Obamacare

Kennedy is Skeptical, Roberts is Mum: What We Know About Today's Arguments in the Supreme Court's Obamacare Subsidies Case

The High Court may be leaning toward the administration's position on the health law case.

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credit: Jeff Kubina / Foter / CC BY-SA

Oral arguments in King v. Burwell, which challenges the Obama administration's decision to allow insurance subsidies in federally run exchanges, ended just a few minutes ago.

No electronic devices were allowed inside the courtroom, but several outlets, including The Wall Street Journal and SCOTUSBlog, used tag-team reporting to file updates as the arguments were happening.

Here are a few highlights so far:

Standing probably won't be a problem. It looks like the questions about the plaintiffs' standing—whether they were actually legally qualified to take the issue to court—which had been raised in news reports over the last month won't be an issue: While Justice Ruth Bader Ginsburg asked about standing almost immediately, Solicitor General Donald Verrilli did not challenge statements by Chief Justice John Roberts and Justice Samuel Alito that this wasn't the time to dispute standing, according to SCOTUSblog.

Kennedy appears skeptical of the challengers' argument. According to The Wall Street Journal, Justice Anthony Kennedy, who previously voted to strike down Obamacare's individual mandate as unconstitutional, said he worried about "a serious constitutional problem" inherent in the challengers' argument that Congress would require states to either establish their own exchanges or not get access to tax credits. SCOTUSblogged summarized Kennedy's remark this way: "Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion."

As I noted earlier today, the idea that the subsidies, the insurance rules, and the mandate are closely linked took up a significant part of the government's brief. I don't think it holds up, but based on initial reports, Justice Kennedy appeared potentially sympathetic to this argument.

(Update: On the other hand, it may be that Kennedy accepts that there would be policy consequences, and doesn't think those consequences have any legal weight: According to TPM's Sahil Kapur, Kennedy also said to the plaintiff's lawyer: "It may well be that you're correct about these words and there is nothing we can do about that.")

Chief Justice John Roberts kept his opinions to himself. Justice Roberts, who many believed might be the swing vote in this closely watched case, said rather little, and provided no hints as to his opinion of the case.

At this point it's too early to reach any strong conclusions, but the reports so far suggest that the Supreme Court is less focused on the specific language of the law and more focused on the general structure, which suggests that they may be leaning toward the government's position. Justice Kennedy's skepticism was probably the biggest sign as to which direction the court is leaning overall: If Kennedy sides against the challengers, it's virtually certain that the government will win.

Reason's Damon Root was at the court today and will be posting his impressions soon, so check back for more coverage throughout the day.

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  1. We all know perfectly well that Roberts is going to fuck us over again because either he cut a deal with the administration or they have something on him.

    1. Kennedy will vote against the challenge, so Roberts can vote for, but the result will still be the same 5-4 the law means whatever they need/want it to mean, damn what they actually put down on paper.

      1. Agree. Kennedy will write the opinion “saving” America from the inevitable death spiral caused if the system reverted to the bloody national abattoir that murdered X many millions of innocent children in 2009. I think it will be 6-3.

      2. So what will we call Kennedy if he votes to uphold the law? Something snarky along the lines of John “PenalTax” Roberts?

        1. Stateralist?

    2. What Roberts will do depends entirely on what GW tells him to do and that completely depends on who GW has been spooning lately; Billy or Barry and rumor of possibly a little Jimmy, too.

  2. Ah, the old When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean ? neither more nor less.’ school of statutory interpretation rescuing.

  3. Understand Kennedy’s point is not what the various morons in the media have been saying. He is not saying that the statute doesn’t mean what it says. He is saying it does but that the Feds can’t extort the states into doing things by withholding money.

