King v. Burwell

The Ted Cruz Show (Hair-on-Fire Apoplexy)

Sen. Ted Cruz (R-TX) responds to the 2015 State of the Union address in an online video, 20 January 2015.

“As ridiculous as Cruz’s posturing seems, it’s important to remember the broader context: national GOP candidates have a built-in incentive to be as hysterical as possible right now, in the hopes of currying favor with the party’s base. Mild, reasoned disappointment with the court doesn’t impress far-right activists; unrestrained, hair-on-fire apoplexy does.”

Steve Benen

This is an obvious point, or, at least one might think.

Steve Benen points to his msnbc colleague Benjy Sarlin’s report Friday last detailing the 2016 GOP presidential reactions following the Supreme Court’s 5-4 decision in favor of same sex marriage:

Sen. Ted Cruz (R-Tex.) went so far as to call for a constitutional convention to overturn the court’s decision while campaigning in Iowa, according to CNN. In an interview with Sean Hannity he called the back-to-back rulings on health care and gay marriage “some of the darkest 24 hours in our nation’s history.”

While the Texas junior is hardly the only Republican presidential candidate opting to skip out on posturing his response within the realm of general dignity, Mr. Benen responded aptly:

Hannity, incidentally, found Cruz’s rhetoric quite compelling, responding, “I couldn’t say it more eloquently.”

For what it’s worth, it’s not hard to think of some genuinely tragic 24-hour periods in American history. The Lincoln assassination comes to mind. So does the time British troops burned the White House. There were days during the Civil War in which tens of thousands of Americans died on the battlefield. Just in the last century, we witnessed the JFK assassination, Pearl Harbor, and a corrupt president resign in disgrace.

For the Republican presidential hopeful, learning that Americans will have health benefits and loving couples will get married belongs on the same list.

The thing is that Mr. Cruz is not entirely wrong; the rest, as Benen points out, is a matter of perspective.

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The Messenger

Congressional Budget Office Director Keith Hall, in undated photo from Bloomberg News.

This is not surprising:

The economist that Republicans handpicked to run the Congressional Budget Office just told Republicans that one of their favorite arguments about Obamacare is wrong.

According to a report the CBO released Friday, repealing the Affordable Care Act wouldn’t reduce the deficit, as Republicans have long claimed. It would increase the deficit, by at least $137 billion over 10 years and maybe a lot more than that — with the effects getting bigger over time.

Of course, that’s in addition to the effect repeal would have on the number of Americans without health insurance. The CBO says the ranks of the uninsured would increase by 19 million people next year.

(Cohn)

While it doesn’t necessarily count as a surprise, there is still one mystery here: How does this keep happening?

After all, conservatives have a rough tradition of aiming to subordinate reality to politics in public service, with inconsistent results because enough of these appointed servants still remember what they’re on about. And once again, there is simply no way to twist reality to suit Republican fancy; after all their effort to find a CBO director who would say all the things they want, Keith Hall just couldn’t do it.

We might, then, wonder why they bother trying this sleight in the first place.

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Image note: Congressional Budget Office Director Keith Hall, in undated photo from Bloomberg News.

Cohn, Jonathan. “Obamacare Repeal Would Swell The Deficit Even Using GOP’s New Math, Budget Office Says”. The Huffington Post. 19 June 2015.

King v. Burwell (Wingnutshell Party Mix)

U.S. Sen. Jeff Sessions (R-AL), January, 2014.  (AP Photo)

“Just once, I want to hear an ACA critic admit what is plainly true: King v. Burwell is a brazenly stupid con, but they’re playing along with the charade because they really hate the president and his signature domestic policy initiative.”

Steve Benen

Really, it is a reasonable suggestion.

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Benen, Steve. “The importance of setting Sessions straight”. msnbc. 5 June 2015.

Morbid Hilarity (King v. Burwell Throwback Mix)

That King v. Burwell has even made it to the Supreme Court becomes even more of a mystery; the cynicism of the case is plainly apparent; even Justice Scalia is reduced to cheap politicking.

Perhaps, then, we ought not be surprised at Ian Millhiser’s report for ThinkProgress, which runs under the lovely title, “The Lawyer Telling The Supreme Court To Gut Obamacare Explained Why He Should Lose In 2012”, should surprise nobody:

On Wednesday, a lawsuit seeking to defund much of the Affordable Care Act appeared to hit a roadblock when Justice Anthony Kennedy expressed concerns that the plaintiffs’ reading of the law is unconstitutional. Though Michael Carvin, the lead lawyer challenging the law, attempted to extract himself from this roadblock, he quickly ran into an entirely different obstacle — his own past writings.

Attorney Michael Carvin, who argued King v. Burwell before the Supreme Court of the United States, 3 March 2015, on behalf of plaintiffs hoping to overturn the Affordable Care Act, in an undated photo.  (Image credit: AP/Pablo Martinez Monsivais)Carvin claims, in a case called King v. Burwell, that Obamacare should be read to deny tax credits that enable millions of Americans to afford health insurance in states that elected not to set up their own health exchange (under the Affordable Care Act, states have “flexibility” to decide whether to set up their own exchange or to allow the federal government to do so). During oral arguments on Wednesday, however, several justices raised concerns about the catastrophic damage Carvin’s reading of the law could inflict on those states’ insurance markets ....

