King v. Burwell: SCOTUS rules that state subsidies are just fine and dandy
We were expecting the ruling in King v. Burwell any day now, and here it is. The vote was 6-3, with swing justice Kennedy and new swing justice Roberts joining in interpreting the statute in a manner that preserves the status quo. So although Roberts continues his pattern from Sebelius, it was not determinative because even without him the result would have been the same, at 5-4.
When I emphasize preserving the status quo, I do so because I am firmly convinced that was the motivation (and I mean the sole motivation) for this ruling. Professor William Jacobson at Legal Insurrection agrees:
As he did in upholding an Obamacare constitutional challenge in 2012, Roberts found a way to read the law so as to save the law…
The Court found Obamacare so “inartfully drafted” that the Court essentially wrote the law for Congress through “statutory interpretation.”…
Roberts and the majority did not want to be the ones to take down Obamacare, and that drove everything:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.” [at 21]
Scalia’s dissent, joined by Thomas and Alito, was stinging, and in my opinion correct as to the absurdity of the Court contorting itself to save the law (as Roberts did in the original Obamacare challenge):
“The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” [at 1]
From Scalia’s dissent: “We should start calling this law SCOTUScare.”
I believe Professor Jacobson is quite correct (as is Justice Scalia). The Supreme Court turned the law, if not upside down and inside out to find for Obamacare, then at least sideways. The same was true, if not more so, of Roberts’ opinion in Sebelius.
That latter fact is why I predicted exactly this outcome, as I did the outcome in Sebelius. This isn’t about caring whether I’m right; I would absolutely have preferred to have been wrong.
One consolation, however (if you can call it that), is that I don’t think the GOP was ready to deal with it if the decision had gone the other way. They might have risen to the occasion, but somehow I doubt it. We won’t get a chance to find out, however. At least this way the Republicans are spared the constant, incessant parade of sad stories of people whose subsidies were threatened—which is why the Republicans weren’t going to do away with subsidies for states in the first place. The hardship would have been too great; they were going to have a temporary fix while waiting till after Obama’s presidency was over (and his veto power as well), and hope for a Republican president to approve a more permanent and market-oriented solution.
Instead, the Obamacare system will become even more entrenched. That’s why Sebelius, which might have overturned Obamacare before it had really gotten going, was far more important (as well as a closer decision). None of this would stop a determined (read, “more conservative than at present”) Republican majority from changing things in 2016, if they manage to get a conservative Republican president in office. That’s quite an “if,” however.
[NOTE: Here’s what I wrote on the subject in March of 2015 during the SCOTUS hearings on the case:
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…
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.
I recalled that I had predicted a 5-4 vote back then. However, looking at that March post, I find that I actually wrote this:
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.
Well, it was 6-3, but Kennedy and Roberts agreed on their reasons.]
[ADDENDUM: Further thoughts on the ruling and its significance here.]
Does it really make sense anymore to support the Republican party? Other then the abstract principle that over many lifetimes things can change, what’s the point.
Everyone knows that all the Republican candidates are lying when they say they are going to repeal SCOTUScare and Amnesty. It is all, as Clinton once said, “boob bait for bubba”. Does anyone think any of the candidates will appoint Supreme Court judges who don’t “evolve” ?
So we now have confirmation That the Supreme Court has become just as politicized as Congress and the Dept of Justice. For my part, I have lost all respect for the Supreme Court (Alito, Scalia and Thomas excepted) and they were my last redoubt.
We have entered a time in which “the rule of law” has become “the law of rules.” Whether this is permanent remains to be seen.
The GOP establishment would have voted to provide the subsidies. If you think that is not the case, you are delusional.
I’ve been saying for about a year now….they’ve won…it’s over folks. Now with this ruling and the Republicans giving Obama everything he wanted on the trade agreement, how much more evidence do we need? Conservatives are now “White Supremacists”; a term once reserved for the vilest neo-Nazi’s. The US government operates only in the left’s interest. The pope declares climate change a threat to society…etc. etc etc. The train is roaring down the track and there’s nothing we can do to stop it now.
