Obamacare

Supreme Court Appears Closely Divided Over Legality of Obamacare Tax Subsidies

Sharp questions for both sides. Kennedy and Roberts likely hold the deciding votes.

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Washington, D.C.—For the second time in three years, the U.S. Supreme Court is weighing an existential threat to the Patient Protection and Affordable Care Act. In 2012 that threat arose from the text of the Constitution. Did Congress actually possess the lawful constitutional power to force every American to buy health insurance? By a margin of 5-4, with the deciding vote cast by Chief Justice John Roberts, the Court held that it did, thereby saving the law from destruction. This time around, in a twist of irony, the threat to Obamacare arises from the text of Obamacare itself.

Credit: C-SPAN

The question before the Supreme Court today in the oral arguments over King v. Burwell was whether the Obama administration illegally implemented the federal health care law by allowing certain persons who bought health insurance on federally established exchanges to qualify for tax credits. According to the text of the Patient Protection and Affordable Care Act (ACA), those tax credits are limited only to purchases made via an "Exchange established by the State," not via exchanges established by the federal government. If the Supreme Court decides to affirm that textual command and reject the broader interpretation favored by the White House, the future of the ACA would be thrown into grave doubt.

Up first at the lectern this morning was Michael Carvin, the veteran Washington lawyer representing the four individuals challenging the legality of the Obama administration's actions. To say that Carvin faced sharp questioning from the Court's liberal justices would the understatement of the year. From my seat in the overcrowded press section, I watched Carvin spar repeatedly with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, none of whom looked upon the conservative litigator with what we might call a friendly disposition.

"We look at the whole text," Kagan told Carvin. "We don't look at four words." Breyer agreed. "How does context support you?" he asked Carvin, a sharp tone in his voice. In fact, Breyer said, when you look at the entire context and structure of the ACA, your legal challenge falls apart.

But before those verbal fireworks went off, Justice Ruth Bader Ginsburg interrupted Carvin's opening statement to raise the wild card issue of standing. According to some recent reports that are not part of the record of this case, she noted, it seems possible that none of Carvin's clients actually possess the requisite legal standing to pursue this litigation. Perhaps the Supreme Court should not be hearing this case at all, she implied.

But Carvin waved away those concerns and, more importantly, no other justice echoed Ginsburg's worries. It appeared that the rest of the bench was ready and willing to reach the merits of this case.

Representing the Obama administration today was Solicitor General Donald Verrilli, the wonderfully mustachioed architect of the administration's narrow 2012 victory. Once again, it fell to Verrilli to save the White House from a judicial rebuke.

He had his work cut out for him. "How can the federal federal government establish a state exchange?" asked Justice Antonin Scalia. "That's gobbledygook."

Justice Samuel Alito made a similar point, albeit in a less colorful manner. Why did Congress specifically write "Established by the State"? he asked Verrilli. "Why didn't [Congress] write 'in the state'" or some other phrase more consistent with the government's interpretation of the law's purpose?

But it was Justice Anthony Kennedy who left the biggest impression of the day. At one point, Kennedy signaled strong hostility towards the federal government's position, telling Verrilli that the text of the ACA "goes in the wrong direction for your case."

Yet Kennedy also said that the case raised strong federalism concerns that might ultimately work in the federal government's favor. How so?

According to Kennedy, if the legal challengers have the correct textual interpretation, then this contested provision of the ACA may itself be "unconstitutionally coercive" since it forces the states to choose between establishing state exchanges or watching their insurance markets go into a "death spiral" absent federal tax credits. In other words, it is a gun to the head, not a real choice. And if that is indeed the case, Kennedy added, it raises the specter of "constitutional avoidance," which is the legal doctrine which says that if the Court faces two possible interpretations of a statute, and one of them would render the statute unconstitutional, then the Court should adopt the interpretation that avoids bringing down such a constitutional judgment. In other words, Kennedy's questioning suggests that he could reject the government's reading of the text, but then still effectively vote for the government in order to avoid interpreting the ACA as imposing unconstitutional coercion on the states. This view could prove decisive to the outcome of the case.

Finally, a few words about the chief justice. In 2012 Roberts famously voted to uphold the ACA as an act of conservative judicial restraint. Not surprisingly, all eyes were trained in Roberts' direction this morning. Yet Roberts revealed nothing. Indeed, he played a supreme game of poker, asking only one truly substantive question (of the solicitor general) during the entire proceedings. Needless to say, we're going to have to wait a little longer to find out what sort of vote Roberts is holding.

A decision in King v. Burwell is expected by June.

NEXT: The 'Constitutional Conservative' Who Wants to Legalize Pot—and Anything That's Peaceful

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  1. In fact, Breyer said, when you look at the entire context and structure of the ACA, your legal challenge falls apart.
    .
    So if you craft your legislation poorly and full of contradictions, you get the benefit of the doubt. Those who have to comply with it? Probably not so much.

