The ACA, Statutory Construction, and SCOTUS

by Ugh

Some comments on the midterm post have delved into the ACA and what's going on at SCOTUS and the state itself.  I was going to write a post on this but haven't had time.  So, take any angle you want on the ACA, no need to respond to the below.

Proponents of the view that the ACA permits tax credits for those who purchase insurance on the federally run exchanges - despite statutory language arguably to the contrary - are quick to point out that more than 4 million people have obtained health insurance through the federal exchange and a decision denying the credits puts those policies at risk and thus people's lives.  I'm wondering whether this should matter to SCOTUS.

Let's try a different hypothetical, suppose PharmaCo develops a life saving treatment and patents it.   Six months after granting the patent the PTO reverses course and revokes the patent because the subject matter is not patentable under PTO regulations.  PharmaCo sues and loses in the district and circuit courts under deference to PTO regulations interpreting (in their view) an ambiguous state, and sappeals to SCOTUS.  During this time, the treatment has become widely and cheaply available and is currently credited with saving 100,000 lives.  Further, the treatment must be administered on a monthly basis and those who stop have perished.  

PharmaCo's argument at SCOTUS is that the PTO regulations are inconsistent with the statute and its treatment is patentable subject matter.  Further, PharmaCo has announced its intention (that we all believe will be carried through), should it win at SCOTUS, to raise the price of the treatment by 10,000%, such that only 1,000 of the 100,000 people can afford to continue treatment, putting 99,000 people at risk of death.  Should SCOTUS care about that when determining whether the statute is ambiguous?  

I'd say it should.  We're not talking about constitutional principles here, such that there may be some great issue at stake, we're talking about what the statute says/means/etc.  Further, we have the view of the agency charged with administering and enforcing (at least part of) the statute with relevant expertise.  So, why not take the impact into account when deciding the case?  Or if you don't like that approach, concur in the result only?

My view is that SCOTUS upholds the credits 5-4, with Roberts again pissing off the right.  Heck, you might even see a 7-2.  Or at least I hope.

Comments

[bobbyp]

Scott Lemieux has been eviscerating the pro ACA "trooferism" over at LG&M. The SCOTUS granting cert in King merely underscores what is been widely known since Bush v. Gore, that the current SC majority are simply unelected conservative partisans.

Not that I am opposed to that, just that they are the wrong partisans :)

[Marty]

I read Lemieux, no more partisan reading of the law than his. When people say that the legislature just couldn't have meant what the law says, then its just a deep desire for that to be true. It seems to me it was an intentional attempt to force all the states to set up an exchange, they figured that the subsidies would be a big enough hammer, along with Medicaid money. When that didn't work they've been backpedaling ever since.

[wj]

In a perfect world, the Supreme Court could just objectively evaluate the legal/constitutional merits of the cases that come before it. What Roberts, at his confirmation hearing, referred to as "calling balls and strikes." If it was doing that consistently, then there wouldn't be any real strong case for them considering anything else. And, after all, in the case Ugh posits there would be nothing to keep Congress from revising the law to keep the company from causing massive deaths.

But that isn't what happens in practice. The Court usually has some kind of tightly reasoned justification for the conclusion they reach. But all lawyers are trained to argue either side of any case -- because they are supposed to represent one side as best they can, regardless of its merits. And all of the Justices are trained as lawyers, so they can do that.

As a result, many of them frequently appear to start from the conclusion that they want, and craft an argument/justification to support it. Their arguments, as someone noted on a prior thread, are tightly crafted. But that doesn't necessarily mean that they have anything real behind them.

Once you accept that the Justices are reaching their conclusion independent of the merits of the actual case, it is far easier to accept that they might consider factors like how many peoples' lives would be seriously impacted by their decision.

In this specific case, I would offer up a differen possibile outcome. If the ACA's subsidy gets voided for policies coming thru the Federal exchange, what will happen? As Ugh notes, several million people, mostly in states with Republican administrations, will suddenly lose their policy, or at least see their premium shoot up. And what will their reaction be to that? I suggest that they will be very unhappy. And will take it out on the party which forced them into that situation.

Which might make the conservative Justices decide that they don't want to let that result come to pass. And, if they are the partisans that Bobby called them, they (or at least some of them) might decide that protecting their party is more important than protecting their philosophical principles in thus specific case. Which might mean the ACA gets a large vote in its favor. Just a thought.

[bobbyp]

When people say that the legislature just couldn't have meant what the law says, then its just a deep desire for that to be true.

What the law "says" is that federal exchanges are meant to be available to those in states where the states have decided to not set up an exchange. But of course, how could you know that, lost as you are amidst those "2,000 pages" of closely written text?

The horror.

As several observers have noted, all you need in this case to rebut the conserva-whacko reasoning is quote the very words of the "fearsome four" assholes in their Sebilius dissent.

They have no shame.

[Tony P.]

I wonder how the CBO would score it. Subsidies are one of the costs of the ACA, so a right-wing ruling by SCOTUS would make the Act's cost/benefit projection better, wouldn't it? The GOP line that Obamacare will bankrupt the government would immediately sound just that much sillier.

Not that the Republicans-for-life on The Court would ever let that influence them. If it says "Moops" on the card, then that's that.

--TP

[Hartmut]

Based on my liberal opinion that voters, esp. but not exclusively on the Right, are gullible idiots, I would not exclude the possibility that SCOTUS gutting the ACA will be successfully blamed on Obama and the Democrats.
Exhibit A: "Before Obamacare there never was Ebola in America."
If to run on that (or at least seriously considering that) will not get you laughed (at best) out of town, the I see no problem at all to feed the base with "SCOTUS decision proves that Obama wanted to kill you in your sleep (and give your money to [enter enemy du jour here])".
---
As for the philosophical question. The old ideal is FIAT JUSTITIA ET PEREAT MUNDUS, justice be served even if the world goes to Hell as a result. Unfortunately these days it seems to get translated as 'Judicial Fiat. And You may go to hell!'. In theory judges/justices are not supposed to care about results but to stick to the letter however absurd the results may be. But the assumption therein is that letter and intent don't differ. Definitely not a given.

