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King v. Burwell: Too close to call?

King v. Burwell: Too close to call?

The mess we’ve made

Arguments in the case of King v. Burwell helped serve to shine light on just how big of a mess implementing, changing, scuttling, or rebuilding the ACA will be.

From Bloomberg:

It wasn’t immediately clear where the court leaned, as Chief Justice John Roberts — who voted in 2012 to uphold the law as constitutional — asked few questions during the hearing Wednesday. A ruling is expected by late June.

Alito’s suggestion that the court might set an end-of-the-year termination date for subsidies in states was greeted somewhat favorably by solicitor general Donald Verilli, who represented the Obama administration.

“That would reduce the disruption,” he told Alito. Still, he said it was “completely unrealistic” to expect that states that lack their own exchange could build one by the end of the year. Under current regulations, for example, states must win approval from the health department by May for an exchange that would open for business in October.

Justice Antonin Scalia, another Republican appointee, said that Congress could act to solve the problem. Republicans in both the Senate and House have said that they would respond to a court ruling against the government with legislation to preserve insurance coverage, but they don’t agree on a solution.

“Well, this Congress, your honor?” Verilli said, to laughter. “Theoretically, they could.”

One does not joke before the Supreme Court unless one is absolutely positive that the bench will join in the fun.

Everyone laughed.

So, who comes out on top? Both crowd sourced opinions (via FantasySCOTUS) and the {Marshall}+ algorithm-based predictions are coming up blank:


The wisdom of the crowd foresees a 5-4 reversal as of this writing — which would be a decision against the ACA — with Chief Justice John Roberts sitting on the fence and Justice Anthony Kennedy not far away. Roberts was, of course, the surprise savior of the law in 2012. (The crowd predictions may improve after participants have had a chance to digest the oral argument transcript, taking clues from justices’ questions.)

The {Marshall}+ algorithm isn’t quite sure what to make of all this. It sees a similar pattern — the liberal justices more likely to affirm and the conservative justices more likely to reverse — but many of the justices are more or less a coin flip. Josh Blackman, one of the {Marshall}+ creators, told me: “These numbers remind me a lot of the crowd predictions from the first Obamacare case in 2012. The numbers were too close too call, and we were not able to get any statistical significance. This proved to be surprisingly accurate, as the court itself (the chief justice in particular) hadn’t made up its mind of how to rule. This case will be close.”

Invoking 2012 isn’t exactly what conservatives want to hear at this point.

Eric Citron at SCOTUSblog brings up an important point about how the oral arguments played out. For all the back and forth that went on during the arguments (listen to them—it got brutal), the questions and answers given seemed to pit literalism vs. contextualism. Arguments challenging the ACA focused greatly on the text of the statute, but questions from Justice Kagan revealed her willingness to defer to context. Justice Kennedy spent a great deal of time picking through the idea of reading a statute in a way that “puts a gun to the head” of the States and thus jeopardizes state-level police power. He did, however, accept the conclusion that if the Court chooses to adopt the challengers’ argument, that there would in turn be a major Constitutional problem to deal with.

Maybe he’ll steer into the skid. Maybe he won’t. You never know with Kennedy.

Chief Justice John Roberts asked no questions of the petitioners, possibly because he had none, or possibly because he knew that the entire country was waiting for him to signal his position one way or another. Roberts’ opinion back in 2012 saved Obamacare from a major Supreme Court challenge, and I think it’s reasonable to assume that he may want to keep his hand a secret for now.

Who wins? I have no idea. In 2012, I thought that Roberts would reluctantly side with the conservative wing of the Court, and we all know how that panned out. I’ve listened to these arguments multiple times now, and all I know is that hearing 85 minutes of constant Q&A from both sides of the bench makes me hopeful that there is a swing vote in play.

You can listen to the full oral argument here, and read the full transcript here.


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This one is really too close to call. The usual rules of statutory construction are very hard to apply to a law that was poorly drafted, used inconsistent terminology and appeared to be the work of many people.

Normally, ministerial corrective legislation to fix some of the wording flaws would have been enacted on bi-partisan basis. But the heavy handed Congressional action and the President’s my way only attitude made that an impossibility.

