Obamacare

Barack Obama vs. the Supreme Court

The president calls King v. Burwell an "easy case."

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Credit: Whitehouse.gov

On April 2, 2012, barely a week after the U.S. Supreme Court finished hearing oral arguments in the Obamacare case National Federation of Independent Business v. Sebelius, President Barack Obama took to the bully pulpit in order to lecture the justices about how they should handle his health care law.

"For years," Obama said at a press conference, "what we've heard is the biggest problem on the bench was judicial activism, or a lack of judicial restraint. An unelected group of people would somehow overturn a duly constituted and passed law. Well," he declared, "this is a good example. And I'm pretty confident this court will recognize that and not take this step."

Did Obama's message resonate inside the chambers of the Supreme Court? It's possible that it did. Two months later, in his opinion upholding the constitutionality of Obamacare, Chief Justice John Roberts practiced the same sort of judicial restraint that Obama recently preached. "It is not our job," Roberts wrote, "to protect the people from the consequences of their political choices."

Three years have now passed and the future of Obamacare once again rests at the Supreme Court. By the end of June, the Court is expected to deliver its decision in King v. Burwell, the high-profile case that asks whether the White House violated the text of the Patient Protection and Affordable Care Act by allowing tax subsidies to issue to persons who bought insurance on federally established health care exchanges.

Speaking yesterday at a news conference at the G-7 summit in Germany, President Obama once again used his bully pulpit to lecture the Court about a pending Obamacare case. "This should be an easy case. Frankly, it probably shouldn't even have been taken up," Obama asserted. "It's not something that should be done based on a twisted interpretation of four words in—as we were reminded repeatedly—a couple-thousand-page piece of legislation."

Will the Court repeat history and rule once again in Obama's favor? It's conceivable that it will. After attending the King oral arguments back in March, I for one left the courtroom thinking the case was simply too close to call.

But it's also worth bearing in mind that this president's legal judgment is far from infallible. As I observed at the close of last year's Supreme Court term, "in the past month alone, the White House has suffered a series of embarrassing losses at the Supreme Court, where it failed to prevail on issues ranging from the scope of the Fourth Amendment to the limits of executive power. To make matters worse, the president lost all but one of those cases by a vote of 9-0." Furthermore, when it comes to specific areas of the law, such as property rights, the Obama administration's losing streak looks even worse.

To be sure, the president is entitled to his own opinion about what counts as an "easy" case. But given his administration's shaky legal record, that presidential opinion should always be taken with a grain of salt.

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  1. He’s got his fix in. Wonder who he leaned on this time.

    1. The same guy as last time.

      1. ^this^

        Roberts will ride to the rescue with more twisted reasoning.

        1. Roberts is kind of right, America deserves the mess we’ve made. If Americans actually wanted the constitution adhered to they wouldn’t vote these pandering idiots to office time after time, just like if we really wanted rights we wouldn’t have traded our bill of rights for a bill of privileges. You can bet that for all their public “constitution and freedom” bluster the republicans are privately sitting in dark rooms plotting on how to use the new powers they inherit through the loopholes dreamed up in the constitution by the democrats. Remember, it was democrats who dreamed up that the ICA allowed the federal government to make it illegal to grow your own wheat for your own table, republicans then used that same stretch of the ICA to create drug prohibition, something that just 100 years ago was recognized as being beyond the power of the federal government. Republicans are essentially democrats with bibles.

          1. Who is “we”?

            Can’t speak for anyone else, but I’ve been getting the government other people deserve for years.

  2. No opinion.

    1. Loving this handle and the “comment”.

      Let’s keep it up, REASONISTAS!!!!

      1. +1 wood chipper

  3. “It’s not something that should be done based on a twisted interpretation of four words in?as we were reminded repeatedly?a couple-thousand-page piece of legislation.”

    Unless those four words define the very intention of the legislation.

  4. I despise conspiratorial thinking….

    …however, i think there are some things that could be described that way that are actually pretty reasonable.

    One is that Obama actually would secretly support the ACA being overturned by the court

    It would free his party of the repercussions of the law, and enable Democrat victim-flopping of a scale that would last for a decade or more.

    the fact is that the longer the ACA exists, the more people learn to hate it.

    1. Good point.

    2. Speaking of conspiracy theories:

      Anyone think Lady Stoneheart makes her scene in the Season Finale of GoT?!?!?

      1. Spoilers!

        I thought it would come in last year’s season finale. Not sure what to think. Maybe the season-ending teaser scene.