    1. The Supreme Court should be renamed The Supreme Rubber-Stamping Court. Or The Statist Court.

      Leela: Cool your jowls, Nixon. You may not like it that Dr. Zoidberg desecrated a flag. You might even find the image of it festering in his bowels somehow offensive. But the right to freedom of expression is guaranteed by the Earth Constitution.

      Nixon: Aroo! Maybe so. But I know a place where the Constitution doesn’t mean squat!

      [Scene: Supreme Court.]

      Myrtle Fu: The Supreme Court hereby accepts the case of Earth vs. Zoidberg.

    2. The supreme court can take unambiguous phrases like “Congress shall make no law” and twist them to mean their opposite. Poorly worded legislation just makes the twisting easier.

      1. “Shall not be infringed” = “subject to whatever restrictions the government decides are reasonable”.

    3. I thought I was done with bull shit like Article 134 when I got out of the Corps.

      http://en.wikipedia.org/wiki/General_article

      Basically, the UCMJ’s last article is “just in case you did something we didn’t like and it wasn’t technically against any of our rules, this covers that.”

      This law is like that. “Ignore what we wrote, we’ll tell you what we want as we go along.”

      1. When I was in the Navy, it was also used as an “add-on” at Captain’s Mast to give the C.O. an extra charge to levy penalties against.

        I’ll have to give the military one small point: they at least had the stones to come out and put the bullshit in writing. Congress and the President don’t even do that. They pretend that it doesn’t exist and then pull it out whenever it suits them.

  2. According to Kennedy, if the legal challengers have the correct textual interpretation, . . . if the Court faces two possible interpretations of a statute, and one of them would render the statute unconstitutional, then the Court should adopt the interpretation that avoids bringing such a constitutional judgment.

    Which is it? The challengers have the correct interpretation, or the Court has a choice of interpretations? You can’t have it both ways.

    1. yeah, Kennedy was talking out of his ass there. If the challengers are right, there is only one interpretation available.

      1. Unfortunately John I suspect that you will be right on every point and still be handed a defeat.

        1. Libertarianism in a nutshell.

          1. difficult to win when the other team doesn’t play by the rules ( or even acknowledges that there are rules) and the referees are complete morons.

    2. Which is it? The challengers have the correct interpretation, or the Court has a choice of interpretations? You can’t have it both ways.

      Personally, the notion that it’s ‘Unconstitutional or other’ with ‘other’ being preferred pretty disgusting as well.

      We aren’t going to address the pointy end of a sword because the pommel is less dangerous.

      1. Kennedy’s point was that he can indeed have it both ways. He is saying that they can find that the language of this portion of the statute indeed says that the federally imposed exchanges cannot get the subsidies – but that this requirement is unconstitutional. Therefore, rather than striking the statute down they must give it the interpretation that says that they do get the subsidies.

        In other words, pretty much the precise opposite of the interpretation that they took the first time around which was “If we don’t want to rule the law unconstitutional, we must invent an interpretation that is not written in the law and rule that to be constitutional.”

        I wonder if the partisanship and policy-making has always been this naked and obvious at the supreme court. It really is pretty much the exact opposite of everything they pretend to stand for.

    3. It’s chickenshit jurisprudence.

  3. There are going to be a least three and probably four separate opinions for this case. Understand upfront, none of the justices, not even the liberal ones, are going to buy the bullshit “but it can’t mean what it says” arguments. So the question will be what result do they want and what other means are available to get there. I could totally see Ginsburg voting for the government and writing a separate opinion on the standing issue. Then you would have Kegan and a few other liberals suddenly deciding federalism mattered and voting to uphold because the scheme is unconstitutionally coercive on the states. Then a maybe Alito, Thomas and Scalia voting with the Plaintiffs and writing the “fuck you it means what it says” opinion. And God only knows what kind of horse shit Roberts will concoct.

    1. deciding federalism mattered and voting to uphold because the scheme is unconstitutionally coercive on the states

      Someone needs to explain this to me. If the challengers have the correct interpretation, AND the court finds that interpretation unconstitutional on federalism grounds, how can they not throw it all out?

      1. “Unconstitutionally coercive”… I guess coercion from the federal government is only problem when exerted on state actors. Private citizens? Never seems to raise a problem for progressive statists

        1. because the government obviously meant it to say something other than what it says but couldn’t put that in writing since it would never pass, so the unwritten meaning of the law should not be abridged by the supreme court since that would be activism.

  4. “We don’t look at four words.”

    Nor should you. Look at the next phrase, for example, which directs you to the section of the statute dealing with state, not federal, exchanges.

  5. And, let’s not forget that once again Kagan should be recused from hearing this case, on account of her conflict of interest from being Solicitor General and giving advice to the White House on the statute.