    That is not an unreasonable argument. You haven’t heard much about it from the media since it is an utterly objectionable argument from the Progressive perspective. The federal government does this sort of thing all of the time. The transportation appropriations act, to give one example, is chalk full of mandates on the states that enforced by the threat of withholding money. If the Congress can’t withhold subsidy money over this, then it can’t withhold highway funds over the drinking age or BAC threshold for DUIs. Progressives would be horrified by such a result.

    Of course the media are generally morons and are likely not smart enough to realize that. The liberal justices, however, are not morons. And I don’t think the other four conservative justices are Libertarian enough to buy off on that argument. I don’t think they have much of a problem with the feds withholding funds. So, I would be surprised if that argument commands much support from the court.

    1. This is correct. He’s not buying the defenders argument on the text of the law.

      He’s suggesting that the text as written (to exclude subsidies to some states) would be unconstitutional. I suggested basically this in a thread on the suject the other day.

      1. The argument doesn’t work very well in this context. The problem is that this is a federal scheme. This is not the quite the same thing as the feds telling the states they have to change their speed limits or loose their highway funds. There the feds are using the power of the purse to coerce the states into doing something outside of federal power. The feds are using their money to create a national speed limit where there is no federal power to create one.

        Here, the feds are telling the states “if you don’t pony up and help us create an exchange, we are not going to give your citizens subsidies”. First, they are not coercing the states to do something the feds can’t. They are giving the states an incentive to be a part of a federal program. Second, the action they are taking makes sense and relates to the mandate. The people in the states that didn’t set up exchanges are getting their exchanges set up for them by the feds. The people with state exchanges are paying state taxes to help set up the exchanges. So, why shouldn’t the people in the states that are getting a free ride have to pay for that free ride by losing their subsidy?

        Beyond that, the idea that the feds don’t have the power to coerce states by withholding funding is a minority view. I find it very unlikely that even the conservative justices beyond Roberts support it. And I can’t see any of the liberal justices buying into it.

        1. Well the argument Kennedy is making is that withholding the subsidies would cause an insurance market death spiral. Not that they withholding of funds *in itself* is coercive.

          Personally, i think that is kind of a stretch. Do we KNOW that without subsidies not enough people would buy insurance under the mandate? How could we know that? And even if we do, why pin it on the lack of subsidies? Why not pin it on any number of other provisions of the law which drive up premiums? Blame the essential benefits list or guarenteed issue, or community rating.

          1. The Congress isn’t destroying their insurance markets. If that is really the effect of this, there is nothing stopping the states from stepping in an paying for the subsidies themselves. Indeed, that is the whole point of it. If you don’t want to incur the expense of building an exchange, then you need to incur the expense of paying the subsidies.

            If the insurance markets are destroyed by this, it will be states who did that in their refusal to either build an exchange or provide the subsidies.

            1. Exactly. Withholding subsidies isn’t necessarily going to instantly cause an insurance market death spiral. If you can say that you can just as easily say that guarenteed issue threatens states with a death spiral or that community rating threatens states with a death spiral, so the states that don’t set up exchanges shouldn’t be forced to adopt those provisions.

        2. Isn’t this law somewhat different? It isn’t just that funds could be withheld to extort states, its that the federal government would be threatening states with the destruction of their insurance industries. Regardless of whether or not the subsidies are provided to a particular state, it is still illegal to drop customer coverage for a pre-existing condition (causing prices to go up and the need for subsidies).

          1. Right. But I don’t know if it is *necessarily* true that the insurance market would collapse absent subsidies. Given that the individual mandate is still in place, it really depends on how high premiums are relative to the penalties.

            1. True, but an individual mandate won’t matter if people can’t afford the insurance in the first place.

              1. then they can pay the penalty tax.

            2. I can tell you that if I lose the subsidy, there’s no way in hell I can afford what amounts to a second rent payment every month.

              I still say kill this motherfucker with fire.

      2. “He’s suggesting that the text as written (to exclude subsidies to some states) would be unconstitutional.”

