Obamacare

Obamacare Returns to SCOTUS. What Will Roberts Do?

The Supreme Court prepares for another legal showdown over Obamacare.

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Three years ago, when the U.S. Supreme Court was gearing up to rule on the constitutionality of the Patient Protection and Affordable Care Act, most observers pegged Anthony Kennedy as the justice to watch. As one Slate reporter confidently put it, "The fate of health care reform is where it was yesterday, in the hands of Supreme Court Justice Anthony Kennedy." (My own prediction: Keep your eyes on Roberts.)

But as it turned out, Kennedy was not the justice to watch. The fate of health care reform actually rested in the hands of Chief Justice John Roberts, who voted to uphold Obamacare as an act of conservative judicial restraint.

Credit: WhiteHouse.gov

This Wednesday Obamacare returns to the Supreme Court for another legal showdown. And this time, all eyes are properly focused on the chief justice. "There's one very good reason to think the chief justice will rule for the government again," asserts liberal lawyer Brianne Gorod. "He's too good a lawyer to do otherwise." Conservative law professor John Yoo, on the other hand, argues that this latest Obamacare dispute "will give the Chief Justice the opportunity to atone for his judicial sin of [three] years ago."

What will Roberts do this time around? There is at least some reason to think he may vote against the Obama administration. Here's why.

At issue this week in King v. Burwell is whether the Obama administration illegally implemented the Patient Protection and Affordable Care Act by allowing tax subsidies to issue to persons who bought insurance on health care exchanges established by the federal government. According to the legal challengers, Obamacare unambiguously forbids that result because the text of the law allows tax subsides to issue only in response to purchases made from an "Exchange established by the State," not from exchanges established by the Department of Health and Human Services in the 34 states that refused to set up their own.

The White House, by contrast, maintains that "the phrase 'Established by the State'…is a term of art that encompasses an Exchange established for a particular State by HHS." In other words, according to the Obama administration, the law's text does allow the issuance of tax credits via federally established exchanges because that result best achieves the law's broader purpose of providing "affordable care" nationwide.

Back in his 2012 Obamacare opinion, Chief Justice Roberts argued that "federal statutes" are owed a "full measure of deference" by the Supreme Court. He then granted that deference by saving the health care law from constitutional obliteration.

But the role of judicial deference is not so clear cut in the present case. According to the White House, Congress intended tax credits to be available regardless of which government entity established a health care exchange, which means the Court must show "appropriate respect to the choices Congress has made in the exercise of its democratically accountable authority."

But did Congress actually make the choice that the White House now ascribes to it? Or did the democratically unaccountable I.R.S. make the choice in order to facilitate the implementation of this complicated and unwieldy federal law? According to the legal challengers, "this case concerns an IRS rule that purports to implement, but in fact contradicts, the provisions of the Patient Protection and Affordable Care Act."

If the chief justice agrees with the challengers on that point, then the principles of judicial deference may point him in a specific direction: Namely, Roberts may decide to grant a "full measure of deference" to Obamacare by rejecting the White House's contested interpretation of it ("a term of art") in favor of the text that Congress specifically wrote into law ("Exchange established by the State").

That approach could prove quite appealing to the chief justice. It would allow Roberts to rule against the Obama administration in King v. Burwell while citing back to his own pro-Obamacare ruling in National Federation of Independent Business v. Sebelius. He would get to adopt the same deferential posture towards Congress in both cases (while lecturing his inevitable liberal critics on their inconsistency).

Will Roberts take this route? We'll get our first signs of his thinking during oral argument on Wednesday.

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  1. He’ll try to please everybody by making some shit up.

  2. What Will Roberts Do?

    Why, he’ll shit the bed again, because it’s not his job to save voters from the consequences of their votes.

    1. But doesn’t this mean he coukd decide against the Obama administration this time? After all, it is not the court’s job to protect the White House from their legislative language choices.

      1. Took the words right off my keyboard.

        Not gonna save Congress from its own ass?