    1. The idiot Repubs really blew an opportunity when they were confirming her. They should have gotten her commitment not to sit on any ObamaCare cases as a condition of voting for her appointment to the Court.

      1. And if she reneged? Such a promise would have been meaningless. Moreover, the Republicans didn’t even have the votes to stop her. So there is no reason she would have ever given such a promise even if they had demanded it.

        1. And if she reneged?

          Nothing you could do, of course.

          But I think the odds she would renege, or that the other Justices would let her, are pretty small.

          It would be huge blow to the credibility of the court for a Justice who said, in front of the Senate, that she would not sit on any ObamaCare cases because of a (perceived) conflict of interest, to go ahead and do it anyway.

          1. She helped write the law and still sat on the case. If that didn’t hurt her credibility nothing would.

            1. Its a matter of degree. Backroom participation is more easily ignored than a statement, in front of the Senate.

              But, didn’t happen. So it doesn’t matter.

              Or in the immortal words of our next President:

              “What difference, at this point, does it make?”

          2. Nothing you could do?

            Isn’t that why we have a Second Amendment?

    2. If it had been a justice perceived as a conservative that had such a conflict of interest on a major case, the liberal media would be screeching like banshees about it.

      In this case – there is nary a peep from them.

    3. In which case this would go 4-4…

  6. “Constitutional Avoidance Canon.”

    I remember asking in my con law class if this should be interpreted as “Supreme Court Job Avoidance Canon.”

  7. Yeah Kennedy will decide this thing. Roberts will stay out of the spotlight and favor the challengers this time around. Government will win 5-4.

    1. If there the votes to side with the government, Roberts will sing the conservative song and vote with the minority safe in the knowledge his vote won’t change anything.

      That said, don’t read too much into what Kennedy is saying here. Oral arguments mean very little if anything.

    2. I can’t imagine Kennedy voting in favor of it, but what do i know.

  8. Lets not forget one thing; there are few activities more pointless than trying to read the tea leaves from Supreme Court oral arguments. These things are utterly meaningless to the final outcome of the case. Justice Thomas is absolutely correct to never ask questions during them.

  9. …which is the legal doctrine which says that if the Court faces two possible interpretations of a statute, and one of them would render the statute unconstitutional, then the Court should adopt the interpretation that avoids bringing such a constitutional judgment.
    .
    So the problem with the constitutionality of a piece of the law is transferred to the challengers. Nice.

    1. Yeah, one would think that in a system of limited powers that the presumption should always be a law is unconstitutional.

      1. Haha, right… limited powers.

        1. I have a bad habit of holding onto quaint notions. It results in nothing but disappointment.

    2. No, it doesn’t mean that. It means if there is a way of interpreting the statute and applying it consistent with the constitution, that is what the court should do.

      1. That seems to come back around to ignoring the text of the law. It’s the only way to do it here.

        1. No not at all. You only do that if the text isn’t clear. If there are two equally valid ways of reading it, you assume Congress intended the constitutional one. If there isn’t and the law is unambiguous, you just strike it down.

          You are like the third person on here today who has misunderstood that rule.

          1. I understand the rule. I also understand what “It isn’t our job to save the people from poor political choices” means.

            It means that whatever congress says the Roberts court is going to rubber stamp it because congress is elected. With that one phrase Roberts killed whatever credibility the court had.

            The law is going to stand.

            1. Your problem is with Roberts misusing the rule not with the rule. The rule is fine.

              1. I largely agree with this but think the rule itself is ripe for abuse, ie deference to Congress. The Court is an equal branch and therefore shouldn’t be finding ways to make things constitutionally compliant. Of course, this would all be easier to implement if Congress was required to make specific assertions of constitutional authority in every substantive section of the legislation itself.

              2. I have a problem with the rule. If congress passes a law that can be read as unconstitutional, even if that wasn’t their intent, the supreme court should absolutely strike it down. Congress is then welcome to pass a new law which can’t be read as unconstitutional.

                1. If the court can interpret a law either way, so can those charged with enforcing it. Isn’t that the point of challenging constitutionality?

                  1. Elegantly put, Fist.

              3. The rule is fine.

                I’m not a lawyer, so please correct me. But, I’m not so sure I agree. If you let a law stand because it can be interpreted as constitutional, that doesn’t mean that it will inevitably be applied based on that interpretation. Of course, once the law has been given the Court’s approval as constitutional, it’s settled. The executive has been given license to apply the law, even if the way it applies the law wouldn’t pass constitutional muster.

            2. The correct course for the Court to take, and the one they would take in any other case, is to read the text exactly as written and apply the law as Congress has written it, subject to Constitutional constraints. Since the law says, “No state exchange, no subsidies”, that’s what the Supreme Court should find.

              In any other case, that would simply toss the issue back to the Congress to clarify what they meant. So if Congress decides instead to modify the language to include all states regardless of whether they set up an exchange, then fine. The legislative authority remains where it belongs – with Congress.