Best thing to do is start over. The legislation is internally inconsistent and impossible to apply. Of course one can count on Boehner and McConnell to fold their hands early.

    In this instance, there really is only one answer based on the rules of statutory construction: the subsidies granted by the IRS to states that did not set up their own exchange MUST fail.

    To rule otherwise will be to open up every law that Congress has EVER passed to challenge by anyone who can show even the slightest hint that the wording might not be what Congress intended.

    Beyond even that, though there is the legislative context: No member of Congress can say with a straight face that they did not know that residents of a state that failed to set up its own exchange would be cut off from subsidies. It was both the clear language AND the clear intent from the wording, because they put the “exchange” language in two separate clauses. It is clear, unambiguous language, and if you read the first clause as allowing for the IRS to pay subsidies to Federal Exchange customers, it makes the entire second clause superfluous.

    As Judge White said in “Halbig,” “State” is specifically defined in the legislation in such a way as to explicitly exclude the Federal government. To rule otherwise means that the Court can IGNORE the definitions section of legislation, which opens up just about EVERY piece of legislation to the challenge of “But that’s not what Congress MEANT to do, so CHANGE it Mister/Missus Federal Judge.”

    The wording here was a feature, not a bug, and was chosen with CARE by the Deemocrats in order to hammer the [Republican led] states that didn’t [or outright refused to] set up their own exchange programs by hammering the VOTERS in those states, thus attempting to force change from within.

      platypus in reply to Chuck Skinner. | March 7, 2015 at 11:13 am

      Agree with your comment, and add this: if this appeal fails to overturn the law, then statutory construction in the future will have a subjective component (speculation about possible implied motive) inserted into the process. Not sure what this will do to the concept of stare decisis / precedent but one thing is certain and that CR 11’s mandate that a signature certifies proper legal basis research might as well be deleted since it will never be able to show that insufficient research was done.

      sequester in reply to Chuck Skinner. | March 7, 2015 at 3:42 pm

      I don’t disagree with you, but I am not a Justice of the Supreme Court. Kennedy seemed fixated on the notion of Constitutional Avoidance. He felt that to construe the phrase “established by the State” to mean the State makes the ACA unconstitutionally coercive. Kagan argued the words must be construed in the context of the entire Statute.

      Giving context to the entire Statute is all but impossible. The Statute is inelegant, poorly worded and logically inconsistent. There is something for everyone when you look at the entire Statute. That happens with a work authored by multiple people and rammed down the throats of the opposition Party.

      While I tend to value the notion of first looking at “plain meaning of the words”, when performing Statutory Construction I don’t have a vote here. After listening to oral arguments I came away with the impression that the four liberals will vote to sustain the IRS rule. Kennedy and Roberts positions just can’t be determined. So the ruling can go either way.

      I’ve given up on the rule of law as watching the Obama admin roll is like watching Tudors episodes of Henry the VIII inventing ways to say he can divorce his wives and call it legal.

      I’m curious how they justify ignoring the 800 lb gorilla of text that says the exact opposite of what they are trying to uphold.

    “Of course one can count on Boehner and McConnell to fold their hands early.”

    Got that right. Reid runs the Senate, and Pelosi. Pelosi relays it to the House. Both minorities pass the instructions on to both majority leaders.

    And Obama plots the next progress of his take-over of America.

The states do not matter anymore, just “The State”. The House of Representatives represents the people less and less. What would happen if the Executive Branch ignores the Court? Will the Court deal with this as the Republicans have done… capitulate to “save the country and avoid a Constitutional crisis?” Another one of those “break the law to save the Constitution” rationalizations?

It will be interesting to see how they handle the application of the Chevron rule (which says courts should defer to the interpretation of the federal agency applying the law when there is a dispute about the law’s meaning).

In this case, the IRS lawyers initially interpreted the ACA to mean what its text says: that subsidies could only be paid in states that had established their own exchanges. But once the Obama political hacks in the White House got wind of the proposed IRS regulation, calls were made and pressure was put on the IRS to change its regulation to allow subsidies to be paid in all the states.

Imagine being the IRS lawyer on the other end of those White House phone calls: “Who cares what the damn law actually says? Obama has an election to win! Just write the regulation the way we tell you and we’ll worry later about how to justify it in court!”