        It’s admittedly been a while since I studied statutory interpretation but I believe SCOTUS’s jurisprudence states that if there’s a way to interpret a statute to make it constitutional, then it is interpreted that way. Which admittedly makes SCOTUS into another legislature since that approach potentially elevates squishy policy considerations over the plain text of a statute.

        This is why the Government is focusing on the ACA’s policy framework. I would bet 2-3 justices don’t believe in this line of reasoning, period, and would prefer to see SCOTUS stop using it but that does not make for a majority.

        1. See below. That doesn’t work. To apply that doctrine, there has to be two ways of reading the statute. The statute necessarily must be ambiguous. If it is not, then the court just strikes down the law and never applies that doctrine.

    2. Since there is no severability written into the law, declaring a significant section of the law unconstitutional would shitcan the whole thing, no?

      1. The struk down the mandatory medicaid expansion and that didn’t shitcan the whole thing.

      2. This isn’t questioning wether the law is constitutional.

        They controversy is whether the way HHS is implementing the law is in fact legal.

        Either the HHS is right and they can offer subsidies on the Federal Exchange *or* the HHS is wrong and they have to stop offering subsidies. The law, on the other hand, is not in question.

        1. If excluding subsidies to state without exchanges is found unconstitutional as Hazel suggested, then without a severability clause that would I believe render the law unconstitutional.

          1. “Unconstitutional, as applied” – if they were going to scratch the whole law, it would have happened the first time around.

            1. So if they’re going with “unconstitutional, as applied” but aren’t debating the law’s constitutionality, then that pretty much sinks the challenger’s case.

              So the Democrats were right…this stupid fucking bill is unkillable until the Republicans control Congress and the White House (and even then it’s iffy).

              1. Pretty amazing.

            2. But it wouldn’t be “unconstitutional, as applied”, it would be “unconstitutional, as written”. Which would therefore require a re-write to make it constitutional, which only the legislature can do.

              1. Which would therefore require a re-write to make it constitutional, which only the legislature can do.

                SCOTUS reserves the right to rewrite statutes to save them. Sure, they call it an “interpretation”, but in practice it can amount to amending the statute.

                1. Well yeah, I know what they actually do, I am just looking at what they are constitutionally allowed to do. I readily admit that train left the station a long time ago, but this seems like it would be a much more egregious case than usual.

              2. That might give them an excuse to allow the subsidies to remain in place until congress passes an amendment.

        2. the IRS is violating the law. The appellants are seeking to uphold it. IRONIC.

    3. I’d also add that the court basically took this argument with respect to the Medicaid expansion. That at some point withholding money becomes coercive and the federal government can’t do that.

      Of course, at some point the court is going to have to delinate when and where coercing states with the threat of withholding funds is unconstitutional, unless they plan on striking down the frederal drinking age too.

      1. No the court did not. Only Roberts, Beyer and Kegan bough that argument. Sotomayor and Ginsburg said the exact opposite. The four conservative justices, including Kennedy, didn’t address the issue since in their opinion the invalidation of the mandate struck down the entire law and rendered the issue moot.

      2. No the court did not. Only Roberts, Beyer and Kegan bough that argument. Sotomayor and Ginsburg said the exact opposite. The four conservative justices, including Kennedy, didn’t address the issue since in their opinion the invalidation of the mandate struck down the entire law and rendered the issue moot.

      3. Correct me if I’m wrong but wasn’t part of the Medicaid calculus that the feds were threatening to withdraw monies that the states had been receiving for years, thereby cocking up their budgets? It may be splitting hairs but you could argue that this was “new” money and therefore the same dependency logic doesn’t apply.

        1. Maybe in one of the opinions. I don’t know. Again though, the majority of the court didn’t rule that. Only Roberts, Beyer and Kegan did. The other six justices either didn’t consider the issue or went the other way.

    4. He is saying it does but that the Feds can’t extort the states into doing things by withholding money.

      Drinking age… speed limit…

      1. Exactly that. This is why progs would hate a decision that says that and why I seriously doubt the court will rule that way.

