Why I will not make predictions on King v. Burwell based on the SCOTUS hearings
I have learned that’s like reading tea leaves—reading tea leaves in a steamy room where you can’t even see the leaves or the tea.
If previous examples serve, nobody knows. Nobody has much of a clue whether any question each justice asks has any meaning whatsoever in terms of prognostication, or whether it’s just the justices getting their jollies and messing with your (or the plaintiffs’, or the defendents’, or their lawyers’) minds.
But I’ll stick to my previous prediction, based on my general hunches about such things. I was right about the way the previous Obamacare decision (mandate) would go, although I failed to predict the details of Roberts’ reasoning. I make essentially the same prediction now that I made then, for a related reason: the Court’s reluctance to change things and fear of the major consequences of doing so. In the previous case, the issues were constitutional, and it would have been easier to rule against the Obamacare mandate because for the most part the law hadn’t yet gone into effect. In the present case, the issues are statutory, but the law has been in operation for over a year and a significant number of people have come to rely on it.
Should that matter? Isn’t the law the law? And wouldn’t that be all the more reason to stop it now, anyway, before it becomes more and more irrevocable? Well, that’s not the way people—even SCOTUS justices—usually think. If a ruling has enormous potential consequences that seem negative to the justices, it enters into their decision-making process and increases the burden on those who would argue for that change to occur. If in this case the justices fail to overturn the state subsidies as I am predicting they will, it will most likely be based on emotional/political reasoning on their part regarding consequences for real people in the real world, although they will most assuredly find legal cover for it by coming up with other reasons to justify the decision.
That is one reason I’ve been thinking that the Republicans should have come up with a very clear alternative many months ago, one on which they were united, and one they publicized highly so that the SCOTUS justices could see that the consequences of invalidating the state subsidies would not be chaos.
Scott Johnson of Powerline agrees that the outcome of King v. Burwell will be a ruling for the defense, and cites a case with legal precedent to illustrate the general manner in which he thinks it will be accomplished. In Weber, a 1979 SCOTUS case challenging exclusionary racial quotas for whites of a type that had been expressly forbidden by the 1964 Civil Rights Act, this is how a similar statutory dilemma was resolved:
Professor Kull recalls the result, recapitulating the decision more concisely than the Court speaking for itself:
Justice William J. Brennan, writing for a five-to-two majority, could not and did not controvert Justice William H. Rehnquist’s demonstration that Congress in 1964 had intended, by this and other language in Title VII, to prohibit the quota that excluded Brian Weber. His central contention was rather that the color-blind means chosen at the time did not serve the underlying congressional objective, which he identified as the desire to improve the economic position of black workers. It followed that the statute’s true purpose would be served by refusing its enforcement.
Brennan piously intoned the proposition: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Brennan was the keeper of the “spirit,” which was a pure triumph of the leftist will, 1979 edition. In tune with the times, the Supreme Court, I am afraid, stands poised to give us the 2015 edition supporting the gospel according to Barry.
Note that Weber was decided in 1979. That’s a long time ago, reminding us (as if we needed reminders) that this slide towards saying that the law means whatever we want it to mean, and that we don’t need legislative methods to change legislature to suit our current will, had already taken hold by then.
[NOTE: If you want to read other prognostications based on the King v. Burwell hearings, see this.
I will add that I hate to be gloomy here, and I hope I’m wrong, but I have to be truthful about what I see at this point. In order to change things (and minus a black swan event), it would be necessary for conservatives to control House, Senate, and presidency, and to do so for long enough to nominate more SCOTUS justices of the conservative persuasion. That’s a tall order. And to consolidate those gains, conservatives have to mount their own Gramscian march through the institutions of education, press, and entertainment.]
[ADDENDUM: Hey, if I’ve gone this far with predictions, I’ll go even further in throwing caution to the winds and saying that it will either be 5-4 with Kennedy joining the liberals, or 6-3 with both Kennedy and Roberts doing so but for different reasons.]
You can nominate me for the court if you want. Here is my decision:
This law was written one way, amended in the middle of the night, and no one had a chance to read it. It is a crappy piece of legislation, as the many amended regulations attest to. Dates for complying were set even thought the mechanisms that would allow people to comply were not functional. I realize that an immediate overturning of the law would be disastrous for many Americans; therefore I rule that it can continue to provide medical coverage for 1 year. During that time a new bipartisan health care reform can be drafted and voted on. The president must follow the drafting and forego golf games until a plan is created that all can agree to. Have a good year, follks.
I should have added that if this ruling is not followed, I would expect impeachment hearings to begin for the president and congressional leaders one year from today.
Do you mean Kennedy rather than Stevens? Stevens is already a lib.
On a positive note, it doesn’t make much difference how they decide.
KLSmith:
I absolutely mean that. Haste makes waste. I will fix it, thanks!