              But if the Supremes determine that all states get subsidies, that’s just wrong. It is then the Supreme Court rewriting the law, not Congress. Since there’s no Constitutional issue here, such “legislation from the bench” is entirely unwarranted.

            3. This would set up a showdown between Obozo and Congress. Congress could offer to repeal all of Obozocare. Obozo would veto. After a few cycles, the Republicraps could honestly announce to the world, “Obozo and the Demoncraps brought you this mess. They passed it without a single Republicrap vote. We have tried to repeal it 50 (?) times now, and Obozo won’t budge. Your cost for health care is about to skyrocket, and some of you who have been getting away with $400-per-month subsidized premiums will now have $2000 premiums… or no coverage and the IRS on your ass for penalties. We tried to save you from Obozocare and the Demoncraps – but we can’t do it until Obozo is gone and a Republicrap president is elected. This is what communism looks like.”

          2. Part of the law as written is (possibly) unconstitutional, and it just so happens this is the part of the law that is being challenged today, not to have it stricken but to have it applied as written. But applying it as written is (possibly) unconstitutional, so the only way to read it as constitutional for the purpose of today’s challenge is to not assume the text was written as intended. Doesn’t that still come down to not taking the text as law and go against the arguments of the challengers?

            1. Alternatively, if the text as written is unconstitutional, don’t they have to strike down ALL of the subsidies? Or even the entire law?

              Why is it that the answer would be to rewrite the bill, instead of sending it back?

              I could imagine SCOTUS sending it back to congress, but issuing an order to continue subsidies on a temporary basis to avoid disruption to the insurance market.

              1. That’s almost a correct solution – except for the keeping of subsidies in place. The question becomes whether the Supremes then set a time limit (subsidies to remain in plane for 90 days) or leave the time period alone (subsidies to continue until the law is amended). The former means the death of Obozocare in 90 days. The latter means Obozocare has to wait until Obozo is gone to die… if ever.

                Of the two, the former is the more correct approach, since the legislative authority rests with Congress, and what the Supremes would be saying is, “If you don’t change this, we’ll read it exactly as written”.

                Giving no time, immediately applying the law (effective this instant) would be the correct interpretation… no state exchange, no subsidies.

      2. Well, you’re right, John, but the problem of course is the tortured rationale the Court uses to avoid engaging in a constitutional interpretation. The presumption of every law should be that it is unconstitutional and the court should therefore place all burden on the government to show why it is clearly not a violation. Under the canon, the Court often just supplies any conceivable reasoning to shirk its role, ironically under the rubric of “separation of powers.”

  10. Sort of surprised standing wasn’t a big deal. I predicted that would be the easy way out for Roberts. Of course, that just meant they’ll be facing the exact same substantive issue in a few years time and I don’t think any Justice actually wants to go through this again.

    Regardless: I now believe this will be a 5-4 (possibly 6-3) opinion for the government, with the Court elevating policy and “statutory framework” considerations to heights never before seen. Or, who knows? Maybe standing will rear its head again in some unpredictable way….

  11. So if all of a sudden being coercive of the states is a problem, can we have our non-national drinking age back please?

    1. Don’t worry, it is not. Kennedy was talking out of his ass. Sadly, we are not getting our drinking age back.

      1. Even if he wasn’t, there’s a long way from coercive in this case to coercive in the drinking age. Lots more money and all that. SCOTUS can (and certainly would in such a case) draw a line saying that other activities are not unconstitutionally coercive due to the dollar figure attached, etc. The drinking age is in no danger no matter what happens.

    2. No. SCOTUS has decided the method of coercion there — I think 5% of federal highway funds — is not actually coercion… even though every single state has adopted the 21 minimum age requirement.

      1. That seems like a really complicated way of saying “Fuck You, That’s Why”.

        1. The central philosophy of jurisprudence!

    3. That doesn’t benefit the government in any substantive way; why would they care?

      1. Yeah, the drinking age deal only fucks up the rights of adult citizens between the ages of 18 and 21.

        The Medicare threat threatened money going to the state.

        Can’t fuck with the money!!!! Who cares about the rights of citizens?

  12. http://www.nydailynews.com/new…..ailyNewsTw

    They are not much to look at but the cocaine would have helped with that problem. I was born too early. Where were these teachers when I was a kid.

    1. They might look a little better with makeup and not being in a booking photo.

    2. Parents Gruel Administrators At Sex Scandal Meeting In West Covina

      The Only Thing Worse Than Administrative Gruel Is Thin Crust Pizza.