      2. How? For what purpose?

        No one is in the Riverlands any more. Unless she kidnaps Littlefinger as he again zips around the continent, but the finale has a lot of material to cover.

    3. If the goal was to cover honestly poor American citizens, all Congress had to do was expand Medicaid/Medicare. Clearly the goal is Socialized Medicine (aka single payer), we know how European medicine compares to American medicine: Not just rich Europeans, but everyone from around the world with the money to do so, come here for their most important medical treatments.
      B. Husseins’ words and actions illuminate his desire for government controlled everything; banking, internet, media, transportation, housing, food… your local police. Now check out how the lapdog media is playing up local police stories; they are subliminally making the case for a National Police Force. What could possibly go wrong?
      Heh! “Change”, Cancer is Change.

  5. #AltTextMatters:

    Tony, now, you and I both know what you’ve got on under that robe, but the whole world doesn’t have to know, amirite?

    1. Fuck, I meant “John.”

      1. Yeah, it’s rather not know what’s under Tony’s robe. But we all know what’s between his ears: air.

  6. To be fair, the central provision of Obamacare turned out to be an easy case.

    We even got a new word out of it!

  7. An unelected group of people would somehow overturn a duly constituted and passed law.

    I’m no lawyer, just a lowly engineer. But it seems to me that it is well within the purview of the Supreme Court to judge legislation when said legislation is challenged. It seems to me that they should judge it as it is written. That is if there remains any semblance of actual “law” in this country, where the words mean what they say.

    1. Last I heard the Constitution was the supreme law of the land with a very well-defined means of being amended, which is more burdensome than simple legislation. Seems to me that there ought to be a court, perhaps the highest in the land, that settled disputes between legislation and this supreme law of the lang. But then, I too am a simple engineer.

      1. Why though? And why should that decision be binding? Seems just a useful for me to let elected representatives use the consititution as a means to guide their decisions. If it’s unconstitutional let that be reason for the president to veto it or the legislature not to pass the bill. No need to bring in an oligarchic priesthood to read tea leaves.

        1. Why though? And why should that decision be binding?

          The US government was designed as a Constitutional Republic with three branches, all with separate and defined powers so that each branch could serve as a check on the power of the other two branches. It is well within the purview of SCOTUS to judge legislation on constitutional grounds and strike it down. This is the courts check on the legislature so as to prevent said legislature from claiming and exercising powers it does not have.

          1. Yes, this is the creation myth of judicial review. Unfortunately, judicial review is completely extra-constitutional in origin.

            1. Article III, Section II:

              The judicial power shall extend to 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.

              In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

              1. The italicized portions seem to give SCOTUS quite a bit of power to interpret laws…

            2. I have never understood the opposition to judicial review. Judicial review is rooted in basic logic. When a law and the Constitution are in direct and irreconcilable conflict, (say for example, Congress outlaws Judaism), and it is impossible for both the Constitution and the law to be obeyed simultaneously, then one of them must be invalid. The Constitution is foundational law with a higher standard for amendment than your typical statute. Therefore, a statute that purports to amend the Constitution, (returning to our example, by allowing for the prohibition of the free exercise of a given religion), but has not gone through the proper channels cannot be valid. It is therefore unconstitutional and cannot stand.

              1. Agreed. Judicial review plus the notion that the legislature should refuse to pass unconstitutional acts and the executive should refuse to enforce them. A constitutionality check in each branch increases the likelihood that unconstitutional laws don’t get through. I don’t understand why you’d want less constitutional oversight. Do we really think that, in the absence of SCOTUS, the legislature and executive will police themselves?

                1. Sam has been around now and then; I’d say he’s right on par with his past comments.

                  1. Sevo still can’t think I see. I guess brain injuries don’t really improve do they.

                    1. Sam Haysom|6.9.15 @ 4:48PM|#
                      “Sevo still can’t think I see. I guess brain injuries don’t really improve do they.”

                      I see stupidity hasn’t improved with time; Sam’s the same damn ignoramus he’s always been.

                2. Some people despise arrogated powers. The Supreme Court arrogating the power of judicial review is no different than the IRS rewriting legislation to suit its purpose. My problem is not with judicial review the EU High Court is well within its rights to exercise it. The American SC as far as the constitutiom goes is not.

                  1. Again, how so? Judicial review is a reasonable interpretation given the wording of the italicized sections.

                  2. Sam Haysom|6.9.15 @ 4:53PM|#
                    “Some people despise arrogated powers. The Supreme Court arrogating the power of judicial review is no different than the IRS rewriting legislation to suit its purpose.”

