resulting creation of the insurance “death spiral” mentioned at length in the Government’s brief) would be so harsh as to deny the State a rational choice. If the state lacks a rational, meaningful political choice about how to create its own laws, its own institutions, then Kennedy sees a federalism violation in the form of the state being coerced to make its laws in the ways the Federal government dictates.Report

      • Avatar morat20 in reply to morat20
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        I *get* that. But that’s a strike against King’s views, not for them.

        King is asking for the Court to rule that the IRS rules are invalid, meaning the coercive interpretation becomes the law of the land. But that interpretation is coercive, which means Kennedy would vote to strike it down.

        Not the “ACA” but the limitations on the subsidies to state-created exchanges only.

        So Kennedy is asking Verelli “Isn’t what King is asking for (potentially) unconstitutionally coercive? If the proper interpretation is King’s, doesn’t constitutional avoidance apply?”

        Maybe I’m missing some lawyer double speak, but that whole exchange honestly reads like “If King’s right, that whole restriction on subsidies is unconstitutional”. He can’t rule for King if he thinks the result is unconstitutional, he’d have to ALSO strike down the unconstitutional part of the law — which is the subsidy limitations that King is saying should be there.

        Which means the end result is King gets the subsidies he didn’t want, because to deny him those subsidies is unconstitutionally coercive to the states.Report

      • Avatar morat20 in reply to morat20
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        Did you mean “Kennedy would rule that King is right” (thus in favor of King) but then immediately strike down the limitations on the subsidies as unconstitutionally coercive? (Constitutional avoidance)

        I suppose that would be a ruling in favor of King, but as I said — King would then have effectively lost, having been forced to take the subsidies he was suing to reject.Report

      • Avatar Burt Likko in reply to morat20
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        No, no, you’re right, here, @morat20, and I was getting tied up in knots. This is a pretty government-friendly federalism argument — it’s King’s rule that would be more coercive to the state than the Government’s. Please excuse my mental clutter: it’s strange to see an argument coming from the right, against Obamacare, but contrary to federalism. Harder to do it while juggling actual work.Report

      • Avatar Morat20 in reply to morat20
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        Burt: That (the pro-federalism argument coming from the right) does make this case rather strange.

        That’s pretty much why I was speculating Kennedy might sneak in the coercion bit into a concurrence. Not as binding (it’s not before the court) but to make it clear where he stands (As I said, I don’t expect any President to reverse the IRS rules once they’re in place. Political death. So I don’t expect this case to show up a few elections from now the other way. But I suspect Kennedy is happy to reiterate his view on federal coercion. And indeed, he might very well get Alito or Roberts to sign on. They can disagree about Chevron, about ambiguity, and still prevent a colossally ugly decision while reinforcing one of their big judicial issues).

        For all the screaming, the ACA was a real attempt to make a market-friendly healthcare solution. It’s just not a problem that’s terribly amenable to both markets and human nature. (We don’t, as a society, tend to like the ‘Cash up front or you die’ option. So we’re stuck with regulations and mandatory payments and the like).Report

  5. Avatar morat20
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    First, I don’t really expect Kennedy to rule against the plaintiff’s because their interpretation is potentially problematic under the Constitution. If he rules against the plaintiff, I expect either Chevron or just that the statute is unambiguous when interpreted as part of the whole. (Likely the former).

    I suspect Kennedy was thinking of this the other way around (“What if the IRS had ruled the other way? And plaintiff’s in states with federally backed exchanges had filed a lawsuit to demand subsidies? What issues would arise?”) at some point and twigged onto this issue — I mean, ambiguity goes both ways, which means the IRS could have ruled either way, which means this lawsuit could have been filed either way.

    I think his opinion will note he finds the plaintiff’s interpretation a potential Constitutional issue — that is, reinforce the notion of coerced federalism and where he stands on that — while not actually ruling it really is because he doesn’t need to get that far to dispose of the case. I simply feel that, with all the questions he asked, he finds the potential Constitutional aspects of the plaintiff’s view troubling. I don’t think he’ll need to rule on it, but I suspect he might make sure it’s clear that if it comes up Bizarro-fashion again, he’s got some skepticism.