      1. When they grueled them… did they pour it over their head, throw it at them or make them eat it?

  13. OT:Over 500 parents arrested for children’s failure to get polio vaccine…

    in Pakistan. I like how the reporter dances around the fact that resistance to polio vaccination in Pakistan and Afghanistan (and now spreading throughout the Islamic world) is almost 100 percent based in beliefs that the vaccinations are part of a plot by the Zionist Freemason CIA to sterilize Muslims. Again, as Daniel Pipes as argued for more than 20 years, the role of conspiracy theory in Arab, and by cultural transmission, the greater Islamic world cannot be overstated. It’s the equivalent of 1/6th of the world’s population somehow existing as functioning paranoid schizophrenics.

    1. So what you are saying is that the government of Pakistan is smarter and more rational than your typical Los Angeles progressive parent? Well duh

      I would like to make fun of the Muslims here but I am haivng a hard time seeing how the Jews did it is any worse than “Big Pharma did it”.

      1. I always assumed “Big Pharma” was just code word for the joooos.

      2. I would like to make fun of the Muslims here but I am haivng a hard time seeing how the Jews did it is any worse than “Big Pharma did it”.

        Would you feel better if they were mumbling to themselves; “First, they vaccinate us for polio and before you know it, they’ll be penaltaxing us to subsidize public healthcare.”?

    2. The CIA didn’t help the situation. Those particular asshole agents should be outed.

      1. Yes, the fake vaccination op was highly, highly unethical. Granted, so was the Tuskegee syphilis experiment, yet we haven’t seen a large scale African-American boycott of Obamacare!

        1. A government, our government? Even with the right idea and the best intentions, acting highly unethically?

          Let me see if I can find my shocked face somewhere around here…

    3. Conspiracy theory? No. The CIA really ran an op using doctors delivering vaccines to find out where bin Laden was hiding. Once the op was discovered people who received vaccines were threatened and I believe some were killed for having talked to the CIA. After then, anyone trying to distribute vaccines was targeted and driven away (or killed). So it’s not just a conspiracy theory keeping people from getting vaccines. They’re worried about being threatened or killed.

      1. Further, some of the volunteers who were providing vaccinations were later killed under the suspicion that they were CIA.
        Great job, there…

    4. Actually, there’s some basis for their conspiracy theories. The CIA undertook a program to collect blood for DNA samples as part of their effort to track down bin Laden.

      http://news.yahoo.com/after-bi…..15479.html

      There is no shit-hole the government will not plumb.

  14. “In fact, Breyer said, when you look at the entire context and structure of the ACA, your legal challenge falls apart.”

    Both the text and the stated intent of the law mean nothing. It means what they want it to mean. One thing today, another tomorrow.

    Who still believes this government is legitimate?

    1. GOVERNMENT IS JUST WHAT WE ALL DECIDE TO DO TOGETHER!!!!!11

      RACIST!!!!!11! YOU HATE POOR PEOPLE!!!!!!1

  15. “Did Congress actually possess the lawful constitutional power to force every American to buy health insurance? By a margin of 5-4, with the deciding vote cast by Chief Justice John Roberts, the Court held that it did, thereby saving the law from destruction.”

    I can’t let this go without pointing out that the ACA law regarding the individual mandate did not give the IRS any power to enforce the payment of the penalty for not buying health insurance except to without it from any tax refunds due to the individual.

    This means that people can arrange their tax witholding allowances and/or estiamted tax payments to ensure that they are never due a tax refund and the IRS can never make them pay that penalty.

    What groups opposed to Obamacare should do is start a media campaign pointing this out and giving people step by step instructions on what they need to do to avoid overpaying their taxes and getting a refund.

    Not only would it encource large scale disobediance regarding the invidual mandate, it would have the added bonus of depriving the federal government of interest free loans all year long on the overpayments of millions of taxpayers.

    1. Don’t even bother with that. Just mark your return that you have insurance and don’t worry about it. These idiots have no way to check that.

      1. That would just give the IRS an opening to come after you years down the road and charge you with filing a false tax return.

      2. So you would not have health insurance just so you could commit tax return fraud? That seems… not smart.

        1. No, but maybe you are a single male and have insurance that doesn’t provide any pre-natal care. So the insurance you have doesn’t comply with that the Top Men have decided.

          1. Are there still insurance companies offering non-compliant care?

            1. Very few based on my shopping experience.

              Good news! I’ve got maternity coverage to go with my vasectomy!

            2. To my knowledge, no insurance company is offering care at all, compliant or otherwise.

    2. That would require the party opposed to it to actually mount a serious offense against the law. That same party is regularly referred to as ‘the stupid party’. Unfortunately their stupidity is feigned. They are just tag teaming us.

      Gruber was right. It is the voters who are stupid.

      1. Correct.

        Unfortunately, the government has bred entire generations of morons (largely through welfare programs). The “dumbing down” of America is too stark, too rapid, too radical to be an accident.

        And it all traces back to the biggest legislative mistake in the history of the known universe: The 19th Amendment. The Demoncraps are the party of women. Women push for social welfare programs. Women feel sorry for dumbasses who don’t work and won’t feed themselves. Women look at a book full of checks and wonder, “How can I be broke? I still have checks!”