(That’ll teach me to make predictions.)
I have learned that’s like reading tea leaves–reading tea leaves in a steamy room where you can’t even see the leaves or the tea.
really?
i can tell you how it will go as the supreme court lost its balls when it lost its balls… they have never turned things into a raging turmoil for the cause of what is right. at least not in modern times… and since we live in modern times, they wont now…
they stoped being a meaninful thing a long time ago
much like any institution in which there is power and an ability for the leftists to take over and use that power till its used up..
no analysis needed..
you just have to ask… which answer will cause more social problems for them… given that, there is only one answer, they will take it, and let the less problematic just stew in it.
besides, the people who care are dying out and are not going to be listened to… people who are not to exist in the future in numbers enough to matter, dont matter to these people…
do they?
-=-=-=-=-=-
meanwhile.. caucasians are minorities in under five years now… not bad… in less than two generations more have self exterminated their family lines by becoming feminists than germany got rid of their targets with ovens… convincing women to end their branch of the 2.5 billion year unbroken chain of life was as easy as getting eve to be cast out of eden.
think that the new minority will have minority pribeleve status, or will be treated more liek coptic christians in egypt?
but dont worry… ther was no genocide cause that is what you want to believe!!! how else do you go from 80% to under 25% in one generation or 1.5 generations without a plague, world war, etc…
the smartest western women offed their smart lineages in favor of funding women with 3 men, 6 babies, and no skills…
good job ladies..
what took 10,000 years to make and reach
took less than 50 years to destroy forever
even now they are shocked that the political class ignores them as if they are already dead and gone, as they are already dead and gone compared to the new growing masses of people… given that they did not have kids, they marginalied themselves after being used!!!!!!!!!!!!!
Census shock: White children won’t be majority in 5 years…
http://www.dailymail.co.uk/news/article-2979739/More-HALF-children-minorities-2020-immigrant-baby-boom.html
Artfldgr:
You misunderstood what I was saying.
I am not using the tea leaves analogy to say it’s hard to predict what SCOTUS will do. I’m saying it’s hard to predict if you try to base your prediction on the questions the justices ask at the hearings, which is what a lot of people try to do.
It has been my observation that the questions are red herrings. My predictions are based on other things.
If you look at the post’s title, and then connect it to the post’s first two paragraphs, that will tell you what I’m saying. They are meant to be connected.
Actually, you and I are in agreement on our predictions of how the ruling will go.
It seems simple to me as the wording on who may receive subsidies is straightforward, and Gruber admitted its purpose was to compel the states to set up their own exchanges. But I realize politicians and lawyers have a way of making the simple convoluted. I am hoping for a 5 to 4 ruling against obamacare, but my common sense tells me its a slim hope.
You misunderstood what I was saying.
i always do…
sorry.
i should not exist… a total waste..
sorry i miss things..
i try not to…
if i didnt i might have a life…
sorry… 🙁
Artfldgr:
You don’t always misunderstand. And it has nothing to do with your worth as a person. No need to apologize, either. As they say in Brooklyn, fahgetaboutit.
As Karl Popper said, there’s no way to speak so you can’t be misunderstood. Well, there’s also no way for person A to hear or to read person B’s words so that person A doesn’t sometimes misunderstand them. Misunderstanding is part of the human condition.
When my son was 10, he came home upset about a social studies test. One question asked the purpose of the Supreme Court. The correct answer was supposed to be To make sure laws are fair. He wrote in None of the above. It is to make sure laws are constitutional. His answer was marked wrong.
LisaM:
That’s a frightening story, although I suppose not surprising.
Was he able to challenge the teacher? I know that’s hard to do, of course.
The decision should be 9 – 0 against. The fact that we’re even having this debate is depressing. There is really no gray area on this one – if the subsidies are upheld we are really in Alice-in-Wonderland territory.
You’ve missed something:
Only a trivial fraction of the nation is actually affected by this issue.
That may amount to millions — but it figures to be less than 1-2% of the nation — AT THIS TIME.
0-care HAS NOT REALLY KICKED IN YET. The foul-up is going to compound away from here on down. Sort of like the Civil War, WWI and WWII. Everything gets much worse as time rolls forward.
Additionally, it’d be easy for the Supremes to toss the issue back to Congress — for a corrective bill.
Such a gambit would force 0-care to pick up some Republican support.
Ironically, that’s EXACTLY what Barry Soetoro should’ve been scheming for at every stage.
The termination of subsidies in the 36 (?) states could mean that the states fold and enact the legislation required.
As it stands, the USSC is being drawn into a purely partisan fight between the parties. To go with Barry they have to grossly re-write the statute — against all the facts — on the basis that it’s best to bail out the Democrats from their PARTISAN folly.
The Supremes HATE that. It’s the one spot that they always dance away from.