    On a related note, I think it is very unlikely for a future President or future IRS, should the government’s view prevail, to reverse the IRS decision

    It is one thing to stand there, shrugging your shoulders as the citizens of 34 states lose their subsidies and their state markets collapse, and say “Bad law, not our fault, Judges did it” — in short, cast the blame elsewhere.

    It would be an entirely different matter if your administration did so deliberately, with the stroke of a pen. There’s no assigning blame elsewhere .I think “political crapstorm” would sum it up. (Repealing the law is an entirely different matter. I’m talking about just reversing the IRS decision on subsidies. That would not play in Peoria, as it were).Report

  6. Avatar Michael Drew
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    Since we’re talking about standing, does anyone remember what the actual case or controversy was that triggered the ruling against the Medicaid expansion?Report

  7. Avatar Stillwater
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    Very nice take on it, Mark. Consider this comment a very long query without much of a question, except a single one at the end. I’m a bit confused, see, and need to get my thoughts right.

    Seems to me – and IANAL! – that Kennedy’s argument begs the question and Scalia is correct in his response. Here’s a quote from ScotusBlog:

    Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.”

    What’s interesting to me is that Kennedy seems to be reversing the applicable concept of coercion in play here – from the argument that federal subsidies effectively coerce Kingetal into buying insurance or paying the penalty by preventing him from receiving his unaffordability exemption into a reading whereby eliminating federal exchanges coerces states into constructing their own exchanges to maintain the current functioning of the insurance market. In effect, he’s agreeing that the context of the law (in some sense of that phrase) includes incentives for purchasing health insurance on an exchange as part of the law’s overall goal. His failure to actually make that argument explicitly seems weird to me, and your account of it is sorta puzzling me a bit.

    For example, I think Scalia is quite right that Kennedy’s worry doesn’t arise if the statute is unambiguous, which is precisely the topic at issue. (So again, Kennedy’s worry seems to arise only by deciding what’s at issue – that the subsidies are constitutional.) On Burt’s post Fnord quoted the fourth circuit court referring to 26 U.S.C. § 5000A, which governs the conditions under which the unaffordability exemption obtains. The phrasing of that statute is pretty clear in indicating that the 8%-of-income cap accords an exemption from the mandate, except when subsidies from an “exchange of the state” kick in. That is, the relevant statutory reference to the unaffordability exemption includes a specific reference to precisely what’s at issue: whether federal exchanges suffice for subsidies. That’s what needs to be decided, seems to me, and not whether dismantling functioning markets of questionable legality creates a constitutional issue.

    So it seems to me that Kennedy is walking a very thin line here between a) granting the government’s case and b) saying that the coercive effects* resulting getting rid of federal subsidies ought to take precedence over the actual coercion applied to King based on his (and the fourth circuit’s?) reading of the law.

    So here’s the question, since I’m having a hard time understanding why conservative Justices can square all these circles: Am I thinking about this correctly? Is Kennedy really trying to stake out what seems like a pretty incoherent position in order to preserve federalism from an the coercive effects of ruling in favor of an otherwise illegal law?

    *To be honest, I fail to see how eliminating the federal exchange subsides “coerces” any state into creating their own. Sure, it would wreak havoc on the health insurance market as it currently functions, but it seems to me that lots of anti-ACA folks are more than willing to choose that sorta short term havoc to either have it gone or put a preferred option in place. Granted, most of those sentiments strike me a wishful thinking and are based on pure politics, but still. Not coercion. (And if it is coercion, then it’s pretty much what Gruber has been saying all along: that missing out on the benefits of establishing an exchange was intended to put the screws to states so’s they’d create an exchange. So on that side of things, the “coercion” was built into the law.Report

  8. Avatar Mark Thompson
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    fwiw, I completely agree with @morat20 on this. That seems like a very friendly question. Too friendly actually- I think @michael-drew is right that the government has reasons that it would much prefer the court not base its decision on avoidance grounds which is why the SG didnt brief it.Report