        There is evidence that once women get married they get smarter and abandon the fiction that government will help… anything. But in the meantime, the fall of America is due to women and their voting patterns.

        The problem will resolve itself. When the dollar collapses (and it will) and the government’s authority wanes (and it will – with or without violent revolution), women will no longer be able to skate on Uncle Sam’s checks. Hopefully all the libtards will did and their children starve.

  16. Sort of surprised standing wasn’t a big deal.

    Let’s not forget that “but its really a tax” was a throw-away argument in Sebelius, which nobody took seriously.

    Until it decided the case.

    1. https://reason.com/blog/2015/03…..nt_5131094

      Here, this is what is going to happen.

  17. As John has noted, oral arguments give very little insight into the Court.

    Some of the Justices (I think Alito in particular) like to grill the side the are inclined to agree with, to test whether they really have the better argument. So the questioning can give the exact opposite impression of which way that Justice is leaning.

    1. R C Dean|3.4.15 @ 2:23PM|#
      “As John has noted, oral arguments give very little insight into the Court.”

      Unless one starts jumping up and down, shouting “GUILTY! GUILTY! GUILTY!”. Then you can tell.

  18. OT: Margaret Cho meets The Doomcock

    http://beyondthedss.blogspot.c…..mcock.html

    1. At least she taking a brief break from being horribly unfunny.

      Make another joke about how your mom talks, Margaret. That shit’s been killing it since the early 90s.

  19. “We look at the whole text,” Kagan told Carvin. “We don’t look at four words.”

    [soon to be disbarred] attorney Dean: “I understand that you were involved in drafting the statute, Madame Justice. Will the Court be taking judicial notice, based on your involvement, as to the intended application of this provision?”

    1. “Mr Dean, I’d like to see you in chambers… and… don’t wear anything… complicated.”

  20. The government argues in response that other provisions of the statute make clear that the phrase “an Exchange established by the State” is a term of art.

    Great, the words in our laws that can get you thrown into jail are “terms of art” and mean whatever we say they mean.

    Over under on the Roberts court upholding this? I’m hovering at pretty much hunnert percent chance.

  21. “We look at the whole text,” Kagan told Carvin. “We don’t look at four words.”

    Can I presume, then, that in her opinion she will note specifically which words override the plain meaning of the “four words”?

    Nah, I can’t presume that can I? She and Tony and all the other prog wankers will just keep chucking around the word “context” without actually providing it.

    1. No matter, the four words are a “term of art”.

      1. I agree that 4-letter words can be used in artful ways.

      2. No matter, the four words are a “term of art”.

        Art as in con artist?

  22. The LIBTARDS will do anything to punish hard working Americans and ignore the intent “AGAIN”… I mean let’s stick it to the Middle Class AGAIN!…. People wonder why wages have stagnated… It could not be because of the Non-English speak illegals who are taking all the starter jobs… Almost all the workers that, Removed the Asbestos from the townhouse, then did the repairs, and guys that do the associations lawn care, and the guys who just fix some erosion problems could not speak ENGLISH and were South American Indians,,, You know short, brown people… Hell, I am unemployed but who would higher me to do the work, I would want $15 an hour to dig a hole…

    1. Fuck off, slaver.

    2. What the hell what that?

      1. Was that. Geez. The continued lack of an edit button…

    3. It’s not just at the lower end of the job spectrum either.

      The H-1B visa program codifies the importing of outsourcing. They’re supposed to issue something like 80,000 visas a year, but routinely issue a quarter million or more. They’re supposed to be “temporary” visas for jobs that no American is available to do, but in effect, they are good for up to 8 years and may lead to citizenship and are commonly used to replace Americans. Bill Gates is a big proponent – and predictably, Microshit laid off ~5000 workers, before hiring almost as many H-1B workers.

      This is our government selling us out at EVERY level, not just “entry” level.

      1. “Bill Gates is a big proponent – and predictably, Microshit laid off ~5000 workers, before hiring almost as many H-1B workers.”

        Cite missing.

  23. If I understand what people think Kennedy’s comments mean then the executive can do what it damn well pleases because the statute as properly understood is unconstitutional, rather than the program legally collapsing of its own contradictions. I am sorry, that just is not good, it gives way to much authority to the presidency.

    1. Yeah. Funny thing, that…

    2. Yeah, could you imagine them passing “Jabberwocky”, then later “interpreting” it to mean your taxes just went up 40% and you have to buy health insurance?

  24. According to Kennedy, if the legal challengers have the correct textual interpretation, then this contested provision of the ACA may itself be “unconstitutionally coercive”

    At least someone gets it.

  25. And if that is indeed the case, Kennedy added, it raises the specter of “constitutional avoidance,” which is the legal doctrine which says that if the Court faces two possible interpretations of a statute, and one of them would render the statute unconstitutional, then the Court should adopt the interpretation that avoids bringing down such a constitutional judgment.

