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Here they go again, working the Sup Ct refs on Obamacare II

Here they go again, working the Sup Ct refs on Obamacare II

To be bullied again would do the real harm to the Supreme Court.

In the months leading up to the first Supreme Court Obamacare decision, there was a concerted media and Democratic effort to portray the legitimacy of the Court, and particularly the legacy of Chief Justice John Roberts, as dependent on the outcome.

The argument went that holding Obamacare’s mandate to be unconstitutional would be such a huge interference in the political process that the Court would lose its supposed role as neutral referee and become a political player. Because as we all know, that has never happened before (/sarc), see, Roe v. Wade, etc.

This pressure reportedly caused Roberts to change his vote, and to join with the for liberal members of the Court in finding the mandate justified under Congress’ taxing power.

Now the media pressure is mounting on Obamacare II, the subsidy case the Court accepted this term. The issue is whether the statutory language of Obamacare permits subsidies (the only way Obamacare policies are affordable for most) on the federal exchange set up when most states refused.

This issue of statutory interpretation is not exceptional legally, except that the political stakes are so high. If the statute is read not to permit the subsidies, Obamacare likely crumbles of its own weight.

Enter Linda Greenhouse, Supreme Court and judicial reporter for The NY Times, with scare mongering about the legitimacy of the Court, The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court:

In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.

The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power….

But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.

Oh please. This is pure hyperventilation. The statute says what it says. Democrats drafted it, but now apparently claim it was all a drafting error or the words don’t mean what they say.

Except the words say subsidies only are for state exchanges.

Just like the architect of the law, Jonathan Gruber, said:

If it were any other case but one involving Obamacare, no one would care from a legal perspective.

Bryan recently addressed this issue, SCOTUS “institutional legitimacy” not at stake in King v. Burwell.

Greenhouse gives away the game later in her column:

… A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.

While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community…


What is at stake is the legitimacy of the progressive vision, forced on an unwilling population through a piece of legislation which says what it says.

To be bullied again would do the real harm to the Supreme Court.

UPDATE: Like clockwork, Steve Benen joins the chorus (h/t Joshua McCloud Twitter), When the integrity of the Supreme Court is on the line:

All that matters, according to the plaintiffs’ argument, is imposing health care chaos. If that means trashing American jurisprudence, then that’s exactly what the justices must do.

With this in mind, the ruling in King v. Burwell will have sweeping consequences in the lives of tens millions of people, but it’s not just health security at stake. The integrity of the Supreme Court itself is on the line.

[Note: The Title of this post was changed substituting the word “working” for “gaming,” which seems to make more sense in context.]


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How can anyone argue that the law doesn’t mean what is says? It’s like claiming a speed limit of 55 mph is really 45 because what the lawmakers meant.

A quibble:

“This pressure reportedly caused Roberts to change his vote, and to join with the four liberal members of the Court in finding the mandate justified under Congress’ taxing power.”

I disagree. Roberts changed his vote because he is an unprincipled jack@!!.

    MarkS in reply to Anonamom. | February 5, 2015 at 11:13 am

    Roberts was cowed by God knows what and IMO he will, again, do as told.

      Arby in reply to MarkS. | February 5, 2015 at 11:59 am

      When you have the NSA to do your bidding, you are going to find dirt on everyone, including Supreme Court Justices…

    MattMusson in reply to Anonamom. | February 5, 2015 at 1:37 pm

    I think you can make a real legal case for the Federal Government having taxing power. But – Roberts could have been setting up the question of the Origination Clause.

Sorry, this one goes nowhere. They’re arguing a typo – ‘state’ vs ‘State’, and they are not going to throw Billions around on that.

Dancing on the head of a pin, does ‘the state’ mean ‘one of the 50’ or should it be read as ‘The State’, meaning larger ‘The Country (and all its parts)’ ?

Come on . After all the lies and deceits that got the ACA passed to being with, this trivia will not bring it down.

The day it was enacted, the plan was always ‘single payer’ (even if not right away) and NHS. That is built into the structure of it, even though hidden for 10 years yet to go. And it is coming.

    Radegunda in reply to pjm. | February 5, 2015 at 1:23 pm

    They could try, and the other side could point to passages where “the State” clearly means one of the fifty, e.g. where the law refers to a person who “resides in the State that established the Exchange”; and they could point to the use of different terms for the federal government.