                    So, are you tulpa? Or Bo? Or just some random self-important asshole who ends up here from time to time?

            3. So you are admitting you are stupid and have no understanding about the Constitution?

              Keep it stupid, simple.

        2. “If it’s unconstitutional let that be reason for the president to veto it or the legislature not to pass the bill.”

          Why even have a constitution at all? Just have them debate it on merit.

          “No need to bring in an oligarchic priesthood to read tea leaves.”

          That was a power the court pretty much gave itself. Just let states act as checks on federal power.

          1. SCOTUS sort of gave itself that power. There’s a reasonable (and correct, IMO) interpretation that Article III, Section 2 gives SCOTUS the right to assess laws for constitutionality. You’re right that judicial review as we know it required some extra-constitutional maneuvering. But many see it as entirely consistent with the wording of Article III, Section 2.

            1. But it is not in any way consistent with the Fedealist Papers which state repeatedly that judgements would be purely advisory. Andrew Jackson was on constitutionally irrefutable grounds when he taunted “now enforce it.” The SC should be allowed to exercise all the interpretations and never-ending dissents it likes. Those should however in no way be binding.

              1. That’s great. The Federalist Papers are not legally binding. The Constitution is.

          2. “Let” seems a bit ambitious given what happened 150 years ago.

        3. Why? Because otherwise the Constitution would be malleable to expediency and the political whims of a fickle and ever-shifting majority (or really vocal minority), perhaps?

          1. Instead the Oracle at Delphi errr Vestal Virgins errr nine appointed old timers get to have their whims enshrined as law. Cosmos really love their tea leaves and entrails as long as it gets them the ass sex and porn they crave.

    2. It seems to me that the “judicial restraint” crowd is just plain fucking wrong. The court should NOT act as a rubber stamp. It’s whole job is to declare bad laws bad. It has no other function.

      1. It has other functions. It’s the final court of appeals. It oversees suits involving state governments. Etc. Not everything SCOTUS does is concerned with assessing constitutionality of laws.

  8. The case just infuriates me. It’s totally obvious that the “established by the States” clauses were there to coerce the states to establish exchanges. It’s absurd to say it was some kind of “drafting error,” and that all this is the fault of Republicans. It’s extra absurd to think that it’s OK for the government to ignore the law as written, because following the law would be “disruptive” or whatever.

    This should be a 9-0 slam-dunk, but of course it won’t be. The leftists on the Court will use tortured reasoning to give Obama what he wants. Whether they can be outvoted, who knows. But let this be another lesson to libertarian purists: yes, Republican appointments to the Court often disappoint us, but it’s the Democratic appointments who you should really be afraid of.

    1. We don’t have to go by the text. We can back up the text with the plain language of consultants and legislators who drafted it. The ACA essentially has a video ‘federalist papers’ backing up the provision’s raison d’?tre.

      Even IF the Nazgul wanted to divine the ‘intent’ of the legislators, they’d still come up with the one answer.

      1. video ‘federalist papers’ backing up the provision’s raison d’?tre.

        You *dare* to presume these are admissible evidence?!

      2. Actually, “legislative intent” is usually divined by reference to the official legislative record. The sort of out-of-forum remarks that prove, IRL, that no subsidies for federal exchanges is exactly what was intended are highly unlikely to be (overtly) relied on by the Court.

        1. Is there anything in the legislative discussion of the bill indicating that subsidies would be available in all states, whether or not they set up exchanges?

          1. One quote from Max Baucus that is open to interpretation. Though, realistically, he’s saying the subsidies depend on exchanges. But he’s such an idiot, its muddled.

          2. What legislative discussion?

            They rushed the bill through with as little debate as they could get away with.

            1. Just for reference, the Baucus quote:
              http://www.cato.org/blog/exact…..aying-here

    2. Agree. If the administration is allowed to just call this a “drafting error” and then interpret the law any way it wants, then what is to prevent the administration from doing this on every law that gets passed?

      This bill says “the national minimum wage is set at 7.25$ per hour”, but that was a drafting error. The intent was to set the minimum wage at 20$ per hour, so that’s what the Dept. of Labor has done.

      1. And, of course, any administration R or D will be free to take advantage of this.

        1. Nah. They can just draw an arbitrary bright line that makes such reasoning apply only to this case and not be binding on future ones. This is standard practice for SCOTUS. See, for instance, the Medicare part of the first PPACA decision.

