More on King v. Burwell

The Supreme Court building in Washington, D.C.

A thematic question: At this point, how is it still a question?

There is a bit somewhere in a book about the Universe asserting what seems nearly circular, that we know what we know is right because it is what we know. That is, of course, an insufficient paraphrase, a memory of how the point felt, but it is also true that if what we think we know is that wrong, there would be no satellite communications. Try a simpler version. If you know a football coach, test a proposition; there is only so long one can hear people say a professional athlete “sucks”. Not a good day, maybe in a larger slump, but you don’t distill in the process and elevate to that valence if you suck. One might think similar things of, say top-tier electoral politics, but no, it doesn’t work that way. It is supposed to, or so we might imagine, except Sarah Palin was nominated to run for vice-president once upon a time, and we all watched Mitt Romney’s disastrously ill-executed campaign for the presidency in two years ago.α

Certes, such comparisons are notoriously vague, but here is the theme: At some point, we cannot maintain confidence if certain properties remain variable and unresolved; if questions of a particular nature and context remain in effect, how is the larger paradigm expected to function at a given valence?

Or perhaps we should simply start with standing. A juristic context. We considered the issue briefly, yesterday, but something about awestruck disbelief seems to have gotten the better of us.

Point being that one might wonder how standing could remain a potentially affecting question when a case reaches the Supreme Court.

Just sayin’.

However, Louise Radnofsky and Brent Kendall bring the question back to focus for The Wall Street Journal:

One of the plaintiffs in the Supreme Court case against the Affordable Care Act listed a short-term-stay motel as her address when she joined the lawsuit, potentially calling into question her basis for suing.

Rose Luck is among four plaintiffs suing the Obama administration to eliminate tax credits under the law that make health insurance cheaper for millions of Americans. They say the wording of the 2010 law allows consumers to tap the credits only in states that run their own insurance exchanges, and not their home state of Virginia, which is one of as many as 37 states that use the federal enrollment system.

And at this point it’s easy enough to make a point about how this sort of technicality shouldn’t matter; after all, the case has survived, anyway, and has achieved SCOTUS valence.

But there is more to the standing question, and it is all nearly as strange as you might imagine:

The Wall Street Journal reported Friday that two male plaintiffs in the case could also be subject to a dispute over their legal standing to sue, because as Vietnam veterans they likely qualified for care through the Department of Veterans Affairs that would fulfill the law’s requirement for them to have coverage or pay a penalty.

The Competitive Enterprise Institute, the libertarian think tank that initiated and bankrolled the case, said it believes all the plaintiffs are still entitled to bring the case. Even if a court disagreed, the lawsuit wouldn’t be in jeopardy so long as the claims of the fourth plaintiff, Brenda Levy, are on solid legal footing. Critics of the challenge have seized on the issues surrounding the plaintiffs as proof they had no real involvement in the case and aren’t harmed by the insurance subsidies. “All of these plaintiffs are people they picked off the street for this litigation,” said Tim Jost, a law professor at Virginia’s Washington and Lee University who supports the health law ....

.... CEI spokeswoman Annie Dwyer confirmed that staff knew Ms. Luck used a motel address when the suit was filed and that she was no longer there. Attempts to reach Ms. Luck were unsuccessful. Ms. Dwyer said Ms. Luck still lived in Virginia, though she declined to specify where. “The lawyers are not concerned about standing issues,” she said.

Other lawyers say they aren’t so sure. “Standing is dynamic and has to be present at all times and not just at the time of the lawsuit’s filing,” said Neal Katyal, a former acting solicitor general during the Obama administration who worked on an amicus brief supporting the government in the case.

The fourth plaintiff in the case, Ms. Levy, is a 64-year-old substitute teacher who will turn 65 and become eligible for Medicare in June, the month the Supreme Court is expected to rule on the case. She said at her Richmond home Saturday that she couldn’t recall how or when she had become involved in the case and said several times that she and the other plaintiffs had been told not to talk about it. She said she had little knowledge of the case’s progress, including when it had been filed, guessing only that she had become a participant before that date. Ms. Levy’s log cabin-style home in a wooded suburban drive is about 15 minutes away by car from the federal courts where the case was initially heard.

And it is true, this is an interesting question; perhaps “the lawyers are not concerned about standing issues” because none of them can believe the case got this far without resolving those points in the first place, and, hell, why bother? It has come this far, so why not have it out?

Or maybe not. In some ways the issue comes up again; the question of how these plaintiffs are harmed in the first place―what, specifically, is the tort?―is problematic to say the least; Radnofsky and Kendall note:

The plaintiffs say that, by making their insurance more affordable, the tax credits subject them to the law’s requirement that they carry insurance or pay a fee, which they oppose.