[Doctor Science]

How accurate is Thinkprogress' analysis, O Lawyern? Is there any reason to disagree with David Roberts' description of the case as "postmodern conservatism"? IAreallyNAL

[Hartmut]

Just for the record. It was Nick Muzin, the deputy chief of staff for Texas Sen. Ted Cruz that during the campaign came up with:

'Before ObamaCare, there had never been a case of Ebola in the U.S.'

[heckblazer]

Nick Muzin is also flat out wrong. There was an outbreak of Ebola Reston in a Virginia primate quarantine facility in 1989, and later at one in Texas in 1996. Fortunately that strain looks to be pretty harmless to humans. While lots of monkeys died, the three workers at the first facility who tested positive for antibodies never showed signs of illness.

[Brett Bellmore]

Actually, we are talking about constitutional principles here. And, you know what?

If you don't follow them even when you don't like the result, they're not "principles". They're just helpful hints, or general guidelines, or something else.

Here's the thing: You throw away the rule of law in one case, because you like the result in that case of throwing it away, you've thrown it away period. You don't get to have the rule of law only when you like the outcome.

This law doesn't say what you'd like it to say. It hasn't said a lot of things you'd like it to have said. But it still said them.

And, yeah, every thing it says is the Democrats' fault, because you own the ACA completely, you passed it without one Republican vote. And nobody is obligated to pretend it's a good law, and doesn't have really damaging provisions, just because you don't want to take the blame for what you passed.

[Hartmut]

They passed a Republican law with no Republican votes and got blamed by Republicans for it. The standard conclusion Dem congresscritters (and the 'liberal' media) draw from that is that they have to out-Republicanize the Republicans next time even more. Dems = worthless (for the most part), GOPsters = insane and/or evil (or walking targets for party 'friends'). Libertarians = in most cases a mere disguise for dyed in the wool GOPsters still on the rise through the ranks (small-l libertarians that are not part of the 1% are a negligible quantity in actual politics and mainly serve as the kind of dupes that praise themsleves as non-dupeable). Actual liberals are at least aware that their voices don't count where it counts (some Greens excepted).

[russell]

Actually, we are talking about constitutional principles here.

Actually, what are the constitutional principles at stake here?

It seems to me it was an intentional attempt to force all the states to set up an exchange, they figured that the subsidies would be a big enough hammer, along with Medicaid money.

This analysis is as reasonable as any other that I've seen.

If so, well played on the part of the states. They've sent the big "f**** you" to uncle.

Brett says all of us lefties will just have to live with the result of how the law was written. In turn, I say that all of the folks in the states that felt like flipping the bird to the feds will now get to live with the results of that.

Enjoy your sh*t sandwich. Make sure you have some of those delicious "principles" on the side.

[Snarki, child of Loki]

Brett: "Here's the thing: You throw away the rule of law in one case, because you like the result in that case of throwing it away, you've thrown it away period. You don't get to have the rule of law only when you like the outcome"

Like tossing away the 2nd clause of the 15th Amendment in the Sheldon Voting Rights case?

The Roberts court has earned their reputation as lawless disingenuous hacks. Go ahead and try to defend them. Or you can just "flounce" once again.

[Marty]

"Like tossing away the 2nd clause of the 15th Amendment in the Sheldon Voting Rights case?"

So, are you agreeing with Brett by saying they shouldn't have done this? Or is this ok as long as they throw other clauses away also, as you see fit?

[the once and future cleek]

Proponents of the view that the ACA permits tax credits for those who purchase insurance on the federally run exchanges - despite statutory language arguably to the contrary

along with plenty of language to support credits from federal exchanges - along with the actions and statements of agencies and individuals involved in the writing and implementation, along with the interpretation of the members of the very same Supreme Court that's taken this matter up.

what's the assertion, that everyone was tricked into setting up federal exchanges with subsidies/credits? that all the language supporting those subsidies is wrong and only the ambiguous text is right?

it's nonsensical.

[Marty]

The assertion is that the language was completely unambiguous and the executive branch implemented it, like every other piece of the ACA, however Sebelius and Obama felt like on any given day.

[Barry]

IIRC, In Bush v. Gore, SCOTUS used the impact as part of their justification (we need to know the next President RIGHT NOW! Counting the votes would take TO LONG!).

Brett: "Here's the thing: You throw away the rule of law in one case, because you like the result in that case of throwing it away, you've thrown it away period. You don't get to have the rule of law only when you like the outcome.":

Shelby v. DoJ - Equal dignity of the states means, laws passed by an overwhelming majority are unconstitutional. [Only applies to laws right-wingers don't like]

Hobby Lobby - reverse piercing of the corporate veil allowed, corporations have the religious beliefs of their stockholders. [Only applies to religious beliefs right-wingers like]

[Countme-In]

When you reach your deductible limit, and I hope you don't have occasion to, you may send Obama and Sebelius thank you notes to show your appreciation that they were in the giving vein on whatever day that was.

I can understand that you don't have a dog in this hunt since you don't receive the subsidy, but approximately six million (is that a coincidence?) other Americans, many of whom do not have a 401K funds to fall back on to cover the entire premium and deductibles, will have their dogs put to sleep, even the ones who believe the Constitution is a literal suicide pact, but what the hell, I'll join the ACA exchange.

You were provided choice, which you exercised.

At least say thank you before you retire to your laughably uncompromised principles.

Then I'll say "You're welcome."

One thing great about Brett is that, as far as I can gather from his statements here over the years, is that he pays cash for his medical care, though maybe now he has insurance through his job, at least I hope so.

Lucky about those preexisting condition clauses in the ACA, though I read them to mean: mine, not Brett's, ambiguity being what it is.

What his family is going to do when he turns down Medicare and they have to tell the doctor that the money has plum run out so the catheters have to yanked out without an anesthetic is a compromised principle for another day.

[Ugh]

Let's look at it this way: with the subsidies for the federal exchange, 4 million people have signed up for insurance through the federal exchange, helping fulfill a goal of the statute to provide health insurance/care to broader swath of the populace than had been the case without the ACA.

Without the subsidies, some large % of those 4 million (more than half? most? i haven't seen any estimates) will lose their insurance, frustrating one of the purposes of the law, and at a minimum make it significantly less effective.

So, is it likely that Congress did or did not intend to have the subsidies available to those on the federal exchange?