        1. Of course, expecting logical and honest consistency from the court has become a bit unrealistic these days, so who knows.

    5. Sounds to me like Kennedy is foreshadowing a constitutional avoidance argument. There’s a rule of statutory construction that, if you have two possible interpretations, you should pick the one that does not render the statute unconstitutional. So, the argument would go, reading this statute as the challengers do would be unconstitutional, and therefore we’ll pick the government’s interpretation.

      1. That sounds nice but it doesn’t work. That only applies where the language of the statute isn’t clear. You couldn’t rule that way without sticking a stake in the heart of Chevron. To get around Chevron and make that argument the court is going to have hold that the language is ambiguous. It is not ambiguous and the only way you can claim it is is to claim that is would be to claim the context of the statute makes the otherwise plain language ambiguous. Doing that would kill Chevron, whose holding is if the language at issue is clear the context doesn’t matter. And doing that would open the door to courts making all kinds of chaos. There is no way to limit such a holding to its facts. If the context makes this plain language ambiguous then any other plain language that contradicts what the judge thinks is the overall scheme of the statute is ambiguous too. I seriously doubt even the most partisan members of the Court would sign onto such a decision.

        1. The rule of constitutional avoidance doesn’t require the court to first find ambiguity. The rule actually works the other way- it says that the Court will construe the statute to avoid such problems “unless such construction is plainly contrary to the intent of Congress.”

          1. The courts can’t construe a statute multiple ways if there isn’t ambiguity in the first place. There has to be two ways of reasonably reading the statute, one that is constitutional and one that isn’t. If the statute can only be read one way, you strike it down not invent some reading the plaintiff thought up. The doctrine assumes an ambiguous statute. Otherwise, there isn’t any alternative interpretation available.

      2. Also, if you can’t say “if the plain language is unconstitutional, read it in a way that isn’t” without depriving courts of the ability to strike down unconstitutional laws. So if for example Congress passed a law making speaking against Congress an act of sedition, the courts couldn’t strike it down outright but would be obligated to find some way to ignore the language and read it in a way that was Constitutional. Again, a ruling that would create judicial chaos and not something any justice in his right mind would sign onto creating.

        1. Also, if you can’t say “if the plain language is unconstitutional, read it in a way that isn’t” without depriving courts of the ability to strike down unconstitutional laws

          That’s pretty much what Roberts did in Sebelius. He took a statutory penalty that was plainly drafted as a fine, with mountains of supporting legislative intent, and said, nope, its a tax.

          Because as a fine, it would be unconstitutional, but as a tax, it was allowed.

          That wasn’t interpretation of ambiguous language. That was a flat-out change to the statute.

          1. Now that you mention it, yes it is. And that was an unbelievably stupid decision that no other justice on the court joined with him and making and no one other than Roberts agrees with. Remember, there was no majority opinion in Sebilious. Roberts agreed with the liberals but for a reason only he believed.

          2. Look at the discussion on page 32 of this Senate report:

            [Sorry, no link due to character limits. Good going, Reason. You’ll just have to search for the Joint Committee on Taxation, “Technical Explanation of The Revenue Provisions of the Reconciliation Act of 2010, as Amended, in Combination With the Patient Protection And Affordable Care Act,” March 21, 2010. ]

            It uses the term penalty numerous times. It never uses the term tax. In fact, footnote 68 goes to some pains to distinguish the penalty from the taxes that the IRS is authorized to collect, to set up this statement:

            The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty.

            If Roberts can toss all that aside in order to say its a tax, not a penalty, then I don’t know that SCOTUS won’t toss aside the specific references to State exchanges in this case, either.