    • Avatar Michael Drew in reply to Mark Thompson
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      I’m sort of coming around to your view that they may also just not have thought of it. They would have had to go really far down the road of thing through their opponents being right, and then creatively apply the NFIB Medicaid precedent in order to come up with what Kennedy was saying to day. It’s pretty obvious in retrospect, but looking forward, I can see where they preferred (or just never progressed beyond) to argue just that it wouldn’t make sense and wasn’t consistent with the purposes of the legislation for Congress to impose that degree of destructive coercion, not go all the way to the argument that it would have been unconstitutional after NFIB to do so.Report

  9. Avatar Mark Thompson
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    @stillwater I think you’re misreading what scotusblog was saying there, probably because it’s not worded very well. From looking at the transcript, it seems like what Scala was saying was that the constitutional avoidance doctrine doesn’t apply if the statute is unambiguous, not that federalism is inapplicable. I can’t get the direct quote for you right nkw, but what he was suggesting was that, essentially, “it’s unambiguous so maybe we have to address the constitutional issue.”

    As far as the coercive effects, the issue is more with the fact that there wouldn’t only be a loss of subsidies but also the residents would have to pay the tax penalty. it s worth mentioning that the petitioners explicitly claim that this coercion was the point of the section as they interpret it. I’m not sure I buy that it would be unconstitutional but I think Kennedy is right that it’s an issue that would need to be addressed, or at least would need to be addressed now that it’s been raised.Report

    • Avatar Stillwater in reply to Mark Thompson
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      Mark,

      In light of your post, I understood Scalia’s rebuttal as located in the context of avoidance and not federalism. ANd I think he’s right. In which case, if the relevant statutes aren’t ambiguous, then Kennedy’s argument collapses. (And there is good – not decisive – reason to think they aren’t.) And given that, it seems appropriate for the court to address the issues you’ve mentioned in the OP regarding avoidance. It’s just that I don’t understand the legal logic of an argument which justifies upholding one specific interpretation an ambiguous law on the grounds that because the Act was implemented with that interpretation in mind, and insurance industry practice is now predicated on it, deciding against its constitutionality is a coercive act.

      That’s the fine line I don’t understand. He’s basically saying “let’s forget about the constitutionality of the specific provisions under dispute. The fact is that deciding against the government’s interpretation of those provisions would be unconstitutional.”

      That just strike me as incoherent. It’d be like saying an unconstitutional law ought to be judged as constitutional if striking that law is unconstitutional.Report

  10. Avatar Michael Drew
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    I’ll say this about Roberts’ reticence. It would seem strange to me to vote to grant certiorari and then have very little to say at orals.Report

    • Avatar Morat20 in reply to Michael Drew
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      Yeah, but there’s a simple explanation: Whatever reason he voted to grant cert over, maybe one of the briefs covered it in detail. (Of course, it could be that whatever dog he had in the hunt that Alito or Kennedy was already handling too).

      It’s entirely possible for a judge to vote for cert, and then having checked through the briefs filed find that his or her reasoning for cert is moot. But they can’t un-vote it at that point.

      And of course while the lower courts were pretty uniform in denying King (the en banc review was pretty much certain to overturn the one place they won), the reasoning was a bit scattered. Maybe he saw it as a potentially clarifying case.

      I’m biased. King’s case has always seemed to be grasping at straws (the history of it didn’t help. Having the lawyers behind the entire push originally refer to it as a ‘potential glitch’ before deciding to rewrite history and claim it was Congress’ plan all along did not help me take it seriously, as it’s authors clearly did not. It’s a pretty partisan vehicle) so it’s not a stretch to think someone might have voted for cert and then, having dug more in depth into the case as briefs were filed, thought “Ah, man. This is a festering POS”.Report

      • Avatar Burt Likko in reply to Morat20
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        I missed something. How do we know Roberts was one of the four votes for cert? Given that there was a circuit split, it really could have been any of them.Report

      • Avatar Michael Drew in reply to Morat20
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        Yeah, no, my point was, I’ve been curious whether and not at all sure Roberts did vote to grant: why would he bring on the same pressure he dealt with in NFIB when he already disposed of it? He was under huge pressure to strike the law, but ultimately decided not to. Why would he reopen all of that now in such a big way, when, if he thought there were problems remaining like this, he maybe could have contrived to deal with them then? (Not saying he definitely could have, but I definitely suspect he would have felt like/hoped he had dealt with all major issues at that time and could move forward from there.)