I’ve resigned myself to accept that we will see the dismantling of the US (and other countries) as a sovereign entities over the next decade and the new world government will arise based on corporate/leftist interests.
My out of pocket under Obamacare is close to $10,000. Anyone supporting this can all go to h*** as far as I’m concerned.
If I understand correctly, the court ruled that the IRS may interpret the law as they have been and grant subsidies. A new administration could reverse this by fiat–the court did not say that the IRS must interpret the rule in this way.
When words used in law mean nothing objective, then neither does the law.
Only force and compulsion remain. Which is why the organisms of the left must, by the logic of their own jurisprudential theories, proactively compel, coerce and cut off any means of escape.
You shall express solidarity, that is to say you shall self-sacrificially underwrite their fundamentally antithetical life interests, or else.
“Positive liberty”, as the moral miscreants call it.
Reactions of passive resistance, the seeking of alternative routes, and non-participation strategies are anticipated by the left, and preemptively disallowed.
The liberal loons who mock others for supposedly planning to “Go Galt” , themselves think of little else other than how to anticipate and prevent any who might use this as a route in order to escape the fevered clutch of the modern liberal.
They will have you, or die trying to.
They never do leave much in the way of options.
What Physicsguy said…
For John Roberts, unlike John Marshall, the Supreme Court doesn’t declare what the law is. It reads election returns and rewrites the law in order to save the law and, in turn, bail out Congress and the President.
In other words, burn down the village and the rule of law in order to save the village and the political branches from themselves.
Scalia is the one to read.
This is a dark month for American jurisprudence.
One good thing: GOP candidates can run on repeal of ACA and, if they win, have a mandate.
Health insurance stocks up sharply today. Crony capitalism at its best. Nebraska’s Ben Nelson enjoying the fruits of his sell out to his cronies in the insurance industry.
Hillary Clinton must be defeated.
Carthage must be destroyed.
And Justice Roberts has been doing this in part in order to “preserve the integrity of the Court”?
Give me a break.
At least we won’t have to see the Left blame an “adverse ruling” on the GOP. In fact, the ever-feckless GOP may have caught a break here.
Onward, comrades, onward to Single Payer!
Basicly 6 justices said we don’t give a shit what the law “as written says” we NEED Obamacare … end of story.
T says @ 11:41am:
“We have entered a time in which “the rule of law” has become “the law of rules.” Whether this is permanent remains to be seen.”
I concur with T and physicsguy.
To quote Scalia in his dissent,” ‘established by the State’ means not established by the State.”
This is worse than Sibelius.
Worse.
There might then have been a basis for trying to obscure the difference between “penalty” and “tax”, however tortured that logic may have been (and surely was).
But, per Scalia, this turns basic language upside down. Maybe that is the ultimate destination of Leftists and their wordsmiths. If so, we have arrived.
The center cannot hold. The country is coming apart.
They re just getting us used to *how it s worded dosent matter* its how WE say it that should matter
Next the 2nd amendment will be it their sights.
Harold:
Do you really think ALL Republican candidates are like that?
I don’t.
Some are actually conservative, and would support different policies and principles. A Republican Congress, even with a fair number of RINOs in it, would never have passed Obamacare in the first place. either.
The left is counting on the right to become just as demoralized and “it doesn’t matter, they’re all the same” as you are, thus making the left’s ascendance that much easier.
As far as appointing SCOTUS justices goes, I don’t think that Ronald Reagan (who appointed Kennedy) intended to support a justice who “evolved” in the way Kennedy has. Justices are human beings and not entirely predictable, but the history of the Kennedy nomination involves two important things to remember: the first is that Reagan was dealing with a Congress controlled by Democrats, and the second (closely related) is that Reagan’s first choice for the seat was Robert Bork. You know what happened to Bork, a very staunch conservative—he gave his name to a new verb, “borked.” Reagan’s second nomination, Douglas Ginsburg (after Bork), had to drop out after it was revealed that he’d smoked marijuana (NPR’s Nina Totenberg was behind the campaign to discredit Ginsburg). Kennedy was finally nominated because it had become clear that the Democrats who controlled Congress were not going to approve any truly conservative SCOTUS justice. Reagan was no squish, and he was a conservative, but Kennedy was more middle-of-the-road.