      2. Actually, yes it is, AdamJ. The first OCare case features Roberts creating the penaltax out of thin air as a “saving interpretation” of the statute.

        IOW, according to Roberts, SCOTUS has a duty to rewrite statutes if necessary to keep them from being unconstitutional.

        1. Oh. So it’s just us he hates.

    2. Why, he’ll shit the bed again, because it’s not his job to save voters from the consequences of their votes.

      I just wish he’d save some of us from the consequences of other people’s votes.

    3. Actually it is his job to save voters from elected officials who ram crap through without broad public consent. That is exactly why we have a 3rd judicial branch composed of people outside of the electoral process, it is to check the other two branches which are prone to do absurd things.

      The US is a republic, not a democracy, voters influence but do not have absolute say.

      Conservative judges not fulfilling this role, while liberal judges do, is the reason we have this mess today. If the liberal judges pushed civil rights forward against voters, while the conservative judges held back the welfare state against voters, we’d be in a very different place right now.

      1. If voters don’t have absolute say, who does? It’s people, no matter what. You can’t get away from that.

        1. Voters don’t have any say on anything other than who is elected to office, Robert.

          Geez.

          1. Voters don’t have any say on anything other than who is elected to office, Robert.

            And damned little say even then, since the candidates are selected for them.

        2. It is people all the way down.

  3. The liberal side argues feelings and intent and for letting the bureaucracy decide what the legislature meant, while the right is arguing clear text?

    What will Roberts do? Voting against Obamacare this time will mean his contortions last time need atonement. He’ll vote against the challengers.

  4. Why does everyone keep stopping at “Exchange established by the State”? The clause goes on to include the phrase “under section” X (I keep forgetting the exact number) while federal exchanges are covered under an entirely different section. By stopping at the word ‘state’ and excluding the key reference, you let the people ideologically in favor the illegality pull a “it depends on the meaning of ‘is'” on you.

    1. Good point. It’s ? 1311, and that section clearly refers to “the States” and “each State.”

    2. this. the law goes out of its way to distiniguish between the state exchanges (1311) and the fed exchanges (1321), and it does so repeatedly throughout the law.

      if “…by the state” were a one-off instance and was not clarified by the subsequent “under 1311” then i’d actually agree with the law’s proponents. it would be sufficiently vague so that deference from the court was due.

      but there’s no ambiguity here. and it makes perfect sense too – it was intended to bludgen the states into building their own exchanges so the feds didn’t have to deal with the headache.

      1. Absolutely 100% correct, Doc. I’m a lawyer, by the way.

    3. Something about another Section directing the HHS to establish “such exchange” if the state doesn’t. Libbies are hoping that “such exchange” is the same as the State exchange.

      The problem is, Obamacare doesn’t say “an exchange established by this Act” all over the place. It says “an exchange established by the State.”

      I could give you a link to Kos where some deludoid named Armando is making the case, but it’s more of an anthropology lesson than a law lesson.

  5. More importantly, what will the other justices do? Oh wait, vote party line rather than weigh the case vs the Constitution.

    1. Kagan is an economic illiterate who will vote to keep the “free money” flowing.

    2. Ginsburg’s already made it clear that she will vote to save PPACA.

      1. Only if she is sober!

    3. It’s not about any constitution in this case, but of interpret’n of statute. Funny that so many commenters, not only here, say the court’s job is only to determine constitutionality; what about cases where constitutionality’s not at issue?

      1. so many commenters, not only here, say the court’s job is only to determine constitutionality

        Only job? No. I don’t recall anyone around here (or elsewhere) saying that.

        They are also a court of appeals for the entire federal system, which hears many cases involving statutory interpretation.

  6. What will Roberts do?

    Why save the “law” yet again.

  7. Roberts needs to host a wine tasting. Then a whine tasting.

    1. Roberts needs to be the guest of honor at a swine tasting.

  8. It will be interesting to see what sort of sausage Justice Roberts grinds out this time to save ObamaCare.

  9. Does this mean that there can be 2 separate and distinct penaltaxes?

  10. Obamacare Returns to SCOTUS. What Will Roberts Do?The Supreme Court prepares for another legal showdown over Obamacare.