.... Carvin tried to downplay the risk that consumers would simply stop buying plans in the law’s health exchanges if the tax credits were cut off, claiming that these consumers would still be attracted to exchange plans by the fact that the exchanges offer “one-stop shopping” for people looking to buy insurance. He also claimed that Congress wasn’t worried about the risk of death spirals if the tax credits get cut off. According to Carvin, “there’s not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral.”

But Carvin himself sang a very different tune three years ago. Indeed, Wednesday was not the first time he’s stood in the well of the Supreme Courtroom and asked the justices to gut the Affordable Care Act. Carvin was also one of the lead attorneys in NFIB v. Sebelius, the first Supreme Court case attacking the law.

In a brief filed in NFIB, Carvin explained that “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” And, contrary to his more recent suggestion that Congress never envisioned any danger if the tax credits are cut off, Carvin wrote in 2012 that “the insurance exchanges cannot operate as intended by Congress absent those provisions.”

In a subsequent brief, Carvin elaborated that “the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges.” He also seemed to contradict his central claim that different states are treated differently depending on whether their exchange is operated by a state or the federal government. The Affordable Care Act, according to the Michael Carvin of 2012, “enables uniform and acceptable federal premium subsidies”.

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The One About How Nine Justices Walk Into a Bar ….

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. (Photo: Stephen A. Masker)

“Congratulations, Congress, you’ve literally sunk to the level of a punch line.”

Steve Benen

The proposition that Congress is a punch line strikes few as new material. Even the idea that a Solicitor General would take the shot is not so strange. Yet Steve Benen makes the point about Justice Scalia’s blithe view of the 114th Congress:

Scalia wasn’t kidding. “I don’t care what Congress you’re talking about,” he added. “If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot – yes, I think this Congress would act.”

On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn’t even exist because Congress would have clarified the ACA structure years ago.

And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they’re receiving now.

But that’s all the more reason to understand exactly why Scalia is wrong.

Perhaps it is Justice Scalia who is the punch line. Then again, neither is that news.

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The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom. (more…)

An Interesting Point About King v. Burwell

Ah, Gail Collins:

Here is how great the Affordable Care Act is doing: The Supreme Court is about to hear a challenge to the law, filed on behalf of four Virginia plaintiffs, who claim to have suffered grievous harm by being forced to either buy health coverage or pay a penalty. Lately, reporters have been trying to track down this quartet of pain, and discovered they are:Gail Collins, columnist for the New York Times.

— A 64-year-old limo driver who does not seem to be required to do anything under the Affordable Care Act because the cost of even a very cheap health care plan would be more than 8 percent of his income. (People who have to pay more than 8 percent are allowed to just opt out of the whole program and stay blissfully uninsured.) Also, he’s a Vietnam veteran and thus presumably eligible for free veteran’s health care, making the whole discussion even more irrelevant.

— A 63-year old man in Virginia Beach who would apparently have been eligible for stupendous savings on health insurance under the new law. And who is also a veteran.

— A woman who listed her address as a motel where she hasn’t been staying since late 2013. And wherever she is, she probably wouldn’t have any Obamacare problems because of the 8 percent rule.

— A 64-year-old woman who seemed to have little or no idea what the case was about. “I don’t like the idea of throwing people off their health insurance,” she told Stephanie Mencimer of Mother Jones.The New York Times

That plaintiff, an anti-gay rights activist, also told Mencimer that because of previous health problems, she faced insurance costs of $1,500 a month, a vastly higher premium than she’d pay under Obamacare. Also, The Wall Street Journal determined that her annual rate of pay as a substitute teacher was so low she, too, should be off the hook because of the 8 percent rule. Also, she’s about to qualify for Medicare.

Comments by some of the plaintiffs did suggest that they experienced serious pain over the fact that Barack Obama is president. “… When he was elected, he got his Muslim people to vote for him, that’s how he won,” one told Facebook.

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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.

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A Note on Frivolous Lawsuits

Contemplation of Justice

Here’s a fun conundrum: Sometimes it seems important to note, “If you need the quick version …”, except, well, some of those times it’s probably important to look at the long version.

Such is the power of good narrative; Steve Benen, for instance, provides us with the setup:

Remember, when challenging a federal law, it’s not enough for someone to get a lawyer, go to court, and demand the law be struck down. In the American system, plaintiffs need standing – litigants have to demonstrate that a law harms them in some direct way.

And so, in the painfully absurd King v. Burwell case, anti-healthcare lawyers went out and found four people willing to sue because they’re eligible under the Affordable Care Act for insurance subsidies. They’ve been largely overlooked, but given the possibility that this case will end access to medical care for millions of families, it seems like a good time to ask, “Who are these people who want to destroy the American health care system?”

Stephanie Mencimer reports today on all four of the plaintiffs, and it’s quite a collection of folks. For example, David King of King v. Burwell notoriety, “brought up Benghazi” when asked about the anti-healthcare lawsuit. Rose Luck believes President Obama may be the “anti-Christ” and was elected by “his Muslim people.” But a Virginia woman Brenda Levy stood out as especially significant ....

Right. You know this only goes downhill. Go with Benen if you want the short form.

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