Scare tactics about the pending SCOTUS Obamacare subsidies case
Soon the Supreme Court will start hearing King v. Burwell, the case that could eliminate federal subsidies for people in states that declined to set up Obamacare exchanges. It would deal a huge blow to Obamacare itself if the plaintiffs were to win.
That—and not the merits of the law—is the reason I have long thought that SCOTUS is likely to blink on this. On purely legal grounds, I believe the plaintiffs have a good case, but the consequences seem so potentially cataclysmic that SCOTUS will be reluctant to trigger them. Whether the justices should take that sort of thing under consideration, the reality is that they sometimes do, and they then figure out a way to justify their decision legally (there’s always a way to do that). That’s what I think Justice Roberts did when he “creatively” declared the Obamacare penalty a tax for one purpose and not for another (see this). It’s my opinion that his motive for turning himself into a mental pretzel was to avoid what he saw as too dramatic a result if the main basis of Obamacare coercion, the penalty, was declared unconstitutional.
Prior to that decision, Democrats had been sounding the drumbeat of alarm because they knew it would spook the Court as well as the public, and they’ve been doing it again (see this and this) for quite some time.
There’s a way that Republicans could take a lot of the sting out of this, which is to formulate a viable alternative and publicize it heavily. That way we wouldn’t get as many articles like this one:
The immediate effect of a ruling against the ACA would be to hurl the political system, and no small part of the economy, into chaos. Yet there’s little sign that Washington is preparing for that scenario. Democrats won’t talk about what they would do because they don’t want the court to believe they could contain the fallout. Republicans don’t want to talk because they’re loath to admit that, even after voting 67 times to repeal or defund the ACA, they have no plan to help the millions who would be affected. (But they’d sure love the court to kill the law anyway.)
Actually, Republicans have several plans, and the author goes on to mention one by Stuart Butler of the Brookings Institution. There are others, as well, described here, here, and here. The problem is not that there aren’t any plans, it’s that there isn’t agreement on a single plan that the Republicans can (or will) publicize as the plan.
That’s not surprising. The issues are complex, the best fixes are not obvious, and after all this is Congress and the GOP we’re talking about. What’s more, why spend so much time and effort on something that they may not even get to vote on if SCOTUS doesn’t rule against the subsidies?
Because they need to unify on this and get their message out to show that they are serious and that they are prepared—that they are practical and have a way to say “yes” rather than just “no.” And it is no small matter, too, that it would help reassure the SCOTUS swing justices such as Roberts that chaos will not inevitably follow a ruling for the plaintiffs.
When political gaming reaches the Supreme Court, I ask: “Exactly why is it that I should pay taxes to fund an institution that disobeys its own laws to my detriment?”
I recently encountered [Robert] Conquest’s Law for the first time. It applies exponentially to what our government has become:
I expect the SCOTUS to rule as you do neo and for the same rationale.
“That’s what I think Justice Roberts did when he “creatively” declared the Obamacare penalty a tax for one purpose and not for another (see this). It’s my opinion that his motive for turning himself into a mental pretzel was to avoid what he saw as too dramatic a result if the main basis of Obamacare coercion, the penalty, was declared unconstitutional.”
I think you’re probably right as to Robert’s motivation. Which if true, calls into question Robert’s discernment because what could, in the long run… have a greater deleterious effect upon the Republic than SCOTUS ruling that the government can penalize citizens (a ‘tax’ penalty is still… a penalty) who fail to buy a product?
This is especially egregious, given that a Supreme Court Justice’s very raison d’éªtre is to weigh their rulings against the Constitution, rather than acting as a societal ‘referee’.
“it’s that there isn’t agreement on a single plan that the Republicans can (or will) publicize as the plan”
Besides the reasons you specifically state, there is the one that you allude to, which may actually be the foremost obstacle to consensus; RINOs and actual conservative Republicans have different motivations and resultant agendas. Conservatives do not care if for instance, Big Pharma takes a hit, RINOs are not about to let that happen.
T,
I suspect it’s not so much a cabal of enemies but a systemic flaw, i.e. a primary motivation of self-interest rather than public service. There’s also the Peter Principle dynamic.
I am moderately convinced that while Team Obama’s preference would be for the court to rule in their favor, they have reasons to find a ruling against them to be of almost equal value.
I think that Obama (and Reid) are playing hard-ball politics–and are very willing to toss a “golden apple” into the GOP controlled Senate.
In the event of an anti-Ocare ruling, there would be immense pressure (from Team Obama + the media + some red-state constituents) to just go and instantly ‘fix the law’ (to make the Federal Subsidies legal).
I suspect the calculus that Team Obama is looking at is similar to the current DHS shut-down: the longer things drag on in chaos, the greater the chance of a win for their “simple solution.” The greater the potential ‘brand damage’ for the GOP.
Remember: Obamacare is unpopular but the government shutdown was even less popular. Some polls suggest the same for DHS (people aren’t necessarily thrilled about immigration–but to the average guy who kinda-doesn’t like it, a DHS shutdown probably seems worse). While polling is VERY iffy, I suspect there is sufficient evidence to make these assessments with some degree of confidence.
In other words, Obama might *really* do nothing and decide to the risk falls more heavily to the GOP.
Given that (a) the “fix” (maybe less than one page of revision) is “pretty simple,” (b) the media will carry their water like a champ, and (c) to counter-act that message the GOP would need to have a solid positive answer (not just O-Care is bad) AND coalesce around that message, delivering it in a clean, consistent manner (a capability that seems pretty lacking right now) …
That’s a risk that seems like Team-O might think is worth taking.