You may recall that Roberts was slightly unknown but was definitely considered a conservative. I don’t think Bush, who nominated him, or many other people either, considered him liberal at the time or anywhere near it, and it really is mostly in his Obamacare decisions that he’s voted as a liberal. Personally, I think he is merely a coward.
This decision has done great damage to the rule of law. Laws now mean whatever the SCOTUS says they mean, even the opposite of clear language.
Where do we go to get the rule of law back?
Gay marriage will be 6-3 on Monday.
Jen Psaki at the WH said there were screams of joy and literal dancing in the halls today.
Major party on Monday. Barack might even give up his regular round on the links in order to party with the LGBTQ lobby.
A bright side to this is that SCOTUS’ ruling doesn’t actually matter as to the fate of Obamacare: the SCOTUS can’t override the laws of economics.
If socialism worked, Venezuela and Argentina wouldn’t be running out of toilet paper.
The death spiral has already begun, and now the GOP’s hands remain clean, despite their best efforts.
The idea that the GOP establishment is better than the alternative is a joke. Dems pass some big gov’t program. The GOP establishment finds a way to keep the program. It is a ratchet effect. There is no repeal. There is no real opposition. The only difference the GOP makes is in the rate of growth of the federal gov’t.
What is the solution? I think change will come from the states. The GOP controls almost 2/3 of state legislative chambers. Budget pressures and voter anger against DC are likely to put more chambers under GOP control. The GOP establishment in DC does not control the state GOP parties. There will be two concentrations of power: DC GOP and state GOP. I think the latter will assert control if and when they gain control of enough states.
http://www.washingtonpost.com/blogs/govbeat/wp/2014/11/05/republican-sweep-extends-to-state-level/
S&P 500 up 7% in the past year.
UNH is up 50%.
All health insurance companies up big time since the ACA was passed.
Why?
More customers, federal subsidies, much higher deductibles and co-pays, and much higher premiums.
The best part is limited competition within the states; a cozy oligopoly. The Street knows the score. The ACA is all about crony capitalism and screwing the middle class.
Only wish I would have bought UNH.
+1 for physicsguy.
Words mean nothing; the rule of law is dead; and naked power is all that matters.
We’re all living in Chicago now. All that matters is power. Corruption, dishonesty, and fraud are the coin of the realm. Facts don’t matter. Law is merely whatever the powerful say it is. The media serve merely as propaganda whores for the dons.
Kids — the examples of how to succeed in life are all there for you: Clintons, Obama, Gore, Mann, Roberts. This is America, Al Capone style.
If you aren’t part of the powerful elite, the question is how big a sucker do you plan to be?
Can you imagine that there was once a time when people respected the role of law in America?
Al Capone faced a stronger rule of law than Obama. [Or the Clintons, Gore, Corzine, Mann, Reid, Sharpton, et al] Dishonesty, fraud, corruption, and lawlessness from sea to shining sea.
“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Frog:
It isn’t often that you and I are found to think EXACTLY alike, but look at the end of the post I just posted.
We have a Supreme Court equivalent in substance to the one that decided Dred Scott. Only now it’s doctors who are deemed worth of enslaving.
I saw elsewhere someone posting that it would be easier to pass laws now – just a title and blank piece of paper.
Roberts memory will not be good as history judges him..
ie. if thousands end up dying and all that and they realize its cause of the law, roberts will be the poster child of all that death and misery
but anyone want to relize how dangerous socialist infiltration and gaming actually is?
its a trojan horse without the horse
where people once placed belay others.
JuliB:
A law “to be named later.”
And “we have to pass it to not only know what’s in it, but to have SCOTUS write it for us.”
At his confirmation hearing John Roberts said he would act like an umpire.
What a complete joke.