[wj]

It is probably worth noting at some point that the vast majority of bills (excluding feel-good bills, like those that name something after a politician or congratulating a consitutent on something) are passed with misleading bits. Not to mention special paragraphs put in only to gain the vote of a particular legislator.

Anybody who is getting hysterical about things that were misrepresented in the passing of the ACA is merely demonstrating that he doesn't have a clue how legislation gets passed. (Or knows, and is flat out lying to make his particular political point.)

Similarly, laws routinely have ambiguities in them. One of the things that the executive does (at the Federal and at the state level) is figure out what the murky wording means in practice so they can implement it. Every President does it. Every Governor does it. Again, those who are getting hysterical are merely demonstrating that they don't know how the government actually works. (Or, I suppose, they know but think it ought to work differently. Yet have no record of when that actually happened. Or demonstration that it could work.)

[Ugh]

Moreover, since we are talking about interpreting a statute, the fact that it's plausible or not completely irrational that Congress would have made "an intentional attempt to force all the states to set up an exchange" doesn't really matter.

If we were analyzing whether the statute was constitutional under a rational basis standard of review, then that sort of analysis of the purpose of the provisions would pass muster. But that's not what we are talking about or what SCOTUS will be writing about.

I half expect Roberts to write an opinion that the language in the statute is a case of "scrivener's error" on the part of Congress and defer to the agency's interpretation; with the four "liberals" agreeing with the result and joining in a separate opinion with a different analysis; and the four remaining justices dissenting.

[the once and future cleek]

The assertion is that the language was completely unambiguous and the executive branch implemented it, like every other piece of the ACA, however Sebelius and Obama felt like on any given day.

the reason this is absurd is that many many other actors have been involved in this besides the dread Obama and his evil lacky Sebelius. there were insurance companies, the IRS, Congress, SCOTUS, dozens of states, and the hordes of lawyers attached to each. none of them agree with this ridiculous mis-reading. only wingnuts who want the law to be undone read it this way. and it took them six years to come up with this angle. the law's text has been available for years now and nobody has interpreted that clause to mean what you're asserting it means now - not insurance companies, not SCOTUS, not Congress, not the IRS, nobody.

but now it's supposed to be plainly obvious?

BS

[Ugh]

That is: Roberts writes an opinion saying the statutory language is unambiguous but only because Congress fncked up so it's okay to fix it/interpret as including subsidies on the federal exchange; the leftie 4 says it's ambiguous and thus defer to the agency interpretation; and the rightie 4 say its unambiguous, specifically intended by Congress (citing who knows what for that proposition), and thus not subject to fixing.

[chmatl]

My husband, an attorney, and I were talking about this a couple of days ago. His take is that the conservative majority will say that the language is ambiguous and send this back to Congress to be "fixed." And you know what the likelihood of that is. So the subsidies will be off the table, the law will not be fixed, and neither the conservatives on the court nor conservative politicians will take blame for the mess that results. From the conservatives' perspective, this is a win-win-win result.

[Barry]

wj: "It is probably worth noting at some point that the vast majority of bills (excluding feel-good bills, like those that name something after a politician or congratulating a consitutent on something) are passed with misleading bits. Not to mention special paragraphs put in only to gain the vote of a particular legislator. "

The joke is that the only bills without typos or strange stuff will be the shorter ones, but the shorter ones give the executive branch more leeway. - you know, like the AUMF:

http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Terrorists#Text_of_the_AUMF

As close to a blank check for war as ever given to a President. Pasting the text from that link into Word gives an estimated count of 334.

This has probably costs billions of $$ per word.

[sapient]

The always-worth-reading Dahlia Lithwick has an interesting thesis that she writes about in TNR, about the lack of diversity, in terms of privilege rather than race and gender, on the current Supreme Court. I'm wondering if any of them have ever been concerned about health insurance.

[Countme-In]

Could someone check the Republican spelling of Speech --- M-O-N-E-Y ---- while we're at it?

That's gotta be a typo.

Even undisclosed political donations, issuing forth from no identifiable mouth, are speech.

Course, voting, for millions, unable to produce the proper ID and/or not able to travel for miles to vote, is not speech, according to the same geniuses.

In Texas, a gun permit is speech.

I'm working on a legal theory that combines the First and Second Amendments so that bullets will be considered protected speech.

[the once and future cleek]

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

context? we don't need no freaking context.

[Countme-In]

http://www.pbs.org/newshour/rundown/just-ask-what-kind-of-health-benefits-do-the-supreme-court-justices-receive/

[wj]

Cleek, it is always amusing to ask one of the gun enthusiasts what his interpretation of that initial phrase is. Not try and give him a reading to argue with. Just ask him cold what it means, and what it's implications for the rest of the amendment is.

My experience is that they find it a serious challenge. Except, of course, for those who have never heard that it is included.

[Countme-In]

The market, it has spoken:

http://www.washingtonmonthly.com/political-animal-a/2014_11/after_all_the_yellingobamacare052927.php

[Barry]

Count-me-in: "Even undisclosed political donations, issuing forth from no identifiable mouth, are speech.

Course, voting, for millions, unable to produce the proper ID and/or not able to travel for miles to vote, is not speech, according to the same geniuses.

In Texas, a gun permit is speech.

I'm working on a legal theory that combines the First and Second Amendments so that bullets will be considered protected speech."

Nice contrast.

[Countme-In]

Bullets as speech; I'm late to the party again.

Let the Republican pig-filth speak through his 728 caliber mouth:

http://digbysblog.blogspot.com/2014/11/open-carry-demonstrator-fondles-his-gun.html

[Countme-In]

I'm happy to own the ACA.

How are you going to punish me?

Guess who owns the murders THAT bullet-head in the video is going to commit against innocent people.

Every single Republican and Libertarian in this country.

Think how I'm going to punish you.

[bobbyp]

There are no constitutional principles at stake here. Brett, Marty, and apparently a bunch of SC justices totally ignore well established rules of statutory construction in this instance in pursuit of their partisan goals. Apparently now "words mean what they mean..so STFU" but not so much in Shelby where despite the clear and unambiguous language of the 15th Amendment, John Roberts pulled an entirely new "principle" out of his ass.

Clearly, all that matters to the conservative "movement" is their Will To Power, and little else. To be lectured on "absolute principles" or "the rule of law" by a movement conservative is to witness first hand the lawless moral relativism they so readily claim to abhor.