    I doubt that even the lefty Supremes would rest their case on such a patently false interpretation of “the State” in this context. And why would they need to? Roberts has already set the pattern of saying “Although the law says ABC, I think it’s reasonable to interpret ABC to mean XYZ.” (And I don’t think Roberts invented this kind of argument, though I’m not a legal scholar.)

    Subotai Bahadur in reply to pjm. | February 5, 2015 at 3:15 pm

    In point of fact, the definitions section of the bill defines “state” only as being one of the 50 states and the District of Columbia. The section creating the Exchanges specifically defines them as Exchanges set up under one numbered section of the statute. The Federal Exchanges were set up under another supposed authority. Drafting errors and typo’s do not repeat themselves all over a bill comprised of thousands of pages.

    What I would love to see is notice taken of the failure to put a severability clause in the bill. If they are following the law, declaring one part of the bill to be illegal or unconstitutional should kill the entire bill. But we can’t have that. Following the law does not count if it frustrates a Leftist aim. That comes from the hidden “connected persons clause” of the Constitution.

    In point of fact, y’all have nothing to worry about. Whatever extortive pressure that was brought upon John Roberts still exists and can and will be exerted again. When there is no rule of law, the regime can depending on winning on paper. Their problem comes when the people decide that the law no longer restrains them. At which point, a whole lot of dance cards suddenly fill up.

      I am one of those people; I am not alone; our numbers are growing. We will not be ruled by such as these.

      DaveGinOly in reply to Subotai Bahadur. | February 5, 2015 at 9:16 pm

      You are correct. Federal statutes, when they use the words “state, “states,” and “United States,” always define those terms. For instance, the Internal Revenue Code (Title 26) has several definitions for each, they variously pertain to particular chapters, sections, and subsections. The terms sometimes refer only to the fifty union-member states, sometimes to the union-member states and the District of Columbia, sometimes include the territories (aka “federal states”), and sometimes don’t include the 50 union-member states! One can never presume what those terms mean in federal law, you must look up the definitions that apply to particular uses of the terms.

DINORightMarie | February 5, 2015 at 11:12 am

To Chief Justice Roberts –

Remember that old saying, “Fooled me once shame on you. Fooled me twice, shame on me”?

Will you be a fool and fall for that MSM big lie, again?

We all await your (and the Court’s) decision; your legacy, your good reputation, is badly tarnished (I say gone), but could be recover somewhat, redeem yourself by making the RIGHT decision this time.

What will you do? Are you truly so shallow? Or does this thug admin. have a hold on you, somehow……?

Our nation turns its lonely eyes to you.

    It’s not a question of Robert’s foolishness but his ability to, apparently, to be blackmailed. It has been suggested that indiscretions regarding the adoption of his children was the leverage used in Obamacare 1 and likely to hold the Chief Justice in line this go around.

Excellent summation of the issue and the dynamics here, Prof.

Oh, and Linda Greenhouse is the Queen of Hacks, as I’ve been saying for years.

    The Prof.’s summation is very good; wish I had as much confidence in the Court’s ability to see through this.
    Legislating and declaring the legality of all these many wonders cannot wish away the ultimate consequences: the quality and quantity of medical care will decline for almost everyone (guess who the exceptions will be) as the cost escalates and less and less of it goes into providing care. Government, the great destroyer.

    Here’s a Linda Greenhouse chuckle; years back, someone, (whom I am unable to credit) once referred to Linda Greenhouse’s utterances in the NYT as ‘Greenhouse gas.”

“What is at stake is the legitimacy of the progressive vision, forced on an unwilling population through a piece of legislation which says what it says.” I love this statement – it says it all.

They’ll probably uphold Obamacare. There was a time when liberal enclaves were especially vulnerable to withdrawal of national redistribution/revenue schemes; but, with the strategic (e.g. material incentives) distribution of legal and illegal immigrants, that risk has been diversified. Today, both liberal and conservatives areas are vulnerable to consequences of an entitled, desperate, and unidentified population.

NC Mountain Girl | February 5, 2015 at 12:32 pm

As the Chief Justice noted, elections have consequences. The Congress is not longer in the sames hands and the chance of any schemes that would reduce the power of the Court being enacted are nil. Also, Obamacare was supposed to become more popular as time passed. It has not become so. Indeed, there are many Democrrat politicians who would now be relieved if it could just be made to go away.

    If they wanted it to go away, they would join the legislative efforts to make it go away. What they want to go away is the negative political fallout; that’s all.