    Holy shit. The justices get paid specifically to bring down constitutional judgements. THAT IS THEIR ENTIRE POINT FOR EXISTING!

    So Kennedy is saying that if Congress passed an unconstitutional law, the Court should *deliberately* let it slide to avoid having to call Congress out on its illegal actions!?!?!?

    And these are really the greatest legal minds in the country?

    1. As others have noted, that only applies if the wording is ambiguous.

      1. Which is a bit catch-22. If there were no ambiguity, the law would be unconstitutional on it’s face.

        I think that’s everyone’s problem. If SCOTUS can find *any* interpretation under under the constitution, regardless of the written word and even the intent, the law passes judicial muster.

        Short of passing a law that says “This is unconstitutional but…” at the top, everything fits in and, if you regard those four words as a contextual joke, even laws like those would work.

    2. “The justices get paid specifically to bring down constitutional judgements. THAT IS THEIR ENTIRE POINT FOR EXISTING!”

      Well, actually the constitution doesn’t say anything about them being able to declare statutes unconstitutional. It assumed that power in Marbury v. Madison. The stated reason for the existence of the supreme court is to hear “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;?to all Cases affecting Ambassadors, other public Ministers and Consuls;?to all Cases of admiralty and maritime Jurisdiction;?to Controversies to which the United States shall be a Party;?to Controversies between two or more States;? between a State and Citizens of another State,?between Citizens of different States,?between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

      1. all Cases, in Law and Equity, arising under this Constitution,

        I don’t think you have to stretch this very far at all to get to “SCOTUS has the power to review statutes and other government actions for Constitutionality.”

        1. Maybe not, but it was quite controversial at the founding.

          1. But I do think it’s a stretch. All the text is saying is that SCOTUS gets to hear the cases and decide them according to the laws. It doesn’t say SCOTUS gets to judge the laws themselves.

            1. If there’s a statute, and the supreme law (constitution) contradicts it, how else do you decide a case? It’s silly to think they could somehow judge cases without comparing law & subsidiary law. The USA doesn’t have a constitutional court as some countries do to literally judge laws vs. their constitution, so instead it comes out as the resolution of a legal case.

        2. “under this Constitution”

          It’s just three words. You need to consider the larger context that may or may not fit under the constitution.

      2. + 3 … except the proper term is misappropriated – not assumed.

    3. “which is the legal doctrine which says that if the Court faces two possible interpretations of a statute, and one of them would render the statute unconstitutional, then the Court should adopt the interpretation that avoids bringing down such a constitutional judgment.”

      And exacty what is the source of this “legal doctrine”?

      It certainly isn’t the Constitution itself.

      It is another one of those concepts dreamed up out of thin air by the court itself at some time in the past and which everyone is supposed to consider to be a sacred principle of law forever more.

      It’s the same kind of BS as the so-called “rational basis test” – which is nothing more than a rationalization of state power created out of thin air by the court itself with no basis in the actual Constitution whatsoever.

      A very large part of what passes for so called “Constitutional law” in this country is nothing more than a ricketly house of cards that could (and should) be knocked over if someone pulls one of the bogus concepts out of the structure.

      1. In law school jurisprudence class they parade a series of “theories of law” before you and their relative merits. For example, “Legal positivism” is the theory that law, as written, means exactly what it says. In this case, legal positivism would say no exchange, no subsidies.

        Unfortunately, there are other “theories of law” that say, “law should do the most ‘good’ for the most people”.

        But the theory to which I subscribe is called “legal realism”. It says that the law is whatever a judge says it is… until overruled by another judge.”

        So basically, the Supremes reach the conclusion they desire, then they go in search of some way to justify their decision and people call that “legal reasoning”.

        You want to read some real Supreme Court insanity? Read Wickard v. Filburn. It’s short and I can practically guarantee you it won’t make any sense to you either – even though it’s the basis for the majority of federal actions that aren’t Constitutionally defined.

        1. Yes I know about Wickard vs Filburn.

          It is a prime example of making stuff up out of thin air and calling it Constitutional.

          It codifed the total BS notion that the interstate commerce clause included the power to regulate anything that allegedly “could have an effect” on interstate commerce instead of just actual interstate commerce transactions. Of course just about everything can be claimed to have an effect on something, so the whole thing was merely another exercise in rubber stamping a vast expansion of federal power.

    4. The justices get paid specifically to bring down constitutional judgements. THAT IS THEIR ENTIRE POINT FOR EXISTING!

      No, their job is to decide cases in controversy under the Constitution & laws arising under it. That includes constitutional judgments, but is certainly not limited to them.

  26. I wonder how the employer mandate plays into this. If the text as written is unconstitutional, then all employers are subject to the mandate regardless of whether the state sets up the exchange.