            1. Those are reports not the text RC. And Roberts was the only Justice who did that. As much as you and I disagree with the four liberals interpretation of the commerce clause, their opinions were not nearly as lawless and stupid as Roberts. The other 8 justices had a reasoned argument about the meaning of the Commerce Clause. Roberts wrote a completely idiotic and opinion that ignored the plain language of the statute and intent of Congress and was contrary to every cannon of statutory law there is.

              His opinion, it is not a decision since it didn’t command any votes, is utterly moronic and stands only for his cravenness on this issue and will have no effect on legal thinking going forward.

        2. As I understand the rule, it’s “if the plain language is unconstitutional, read it in a way that isn’t so long as that way is reasonable and not plainly contrary to Congress’ intent.” So there is still plenty of room to strike down unconstitutional laws.

          1. Exactly. And that means the doctrine doesn’t apply where the statute is unambiguous. There the court just strikes the law down. That is my point.

    6. All kinds of Federal Laws already extort the states into doing stuff they don’t want to do. If he wants to get rid of these laws, thats great. But otw I find his crocodile tears on the matter unimpressive.

      1. I don’t see how you could get rid of this without also getting rid of those. And I seriously doubt he wants to do that.

        1. I think they’d say the unconstitutionality is a matter of the degree of the coercion. Destroying your insurance market is too much, but depriving you of some highway funding is not. In fact, that seems to be the rule they announced- where the line is is anyone’s guess.

          1. No it wasn’t the rule they announced. It was a plurality opinion by three justices. How many times do I have to point that fact out?

            And yeah, they could rule that but that would not stop lower courts from drawing the line wherever they saw fit. Ruling that way would open up decades of litigation and the court revisiting the subject defining where that line is. Again, not a very likely result, even if there are five justices willing to buy it, which is doubtful.

            1. There were opinions on this way before NFIB. For example, South Dakota v. Dole, 483 U.S. 203.

              1. Yes. Opinions that ruled the feds could do it. There is not a problem if you say the feds can do it. The problem only arises when you say there are certain circumstances they can’t. Then you have to spend years litigating where that line is. As long as the rule is “the feds can do it”, there is no line to litigate.

                1. The Dole opinion said there was a line, and it just wasn’t crossed in that case.

    7. Understand Kennedy’s point is not what the various morons in the media have been saying. He is not saying that the statute doesn’t mean what it says. He is saying it does but that the Feds can’t extort the states into doing things by withholding money.

      Ha! Ha! Ha! The Feds have been doing precisely that for as long as I can remember. As just one example, does anyone happen to recall that the states were required to pass seat belt laws or forego highway funding? Kennedy’s problem is just that he hates to admit the Feds are a pack of extortionists when it comes to the states.

      1. As just one example, does anyone happen to recall that the states were required to pass seat belt laws or forego highway funding?

        Yes, I do. I address that in the second paragraph of my post and a lot of other places here.

        1. Yes, I know – pardon me, please. I posted before reading your entire comment.

  4. Supreme Court is less focused on the specific language of the law and more focused on the general structure, which suggests that they may be leaning toward the government’s position.

    And there it is, what’s left of the rule of law is going to get fucked in the ass yet again.

  5. “No electronic devices were allowed inside the courtroom”

    Because they are afraid of tainting the 18th Century sanctity of the courtroom? Or they are afraid of [Insert this era’s most hated belief system]ist Terrorism?

    1. Because they don’t want you to see the sausages being made.

    2. Yeah, this is one of those pieces of abject idiocy which will almost certainly require people to retire or die before it gets rethought.

    3. Because they can. Power is an end, not a means.

    4. I agree with this policy. They are trying to insulate the court from the political arena by preventing video, tweeting, all the other paraphernalia of the modern-day assault activist. That’s a good thing.

  6. We’re screwed

    1. Nothing good was going to come of this, anyway. The GOP would make whatever deal it needed to make sure no one went without a federal subsidy.