    Knuckle under after the NSA reminds him of those photos of him and that sheep…

  11. So, people in states run by reactionaries will have to pay more for health insurance because they won’t get federal subsidies? I a. live in California and b. have a job so this means that I’ll get a subsidy if I ever lose my job and I didn’t notice anything different when obamacare raised its ugly totalitarian head. Thus, I’m left shrugging my shoulders a little over this.

    Maybe, just maybe, when people that make under 40k/yr realize that they’ll be paying more because their right-wing governor was trying to cozy up with the Tea Party they’ll stop a minute and consider whether it’s time to stop voting for politicians that pass laws that undercut how much money they have in their bank accounts. I doubt it’s going to happen, but I can at least hope.

    1. Rich Weinstein noticed the changes. He’s the humble investment banker who lost his plan, premiums doubled, so he decided to find out more about this “Jonathan Gruber” whose name kept popping up everywhere as the architect of the law. Funny thing, one of the videos Weinstein dug up has become part of the challengers’ Supreme Court case.

    2. So, people in states run by reactionaries will have to pay more for health insurance because they won’t get federal subsidies?

      Not just that. Businesses in states run by reactionaries won’t have to pay (one of?) the OCare penalties on businesses, as they are triggered by one of your employees getting a tax subsidy.

      Note the top gray box in the middle column:

      http://kff.org/infographic/emp…..-care-act/

      That’s what this case is really about. It largely immunizes businesses from the employer mandates.

      1. Yay for Walmart! Is this part of the conservative campaign to address income inequality?

        1. How do you figure this is some conservative campaign?

          That language was put into the statute, voted for exclusively by Democrats, and signed by a Democrat.

    3. You are not self employed. I am. We were on a Kaiser plan for 6 years before Obamacare. Worked just fine for my wife’s two pregnancies and had a reasonable deductible. Then we got booted off of it because it wasn’t good enough for Ocare. We were able to sign back up with Kaiser and our premium went down 15 percent or so. Yea socialism!! But then our deductible went up 400% and copays for prescriptions and visits doubled.

      I cannot wait till you have to feel some of the joys of it.

      1. We were able to sign back up with Kaiser and our premium went down 15 percent or so. Yea socialism!! But then our deductible went up 400% and copays for prescriptions and visits doubled.

        Yeah but now you can get that Pap smear.

    4. Since you’re a piece of shit that would walk out on his obligations, your opinions mean exactly jack and shit.

    5. Too funny. You are actually using the same logic that Gruber used to described why that part of the law was written the way it was written. So, besides the fact that it doesn’t seem to have worked quite they way the intended and could possibly bring the whole thing down. Think about the fact the the ACA architects where using “people that make under 40k/yr” as pawns in their fun little game.

      1. You mean I think people are stupid if they vote against their economic interests because they don’t like abortion, are homophobic, don’t like Black people being President, or because the preacher told them so? Ding, ding, ding… Yeah, I think those people are stupid. Does all this gnashing of teeth amongst the right-wingers on this website come down to the fact that an MIT professor thinks he’s smarter than you? Well, duh , he probably is.

        As I said, the conservative campaign to overturn this law won’t really affect me one way or the other so it’s a little bit of a snoozer for me. What’s interesting to me is to watch working class people argue so passionately that they should pay more for their health insurance because they don’t want to get a tax break from the government. I guess it’s too much like Welfare– and we all know who that goes to.

        1. Newsflash fucktard: We aren’t right-wingers.

        2. You mean I think people are stupid if they vote against their economic interests because they don’t like abortion, are homophobic, don’t like Black people being President, or because the preacher told them so? Ding, ding, ding

          And the reason you’re stupid is that you actually believe anyone who doesn’t share your opinion is that simple-minded.