[Ugh]

Scalia:

The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad."

Scalia:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind.

Scalia:

"I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result"

Scalia:

"We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403."

Any of these bolded statements could be relied upon to hold that the ACA permits subsidies on the federal exchange. Will Scalia go there?

[bobbyp]

Will Scalia go there?

Most likely.

What an asshole.

[wj]

Now Bobby, his jurisprudence may well be asinine.

But from all reports Scalia and Justice Ginsberg and their families spend weekends hanging out at their various backyard BBQs and otherwise socializing. So perhaps he personally has some redeeming features. Just a thought.

[Barry]

"So perhaps he personally has some redeeming features. Just a thought. "

Actually, he does. He apparently really cares about the 4th and 5th Amendments. However, I don't know if he still cares when major issues beloved by the right are at stake in a case.

[Barry]

wj: "But from all reports Scalia and Justice Ginsberg and their families spend weekends hanging out at their various backyard BBQs and otherwise socializing. So perhaps he personally has some redeeming features. Just a thought. "

BTW, the elites hanging out together, even if some of them are truly despicable, is a standard feature of DC, NYC, and probably just about everywhere. The fact that somebody's colleagues likes them doesn't contradict that somebody being truly evil; it might just mean that that somebody doesn't f*ck over other elites, just peons.

[bobbyp]

wj,

Yes, some assholes can be personally charming, kind, and generous.

The human species is infinitely varied, and that makes it fun most of the time, or at least never dull. John D. Rockefeller handed out shiny new dimes to total strangers. I'm sure Bill Buckley could be a charming host on his yacht, or helped little old ladies across the street at times. Andrew Breitbart most likely loved his kids and pets, and was loved in return...might have even had a friend or two.

But when people with power and/or influence use that power to push public policies on the rest of us that work to feather their own nests and/or needlessly and cruelly harm many innocent people who lack their resources or talent....well, then they are simply assholes in my book.

[Countme-In]

Say it ain't so.

Joe Dimaggio was an absolutely miserable prick to his fans and the public at large, and in most of his personal life.

He treated the rookie Mickey Mantle like a beggar.

Professionally, of course, on the field, he was nearly faultless.

[bobbyp]

BTW, the elites hanging out together...

Indeed.

[byomtov]

So I have a question about this whole exchange business.

Suppose a state legislature says, in effect,

"We love this whole Obamacare business, but rather than spend the money to set up an exchange, we want our residents to use the federal exchange."

So then why wouldn't the federal exchange be the one "established by the state?" Or would it?

[sapient]

Totally agree, bobbyp. That article is a must-read.

[Snarki, child of Loki]

byomtov:
there's about a dozen states that did the medicaid expansion part of ACA, but didn't set up their own exchanges, exactly as your hypothesis.

For some (low population or low density) states, it makes more sense to have a larger organization do the heavy lifting. In fact, IIRC the ACA includes words to the effect of possibly having "multi-state compacts" handling exchanges. And having states contract with private companies to set up exchanges.

[Brett Bellmore]

"context? we don't need no freaking context."

Sure, we need context. The amendment is clear that "the people" have the right, not "the militia". But, what sort of arms is it a right to?

The context makes it clear, that it is a right to militia weapons. As Tench Coxe said, "every terrible implement of the soldier". Not to "every mildly disturbing implement of the hunter".

Opponents of the RKBA are always asking to put the right in context, but be careful what you ask for. You'd like it even less if it were put in context.

[Brett Bellmore]

"So then why wouldn't the federal exchange be the one "established by the state?" Or would it?"

It would. All they'd have to say is, "We hereby delegate establishing our state exchange to the federal government", or something to that effect. I would think that would be perfectly sufficient.

The problem, of course, is a lot of states didn't do this, because they didn't want any part of the ACA, and saw no reason to jump through hoops, even convenient ones, to further a law they hoped would end up repealed or struck down.

[Morzer]

Brett Bellmore is characteristically rhetorically overwrought and factually mistaken. There certainly was a Republican vote for Obamacare -one Joseph Cao, a Republican congressman from Louisiana, who voted his Catholic conscience.

Facts matter.

[Tony P.]

Brett: ... a lot of states didn't do this, because they didn't want any part of the ACA ...

Strictly speaking, a lot of state governments didn't. Brett implicitly assumes that state governments speak for their citizenry, which of course the federal government doesn't, as Brett will tell you at the drop of a hatpin, let alone a hat.

Actually, let me rephrase that: Brett implies; I can't be sure what he "implicitly assumes". For all I know, he assumes that Bill Kristol was right.

As for driving around with a .50 caliber machine gun swivel-mounted on the roof of his pick-up truck (leaving room for the anti-aircraft missile launcher mounted in the bed), I agree that if the 2nd Amendment means anything it means Brett has the right to do that. And so do I, and so does The Count. Sane people might seek to interpret the 2nd Amendment so it doesn't mean anything so bonkers, but sane people have no respect for The Rule of Law.

--TP

[Snarki, child of Loki]

Shorter Brett: you really need the full context for the 2nd Amendment, but the 2nd clause of the 15th Amendment? Useless verbiage, ignorable.

Is there any reason that we should consider Brett's arguments as anything but standard GOP intellectual dishonesty?

[the once and future cleek]

The context makes it clear, that it is a right to militia weapons.

OMFG. it does no such thing.

[the once and future cleek]

OMFG. scratch my last.

yes, i'll agree that those are the weapons it grants a right to. though what those weapons are is not defined.

that first clause does more than that, though.

[Hartmut]

The key word in the 15th, sect. II is obviously 'appropriate'. And we have learned that any legislation that is not 100% bipartisan (i.e. no one worth talking of (or to)* is objecting) is by definition inappropriate. On the other hand, if any liberals are for it, this is reason enough to object, thus making it inappropriate.

*real victims are (also per definition) not worth.

[byomtov]

Brett,

All they'd have to say is, "We hereby delegate establishing our state exchange to the federal government", or something to that effect. I would think that would be perfectly sufficient.

Ok. That's sort of what I fought, but wasn't sure.

So you are saying, first:

That the state legislatures who didn't do this either were happy to have their residents lose the tax break, just so they could throw a pointless tantrum about ACA,

Or,

They assumed that the tax break would be available regardless, which means that they read the act the same way the Administration does.