It is a fundamental principle of legal interpretation that Congress knows how to draft legislation. Errors can occur, of course, but ability to re-write legislation belongs to Congress, not the courts. Obviously, there are close cases clustered around these points, so it will be interesting to see how the Court handles this.

Linda Greenhouse should be embarrassed.

    Ragspierre in reply to Valerie. | February 5, 2015 at 1:30 pm

    1. Courts have to interpret statutes every day. That’s why there is a body of law defining how they MAY do that.

    2. When a court interprets a law in such a way as to torture the intent of the legislature, that NEVER deprives the legislature from revisiting its drafting and TAKING the matter BACK from the courts.

Theory: Chief Justice Roberts caved to pressure on the earlier decision based on fear for his own reputation and legacy and the good standing of the Court in the peoples’ eyes, said pressure being the bully pulpit of the press. Instead, he comes off that as the leading Benedict Arnold so far in the 21st century and lost far more credibility and respect than he would have had he stuck with his original position, thereby changing the decision.

So… Roberts takes this case up to fix what he screwed up earlier. It is possible he now regrets caving and wants to fix that and rehabilitate his damaged reputation with half the people.

Sort of like when a referee blows a call and provides a make-up call when the opportunity comes.

Insufficiently Sensitive | February 5, 2015 at 12:55 pm

The ‘law says what it says’ crowd are ignoring the parts of it casually shredded by the Obama administration since the day it was enacted. To wit, the ‘waivers’ from its terms granted to political allies, and the blatant Executive-branch postponements of the dates written into the law for its ‘mandate’ provisions. The latter, of course, to evade the certain public outrage which would have resulted.

The ACA – always coming to bite you AFTER the next election.

So – someone explain to me why the ‘says what it says’ principle will be upheld by SCOTUS, after the precedents this administration has already established for ‘it says whatever we say this week’.

I’ve chosen to take the issue in my own hands.

I don’t care what the law says, or how it is interpreted by anybody.

I will not comply. You each can join me.

Why is anyone surprised that Leftists can, with a straight face, posit that words mean exactly what they want them to mean – not what they say as intended by the people who write them …


All of the right-wing handwringing and brickbats tossed against Rush Limbaugh over “hope he fails”; the running to hide under the bed for any misspoken word or phrase, or even when the phrase is interpreted exactly the opposite of the speaker’s intent

“Oh my, perception is reality” You cried and exiled the offender.

“Moderate” Republicans let the Left control the playing field and NOW they want to complain that the language and intent is clear?

I want to slap your collective face.

Doug Wright Old Grouchy | February 5, 2015 at 4:07 pm

Actually, Greenhouse has a point, but not regarding SCOTUS per se; it’s whether we are a nation of laws or of man.

Were that part of the ACA law not to rule, given the facts in question, then what does rule? Would it be Obama’s whims, Bush 41’s (or Bush 43’s) desires, or POTUS 45’s opinions about what is proper and required? To rule in favor of the administration means that laws only mean what the person on top dictates, law as writen would mean nothing. That result would in fact set our nation on fire, some top dogs would be benign, some would not; God help US then.

In fact, Greenhouse would be correct in that a ruling against the meaning of the words in that ACA law, would mean SCOTUS has no value, it’s a charade, a barrier screening the man behind the curtain!

We fought Mother Great Britain because of the rule of Man. Was it all for naught, and a waste of good men for what, to become subjects, not to remain citizens? I will never be a subject to any such person!

There is no doubt what the words mean, but let’s assume for argument’s sake that it’s a typographical error, such as accidentally dating something 3015 instead of 2015. This happens pretty much all the time. These errors found, documented and corrected. How? By amending the law and voting on its passage again. And that is what the left and the Democrats (but I repeat myself) emphatically do not want to happen. If Obamacare were to come up for another round of votes, there’s no way that it could possibly pass again, at least not in its current form. It would be amended to death and Obama’s signature, uh, “achievement” would be exposed as the disaster that it is.

Now that’s what SHOULD happen. However, whatever pressure was brought to bear on Roberts last time is most assuredly being brought again this time. And after “it’s a tax” upholds the law as it’s supporters want it to be interpreted, we are well and truly in a post-law society. “The law means this, whatever the words may actually say.” For the record, I do not believe that that will end well.