        So I take his quietude as something of a tell that maybe he wasn’t with the four votes to grant, which I would regard as interesting and somewhat significant on its own were it the case.Report

      • Avatar Morat20 in reply to Morat20
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        Burt,

        I was curious myself. I thought it was only 4 anonymous votes, but I just figured he knew something I didn’t. Like maybe Roberts had let it slip in a comment somewhere.Report

  11. Avatar Michael Drew
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    Reading this over again, I can see where you were coming from on the suggestion of an outside shot at a 9-0 ruling for the government, with Roberts, Kennedy, Alito, Scalia, and Thomas joining on the majority opinion and the liberals not joining the majority but joining each other on a concurrence with a completely different logic.

    Conceivable, but, as you say, not likely.Report

    • Avatar Morat20 in reply to Michael Drew
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      I think you’re right. I can see a 9-0 decision, if remotely, where the conservative block merely states that the plaintiff’s proposed interpretation is unduly coercive to the state and thus foreclosed, leaving the IRS rules as the winner by default while the rest agree in part, but dissent based on (Chevron applies/statutory interpretation applies).

      I’m not really seeing any firm votes for the IRS language being unreasonable, or even anyone that seems terribly firm that the clause is unambiguous towards King’s side. No one really seemed to bite seriously on the notion that Congress intended that either.

      Can you see Scalia, for instance, signing onto King’s interpretation and then claiming it’s Constitutionally valid, especially since it’s very likely Kennedy will keep hammering that point in private discussion?

      Then again, maybe you get a heavy majority just claiming it’s clear in context (against King). The separate opinions hammering whatever hobbyhorse they’ve got that’s related.

      I still think it’s weird they took this case in the absence of a split.Report

      • Avatar Michael Cain in reply to Morat20
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        I’ve said it before, but here’s my opinion about why the case is before the Court now, and how it got there: the fix is in. Roberts and the four liberals granted cert and pulled it up out of the Appeals Court. Roberts is sending a message to the Republicans in Congress and at the state level: my Court is not going to up-end 16-18% of the country’s economy by tossing, or even maiming, the PPACA; if the law is going to be changed, you’re going to have to win elections and change the law.

        They’re just going through the motions (look at Roberts’ disengagement). Despite Burt’s lovely argument, standing was never going to be challenged. Kennedy may be trying to set things up to affect the choice of reason(s) used to justify tax-credits-for-all, but credits-for-all is a done deal.Report

  12. Avatar Michael Drew
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    I feel like this post is really good on @j-r’s excellent question in the other thread about the reasons for and reasonability or lack thereof of the government’s argument that the meaning of the text (or at lead of the statute) is that federal facilitated exchanges do issue tax credits (subsidies) for insurance purchase.

    It also underscores for me the extent to which security for the ACA on this issue ultimately rests completely on its proponents eventually somehow figuring out a way to get some clarifying language on the question through Congress – somehow – since it seems to me that the government is pretty unlikely to win a decisive victory on the point.

    (I’m not sure what a less-than decisive victory on the specific point of whether the statute actually clearly specifies that would be, so I guess that means that victory on the point at all is unlikely. To me, this raises the idea that there need to be more categories than just, “Clearly this interpretation is correct,” “Clearly that interpretation is correct,” and “Definitively ambiguous.” It seems like there should to be additional, “The text does mean this (or that), but it’s not completely without ambiguity” categories for each possible interpretation. But that’s a whole other can of worms, and sort of a flight of fancy.)Report

    • Avatar Michael Drew in reply to Michael Drew
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      Oh man, I didn’t read all the way:

      Some ways in, Dorf makes an obvious point: the government can’t have presented the argument that the petitioner’s interpretation would render the subsidy-less federal exchanges unconditional, because from that position, the government can’t then just insist (or assume) that avoidance would be found to be the right approach. Instead, that would open the law up to a potentially much more destructive remedy, such as possibly the striking down of the whole edifice of the federal backstop, and maybe the insurance regs in states that didn’t buy in (just guessing there). Indeed, Kennedy was far from reassuring on the point, suggesting maybe Scalia and Alito were right that the language is too clear for avoidance.