And second:

That the effect of a ruling for the plaintiffs could be easily obviated by state legislatures taking five minutes to pass something klike what you describe.

Now, if a legislature though the tax break wold be available regardless, it will surely pass your proposal and solve the problem effortlessly.

What are we to think of those that don't? That they hate ACA on principle enough to deny their residents a tax break, or that they hate the residents who use the exchanges?

[Snarki, child of Loki]

Harmut, yeah, guess I should have seen that coming.

When Dubya/Cheney "normalized" torture, was there any reason to think that it would be confined to humans, and not extended to the language?

That "appropriate" legislation was passed by overwhelming (>90%) bipartisan majorities, in multiple congressional bills over the decades. So ipso facto INappropriate.

At least according to "Rule of Law, Bitchez" Roberts.

[wj]

While we're looking at the torture of language, let's take a bit more context. Because context is not just the words around the quote. It's the times of the quote and what people then meant by those words in the world in which they actually lived.

Yes, Brett, the 2nd Amendment guarantees the right to bear arms to "the people." But it also talks of the "militia". Not, one actually suspects, because of concern about what kinds of weapons would be involved. But because it gave context -- since, at that time and place, "militia" routinely meant all able bodied free men (who were not already members of the regular military). And it speaks specifically about regulating that militia . . . which would reasonably include its weapons.

So, reading the complete context, the 2nd Amendment actually authorized gun control regulations. You may think that would be a terrible idea, of course. But it doesn't really conflict with the meaning of the words at the time they were written.

[Hartmut]

Indeed, iirc the argument was that the mere fact of it being overwhelmingly supported was proof that the guys were not really acting out of their own free will but under duress since nothing could get that much support naturally. They were just shaking in fear of the personal consequences for themselves, if they had dared to oppose.
Time to revoke equal rights for women too since the legislators (all married at the time, I presume) voted for them only out of fear of their spouses. Cf. some Swiss cantons and their hard fight over votes for women during my lifetime (I was born in 1973) where the same argument got used to delegitimize the movement (and for quite some time successfully).

[CharlesWT]

"It's the times of the quote and what people then meant by those words in the world in which they actually lived."

"So, reading the complete context, the 2nd Amendment actually authorized gun control regulations."

The second statement doesn't hold with the first statement. At the time the Second Amendment was written, "A well regulated Militia, being necessary to the security of a free State,..." had the same meaning as "A properly equipped and trained Militia, being necessary to the security of a free State,...".

[Snarki, child of Loki]

You can sort of see the reason why the concern with a 'well-regulated' militia; the militias that participated in the Revolutionary War had not covered themselves in glory, exactly.

The War of 1812, even more so.

So the facts in evidence was that a militia wasn't necessary to the security of a free state, but was likely to get a free state beaten by a professional army and have it's executive mansion captured, looted, and burned.

In these much later times of abundant couch potatoes, I think that a citizen militia could actually do some good: regular training, be part of a local organization, march a few miles with pack every six months, or NO GUNS FOR YOU. Sort of like Scouting for adults.

[Tony P.]

Charles,

"Regulated"="properly equipped and trained" is almost surely correct, since the Framers spoke the King's English of the 18th century. What do you think they understood by "and trained"?

Incidentally, Americans speak American English now. They are not the same people as their two-centuries-dead ancestors. Just saying.

--TP

[Marty]

"just so they could throw a pointless tantrum about ACA,"

Here,though no one focuses on it, is the core different. If you define all opposition ad a pointless tantrum you win the argument in your mind, demean all opposers are childish, and repeal as murder. But it isn't a tantrum, it is an honest and ongoing belief that more people are now dying than before, just different ones. Crappy insurance doesn't save lives. A tax that forces everyone to pay makes poor people poorer. There are lots of problems in the writing and implementation of the law.

[bobbyp]

A tax that forces everyone to pay makes poor people poorer.

An assertion that never comes up when graduated income vs. "flat tax" is under discussion. This claim also neatly elides the fact that the cost of the insurance is subsidized at lower income levels.

Crappy insurance doesn't save lives.

Even the "crappiest" plans available under the ACA are superior to the crappy ones hocked to the gullible prior to the ACA passage. See caps. See pre-existing conditions.

Here is a string of assertions for you:

Having no insurance kills people.

The ACA provides a mechanism for the uninsured to obtain health insurance at reasonable, low, or even free cost depending on income.

Therefore, taking this insurance away from those who now have health insurance where before they did not will result in unnecessary deaths.

Unnecessary deaths = murder.

..it is an honest and ongoing belief that more people are now dying than before, just different ones.

Perhaps you could take a few minutes and back up this "belief" with some kind of citation or fact?

[bobbyp]

A well regulated Militia, being necessary to the security of a free State....that holds a class of people in chattel slavery.....

Context.

[the once and future cleek]

it is an honest and ongoing belief that more people are now dying than before

cite?

[Marty]

Unnecessary deaths happen both ways, 10k deductible insurance is the equivalent of no insurance. And of course, that was the goal for the proponents, having millions of people having crappy insurance so all yall could say stupid, obvious yet completely off point things like that.

[wj]

Crappy insurance doesn't save lives.

Marty,
You may not be aware, if you haven't been there. But insurance has to be pretty crappy indeed (and most of the ACA policies I have seen are not) to be worse than no insurance. Which is what a lot of us were looking at without it. And even crappy insurance saves lives, not to mention cutting down on needless suffering.

For anyone with what insurance companies characterized as a "pre-existing condition" that was what you were looking at. Unless you were both wealthy enough and knowledgable enough to invent a group thru which to get group coverage. Didn't have to be a big group. Didn't even have to happen to include entirely people with various pre-existing conditions. As long as it was a group you could get a policy. But not otherwise.

While the law could have been changed at any time, without waiting for the ACA, it never was. And as far as I can see, the finances don't really work without the mandate. So what is left. Oh yeah -- gotta get rid of the "Obamacare" label. Otherwise, we could just pass it again and everybody would be happy.

[the once and future cleek]

i'm pretty sure we're now supposed to call it Grubercare, since he is the only person whose opinion matters.

[thompson]

Trying to get through the spam filter...we'll see if it works.