    DaveGinOly in reply to Physics Geek. | February 5, 2015 at 9:22 pm

    It’s my understanding that when the National Firearms Act was first drafted, it included handguns/pistols, as well as short-barreled rifles (SBRs), and short-barreled shotguns. However, Congress determined to take these references out of the law, and sent the text back to committee. The committee removed handguns from the NFA, but erred when it failed to remove SBRs and SB shotguns from the text.

    So if SCOTUS says the ACA means what (revisionist history says) Congress intended, will the NRA, GOA, and 2nd Amendment Foundation file a suit to prevent the BATFE from enforcing the NFA with respect to SBRs and SB shotguns, which Congress never had the intent to regulate, even though (or because) it mistakenly passed a statute that regulates them?

This is one of the best ways you can tell when liberals know they should lose a SCOTUS case. They start with the legitimacy of the court. The legitimacy of the court is derived from the constitution not from a bunch of liberal morons.

By declaring the ACA penalty a tax (as it now seems certain he was correct), Justice Roberts handed us the ACA on a plate.

Administration through Title 26 (the Internal Revenue Code) means that the ACA penalty/tax is an excise tax. Excise taxes are indirect taxes, so-called because they are not laid directly upon tangible things, but rather they are laid indirectly upon profits generated by taxable activities, occupations, and events, with these being the actual subjects of the tax. For instance, taxes on the manufacture of alcoholic beverages are not laid upon the product, but upon the activity of making the product, and the amount of tax for which the manufacturer is made liable is determined by the profit (gross income minus costs and other deductions) generated by the activity.

(For proof that Title 26 imposes excise taxes see Brushaber vs. Union Pacific RR, Stanton vs. Baltic Mining Co., and Eisner vs. Macomber. Many references in Civil War histories inform us that Congress hasn’t imposed a direct tax since the Civil War. If taxes are not direct, they must be indirect. And no, the 16th Amendment did not abolish the distinction. Even if it did, that would be irrelevant to this argument. When a citizen’s decision to not buy health insurance is taxed, there is no material “thing” being taxed – the tax can’t possibly be a direct tax, it MUST be an indirect/excise tax on an intangible event-the citizen’s decision.)

So, is the ACA penalty/tax an excise tax? There is no tangible thing being taxed, so it can’t be a direct tax; it must be an indirect/excise tax. Next question – what activity, occupation, or event is being taxed? Answer – the decision (an event) to not purchase an ACA-approved health care plan. Why does this make the tax vulnerable? Because it’s highly questionable if making a purchasing decision is a taxable event. If Congress could levy a tax on a consumer-citizen’s purchasing choices of any one product, it could force (by taxing) choices in other products and services. The amount of mayhem that Congress could cause with such authority in any manufacturing or service industry is obvious. Not only is the power beyond the authority of Congress because of its potential for damage and abuse, the authority of citizens to decide for themselves what products to purchase and which to not purchase is a property right – both a right to determine for themselves what property or service to acquire by purchase and a right to control one’s own money (a form of property) as one sees fit. SCOTUS says that the exercise of a right is not a privilege upon which the state may impose a tax and that “he owes nothing to the public who does not trespass against their rights.”

The taxing powers of Congress are not plenary. Excise taxes (including the ACA penalty/tax) may only be imposed upon revenue taxable activities, occupations, and events. They may not be imposed upon the exercise of individual rights. Neither the right to refuse to spend one’s money (property) for a particular product or service, nor the right to make personal decisions concerning one’s health care insurance are proper subjects of an excise tax; the ACA imposes an unconstitutional tax upon the exercise of the rights to control of one’s property, to make purchasing decisions, and to control one’s own health/medical care.

If those that sign up could be allowed a federal subsidy when a state does not set up an exchange, then there would be no reason for a state to set up an exchange. Quite simple really. The reason that states had to set up exchanges is precisely because of the Commerce clause. “Healthcare insurance” is well held to be regulated by the states. The only way it becomes “Interstate Commerce” is if the individual states set up exchanges with Federal subsidies available (expanding medicaid in those states), and therefore to be “Interstate commerce” regulated by the Federal government. Roberts original “tax” decision was actually shrewd, since he also implied that the individual states acceptance of the medicaid expansion (setting up their own exchanges)would either doom, or allow the ACA to go forward. In doing so he avoided the vilification of the left, and let the words of the ACA doom itself (he gave it the rope to hang itself). The problem is that it has been allowed to fester, and lancing this boil is going to be messy.