0-care smacks of the start of Civil War II. For it sets the tables for a dramatic shift in voting balance reaching out as far as the mind can conceive.
Buchanan did exactly that with Dred Scott.
He triggered a Lincoln.
Buchanan THOUGHT he was setting the stage for a perpetual Democrat dominance.
Hillary already looks like she’s taken lethal flak.
Her usual deflector screen is failing in four quadrants.
Risk is high.
{ How she can ride out the $ 2+ BILLION given to buy her favor from Muslim nations — impossible to imagine. }
One should expect that her lover, Huma, has plenty of touchy back-channel chatter to and fro Egypt.
And Egypt has had a fulsome change of government.
It’s a creek she can’t paddle.
It’s time to call the bull pen.
The junior senator from Mass will not be able to cut it either.
By the time Iran and ISIS finish, this nation will want to revive Andrew Jackson.
You depressed me Neo. Not that I disagree; you just forced me to stare into the face of reality.
Not to be excessively mean or vindictive, but I hope that John Roberts has many sleepless nights, tossing and turning and reflecting on the damage he wrought to the country, and especially to the Supreme Court that he is charged with defending.
If the Supreme Court reasons as you surmise–and they probably will–then their only effect is to rubber stamp whatever travesty the government presents to them fait accompli. Rubber stamps are cheap, so why do we need this expensive charade at all?
The next logical leap would be to question whether we are any longer a constitutional Republic. Of course, Leftists already dispute whether that is viable.
In a perfect world, Chief Justice Roberts makes a massive amends for his previous Obamacare ruling and goes with Scalia, Kennedy, Thomas and Alito. For Godsake, Sir, make things right.
Lisa M. Just want to say “Bravo to your son”, and congratulations to his parents who clearly augmented his education.
If only more Americans had his understanding of the purpose of the Supreme Court.
It’s almost like the GOP establishment likes big government and just wants to manage it not implement reforms that will reduce the size of government. /sarc
Because I am an optimist who believes that sometimes people will do what is right, which in this case means, follow the law. I predict it will be 6-3 for the plaintiff.
Kagan, Kennedy, Alito, Thomas, Scalia and Roberts.
I make essentially the same prediction now that I made then, for a related reason: the Court’s reluctance to change things and fear of the major consequences of doing so.
Sort of like Dred Scott. The Court and Roger Taney could have found for Scott, or even could have declared slavery unconstitutional. But they chose not to, presumably for the same reasons.
A couple of items –
Kennedy wanted to throw the ACA out the last time it came up in front of the court. And the rumor is that he was pretty upset about Roberts’s supposed last-minute vote switch. While I won’t rule out that he could be the key vote, I have a hard time seeing him vote in favor of the ACA this time. I’d expect him to be looking for a way to get rid of it. That’s not definite, obviously. But he’s clearly open to the idea.
Second, the media ran a second healthcare related story yesterday. Specifically, Senator Cruz has apparently introduced a bill for a substitute healthcare program. The intent on the timing of the announcement seems to pretty clearly say, “If the Supreme Court destroys the ACA through this ruling, then the Republicans already have a plan ready to go.”
junior:
Yes, I saw that plan of Cruz’s, and agree about the timing. But it has to be emphasized much more that the GOP is up to planning ahead.
One point no one has addressed, however: if SCOTUS did rule in the plaintiffs’ favor, I have a hunch that Obama would veto anything the GOP came up with that substantially changed Obamacare. He has nothing to lose, and he’s going for broke. He already has seen the GOP fold and thinks he can win any battle. He would be saying the only bill he will sign is one that essentially re-passes Obamacare and makes it explicit that the states can establish their own exchanges and give out subsidies.
It would certainly be an interesting situation, wouldn’t it? I submit that Obama is fully capable of such a move. If the GOP dug in and the majority of Democrats supported Obama’s position and therefore Congress couldn’t override, the entire health insurance system would be in chaos. Obama would blame it on the GOP, that cold, uncaring, nasty bunch of people.
I don’t know whether it would work, but his track record on audacious moves and successful GOP-blaming is quite good.
Hmmm, I may write a post on this…
After reading your disquisition on the legal niceties of the whole King v. shebang I have one question:
Can you ever forgive yourself for sending you to law school?
Nolanimrod:
I consider that my time spent in law school was tremendously valuable. Even though I’m not and never have been a lawyer, the education taught me an extraordinary number of things I don’t think I would have known without it.
You may laugh—people love to make fun of law and lawyers. But I have deep respect for the system of law, at least in the abstract, and even for quite a few of its practitioners. Going to law school, and getting through it, disciplines the mind in a practice of logic and logical argument. Yes, of course, lawyers can twist and distort and use sophistry and all that, but at its best (and it is often very good) law and studying law teaches a person to sharpen his/her mind and be able to defend what he/she says, as well as to communicate it clearly.