          You remind me of a contractor I deployed with, who loved to impress people with how clever and well-read he was on subjects like the failures of capitalism, the base instincts of humanity, and how Marx had it all right when he talked about taking the system away from people. He liked to pawn the work he was supposed to be doing off onto soldiers, and got fired when he got caught banging one of them and for running a black market operation for alcohol. He only lasted as long as he did because he was an obsequious kiss-ass to the warrant officers who weren’t paying attention to what he was actually doing at work (not much). He also liked to tell people he was about 10 years younger than he was and tried to dress like the younger kids so he could be around people who didn’t realize how empty and shallow he was as a human being.

          Basically, you strike me as being a lot like him…pretty much a total piece of shit.

        3. Welfare goes mostly to poor whites. I’m not sure what point you’re trying to make.

          You do seem to have an attitude of self-righteousness. I gather you think that people who disagree with you must have some character flaw.

        4. Ummm, I don’t care if he thinks he smarter than everyone else or not. Apparently, you think you are smarter than everyone else too since you seem to know what’s better for others economic interests. But, regardless, I was talking about why he said the law was written the way it was. And, I quote. “what’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” How is that any different from what you said? “Maybe, just maybe, when people that make under 40k/yr realize that they’ll be paying more because their right-wing governor…” So, they used low income people as pawns to try and make Republican governors look bad. And, it didn’t turn out quite they way they hoped. Much like everything else in the law.

        5. I find it curious that someone ill-informed enough to be a socialist would be calling other people stupid. As for Gruber, he has certainly demonstrated his intelligence, NIT notwithstanding. You can get pretty far in academia if forced to by the fact you have no real marketable skills other than feral cunning.

          1. MIT. OK, so Gruber can probably type faster than me. Whoopee.

          2. Of course he calls other people stupid. It’s the only way socialists can defend their ideology…because they certainly can’t defend it on outcomes and prosperity.

            He’s so wrapped up in showing everyone how edgy and clever he is for supporting an avant garde philosophy like socialism, that he never bothered to ask if what he’s supporting is just a stupid idea. He just knows that it makes him feel good about himself. That’s why he’s a stupid piece of shit.

        6. amsoc – please explain why it is acceptable for the state to use force against peaceful people to take some of the wealth that they earned?

        7. amsoc economic interests = the state using armed agents to force productive people to pay for less productive people?

    6. american socialist|3.2.15 @ 10:52AM|#

      So, people in states run by reactionaries will have to pay more for health insurance because they won’t get federal subsidies? I a. live in California and b. have a job so this means that I’ll get a subsidy if I ever lose my job and I didn’t notice anything different when obamacare raised its ugly totalitarian head. Thus, I’m left shrugging my shoulders a little over this.

      California! Now there’s a good example of a state run by reactionaries. After all, the idea of stealing from some for the benefit of others has been around forever. Certainly nothing new or progressive about the practice except possibly in name only.

  12. Roberts will ignore the plain language of the constitution as he did before. The supreme court capitulated to FDR, and they will never again do their job.

    -jcr

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    1. Dorothy, why don’t you go to MSNBC and post your commercials there?

  14. You make $27 per hour good for you! I make up to $85 per hour working from home. My story is that I quit working at shoprite to work online and with a little effort I easily bring in around 45 Dollar per hour to 85 Dollar per hour heres a good example of what I’m doing more detail here….
    —————- http://www.jobsfish.com

  15. I’ve made $64,000 so far this year working online and I’m a full time student. I’m using an online business opportunity I heard about and I’ve made such great money. It’s really user friendly and I’m just so happy that I found out about it. Heres what I’ve been doing,,,,,,
    http://www.work-mill.com

  16. It may turn out that it isn’t even up to Roberts. One or more of the other conservative justices might very well join with the liberals on the court in taking the government’s side, sparing John Roberts any embarrassment.