Speaking as someone who doesn't particularly think the ACA is going to do much to restrain costs, slow grifting of the system, or in general do much of anything long term (and yes, I'd be happy to be wrong):

I've spent some time reading various excerpts of the law. Some of the language involving exchanges is unclear.

The law was passed in a rush, under heavy negotiation, and was designed to be complex to get it by "stupid" voters. At some point in the laws design, tax credits were probably targeted to only the state exchanges.

Under those conditions, I really don't find it surprising that some verbiage is unclear. That old clauses got stuck in and overlooked.

But it seems like there are 3 possibilities:
(1) The text in question plainly contradicts other sections of the statute. In which case, the law should be interpreted in the way that does "the least violence" to the text as a whole.

(2) The text is ambiguous. In that case, the Chevron holding suggests the court should defer to the IRS.

(3) The text doesn't contradict the IRS's interpretation, and there is no conflict in the text.

In all cases, I see the ACA being upheld in its current form.

Honestly, I find the IRS's interpretation of the law reasonable and consistent with much of text, for the reasons outlined here:

http://www.scotusblog.com/2014/11/symposium-the-grant-in-king-obamacare-subsidies-as-textualisms-big-test/

I fully expect the court to uphold the statute, greater than 5-4. My personal guess is 8-1, with Thomas dissenting.

If this teaches us anything, its that crafting laws to get around "stupid" voters isn't particularly intelligent. I don't care if people are stupid (and in general, I don't think they are), they still have the right of self-determination. They deserve to have political leaders talk to them like adults, explain the pros, cons, and uncertainties of a bill, and try to follow the will of their constituents.

[byomtov]

Marty,

If you define all opposition ad a pointless tantrum you win the argument in your mind..

But I didn't do that. Some opposition is reasonable, even if I disagree with it. What is a pointless tantrum is for a stste legislature to refuse to take a trivial step to provide its constituents with a break on their federal income taxes for no reason whatsoever, just as it is pointless to refuse the Medicaid expansion.

I wonder how many of these principled opponents are keeping children under 26 on their policies, or otherwise taking advantage of ACA. I also wonder how many principled opponents of Medicare and Social Security turn it down.

In other words, how many are happy to accept benefits form programs they don't like, while fighting to deny benfits to others.

[byomtov]

Marty,

10k deductible insurance is the equivalent of no insurance.

No. It's not. And remember, high-deductible plans are a frequent component of GOP proposals. So again, it's a great idea until Obama does it.

[russell]

Brett, for the last time, no, you cannot have a bazooka.

No matter what Tench Coxe said.

[bobbyp]

The law was passed in a rush, under heavy negotiation, and was designed to be complex to get it by "stupid" voters.

Are you referring to the Congressional Republicans? Because otherwise this is a pretty ignorant slander of those worked their asses off to craft a complex piece of legislation and get it past unanimous GOP opposition (to the very concept) and wavering right-center Dems (cf Joe Lieberman) who held the balance of power.

[Countme-In]

The cemeteries are full of people who had health insurance.

I hadda friend who keeled over from a fatal heart attack every April 15 for years.

One thing that steams me about collecting on most life insurance policies is that the upfront deductible is Death.

"just different ones"

I don't know whether to advise not drinking before noon or to take the habit up myself.

[thompson]

It's not slander, it's how laws are passed. Especially big ones, involving a lot of sacred oxen to be gored. Which, good or bad, the ACA is.

[bobbyp]

My personal guess is 8-1, with Thomas dissenting.

Since apparently at least 4 justices took the highly unusual action to bring this farce of a case before them, an 8-1 vote strikes me as a bit of a stretch.

So I will lay you 10-1 your guess will not turn out to be the case.

It's not slander, it's how laws are passed.

Well, yes, it is. Further, the law was never voted on by the voters, stupid or otherwise in order to "get it by them". You claim the law was made deliberately complex in order to fool some(body), rather than the outcome of negotiations over a highly complex issue with many competing and powerful stakeholders strikes me as implausible in the extreme.

[bobbyp]

That link you provided is a good analysis, Thompson. Thank you.

My prediction is 5-4 vote for plaintiff accompanied by the claim that "it's no big deal" and Congress is free to "fix" the language at its discretion, an outcome that allows the Court to sidestep responsibility and inflict a serious, if not fatal, blow on the ACA as the GOP Congress would never do any such thing, and will continue the Republican plan for national health care, i.e., nothing.

[wj]

OK, I'll play. I figure 6-3 for the defense, with Roberts only concurring.

In my more conspiracy-mined moments, I wonder if some of those voting to review didn't figure that having a case pending would get everybody else to hold of for a few months. Thus getting the new system even more thoroughly locked in place. Are Supreme Court justices really that conniving? Hmmm....

[thompson]

Since apparently at least 4 justices took the highly unusual action

I wouldn't say its *unusual*, sadly. But I don't think it is necessarily pushed through by the conservative block on the theory that they want to kill the law.

First off, even if that was the case, I find it unlikely Roberts would give his colleagues any illusions about overturning the law as it stands.

Somebody pointed me to this column, and I think it makes a fair point. That is, the court may very well want to head off an extended legal battle and eliminate uncertainty regarding the ACA:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/07/why-did-the-court-grant-cert-in-king-v-burwell/

You claim the law was made deliberately complex in order to fool some(body), rather than the outcome of negotiations over a highly complex issue with many competing and powerful stakeholders strikes me as implausible in the extreme.

First off, not rather. I would fully agree with "negotiations over a highly complex issue with many competing and powerful stakeholders"

I would further say, many of those "powerful stakeholders" are competing with the best interests of the american people. And that entire process is not facilitated by a deliberative process and transparency.

the law was never voted on by the voters

No, but it was voted on by people that can, in theory, be made to answer to the voters. Public opinion and perception of legislation that people are paying attention to is crucial to getting it passed.

[thompson]

bobbyp:

an outcome that allows the Court to sidestep responsibility and inflict a serious

I would agree that would be a highly damaging step for the court to take. Both to the institution, and to the country.

So damaging, that I'm skeptical about the theory of SCOTUS scooping up the case to rip apart the ACA.

[the once and future cleek]

the law was never voted on by the voters

name a federal law that has been ... ?