When I had graduated from college, which is when I went to law school, I knew next to nothing about law or practical things connected with it. My legal knowledge is of course outdated now, but not the reasoning and principles behind it. I find that to this day I know much more about the way it all works than my friends with no legal training do, and it has held me in good stead through a host of life experiences.
I assume you meant to make a joke, but I’m choosing to answer this topic seriously.
Your complaint on reading this post is really about the vagaries of human nature and about politics rather than about law itself, isn’t it? No system can be devised that circumvents human nature and politics, or even graft and corruption.
Neo, I just read at Gateway Pundit that there was an 8-car derailment of oil containers in Galena, IL, right after Obama’s Keystone veto. We also had Netanyahu calling attention to the bad Iran deal this week. We also have the amnesty decision. It may be that subconsciously these may have an effect on Obama’s more moderate supporters. Those supporters may not want to admit they were wrong, but they may be willing to listen to the other side when Obama plays his blame game again.
Neo: “… it would be necessary for conservatives to control House, Senate, and presidency, and to do so for long enough to nominate more SCOTUS justices of the conservative persuasion. That’s a tall order. And to consolidate those gains, conservatives have to mount their own Gramscian march through the institutions of education, press, and entertainment.”
I, of course, would tweak that with, to make those gains in the first place, conservatives have to mount their own Gramscian march through the institutions of education, press, and entertainment.
You’re correct, though, that to consolidate those gains requires that, too. The activist game is the only social political game there is.
As to LisaM, your son was not wrong, but neither was his social studies teacher. At the SCOTUS level, policy, where fairness – however a Justice defines it – is a factor, is a heavy component of the analysis. Contrary to what many people believe, the law school course of Constitutional Law is not limited to originalist reading. If anything, Con Law teaches the mutability of the law in the hands of the Court, starting with Marbury v. Madison. Taking Con Law in law school reinforces the importance of social advocacy, the activist game.
The court had better come up with some compelling, brilliant argument to support their decision (assuming the ACA is upheld), because otherwise they’ll be overriding what the plain text clearly says.
If that happens, then we aren’t a nation of laws anymore, and the law will mean whatever POTUS says it does.
It should not be hard to say how King v. Burwell will be decided but, of course, it is.
The larger issue is whether the justices are going to come out of this still a Supreme Court and third branch of government or emerge as glorified hearing examiners toiling in another lawless executive agency.
I’m sure Neo is right, but the funny thing is, if this case were on any other statute — say, for example, the Internal Revenue Code — the decision would be 9-0 for the plaintiffs. The Supremes have ruled many times that when a statute is unambiguous, the Court will not look behind it to revise its meaning. The statute is clear and unambiguous. Under settled Supreme Court precedent, the plaintiffs win.
Alas, the Supreme Court is now to justice what Obama is to a President.
the Republicans have shot themselves in the foot with this one, which is sad because I believe we are going into the way of 1 party (D) rule. Sasse is right- the outrage is going to be reminiscent of the W& Iraq years if the case goes in the plaintiffs’ favor.
By depending on the federal govt for the healthcare outlay, Republicans thought they were sticking it to O. And they were *until* the SC accepted King case. Now all of those states will suddenly lose coverage; thanks to cover to cover news, any red state will most likely turn blue, despite the fact that less than 5% of Americans (based on what the news says – 11 mil v 350mil) actually have PPACA coverage (I am one of them).
Now in panic, those who were against OCare are screaming at the Dems. That is just projection. They really should be kicking themselves for this strategic cock-up. It was a good complaint as long as it was not acted on, especially during election season (which, let’s admit, we are now in). The best thing to have done, like Neo-neocon said, was to work on a Plan B from the beginning or (me) done nothing and let OCare burn out. This year there are less plans and higher costs, which has become a burden to the people the Dems cared about. Now the Reps have to hope that OCare stays to have some hope in 2016.
The one distant hope is tax season. If the taxes of PPACA users screws them over, than there is a chance *everyone* will want this scrapped and redone.
Federalism is dead, and the rise of the patchwork welfare state since Johnson’s “Great Society’ killed it.
That said, just as Congress delegated away all its powers an prerogatives, so too – now – has the Supreme Court.
All power now flows from the President, and most wealth flows to those who serve Him – and thus the counties surrounding DC have become the richest ones in the US.
And finally, the Imperial City, Lording all Power and prerogatives to cronies in the hinterlands, we have become the Modern Day Rome. A Rome losing the Republic, gaining a Ceasar – until, one day, someone has the courage to kill the King.
History doesn’t repeat, but sometimes it rhymes. And it that it is today.
PS Neo, nice of you to recall the Popper quote, about the impossibility on there being no misunderstanding between communicating parties. It is so true.
Truth telling today has become a revolutionary act – but living in revolutionary times requires much more than “We, the People” can muster.