Now, the mandate question is already settled; what the plaintiffs are contending is that what the government calls a drafting error actually intends to restrict tax credits to states run with specifically federal exchanges, and that argument is problematic for reasons related to reality.

We should not go so far as to actually worry that this strange case has made it so far; stranger things do go on. Sometimes. Right, we’ll get back to you on that. It really depends on context; after all, we’re well over a decade past the time Republicans tried to use legislation pertaining to diabetes among Indigenous Americans as yet another opportunity to rehash the Piss Christ controversy of yet another decade before, but that’s a whole separate context.

And, certes, there was the whole warring era in Iraq by which we have begotten the New American Century, but, again, way different.

The American body politic is a strange beast; we are witnessing a particularly pointed confluence of politics and jurisprudence, the sort of raw cynicism that really exposes the contemptuous underbelly of driving attitudes.

Do we all remember the recission hearings? When Congress asked if the insurance companies would stop this loathsome practice, and the companies said no? Imagine a replay of that hearing, except this time the carrot is the PPACA, and the stick is single payer.

First, it should be enough simply to remind that, generally speaking, Americans only break leftward when they run out of room to the right. Second, it should be enough simply to remind that Republicans … have … nothing. The inevitable question arises: Is the Supreme Court so enmeshed in this confluence of politics and jurisprudence that the complaint stands a chance? And this is the worry; they have certainly surprised analysts and pundits before. Sure, that’s not always hard, but they’ve managed to do some really bizarre things in order to accomplish specifically bizarre ends. Safford United. Ricci. Citizens United. To the other, for whatever reasons the Court accepted Hollingsworth only to punt and run with Windsor.

But the next question is what happens next? If the Court is to find for the plaintiffs, what then? Can Republicans stitch together one of their infamous Obamacare-liteβ plans?

Who knows? Maybe this is the conservative way of getting what they want without ever having to admit they want it: Corner people, and leave them no place to go but single-payer.

But if that is to be the outcome, somebody please predict the juristic acrobatics. It would be a spectacular mess. In truth, it is probably easier at this point to expect that we’ll sooner see Kennedy and Roberts spread for gay glamor porn than comfortably twist into whatever contortions Scalia, Alito, or Thomas might ask. The Court can try saying it doesn’t matter what was intended compared to what was written, but would roll on itself if it did. The Court can try insisiting on an alternate history, unverifiable by record since demanding it requires dismissing the actual historical record from consideration, but, right, something about Kennedy, Roberts, and gay porn. Or the Court can assert that the historical record is pretty clear, and if Congress says this is what it meant, the Court will not choose this occasion to change course in order to tell Congress otherwise.

Something about the top tier goes here. We cannot expect a mess circa Sixth Circuit; that case is coming before the Court in April, and even Justice Thomas conceded its outcome while dissenting from the Court’s refusal to stay marriage equality in Alabama. If the Supreme Court of the United States manages to make a mess of King v. Burwell, it will be a legendary debacle, a top-tier mess.


α Or perhaps the Romney campaign is emblematic of the difference. It is said that the Obama campaign, even in 2008, knew down to the ZIP+4 what to expect on Election Day; media accounts on Election Night, 2012, suggest the Romney campaign was “shellshocked”, utterly surprised by their loss. And when we consider everything from Fehrnstrom’s “Etch-A-Sketch” line on through a series of gaffes in which Romney did not seem to know what the issues were, much less how he felt or what his policy outlook was, and even being called out by Jeep for having lied about the company, the proposition that Team Romney was so self-absorbed, so attentive to its internal polling numbers, that they had no idea what was actually happening suddenly seems possible. Therein the Romney campaign becomes nearly emblematic of what happens when you simply aren’t ready for top-tier function.

β Yeah, that is how infamous. So infamous even Republicans can’t help but notice. Really, ask yourself how many times we’re going to throw over to Bobby Jindal to fill us in.

Radnofsky, Louise and Brent Kendall. “New Questions Swirl on an Affordable Care Act Challenger”. The Wall Street Journal. 9 February 2015.

Benen, Steve. “Anti-ACA case descends into gibberish”. msnbc. 28 January 2015.

Milbank, Dana. “Republicans cut and pasted their ‘new’ Obamacare alternative”. The Washington Post. 6 February 2015.

Jindal, Bobby. “The GOP Mustn’t Offer Obamacare Lite”. Politico. 1 February 2015.

Thomas, J. Clarence. “On Application for Stay”. Strange v. Searcy, et al.. Supreme Court of the United States. 9 February 2015.

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