So does the Supreme Court apply the Chevron rule to the IRS’ initial interpretation of the law, or to the nakedly political re-write demanded by Team Obama?

Statutory interpretation was a lot easier in the days before the executive branch of the federal government became a wholly-owned subsidiary of the Democratic party machine.

    walls in reply to Observer. | March 6, 2015 at 5:20 pm

    It’s pretty clear to me what “State” means, ie, not vague at all. Where’s the ambiguity? It appears that only dems have problems interpreting the English language … I mean, I know what the meaning of “is” is.

      Paul in reply to walls. | March 6, 2015 at 6:51 pm

      It’s not that they have trouble interpreting of understanding the language, it’s that they have this nasty habit of redefining the language to suit their collectivist ends.

    To rule that the IRS is correct in its application would massively expand the application of Chevron, in that the challenging agency would only have to say “there’s a dispute” about what Congress meant, even when the statutory language is perfectly clear.

Nobody can predict the outcome, but my hunch is Roberts won’t come down pro-ACA with a broad “State” interpretation this time.

    MarkS in reply to walls. | March 6, 2015 at 7:22 pm

    I disagree. Obama has something big on Roberts, impeachably big. It has been speculated that it has to do with adopting Irish kids via South America, but who knows. Roberts is not going to vote do inhibit Obama’s baby.

      If the Administration / Obama actually has something on Roberts the Traitor AND Roberts the Traitor votes to uphold the PPACA here, whatever that information is WILL come out. GUARANTEED.

      The amount of scrutiny that will be brought to bear on Roberts will be crushing should he “magically” vote to uphold the PPACA a SECOND time, when the clear decision is that the language is obviously unambiguous.

      If such is the case, expect an Impeachment of Roberts the Traitor come January 2017 should a Republican be put into the White House and the Republican’s retain ANY sort of majority in the Senate.

        If they actually had something on Roberts, why not force him to resign? Thereby creating a liberal majority on SCOTUS and locking up the Chief Justice slot for then next 40 years.

        Certainly they could have pushed through any looney toon progressive they wanted in the last two year. Today the so called Republican Senate Majority would be little more than a speed bump.

          JPL17 in reply to verm. | March 6, 2015 at 10:20 pm

          EXCELLENT point!

          IF they’ve got something, they would rather keep Roberts the Traitor under their thumb for the REALLY big, trajectory altering cases.

          Yes, the peons whine about “Citizens United” (but the BIG money Democrat donors are secretly VERY pleased by it because of its favorable use by some of the big Democrat led corporate interests). The Peons are just peons who don’t know better.

          Yes, the peons whine about 2nd amendment cases, but the new-ish tactic is bankrupt through local laws and Lawfare, forcing the manufacturers to spend money even though the action will be dismissed / vacated later on superseding Constitutional grounds or under the Lawful Commerce in Arms Act. The Deemocrat leadership largely doesn’t care, and honestly WANTS more “mass shooting” and “dead children” cases to use as a cudgel against “Eeeeevil Republicans.”

          No. IF they’ve got something, the Obama Administration / Deemocrats would much rather have Roberts in a position where they can influence him on the BIG, IMPORTANT items to the Progressives: Obamacare (aka the step to “Single Payer” health care), Homosexual / Poly Marriage (aka destruction of the “State” Police Power to regulate “Morals” under any circumstances), Death Penalty (aka destruction of State powers to punish by 8th Amendment fiat), and Net Neutrality (aka Fed’s takeover of the Internet to destroy any type of “New Media” outlet for Conservative views).

      Estragon in reply to MarkS. | March 7, 2015 at 12:43 am

      If there was anything “on” Roberts, it would have been used to derail his confirmation in the first place.

      His rulings have followed almost exactly the profile we understood when he was nominated: going out of his way to defer to both the Congress and the Executive wherever possible as part of his understanding (AND long practice) of judicial restraint. That was considered a feature, not a bug, possibly because we controlled both Congress and the White House at the time.

      This is the sort of conspiracy nonsense that gives us a bad image.