With the four libs, we know what we were getting. Roberts completely misrepresented himself to the President Bush and the Senate.
A complete disgrace.
“Roberts completely misrepresented himself to the President Bush and the Senate.”
Agreed!
The seriousness of the King v. Burwell decision cannot be overstated.
Gravity is no longer a force of nature. Gravity is what the Ruling Class says it is: Down is Up when it suits them.
The seizure of language is an unspoken part of the Gramscian scheme: gay no longer means happy, carefree; Electric meters that can be centrally controlled to reduce usage are “SmartMeters”; “SmartGrowth” is comprehensive, immutable central planning; marriage is a union of whatevers; fetuses in human uteri are no longer human beings; democracy is tediously invoked despite the overwhelming evidence the will of the people is daily overruled and ignored by those who most applaud it (See Democratic Republic of Korea).
I read recently that we live in a most unusual time, a time that is clearly ending, a grander time to have lived than any other time in human history. We are flushing it away. There is no tomorrow of better things to come.
“Gravity is no longer a force of nature. Gravity is what the Ruling Class says it is: Down is Up when it suits them.”
This is not as far fetched as it sounds. We’ve actually had other faculty at my college tell us that what we are teaching is “white patriarchal physics”. When we’ve tried to tel them that a ball dropped in west Africa accelerates at 9.8 m/sec^2 just like it does in Kansas, they have actually responded that that isn’t true. The physics is culturally invented, and 9.8 m/s^2 is what old white men believe. They said we need to teach physics from all cultures because they are different and all valid. With their noses in the air they then brag about their upcoming trip to Europe in a Boeing 777 while talking on their cell phone. Sheer madness.
And you may wonder why I am so depressed about the state of affairs.
“we now have confirmation That the Supreme Court has become just as politicized as Congress and the Dept of Justice.” T
“The US government operates only in the left’s interest.” physicsguy
Just so.
“Laws now mean whatever the SCOTUS says they mean, even the opposite of clear language.” Matt_SE
No, laws now mean whatever the LEFT says they mean, from moment to moment. Objective, clear language is a reactionary, ‘old white’ concept.
neo-neocon at 12:42 pm,
49 Republican Senators voted to support Obama’s trade authority, effectively gutting Congressional authority.
“Now with this ruling and the Republicans giving Obama everything he wanted on the trade agreement, how much more evidence do we need?” physicsguy
Physicsguy: Sounds familiar, it’s been going on a long time. When I was a Physics grad student forty years ago I remember having lunch with an Anthropolgy major. He insisted the very same thing, gravity was different in China if they wanted it to be so. His buddy was perfectly certain that there was no freedom in the US and both were big fans of Chairman Mao. Then there was the one who thought the Cultural Revolution was “a great beauty.”
When Obama won in 2012 I turned to my wife and said that was the end of the Republic. Being a good lib she just smiled. Today we have finally reached the point where where we no longer have the rule of law, just the rule of man. When Archibald Cox asked the question during Watergate, the government was less powerful and the Congress and the press were somewhat more honorable and Nixon was removed. No longer and we’re going to enter dangerous times ahead.
To all those who are condemning the Republican establishment for not stopping Obama care, let me remind you that it was the conservative wing of the Republican party and multiple talk radio hosts who yelled and screamed to get rid of Harriet Miers as a nominee to the Supreme Court and to replace her with John Roberts.
To Neo-neocon:
While Cruz, Walker and Fiorina are my current favorite candidates, and yes they are very bright and conservative, in the end they are politicians and a politicians primary focus is on getting elected, not adhering to an ideology. So in the end I don’t trust any of the candidates to actually repeal SCOTUScare.
I think SCOTUScare will become like Roe v Wade, a great campaign issue and fund raiser but Republicans won’t risk any capital on getting rid of it. There will always be an excuse.
I’ve been following these campaigns since Goldwater and Republicans have never failed to disappoint. The country can find tens of thousands of soldiers willing to risk life and limb in battles for their country but there are apparently no Republicans willing to risk their jobs in a political battle. Very disappointing.