    3. This is true and my former Senator, Max the retard, said it in public, not to mention the pariah Gruber.

      Anyone with a brain that has seen fedgov operate can see this, this was cudgel to punish states that failed to toe the line

      Given the universal failure of the state exchanges despite billions in subsidies, it’s a pertinent question..

      IOW, business as usual.

  9. It will be interesting watching the court come up with a twisted interpretation of four very easy to understand words if they vote in favor of the administration.

    “Hanged by the neck” will come to mean “tickled until you pee”.

    1. Ooo! oo! can I play?

      “Most transparent administration ever” means “you can ask, sucka!”

    2. “Let me be clear” = “Don’t get fooled again”

      1. Change = Doubling down on Status Quo

  10. OT: Judge strikes state’s motion for gag order in Freddie Gray case

    http://www.baltimoresun.com/ne…..story.html

    Let the sun shine down.

  11. Will the Court repeat history and rule once again in Obama’s favor?

    That’s my bet. They will defer to the IRS as much as they need to, and wrap it in a bunch of irrelevant smoke and fog about ambiguity and complexity and blah blah.

    I’m not sure what you call our system of government. Its certainly not a Constitutional republic any more. With the vast majority of governance being done by people who are not only not elected, but not accountable to the ones who are elected, I don’t see how it qualifies as a democracy, either.

    1. This is where I’m coming down. I think with enough throat-clearing and lofty language about upsetting markets or established expectations, they’ll rule in favor of the administration with maybe some in-the-margins wishful thinking about legislators being less more clear the laws they write.

      1. See, I think it’s going to go the other way. They will rule in favor of the plaintiffs, but let the administration continue to give subsidies for the rest of the year, giving Congress time to “fix” things without disruption.

    2. Thugocracy? Racketeering?

    3. Hard to see how a decision by the most unaccountable oligarchic institution in the history of this country would resolve that. I mean I hope they rule it unconstitutional too, but the structural problems you are describing are liked to judicial supremacy.

      1. Don’t pretend that the other branches are some panacea of accountability. The Congress is re-elected at a rate of what? 90+%? With an approval rating around 20%? Is that your definition of accountable?

      2. So are you sucking Obos cock for lunch?

    4. Maybe we have sunk to Ming Dynasty Level’s of Mandarin-ism.

    5. Special-interest state.

  12. Well, Obama is a Constitutional scholar who wrote, er, edited, uh, read many articles as an Editor of the Harvard Law Review. And he litigated, um, read about many cases during his career as a Lawyer.

    1. Assumes facts not in evidence. Namely, that Obama read articles in law school or cases post-graduation.

  13. “It’s not something that should be done based on a twisted interpretation of four words in?as we were reminded repeatedly?a couple-thousand-page piece of legislation.”

    Ah, so *that’s* why modern laws are so flippin’ long — to minimize misinterpretation.

    1. I despise the “it’s just four words” excuse. “Four words” can be extremely important. Indeed, the presence or absence of the word “not,” which is but one word, would completely change the meaning of a law.

      1. But… it’s four words out of, like, thousands of pages!

        1. It’s funny. I dated a girl who does M&A work for huge tech mergers. The contracts involved are thousands of pages and they look for “not”, etc with a fine-toothed comb. Yet she has no problem making the four words argument. The cognitive dissonance is astonishing.

          1. That must be the difference between a Law and a Contract.

            1. Haha. It could be. They are taught in different classes, after all. Abstraction not encouraged.

      2. That depends on your definition of “is”.

    2. Actually the purpose is to conceal what is in the law for the same reason that insurance policies are page after page of gobbledegook that even us lawyers have trouble understanding. I once knew a lawyer who worked for the FHA. It took six months for him to understand the regulations, and when they started to make sense he decided it was time to quit.

  14. I agree with his assessment. The law is clearly written….wait, what? He is arguing the opposite?

  15. Why do I get the feeling that judicial restraint isn’t going to matter as much this time as it did last time?

    1. Judicial restraint = producing an outcome I like
      Judicial activism = producing an outcome I don’t like

  16. For once Obama is right. It is an easy case. The law says what it says, which is that no subsidies for those who sign up through federal exchanges. So Obama loses, the law and the American people win.

    1. I think Mr. Burns has summed things up very nicely.

      Now I will refrain from suggesting that anyone wearing black and riding a fell steed be gibbeted for failing to uphold the fundamental tenants of their job.

      1. Ahem…new rides Fell Beast.

  17. I’m betting on the ignorance of the typical American. I’ve asked educated, professional people, why do you get medical insurance through your employer? No one knows. It just is.