”Henry VI,” Part II, act IV, Scene II, Line 73

Subotai Bahadur | March 6, 2015 at 5:59 pm

In the absence of a Republic, using the law and the Constitution to predict how unaccountable judges who have the the Coercive Organs of the State facing them will rule is pointless. The law and Constitution do not apply. 4 of the Justices are loyal and activist Party Apparatchniki. We know how they will vote. The only question is how much, and what, pressure or bribe will be used on how many of the others to get what the State wants. Personally, I am betting that it will be either Roberts or Kennedy because Roberts is already compromised, and Kennedy has already shown that he bends to pressure.

inspectorudy | March 6, 2015 at 6:02 pm

My concern is that SCOTUS will offer another of their “Helpful” changes to the law like they did first time by changing the “Fine” to a “Tax”. I was taught that SCOTUS did not make the law or rewrite it but ruled on its constitutionality of it. The most obvious solution would be for the court to throw it back to Congress and tell them to work it out. That way it would be reopened and anything salvageable about it could be saved and the rest rewritten to actually work. That would also be a great time to get rid of the panel that is not elected, cannot be fired, cannot be overridden without a huge majority of Congress and cannot not to be reviewed by any agency.

since Obola will ignore any ruling he doesn’t agree with, it really doesn’t matter how they rule…

and i don’t have any faith in Kennedy OR Roberts: they are both gutless swine.

“Well, this Congress, your honor?” Verilli said, to laughter. “Theoretically, they could.”

The fact that everyone laughed shows that everyone acknowledges that the people just got done electing a Congress that wants ACA dead.

That was one of the primary reasons Republicans won and Democrats lost.

Doug Wright Old Grouchy | March 6, 2015 at 6:40 pm

The issue does, IMHO, come down to whether a law is what is written or what judges say it is!

We’ve always been told, and I always believed, that we were a nation of laws not of Man. However, judges are human so perhaps we are now a nation ruled by Man!

Thanks to Obama and his Democrat minions, we’re now at a tipping point, which could well take the US over into anarchy.

I’ve always been of the opinion that when a law says something quite plainly, that it says what it says.

None of the Administration lawyers seem to be arguing (at least very well) that the law doesn’t actually say what is written, they seem to be arguing that the world will somehow come to an end unless the SC gets out their pen and makes a few changes to the text, something that I understood was the sole responsibility of the Legislative branch of government.

    Yup. And the four Liberal Justices KNOW it. That’s why they’re pushing so hard on the “outcome based decision” aspect of the law, rather than the clear wording of the law and the interpretation.

    But, should the SCOTUS decide that the language ISN’T paramount, that could work in Conservative’s favor. If that is the decision, it’s time to attack the “clear” language enabling the EPA to exist and/or write any regulations of CO2 as being “contrary to Congressional intent in the drafting of the law given the ‘clear’ definitions used therein.” See Alinsky Rule #4, Rule #8 and Rule #12 specifically in regard to Roberts the Traitor.

      platypus in reply to Chuck Skinner. | March 7, 2015 at 12:06 pm

      I wonder whether a resolution (House, Senate, or both) could successfully be used as persuasive evidence (in a fed district court action) that a certain interpretation of a law was wrong. Resolution would seem to be the way to go since it stands on its own, unlike a bill which allows the Petulant President to use his veto on it.

This is what will happen: 5-4 in favor of Obama with the four Lib justice doing the predictable and the three that believe that the is what the law says it is voting otherwise, which leaves Kennedy and Roberts. If Kennedy votes with the Liberals then Roberts, in an effort to regain credibility, will vote with the conservatives, however if Kennedy votes with Scalia, et al, Roberts, still under Obama’s thumb, will vote to save the ACA.

Yep, Mark nails it. I’ll go one step further. Kennedy goes with the liberals to save Roberts so he can appear to have come back in line. Kennedy and Roberts take turns so everyone stays hopeful, even though they will always make sure the government control expands.

If anyone had any real record of successfully predicting close SCOTUS decisions based on questioning in oral arguments, they would currently be held in as high regard as a guru as the guy who predicts the NCAA basketball tournament at-large bids.

But no one does, so all this is unfounded speculation.

As if the crazies needed a reason to get riled up.