  17. Roberts will ignore the plain language of the constitution as he did before. The supreme court capitulated to FDR, and they will never again do their job.
    kizi
    friv

    1. Maybe you haven’t noticed that the language of the Constitution isn’t at issue here, but the language of the statute.

  18. I predict Roberts goes the other way on this ruling because a) he can do so without overriding his precedent on the case, and b) it’s not an election year and Obama’s no longer the golden boy. People seem to forget that when the Obamacare ruling came out, how livid Scalia was at Roberts…because he changed his position at the last second. Hell, the dissent issued actually referred to itself at one point as the majority opinion, because the change happened so recently.

    Roberts’ move was a straight political gambit, because he knew if the Supreme Court shot down Obamacare in 2012, Obama would just play the martyr and use the ruling to find a way to destroy the legitimacy of the courts. As Chief Justice, Roberts has a responsibility to protect the political status of the Court as well as issue rulings…now that Obama’s a lame duck and Congress is in GOP hands, the situation has changed. So, I suspect, will his vote on Obamacare.

    1. I have a hunch that regardless of how all this turns out – whether the law is seriously crippled or not – that the individual personal mandate in some form is here to stay. Even if the GOP manages to completely repeal Obamacare and institute some other plan of their own, I think it wiil involve a mandate. Government seldom if ever restores a right or a liberty it has taken. Unfortunately.

      1. Of course the mandate is here to stay, absent legislative repeal. Obamacare is a tax law and it’s been written into the law. However, that also means that the benefits promised under Obamacare (since it’s a tax) aren’t guaranteed and can (and will) be scaled back without recourse by recipients.

        Just wait…in a couple of years, nobody is going to think this is a good deal except the pieces of shit who get a totally free ride on it.

    2. But who knows what dirt the NSA has gathered on him.

  19. I have no idea how could this “judicial deference” doctrine have originated among conservatives, who otherwise preach deference to the Constitution.
    The very language of the very first Amendment that constitutes the Bill of Rights reads: “The Congress shall make no law…” It is a direct, explicit abridgement of the “rule of the majority” in favor of certain fundamental principles, and the judiciary is the proper authority to defend the Constitution. Shame on Roberts in particular, and on all those who subscribe to the doctrine of judicial deference.

    1. Judicial deference is actually the principal that the court should just interpret the law, not make it (See Roe v. Wade, contra). It does not require deference to clearly unconstitutional laws like Obamacare, but the court should construe laws to read in a way as to make them constitutional if wording allowing that is present. What Roberts did is not deference, however, but flaccidity.

  20. my co-worker’s mother-in-law makes $68 /hr on the computer . She has been without a job for 6 months but last month her paycheck was $20011 just working on the computer for a few hours.

    pop over to this site http://www.post-report.com

  21. It’s clearer than the article would have you think.

    The subsidies are only granted for only one specific section of the law; the one providing for States to set up their own exchanges. A separate provision allows the federal government to establish an exchange for States which do not set up their own, and this second section is omitted from the subsidy provision.

    It was no oversight; the Democrats wanted to coerce the States into setting up exchanges by penalizing voters in the States which didn’t, thereby harming Republicans who opposed the law merely because it was clearly unconstitutional. This was openly stated by the drafters at the time, though now they now have amnesia.

    The Democrats miscalculated the resolve of the States, and their extortion attempt backfired resulting in the law being even more unsustainable.

    To fix the law (overlooking its overall unconstitutionality) is should be amended by Congress. However, Democrats can’t allow that because the law would be repealed if it ever came up for another vote.

    So the subsidy must be upheld because otherwise Democrat chicanery in manufacturing dependent voters would be reversed. Or, in the words of Reverend “God Damn America” Wright, their chickens would have come home to roost.

  22. I predict he’ll rule on a standing issue, which has the dual benefit to him of allowing him to punt on the statutory interpretation issue as well as further narrowing the ability of individuals to challenge government actions.

  23. What would Brian Boitano do?

  24. Mabe Ginsburg gets drunk and votes the right way this time.

  25. What was at issue in the previous decision was unequal treatment allowed by the income tax, not Roberts’ interpretation of the taxing powers of the govt, which was as wrong as it was during the Civil War, and no matter what he said about the law as policy.

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