    Any explanation of the letter of the law intended to coerce states to set up exchanges will not withstand the perception that meanies are trying to deny poor people medical care. And the import of the executive simply ignoring the Supreme Court is an abstraction beyond their comprehension

  18. Anyone know where we can see the records of Pres vs Supreme Court?

    Obama seems to be near the bottom, but it would be very interesting to see a whole ranking.

    And a before/after for FDR and his court packing scheme.

    As mentioned above, we are not a constitutional republic. What is the name for a system where the executive dominates a weak legislature and the judicial just rubber stamps things?
    Certainly not a true dictatorship, but closer to it than I would like.

    1. I think the preferred term is ‘soft dictatorship’.

      1. Representative Monarchy?

    2. All SCOTUS decisions are public record. All you have to do is go online, and check the result of all decisions involving the U.S. government as a party.

  19. Bending over backwards to find a constitutional excuse to uphold a law’s literal text as enacted by Congress is not, actually, the same thing as bending over backwards to accept the Executive’s interpretation of a law’s meaning in defiance of its literal text as enacted by Congress.

    If Obama doesn’t have the votes in Congress to amend the text to say what he wants it to say, well, “It is not our job to protect the people from the consequences of their political choices.”

    1. Chief Justice Rubberstamp will see to it that the law is ignored and preferred practice is upheld.

      Again, I will refrain from suggesting that any trees be watered or ropes be stretched.

    2. It used to be that words mean what they say.

  20. Well if history is our guide, they will simply ignore all evidence of intent and redefine the word STATE to mean FEDERAL, just like the redefined PENALTY to mean TAX.

    I kills me that the first O’Care case is considered an example of judicial restraint when the justices actually rewrote both the letter and intent of the law in their judgment. I expect the same to happen here.

  21. The entire law has already been declared unconstitutional as a violation of the interstate commerce clause, and thus, in spite of proclamations by Congress to the contrary, the fee and penalties were redefined as a tax. SCOTUS will once again save Obamacare because there is no such as a conservative JOTSC. There are liberal justices who pray each day at the alter of FDR, and then there are lunatics. Viva la revolucion.

  22. If Barry likes your plan you can keep it. Only Barry knows what’s best for you.

    He’s pro-choice, he chooses what’s best for you.

  23. “For years what we’ve heard is the biggest problem on the bench was judicial activism, or a lack of judicial restraint. An unelected group of people would somehow overturn a duly constituted and passed law.”

    That’s an interesting way of looking at it, particularly coming from a former law lecturer. To make sure I understand, interpreting the letter of the law in the manner in which it was written and originally intended to be interpreted rather than how it was instituted by administrative fiat is “judicial activism”?

    And I’ve had my fill of idiots prattling on about elections as though they’re holy writ that are somehow more justified than the coronations of old. The fact that you roped a few million schmoes into voting for you does not provide one iota of moral cover when you perform immoral actions, and whether the legislature is democratically elected or not means absolutely nothing to anyone with a working brain.

  24. We seem to have the wrong issue before the public. It shouldn’t be “Obamcare.” It should be “PelosiDoesn’tCare.” We should be more concerned about the Legislative Leader of the House pushing through a Bill “to find out what’s in it” than a big-government Executive lusting for the most power-centered, complex tax law ever conceived.

    1. We’ve known Pelosi is brain dead for twenty years…btw she’s the minority leader these days. But she’s still stupid.

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  26. Our president is a victim of his own policies. I don’t feel one bit sorry for him and can only hope that the Supreme Court will rule based on the actual writings in the bill. If they don’t, our nation will be one more step toward the chaos that the Dems seem to want in this country. Of course they will never accept the blame for what they do because, after all, they know everything and are the smartest people in the country (NOT!)

    Unfortunately, the GOP is just as bad though in a different way. They’re the go along to get along party, anything is okay as long as the Dems stop their ridiculing hate and blame speech. It’s disgusting and their constantly giving in to the Dems is part of why this country has been sinking into the sands of time with the poor schooling of our children which teaches lies and destroys the necessary law abiding habits of a successful society.

    All one can do at the polls is vote for the least bad candidate, the one that isn’t a liar and a cheat.

  27. The only reason Obama is talking so cocky is because one of his buds on the court told him the decision is going to go his way.

    Everybody in Washington follows The Santorum Motto: “Go along to get along.”

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  29. Obama is a pouting bastard. Roberts had better have grown some testicles for this one. The law says what the law says, even if it hasn’t been completely written yet. Kill it. No one can have the right to anything while removing rights from others what is what this ACA crap does.

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