Liberals to SCOTUS: why, you can’t change Obamacare now!
It was inevitable that this sort of pressure on the Supreme Court would increase as the Obamacare subsidy case draws near—the alarmist attempts to convince the Court that overturning Obamacare would be an unprecedented and catastrophic act on their part:
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.
Author Linda Greenhouse goes on to say that by now so many people are depending on Obamacare subsidies that removing them would be extremely disruptive. That’s not a reason to decide a case a certain way, of course, and it also assumes that Republicans don’t have their own ideas for remedying the situation (such as this, to take one example). But Greenhouse’s article is written to give heart to the liberal troops who are understandably upset that Obamacare is threatened still again, and to intimidate the swing members of the Court if possible (that would be Stevens and Roberts, I assume).
If you remember the unseemly haste with which Obamacare was passed, and then the arguments about how it’s now settled law and therefore cannot be changed, it’s obvious that this was always the plan: ram it through and then say it’s inviolate because so many people have become dependent on it.
Hard to believe it’s been almost five years since the thing was passed.
I don’t like to make predictions, but I’m going to make one, just as I did before the Sebelius ruling. Back then I wrote (and when reading the following and applying it to the currenct situation, just exchange the words “state subsidies” for “mandate”):
…[E]ven though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people…
This case is a bit different. Striking down the subsidies wouldn’t be invalidating an act of Congress, it would be interpreting the words in that act as they were written. Of course, the people who passed it back then now say that those words didn’t actually mean what they seem to mean.
At any rate, my point is that I don’t think SCOTUS will rule against the subsidies, although I think by rights they should. I think the swing justice[s] will get cold feet because the repercussions of the decision frighten them, and I think the Democrats and Obama were always counting on that fact. Actually, they were surprised SCOTUS had the guts to take the case in the first place.
[NOTE: More from William A. Jacobson at Legal Insurrection.]
[ADDENDUM: I see that this isn’t the first time I’ve made the prediction that SCOTUS will get cold feet on its decision about the state subsidies. I already said it last July, in a post that discusses some of the law on the subject.]
“At any rate, my point is that I don’t think SCOTUS will rule against the subsidies, although I think by rights they should.”
Perhaps and if so it will be most illuminating to read how they think their way around this.
Oh, you’re such a pessimist, Neo. But usually you’re right. In this case, though, I have some hope. I can’t see how, having accepted the case, they can fail to rule against the subsidies.
mizpants:
I hope I’m wrong. But if I am wrong, the GOP had better be ready to deal with the fallout and repair it, and I wonder if they are.
As for how SCOTUS can fail to rule against the subsidies, the briefs and the press will give them plenty of reasons if they are looking for them.
I think Roberts must be uncomfortably conscious of how bizarre his turnaround seemed last time. I wonder if he isn’t looking for a chance to redeem himself. Am I whistling in the dark? And did they actually blackmail him?
Remember, it’s just a typo – right?
the GOP had better be ready to deal with the fallout and repair it, and I wonder if they are
It’s going to be a tricky one for sure. A recent poll showed that 64% of Americans want to keep the subsidies.
“I think the swing justice[s] will get cold feet because the repercussions of the decision frighten them” neo
I agree but what ‘repercussions’? A fear of written and verbal criticism? That is so frightful that flight from their societal responsibility can be even contemplated? If so, then their actions prove their unfitness for the office they hold and it will be more evidential proof that the ‘gangrenous’ rot in the federal government is so widespread that the ‘patient’ cannot be saved.
“I can’t see how, having accepted the case, they can fail to rule against the subsidies.” mizpants
Roberts has shown the way and before him, Bill Clinton. Simply redefine the meaning and definition of key words. “It depends on what the meaning of the word ‘is’ is.”
I’m a bit more optimistic than neo. All the court has to keep in mind is that the statute could be fixed in a day by Congress. Democracy, right? Seriously, rather than go through contortions, just throw it back to Congress for clarification and / or repair. Thats their day job, nothing whatsoever wrong with that.
I have no faith that a majority will do their duty and up hold the letter of the law. Words now mean whatever one wants them to mean.
A point should be made that all laws ought to be subject to sun-setting, drastic revision, or outright repeal. When one can see that a law isn’t working, the only sane thing to do is to change it or repeal it. Though Prohibition was made an amendment to the Constitution, when it was clear the law was causing more problems than it was solving, it was repealed. No law can be set in stone. It would take Solomon-like wisdom to craft laws that are perfect and stay perfect. We have few politicians as wise as that in this day. I would be pleasantly surprised to see this abominable law either repealed or modified so that it is far more market oriented.
All that said, I agree with neo’s take. The SCOTUS has been thoroughly politicized over the years.
“Stevens and Roberts” should be “Kennedy and Roberts.”
As a legal matter and viewed as a simple matter of statutory construction, the government should lose 9-0.
But it will probably be 5-4.
This was a case of a political miscalculation by the Dems. They expected to bribe and blackmail the 50 states to each build their own exchange; maybe as a payoff to the software industry.
But many states wouldn’t bite and the Dems didn’t have the votes to fix their mistake. So Obama used the IRS to change the statute by rule and regulation.
I’ve skimmed some of the briefs for the government and they are pathetic. Dancing reasoning and intellectually dishonest.
But that’s where we are today. Roberts and Kennedy are the swing votes and you never know.
It’s things like this that have put me firmly in the Let It Burn camp.
Our society needs a full reset. Eliminate welfare. Eliminate affirmative action. Eliminate student aid and subsidies of all kinds. Abolish entire government agencies in one fell swoop.
I don’t give a damn who gets hurt by this. I am in a slash & burn mood. A mass dieoff of parasites would be a good thing.
I’ll be standing on my private property with a shotgun.
If SCOTUS didn’t take the case, the status quo would’ve prevailed and I imagine the subsidies would’ve stayed.
I think they must’ve taken the case because they want to say something important about it, and I don’t see them eager to defend the law.