[Countme-In]

The Founders made the ACA deliberately complex, given the deference all must pay to the imaginary and arbitrary borders between all of the 50 states, with 50 different imaginary healthcare markets, and the three branches of the federal government.

The insurance industry make their health insurance products deliberately complex, and if you don't believe me, read the small print, if you can see it.

The hospitals make medical care deliberately complex and opaque by refusing to offer a detailed price list upfront, and even if they did, count on the bill to show differently, and not less expensive, more expensive.

America's gift to the world is complexity, the better to allow each of us to anonymously f*ck each other over every chance we get and then each of us, and our corporations, set up a legal thicket of hoops to jump through, waiting periods, mediation boards, and fast talkers to bamboozle any attempt to get to bottom of who f*cked who.

Capitalism and technology feed on complexity by making the simplest tasks of yesteryear an unending time-consuming hurricane of infinite choices, ie, finding the cheapest 16 oz can of tomatoes on any given day at one of 30 grocery outlets, if your wallet can fit the 30 cards inside it to get the lowest price at any given moment, and did you want basil with that.

It's all in the Constitution.

And if you can't find it there, Marx will explain it to you.

http://www.youtube.com/watch?v=RviRADnyFPs

[Countme-In]

"the law was never voted on by the voters"

Who said that? It's after noon, so you can now claim you've had to much to drink as an excuse.

"Brett, for the last time, no, you cannot have a bazooka."

If we insert language into the ACA, or just read what is there as that instead of tax credits, all state and federal exchange members get a free bazooka, would that bring Brett on board so we can have our stinking health insurance?

Tench Coxe? America's first gay porn start?

[Marty]

Well, I admit I have no idea what the court will do. I don't think Scott Lemieux does either, I have the ianal excuse. Somewhere upthread, and I admit to being too lazy right now to find it, someone went on about how no one has objected to this "until now". I suspect noe is pretty quick. Its about 12 months since the first people signed up in an exchange, thus getting a subsidy from the exchange. My guess us you couldn't legally object until it happened, so that's a pretty short trip to the Supreme Court.

[Nombrilisme Vide]

Sure, we need context. The amendment is clear that "the people" have the right, not "the militia". But, what sort of arms is it a right to?

The context makes it clear, that it is a right to militia weapons. As Tench Coxe said, "every terrible implement of the soldier". Not to "every mildly disturbing implement of the hunter".

Oh? So context matters with this? How much light was there between every terrible implement of the soldier and hunting weapons at the time of writing? I suppose you could bring up artillery, but was there enough private ownership of such for that to be a credible interpretation, even before we get into the weeds with the words "bear" and "arms"?

I don't think your argument is near so strong here as you think, Brett. I strongly question the idea that the 2nd was understood by its writers as authorizing the rabble to own e.g. mortars and cannons any more than it should now be interpreted to authorize random citizens to own e.g. mortars and cannons... or all and sundry other "terrible implements of the soldier". If you honestly believe the 2nd gives the rights you're claiming here, then I should be able to freely buy or build cruise missiles, obtain a helicopter gunship, and develop my own stockpile of biological weapons. Somehow, I think you're going to suddenly find that even "every terrible implement of the soldier" does have a limit as to what can actually fit inside that "every".

(IIRC, the last time you claimed this, I took a lighter hand and only went so far as to bring up MANPADS and infantry mortars, but even that was enough to get you to respond with resounding silence.)

[Nombrilisme Vide]

(In case that last bit was unclear, if you're not willing to go at least as far as my last paragraph, Brett, the argument you argued above to be brutally devastating really is brutally devastating... to your own argument. Because if we understand that militia arms are to include all man-portable infantry weapons, but you then turn and argue that we must draw arbitrary lines amongst the infantry weapons so as to determine which are and are not permissible for private ownership... well, then, we've already established what the inviolate text of the Constitution is, and are now just haggling over price...)

[Countme-In]

My weekly periodical and internet reading consists mostly of business news and analysis, which skews mostly conservative, and here's a columnist for Barron's Weekly, who despises Obama, nevertheless giving away the Republican pig-filth game in the House of Representatives vis-a-vis the immigration bill from 2010, supported by EVERYONE, but scuttled by the Tea Party vermin.

http://online.barrons.com/articles/boehner-plays-politics-on-immigration-reform-1416024762?mod=BOL_hp_mag

That counts for every piece of legislation Obama has cast a favorable eye towards. The pig-filth have halted governance altogether.

In the House and the Senate.

[bobbyp]

Who said that? It's after noon, so you can now claim you've had to much to drink as an excuse.

Any port in a storm...

[Nombrilisme Vide]

Somewhere upthread, and I admit to being too lazy right now to find it, someone went on about how no one has objected to this "until now". I suspect noe is pretty quick. Its about 12 months since the first people signed up in an exchange, thus getting a subsidy from the exchange. My guess us you couldn't legally object until it happened, so that's a pretty short trip to the Supreme Court.

Numerous legal objections to sundry aspects of the ACA were raised prior to anyone signing up in an exchange, however. This particular "awfulness" was discovered and objected to only after the previous "awfulnesses" were found wanting.

[Brett Bellmore]

Thompson: "But it seems like there are 3 possibilities:"

It seems to me there are considerably more than 3 possiblities. Let's try a fourth:

4) The the text in question is clear, and DOESN'T "contradict" other sections of the statute, because "doesn't work well with" isn't the same as "contradict".

"Contradict" is where one thing says "X", and something else says "Not X". Not where one thing says "X", and something else works badly if "X".

bobbyp: "You claim the law was made deliberately complex in order to fool some(body), rather than the outcome of negotiations over a highly complex issue with many competing and powerful stakeholders strikes me as implausible in the extreme."

Except that a guy who played an important part in the making of it was caught on tape saying exactly that. That they deliberately made it complicated so that stupid voters wouldn't pick up on what they were doing.

Thompson: "No, but it was voted on by people that can, in theory, be made to answer to the voters. Public opinion and perception of legislation that people are paying attention to is crucial to getting it passed."

Not just in theory. Can, and were, which is why if the thing gets struck down by the Court it's not coming back. The political mortality rate for the people who voted for this beast has been brutal.