      The government had to be prepared to defend the law from that attack were it to come to pass. They couldn’t hang their whole (hypothetical) defense there on insisting that avoidance must be undertaken, because there is a complex test for it, and because it depends on their opponents being at least wrong that the text clearly prohibits the subsidies. (I.e. it would require assuming something that would win their case anyway).

      Moreover, the government really couldn’t risk raising that argument themselves; it’s too much of a threat to the law – bigger, really, than just losing the case on a finding that the plain language is so clear on the point that the federal subsidies can’t issue credits. Seems like you have to cross that bridge if or when you come to it.Report

      • Avatar morat20 in reply to Michael Drew
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        Indeed, Kennedy was far from reassuring on the point, suggesting maybe Scalia and Alito were right that the language is too clear for avoidance.
        That’d take some brass ones, given Carvin (the plaintiff’s counsel) had been up before SCOTUS like two years prior arguing that language was meant the other way. (There was even a joke about it).

        I don’t see how Kennedy can claim it’s ‘unambiguous’ against the subsidies given the wealth of people, including the plaintiff’s own lawyer at arguments before SCOTUS, read it the other way. It’s in SCOTUS’ own records.

        Unambiguous against King? That I could see, simply because no one read it as ambiguous at all for 18 months (and after Carvin had gotten up there, and as part of another case, viewed it as subsidizing all states regardless of how their exchanges were made).Report

  13. Avatar A Compromised Immune System
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    I’m still confused as to why the first judge to get this case didn’t club the dishonest plaintiffs over the head with a copy of Webster’s Thesaurus and tell them to go away?Report

  14. Avatar Michael Drew
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    The audio is up.

    Does anyone remember a SCOTUS oral argument where an advocate was less deferential than this Carvin is here when justices wanted to speak? He tries to talk over Ginsburg, Sotomayor, or Kagan repeatedly. And he constantly lectures the bench, not merely explaining or arguing.

    I can’t imagine more than one or two justices ever wanting to see him back there (not that they get to decide), and I couldn’t help but wonder whether part of Roberts’ silence wasn’t being appalled at Carvin’ manner with his associate justices.Report

    • Avatar morat20 in reply to Michael Drew
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      Carvin’s kind of a jerk

      Carvin argued that the difference between this lawsuit and the one in 2012 is that unlike the 2012 challenge, the argument on Wednesday is on “a statute that was written three years ago, not by dead white men but by living white women and minorities.

      But what do you expect? I mean, heck, even the Court joked that he was taking the opposite position on the same phrase as a case from a few years ago. (In which, IIRC, even Scalia and Thomas both felt it was unambiguous that the subsidies were for all.)Report

      • Avatar Michael Drew in reply to morat20
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        says:

        I think what you were referring to is where the conservatives argued that the mandate was so crucial to the operation of the law because of adverse selection that it couldn’t be severed if struck.

        Now they’re saying But we didn’t say that about the subsidies!, and that it isn’t the case for the subsidies.

        It’s true they didn’t say it about the subsidies because they were not being challenged in that case. But to say they aren’t just as critical or moreso than the mandate, for that exact same reason among others (the mandate and the subsidies together create a condition where hopefully enough people previously uninclined to buy insurance now will, in order for the exchanges not to implode with only/too many high-cost insureds paying regulated prices), is just ridiculous.

        I’m starting to think nothing illustrates the disingenuousness on that side here more than this particular point.

        It was, incidentally, the moment when Carvin corrects Sotomayor on just that point: that in the previous case it was the MANDATES they said were so crucial (because that was the subject of that case), not the subsidies (Your Honor) that really set me off about him. I don’t know where I’ve heard a tone of greater condescension and place-putting before. Anywhere. Ever.Report

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