As for the left’s ascendance, I think they have already marched through all the institutions and culture and that is one of the primary reasons Republicans are so afraid.
As for Republican presidents appointing candidates who evolve, yes it has been difficult to get pure conservatives through Democrat Senates. But it is passing strange that left wing appointees don’t evolve (I’d be interested in the name of someone who has evolved). Democrats must be doing something right.
let me remind you that it was the conservative wing of the Republican party and multiple talk radio hosts who yelled and screamed to get rid of Harriet Miers as a nominee to the Supreme Court and to replace her with John Roberts.
That’s what people were told happened.
Is that what instigated it or did the Left instigate it?
Nobody is immune to the Left’s mind control and propaganda techniques, I remind you.
physicsguy: please tell us that the other faculty weren’t from your own dept. they were from gender studies or sociology, right? please.
“Reactions of passive resistance, the seeking of alternative routes, and non-participation strategies are anticipated by the left, and preemptively disallowed.”
Yep. I’m in the stockyard already, and the chute is narrowing. Forced into their filthy system, being charged up the wazoo (more than my private insurance!!!) AND, new special hotness, they’ve already sent a letter saying they’re demanding an 11-12% INCREASE in the premiums.
Bad as this deal is, it’s getting worse all the time. And will continue to do so.
Just wait until all the corporate employees are dumped into the Obamacare woodchipper. And THAT’s why the Supreme Court locked it down in advance, so the kulaks can’t escape.
I meant to say, that once you’re in HellCare, you are not ALLOWED to buy only catastrophic insurance. Not ALLOWED to go concierge (infuriating enough to pay for your doctor visits while the stinking Leftists rob you blind to pay for all the illegal aliens and the Free Stuff Army layabouts…. @#$%^&*()(*&^%$#@!).
Because it’s now ILLEGAL in New York to go to a doctor who has any govt. business at all, and pay for your health care out of your Own Pocket.
Harriet Myers was not replaced by John Roberts.
Harriet Myers was replaced by Alito after she withdrew.
You can look it up.
Why does this error persist that Miers was replaced by Roberts? I’ve seen it stated that way several times. I think the mixup is because O’Connor retired (that’s who Miers was supposed to replace) and about two months thereafter Rehnquist died. Roberts had initially been nominated to replace O’Connor (and Miers had been head of the search committe). But before the hearings on Roberts began, Rehnquist died, and Bush switched the Roberts nomination over to having Roberts replace Rehnquist, and then nominated Miers to replace Roberts as the replacement for O’Connor. Then when Miers withdrew, Alito was nominated to replace her.
So basically conservatives didn’t like Miers, people like Krauthammer cited her non Ivy League education or lack of judge background as one thing.
People keep talking about Roberts after that but Alito’s name comes up rarely. It’s almost like Alito faded into the background, with Roberts taking most of the name recognition and media spotlight, with Miers being known for withdrawing and the conservative criticism.
One almost have to wonder if the rumors that the Obama administration has something on Roberts may have some foundaton in truth. It would certainly be The Chicago Way.
“Harriet Myers was replaced by Alito after she withdrew.”
Interesting. The same conservative talk show hosts and pundits who criticized Harriet Miers because she didn’t attend an elite law school were the same ones who subsequently talked incessantly about how wonderful Roberts would be. the timing led me to the conclusion that Roberts was her replacement.
That said, my point stands. The conservatives who are criticizing the Republican establishment have drunk the
kool-aid that only graduates from elite law schools are fit to serve on the supreme court. Perhaps the super competitive personality that is favored by the elite schools helps explain why so many Republican nominees to the court “evolve” over time to establish their legacy which they assume will be written by the left.
KLSmith: yes they were from the humanities.
Hussein didn’t like Roberts. Which is perhaps all the more reason why they would get dirt or leverage on Roberts.
Petraeus was put into a similar situation, so he committed sepukku and outed himself, to avoid having it be used as leverage.
Hastert paid off the blackmail for years, instead. Sign of a difference in fortitude.