  7. If only we could combine exit polling with supreme court question divining.
    Then we’d really know the future.

  8. The GOP should offer a fix in exchange for dropping the individual mandate while they can still get something.

    1. “Let us turn ours into a country of mushrooms by making mushroom cultivation scientific, intensive and industrialized!”

    2. Too late.

    3. https://www.youtube.com/watch?v=ykwqXuMPsoc

      Its a new year. Shreek needs a new theme song to replace the shreeking ape.

    4. Re: Peter Caca,

      The GOP should offer a fix in exchange for dropping the individual mandate while they can still get something.

      My offer is this: nothing.

    5. Palin’s Buttplug|3.4.15 @ 12:26PM|#
      The GOP should offer”…

      Go lick Obo ass somewhere else, turd.

  9. Look. It’s not what they law actually says that matters; it’s what they meant. You know, intentions…

    1. … and not the intentions when the law was written, the intentions right now, which of course are subject to change without notice.

  10. Don’t give up all hope. The text of the law is pretty plain that it must be an Exchange established by a [Captial S} State under the section that requires the states to set up an exchange, and does not reference the section authorizing the Feds to set up an exchange. The capital in “State” is important because it means it is a defined term–i.e. one of the 50 States. The justices previously struck down the Medicaid provisions as being coercive to the states, and Kennedy voted to strike the entire law the last time around. Kennedy could be building on the Medicaid holding to void the entire law. Quite frankly, it would do the Democrats a huge political favor.

    1. It would. If the Court were to rule the provision was invalid because the feds can’t coerce states by the threat of withholding funds, that would have some very good small government implications. And it would also keep the Democrats from blaming this train wreck on the courts.

  11. “Because laws were meant to be obeyed! Unless they were meant to be broken!”

    Re: Tony,

    The interesting question is why you would be perfectly OK with millions of people losing access to healthcare if it means scoring a point against Obama.

    Theirs were lousy plans to begin with.

    See how that works, little red Marxian?

    1. Because it’s scoring political points that we care about. Not a further co-opting of 1/6 of the economy by a bloated, power-hungry and utterly incompetent federal government. Duh.

    2. There’s that weasel-word “access” again.

      1. Re: Rhywun,

        There’s that weasel-word “access” again.

        Indeed, Little red Marxians say that without money, there’s no access. I buy stuff on credit all the time, that is without money out front. I shouldn’t have “access” to that, either.

        Don’t forget also how little red Marxian Tony presents his argument as an appeal to pity and not reason. It’s… pathetic.

  12. “Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges ? likening this to an unconstitutional form of federal coercion.”

    So the law is poorly written, and that means we’ll invent some new meanings here?

    1. The “economic chaos part” is a bit of a problem. Either the feds have the power to withhold funds to states who won’t play ball or they don’t. I don’t see how they have that power as long as it doesn’t hurt the states too much.

    2. Hey if Robert can do it, why can’t Kennedy?

  13. With “judicial review” like this, why does Congress bother to pass laws at all? It should instead just forward a memo summarizing it’s intent to the Court, which could then take it from there. Think of all the trouble that would save everyone.

  14. Bad news for Peanuts:

    Hospital Stocks Surge After Justice Kennedy Criticizes Obamacare Challenge

    http://www.bloomberg.com/news/…..s-insurers

    1. Are you quitting on me? Well, are you? Then quit, you slimy fucking walrus-looking piece of shit! Get the fuck off of my obstacle! Get the fuck down off of my obstacle! NOW! MOVE IT! Or I’m going to rip your balls off, so you cannot contaminate the rest of the world! I will motivate you, IF IT SHORT-DICKS EVERY CANNIBAL ON THE CONGO!

    2. “Anthony Kennedy, who is often a swing vote in important cases, said Wednesday there is a “powerful” point to the Obama administration’s argument that the health-care law would fall apart if the subsidies were ruled unlawful.”

      And that’s the criticism towards the challenge that made stocks rise. Kennedy is simply saying “Yeah, you guys are in deep doo-doo if this thing goes south! He, he, he!”