Nombrilisme Vide: "Because if we understand that militia arms are to include all man-portable infantry weapons, but you then turn and argue that we must draw arbitrary lines amongst the infantry weapons so as to determine which are and are not permissible for private ownership... well, then, we've already established what the inviolate text of the Constitution is, and are now just haggling over price...)"

Now, I suspect you understand that I have a very simple way of resolving that problem: Refusing to draw said arbitrary lines. If the government doesn't want citizens to be entitled to own some weapon, let them not issue it to their soldiers. Problem solved.

[Hartmut]

Of course there is a simple way out (not really*): Adopt the Swiss model and come down like a megaton of bricks on those that violate the militia regulations. Better still, go beyond it and apply it to every citizen, not just male ones. Then it has just to be decided, whether metics are to be militiaed too or not. No service abroad by the militia though, only defense of the country's territory. That would be originalist.

*i.e. chances = 0, zero, zilch

[hairshirthedonist]

If the government doesn't want citizens to be entitled to own some weapon, let them not issue it to their soldiers. Problem solved.

They could just issue the really expensive weapons to soldiers, leaving the wealthy the only citizens who could afford to own any. That should appeal to the big donors.

(I love these reality-based discussions.)

[Countme-In]

I'm expecting my car-top mounted cruise missile delivery system via Amazon next week.
Refillable, like a stapler.

Local parking restrictions may interfere, but hey, who is going to mess with me.

The government doesn't issue these weapons to its soldiers, that I know of:

http://www.outdoorlife.com/blogs/master-class/2013/08/bargain-rifles-5-great-bolt-action-deer-guns?src=related&con=outbrain&obref=obnetwork

Sorry, hunters, but you can exchange your deer rifles for grenades down at the armory just in time for ice fishing season.

The government issues healthcare to its soldiers. Ergo (see how I break out the Latin when explaining how simple things be), gimme my healthcare.

Actually, it wouldn't be a bad idea to have the U.S. Army and Marine Corps medic corps in charge of treating all civilian gunshot wounds and fatalities in the United States, and leave local hospital facilities out of it all together, given the provenance and original intent of nearly every weapon we have.

More constitutional. And simple.

Benjamin Franklin, when asked yesterday what he expected from citizens and voters in 2014, exhaled a great plume of 224-year-old, fetid death halitosis and said: "Exponential stupidity, my simple child. Beware the men who begin every sentence with 'it's very simple'. Run from them. Now someone shoot me good and dead in both ears so I can't hear it anymore."

[russell]

I suspect you understand that I have a very simple way of resolving that problem

Simple, and asinine.

Seriously, does every discussion have to turn into an argument, not just about guns, but about whether the 2nd Amendment guarantees the right of every person in the US to have an RPG?

You, Brett, have a highly idiosyncratic understanding of what the 2nd is about. We all know and understand your position. Your point, for whatever it is worth, has been made.

Most of us find it unpersuasive, if not nutty. Not because we're sheeple blinded by the magical hypnotic mind-bending powers of the liberal brainwashing industry, but because we don't think it holds up to the most rudimentary analysis.

You're not going to change our minds, we're not going to change yours.

If you want a gun, have a gun. Enjoy your hobby. Don't shoot anyone else, and nobody will have a problem with it.

Can we now skip the next 247 comments and move on to the next topic?

[Brett Bellmore]

"You, Brett, have a highly idiosyncratic understanding of what the 2nd is about."

Your problem, Russell, is that my understanding of the 2nd amendment isn't nearly as idiosyncratic as you wish it was. And is well enough grounded in history that every other interpretation ends up conspicuously ungrounded.

[bobbyp]

The the text in question is clear, and DOESN'T "contradict" other sections of the statute..

I agree. So why are we having this conversation? If one were to accept your cramped interpretation, then it is reasonable to ask why all that text about setting up federal exchanges if they cannot be used by anybody....something for the residents of Washington DC only?

Except that a guy who played an important part...

utter bullshit.

See also here.

[Brett Bellmore]

"then it is reasonable to ask why all that text about setting up federal exchanges if they cannot be used by anybody....something for the residents of Washington DC only?"

Nah, it was a very badly written bill, and could not be put through the usual process of corrective amendments because it only barely made it through on the first pass, and one of it's supporters lost his seat. So they went ahead and made the really badly written first draft law.

That doesn't mean this provision, like many of the other provisions the administration has decided to ignore, was somehow ambiguous. It is a largely unambiguous steaming pile, and it is not the job of the courts to turn steaming piles into masterworks. It is the job of the legislature to refrain from subjecting a seventh of the economy to steaming piles.

And, yeah, he had so little to do with it he was better paid than the President for his trivial contribution.

[wj]

But Brett, if you have any experience in busioness (and as I recall you do) you are well aware that consultants get massively overpaid all the time. While, mostly, contributing little, other than reams of paper, to actually accomplishing whatever does get accomplished.

Occasionally, a team of consultants actually comes in and gets something done. But an individual? Damn rare, at least in my experience. So why should we assume, simply from this guy's pay rate, that he had anything much to do with what came out?

[CharleyCarp]

5-4 against the government.

I think if there more than four votes for deference to the government, the Court would have waited for the en banc opinion in Halbig. They didn't. And I think every excuse for not waiting -- other than that they wanted to invalidate the government's interpretation of the statute -- sounds a lot more like wishful thinking than a serious discussion of how this Court actually works.

I think also that the institutional concerns raised by e.g. Thompson just aren't playing a role in this nihilistic century. If they invalidate, as I think they will, they'll simply say that any unfortunate consequences are the result of actions by Congress and by the states. I think there's actually zero chance that either Justice Roberts or Justice Kennedy thinks the Court will pay a price for the 'tough love' involved in upholding choices made by Congress and the states.

The only uncertainty I'm entertaining is whether Justice Roberts becomes somehow convinced that allowing subsidies in federal exchange states is good for Big Business.

[CharleyCarp]

(I've always thought CJ Roberts confirmation testimony should have been 'I'm just going to call balls and strikes as I see them. Well, actually, I'm going to pick out something like 1% of all pitches to call, and I'm not going to choose randomly, but will instead choose pitches that would tend to allow me to define the strike zone as I think it ought to be defined. For example, I'm not all that concerned with inside pitches that don't actually hit the batter, so you can expect me to choose mostly outside pitches to call. Maybe a high one once in a while.')