  27. The plaintiffs will lose 5-4. It’s inevitable. But I’m still curious how the decision will spin it.

  28. OT (kinda): Intentions don’t matter – until they do

    http://thinkprogress.org/justi…..eme-court/

    The case hinges upon the proper meaning of a provision of the Constitution which provides that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.” The state legislature, represented by Republican former Solicitor General Paul Clement, claims that the word “Legislature” refers exclusively to a state’s legislative body. The commission, represented by Democratic former Solicitor General Seth Waxman, claims that this word refers more broadly to “the power that makes the laws.”

  29. when you look at the entire context and structure of the ACA, your legal challenge falls apart.

    So, I’m guessing that Breyer is going to vote against the challenge?

    1. So Breyer has read the entire ACA to understand the context? I do n’t think the people who wrote claim that.

  30. I knew I should stay away from CNBC today, but I accidentally heard some of their coverage on this thing. An “expert” told them that since Roberts had sided with the conservatives on the last challenge to Obozokare (!?!?), he would likely side with the left this time. Then the lady pundit characterized the challenge as “the latest log jam to affordability”.

    Yep, that’s yer lamestream financial media. I wish Peter Schiff would launch his own financial channel, maybe start it as an internet thing (woops…nice data stream, be a shame if something happened to it).

  31. If the Supremes are not off their meds, they will reject Obozocare subsidies. It’s clear that the intent of the language was indeed to coerce states into creating exchanges. But then, if coercing a state to create an exchange is unconstitutional, why isn’t coercing citizens to buy insurance unconstitutional?

    Obozocare must die.

  32. ” In other words, Kennedy’s questioning suggests that he could reject the government’s reading of the text, but then still effectively vote for the government in order to avoid interpreting the ACA as imposing unconstitutional coercion on the states. This view could prove decisive to the outcome of the case.”

    Actually, Damon, it doesn’t.

    If Kennedy rejects the government’s reading, it means that the statute means what the challengers says it means. If that is the case, then, under his analysis, the PPACA must be struck down in ALL states because it imposes unconstitutional coercion on the states. In short, the PPACA would be unconstitutional. That is a worst case scenario for Team Obama. It is worse result for them — and a complete home run for Obamacare opponents — than the result the challengers want, who seek only to prohibit subsidies in states that did not create exchanges.

    The doctrine of avoiding an unconstitutional interpretation applies only when the statute is ambiguous and open to multiple interpretations. If the court is confronted with more than one viable interpretation, it must choose the one that renders the statute constitutional. However, there must be more than one viable interpretation. If there is only one viable interpretation, and that interpretation renders the statute unconstitutional, the statute must be stricken. The Court cannot — perhaps I should say “should not,” Mr. Chief Justice — rewrite a statute to avoid striking it.

  33. Kennedy has tossed quite a wild card into the mix here. One the one hand, he has given the government another argument in favor of its interpretation, namely, avoiding an interpretation that renders Obamacare unconstitutional. But to make that argument invites a very real danger – if you concede that the challengers’ reading would render the law unconstitutional, but the court finds that the challenger’s reading is the correct one, you have just conceded that Obamacare should be struck down on constitutional grounds.

    This is very, very interesting twist in the case that no one foresaw.

  34. Time once again for the supreme court to roll over and play dead for the ruling class.

  35. Do we need better chicken-bones for more accurate SCOTUS predictions?

  36. This is the same court that said cop can search your home without a warrant if you object and they arrest you for it.

    Confidence is extrememely low.

  37. How the hell are we supposed to know what Congress’s “intent” was if none of them even read the monstrosity before it got passed?

    These people honestly had no idea what they were voting for! They had to pass it to find out what was in it!

    Surprise!

    SCOTUS should strike it down just to teach Congress a lesson: “Read the effing bill before you vote on it, morons.”

  38. my co-worker’s mom makes $66 hourly on the computer . She has been without a job for nine months but last month her income was $15318 just working on the computer for a few hours. this page.for work detail go tech tab…. http://www.Job-bandana.com

  39. I would question if some of these justices have “standing”. We see their political bias going back prior to confirmation and yet as ” decent ” humans are going to apolitical in decisions. Throw me in jail.

  40. I would question if some of these justices have “standing”. We see their political bias going back prior to confirmation and yet as ” decent ” humans are going to apolitical in decisions. Throw me in jail.

  41. Just as Joseph said I’m alarmed that a stay at home mom can earn $5046 in 4 weeks on the computer .
    check out the post right here …… ?????? http://www.jobsfish.com

  42. I’m sorry, there are NOT two interpretations, Congress thought that states would willingly establish exchanges, and left the tax provision out intentionally exactly to coerce them to make certain. It is EXACTLY a gun to the head no matter which way you look at it anyway.
    Someone in another thread asked what will happen if BO immigration reform goes through and then we have millions more to pay for. Holy Shit.

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