    3. Most here love when the market place votes. Except of course when they don’t.

      1. Re: Jackass Ass,

        Most here love when the market place votes. Except of course when they don’t.

        You sound so sweet and cute when you want to participate in the conversation we adults are having.

        The ACA wasn’t voted by the market, you mendacious fuck.

        1. …wrote the “adult.”

          1. Re: Jackass Ass,

            …wrote the “adult.”

            And don’t you forget it.

      2. Still do love it when the market place votes. Get rid of the subsidies, community rating, and the individual mandate. Then well see the market place vote on how high premiums should be and whether people buy enough insurance policies to keep the insurance companies in business.

        1. That market place above is voting daily on a whole host of “commodities” that enjoy subsidies, ratings, and government influence. Hospital stock yes, oil stocks also. And many more.

          1. And how many of those “commodities” enjoy a mandate that people must purchase them as a matter of law and as a condition of being alive? The only one I can think of is healthcare insurance. Hardly what I’d call a free market.

            1. You are forced to buy car insurance, as another example. Regardless, none of those companies in that marketplace are devoid of government influence, from not only subsidies, but also tax breaks, government spending and more.

              1. Re: Jackass Ass,

                You are forced to buy car insurance, as another example.

                See how cute you sound when you want to butt in adult conversations?

                Jackass, sweetheart, NOBODY makes you buy automotive insurance. You are required to have it if you intend to do some driving along a public road. If you don’t drive a car on a public road, you don’t have to buy shit.

                Through the ACA, the government makes it mandatory for you to buy health insurance for the mere fact that you’re alive. There is NO comparison.

                Stick to your embroidery, Jackass, and leave adult business to us, the adults.

                G’on, scat!

          2. Wow, Jackand, you discovered that markets respond to incentives.

            As a person who doesn’t believe in market forces, I can understand your confusion. Let me help you:

            The people on this site hold as a core belief that market forces will use price signalling to establish the most efficient clearing of goods and services. The obvious corollary to this is that screwing around with the price (subsidies, price limits, etc) will confuse the signalling and create the less efficient clearing of goods and services.

            Obamacare does not work. It is not a market. It is a mechanism for interfering with the pricing of a service, which is compiled on top of another major price-manipulation- the employer health care tax advantages. This is all fucking up the healthcare market, just as government-induced cheap loans fucked up housing and college markets.

            So people here are not objecting to a market, they are objecting to manipulation of a market.

          3. Re: Jackass Ass,

            That market place above is voting daily on a whole host of “commodities” that enjoy subsidies, ratings, and government influence. Hospital stock yes, oil stocks also. And many more.

            The ACA is not “the market”.

  15. Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges ? likening this to an unconstitutional form of federal coercion.”

    Sounds like a reason to strike down the law, not uphold it, to me.

    As in “The statute says X. However, X would potentially destroy the insurance system in states that chose not to establish their own exchanges ? which is an unconstitutional form of federal coercion.”

    His concern about the implications of X does not necessarily mean he will refuse to rule that the statute says X. Indeed, those implications may lead him to strike down, not just the IRS rule, but the tax credit scheme as a whole.

    It gets back to how far SCOTUS is willing to go in rewriting statutes in order to save them from their own terms.

    1. That is the other thing I hadn’t really thought about until reading your post. Everyone assumes that the court if it found it unconstitutionally coercive would just extend the subsidies to all.

      No. To get to that conclusion the court has to conclude the language means what it says. If it did that, it couldn’t extend the subsidies to everyone since it doesn’t have the power to spend money. The effect may be unconstitutional, but we still have a law that says “no money to citizens from non hacker states”. The Court can’t ignore that and spend taxpayer money to make it right. The court would have to invalidate the entire scheme and end all subsidies to everyone in every state.