Disclaimer: I have been trying to get my brain to form a coherent thought about this (and being as ornery as I’ve been this past week doesn’t help) and what I wrote below is the result. Whether I succeeded or not, well I’ll let you be the judge. Please keep in mind that I have no experience with law and I am a partisan. Please forgive me if some of this sounds like Captain Obvious or Mister Hyperbole. If anything I wrote is in error, please correct me; I would rather be chastised than ignorant.
1) There are no constitutional issues in this case unless the justices inject them into it. The question is whether the Affordable Care Act, as it is written, allows the Administration to offer subsidies to people who purchase insurance through the federal website, as opposed to state run exchanges.
2) If the law is read strictly then the federal government is precluded from offering subsidies; which means this is more a political argument than it is a legal argument.
3) If there is any constitutional question in this case, it is this: do the courts or the President have the authority to rewrite law, or is this a privilege reserved exclusively to congress?
Now, the best result would be a 9-0 ruling in favor of the plaintiff and the second best would be a 6-3 ruling.
The second worst case would be a 5-4 ruling in favor of the plaintiff. This would indicate, to me, that what it legal is based entirely upon partisan issues, rather than legal. And, perhaps, open to door allowing the courts to rewrite law from the bench.
Of course, the worst case would be a 5-4 ruling against the plaintiff. This would basically be an affirmation that the President may rewrite laws as he sees fit, with, at most, some judicial review. This would also put into question what the role of Congress is, and effectively invalidate the Constitution.
The problem I see is that Chief Justice Roberts has already opened the door to allowing the courts to rewrite law, or at least redefine the terms used in it. That means we may have already passed a point of no return.
As a little side note, I’m starting to have this troubling feeling that Obama may be losing his patience with the courts. I’ve been getting it from how he’s handling the stay against his amnesty program. I’m really wondering is Obama is going to, one day in the near future, quote Andrew Jackson, “…has made his decision; now let him enforce it!”
KRB
Kae Arby:
The main legal issue is actually a rather simple one involving the interpretation of the wording of the statute and the intent of the statute. It’s not much of a constitutional issue at all, but rather a statutory interpretation issue.
It’s explained here.
This article explains that, if it weren’t for the fact that this is about a huge part of something as big as Obamacare, it would be a very straightforward decision for the plaintiffs and against the subsidies. It would probably be decided 9-0 if it weren’t about something so politically enormous.
So I am right that this is a political decision and not a legal one.
KRB
One giant criminal mafia network, that’s about all.
I think that the court will absolutely strike down the Federal subsidies. I think that John Roberts was playing the long game when he made his last minute switch and recast the individual mandate as a tax.
First of all, he did strike down the individual mandate:
“The Federal Government does not have the power to order people to buy health insurance”
Roberts could have gone on to strike down the individual mandate penalty, but if he did, then the Federal Exchange Subsidies would have been cemented in place forever because no one would ever been able to establish standing to challenge them.
To review the standing issue, in order to challenge the application (or misapplication) of a statute, one has to demonstrate to the court that they are actually personally harmed by the misapplication of the statute. If the court had said, “You don’t have to buy insurance; the individual mandate penalty is unconstitutional”, then the government would have merrily gone on providing subsidies on the Federal exchange, and anyone who wanted to challenge this would be told, “You are not required to purchase insurance, you can’t be fined for it, therefore the law doesn’t harm you and you have no right to challenge it.”
Roberts’ decision carefully avoided this. By recasting the penalty as a tax, he opened the door and rolled out the red carpet for King vs Burwell.
Far from capitulating, I believe that Roberts was laying a trap, which is now about to close. Roberts has placed the liberal judges in a very difficult position. If they attempt to dissent, Roberts will simply use the decision to explain to them, in short simple sentences, what statutory construction is and how it works. He will school them like a first semester class of law students and it will sting. He will make them look incompetent. He will make them look like political operatives and he will make them look like fools.
I would not be surprised if Roberts gives the job of writing the opinion to Clarence Thomas, as Thomas is the least political — and the most blunt member of the court when it comes to interpretation. He will have no truck with fools, and if the liberals choose to be fools he will deliver a withering opinion.
I don’t think there will be a dissent. I believe that facing the prospect of being humiliated by the majority, and having a losing hand to play anyhow, the liberals will cut their losses and join with the majority opinion.
I expect to see three sections in the opinion:
1) Statutory construction. There is simply no wiggle room here. The law says what it says.
2) Congressional intent. The plaintiffs have two major trump cards here — Jonathan Gruber’s helpful videotaped explanations of how the law was deliberately designed to exclude Federal exchanges from the subsidy program, and the discovery that an early draft of the ACA included language making subsidies available on the Federal exchanges, which was subsequently removed — evidence that the omission was intentional and not accidental.
3) Consequences of the ruling. This is the most interesting part and something that I have not really seen any analysis on as of yet. The plaintiffs arguing that they are being improperly fined 1% of their income because the *subsidized* cost of an Obamacare policy does not exceed 8% of their income. If the court rules for the plaintiffs, they will only have to pay the penalty if the *unsubsidized* cost of an Obamacare policy does not exceed 8% of their income. This is a huge difference and it’s going to free millions of people from the individual mandate tax. But only in the Red states with Federal exchanges.
In short, if the plaintiffs win, millions of lower income Americans who are now subject to the individual mandate tax and being forced to pay 1% of their income will be able to refile their taxes and get their money back. THIS is the Republicans political trump card. If they pass a bill to “fix” the problem by allowing subsidies on Federal exchanges, they will be subjecting millions of low income people in their own states to a 2% Federal flat tax on their entire household income. They are going to have to balance the political costs of passing a massive tax increase on poor people for being uninsured against the political cost of a much smaller number of people losing their insurance.
And that’s when the politics are going to get interesting.