      Wouldn’t that be a pisser? Now that I think about it, I don’t think Progs would like where Kennedy is going here, because that has to be where he is going.

      1. I don’t necessarily think that’s where Kennedy is going. As the post states, his argument is that it’s not the yanking of subsidies, but the dire effects on the insurance market that would be unconstitutionally coercive. Although I don’t know if you can necessarily draw that conclusion if the mandate is still in place. After all, insurance premiums AFTER subsidies could still rise to a point where it would cause a death spiral. And didn’t the court basically rule that you couldn’t keep hiking up the tax penalty to make people buy insurance?
        If there are death spirals in the offing, that ship has sailed, you can’t pin it on not handing out subsidies.

        1. The court didn’t rule that. Roberts claimed that in his plurality opinion that upheld the law. Remember, no one but him bought into the idea that it was a tax. His opinion had a big effect in that it upheld the law. It has, however no real precedential value. He stated that the tax could get so high as to become a mandate. That is fair enough. Since no one but Roberts thinks it is a tax, it really doesn’t mean anything.

          1. Well it opens up the possibility of an as applied challenge if Congress were to hike the tax penalty in response to premium increases.

        2. If interested, thought this was a fairly good summary of the days events as well as thoughts as to where Kennedy was going.

          http://www.scotusblog.com/2015…..v-burwell/

      2. Wouldn’t that be a pisser? Ya boy! and particularly delicious. To hear progressives complain as misery is spread evenly would be a delight.

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  18. I personally believe the Court will uphold IRS’s regulation using some tortured reasoning and/or limiting the IRS’s interpretation to some meaningless degree.

    And I believe so for one simple reason: the Court will not put itself in the position of being the entity that strips the ability of millions of people to afford health insurance. That may be irrelevant to people who write articles and post comments on Reason.com, as well as some of the Associate Justices, but it is absolutely incredibly important to Chief Justice Roberts.

    1. I think you are right.

      1. Indeed. I think the odds are that the Court will make the wrong decision for the wrong reasons.

    2. Except the reason that millions can’t afford health insurance is because of government mandates that raise the cost. Get rid of the mandates and the cost will drop.

      And then there’s the little matter of law. The fact that some people benefit from the illegal actions of government is not a good argument in favor of those actions.

  19. I have a hard time imagining any but the most left-wing partisans on the Court not striking down this provision. As said above, the legislative language is unambiguous: established by the States. And the legislative intent is clear: numerous public statements that this provision was intended to be a stick that caused states to set up exchanges. The “but it would be disruptive!” argument is absurd: what would truly be disruptive would be to let the government ignore statuary law whenever they want.

    “Yes, DHS has been kidnapping travelers and selling them into slavery to pay for their operations, but it would be disruptive if they no longer had that source of revenue!”

    1. Don’t give the government any new ideas, Papaya.

  20. Class, repeat after me:

    “The Constitution does not prohibit legislatures from enacting stupid laws.”

    -Supreme Court justice Thurgood Marshall

    1. Indeed.

      The issue here isn’t (necessarily) whether the law is stupid.

      The issue is whether the IRS can give out tax benefits that are contrary to the text of the law.

      1. ^This.

  21. If I were a Republican mover and shaker I would be praying for the SC to side with the government.

    Then, fully implement it. The employer mandate section will be a huge mess.

    If the SC rules against it and negates Obamacare, then there will be lots of disruption, lots of people losing coverage, etc. Who gets the blame? It should be the Dems, but it won’t be. The MSM and Obama will say ‘well, they finally got what they wanted, and look at the mess they’ve got us into’.

    This is a lose-lose for the Repubs if they ‘win’ in court today. And, a win-win for the Democrats should they lose in court.

    1. The Dems will just change the law by presidential fiat.

  22. Destroying the health insurance markets in this country is a feature of Obamacare, not a bug. Once that’s done, the only logical conclusion will be for the government to provide everyone with health care. YAY.

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