Your King vs. Burwell discussion thread

by Doctor Science

I just woke up, groggy and overslept, and saw that the King v Burwell decision has come down. The SCOTUSblog summary says:

Today, by a vote of six to three, the Court agreed with the Obama administration that the subsidies are available for everyone who bought health insurance through an exchange, no matter whether that exchange was created by a state or the federal government.

Chief Justice John Roberts wrote the Court's opinion, which Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan all joined. The Court acknowledged that, at first blush, the phrase "established by the State" does not appear to include the federal government. After all, the ACA specifically defines "State" as "each of the 50 States and the District of Columbia." But other parts of the law, the Court explained, suggest that the "meaning of the phrase ‘established by the State' is not so clear." For example, one provision that defines who is qualified to purchase insurance on an exchange refers to an individual who "resides in the State that established the Exchange" -- which on the plaintiffs' reading would mean that no one would be qualified to buy health insurance on exchanges established by the federal government.

And if the phrase "established by the State" is in fact not clear, the Court continued, then the next step is to look at the Affordable Care Act more broadly to determine what Congress meant by the phrase. And when you do that, the Court reasoned, it becomes apparent that Congress actually intended for the subsidies to be available to everyone who buys health insurance on an exchange, no matter who created it. If the subsidies weren't available in the states with federal exchanges, the Court explained, the insurance markets in those states simply wouldn't work properly: without the subsidies, almost all of the people who purchased insurance on the exchanges would no longer be required to purchase insurance because it would be too expensive. This would create a "death spiral," in which insurance premiums would go up and enrollment would go down. It is "implausible," the Court concluded, "that Congress meant the Act to operate in this manner."

Justice Antonin Scalia dissented, in an opinion joined by Justices Clarence Thomas and Samuel Alito that began by describing the majority's conclusion as "quite absurd." The tone only gets even more strident from there, with Scalia lamenting that "words no longer have meaning if an Exchange that is not established by the State is ‘established by the State.'" And he concludes by complaining that the majority's opinion-- as it did three years ago in upholding the individual mandate -- "changes the usual rules of statutory interpretation for the sake of the Affordable Care Act." Perhaps, he suggested, "We should start calling this law SCOTUScare."

I am not a lawyer, not do I play one on the Internet. Those of you who are lawyers, chime in with your opinion of the opinions.

OK I lied, I have one opinion. Two opinions. Among my chief opinions .... Anyway, Scalia's suggestion about "SCOTUScare" reminds me of the Sad and Rabid Puppies in SF fandom, who continue to bark on a daily basis. One characteristic of the Puppies is that they *love* to make up names for their opponents: SJWs, CHORFs, puppy-kickers, Torlings (a Vox Day-ism, implying that people are actually minions of Tor, the SF publisher) ... I can't keep track, frankly. They love to make up names for themselves, too, so I think it's not just "name-calling" as opprobrium, it's bonding.

Now Scalia is doing it in a Supreme Court opinion, for heaven's sake. Scalia says he gets his news from conservative sources only. He's been called the Fox News Justice for the way he appears to use conservative talking points to prepare for oral arguments. My respect for his intelligence keeps trending down.

Comments

[Lurker]

My heartfelt congratulations to those Americans who were not comdemned to die a slow and painful death.

[mindyfromohio]

Don't forget the "jiggery-pokery"! That was my other favorite part.

[russell]

6-3 is a solid majority. This is a very big win for the ACA.

One thing I'm still unclear on is what the actual constitutional issue was, or even if there was one at all.

Is it common for the SCOTUS to weigh in on matters of how to read the statute, when there isn't a constitutional issue?

[Ugh]

Is it common for the SCOTUS to weigh in on matters of how to read the statute, when there isn't a constitutional issue?

As common as anything else, I would think. Usually after several district courts, and at least a couple circuit courts, have already weighed in.

[Countme-In]

What Lurker said.

I feel badly that Paul Ryan is so disappointed that the Supreme Court has now thrown the question of whether or not to murder six to ten million Americans back into his and his colleagues' hands.

We should fingerprint their hands now to save time later.

I'm also gratified that Marty will continue to receive his IRS subsidies and I hope we begin the work of reducing his deductibles and then on to cradle to grave universal health insurance as one step toward reducing poverty for single parent, two parent, and three-parent households, with the exception of those who intend to take up arms against the government if universal health insurance becomes law, though I would maintain the grave insurance for them as a signal of good faith.

[bobbyp]

One thing I'm still unclear on is what the actual constitutional issue was, or even if there was one at all.

On standard issue statutory construction grounds, this case should never have reached the Court to begin with.

My respect for his intelligence keeps trending down.

Yes. It is a rather disgraceful diatribe.

[Doctor Science]

bobbyp:

Scalia's diatribe is particularly ill-conceived, it seems to me, because he's fulminating against a *Roberts* opinion. Not a prudent target ...

[Snarki, child of Loki]

"My respect for his intelligence keeps trending down."

Watching FOX News makes you stupid. QED.

[hairshirthedonist]

Scalia is a rationalizing rationalizer with a severe mote-beam problem.

[bobbyp]

....because he's fulminating against a *Roberts* opinion.

He is also fulminating against his own dissent in NFIB v Selibius.

What a hack.

[wonkie]

Scalia reminds me of a certain kind of sixth grader in a program for gifted students: the kid lacks friends due to an inability to like anyone but himself, lacks the ability to learn due to his assumption that he knows everything already and lacks the ability to reason with any degree of honesty due to his assumption that his preconceptions are all of the truth that anyone needs to know.

[Adam R]

Can you explain two things to a poor confused foreigner?

1) how did this get to the Supreme Court? It's plainly absurd, so why give it standing unless to kill the law? Which implies that Kennedy (surely?) intended that, then changed his mind.

But how could he have sat through all the arguments in 2012 and still had anything about the ACA to learn this time around? It seems implausible.

2) What does Dr. Science mean above, about it being a bad idea for Scalia to ridicule a Roberts opinion? Just strategically bad, in terms of winning his support in future cases?

[wj]

One thing I'm still unclear on is what the actual constitutional issue was, or even if there was one at all.

While Constitutional issues are one reason for the Suprme Court to hear a case, they are not the only one. For example, if the Circuit Courts have reached different conclusions about what a particular Federal law means, the Supreme Court steps in to decide which of them is correct.

And even if there have not (yet) been conflicting Circuit Court opinions, one of the parties to a case can appeal to the Supreme Court. They generally have to have some kind of argument related to the Constitution, but that can be pretty broadly costrued. For example, if a case turns on what a Federal law actually means -- as in this case.

[Doctor Science]

Adam R:

What I meant was, strategically bad, and bad for his work environment. Roberts is the Chief Justice, so he has a lot of agenda-setting power and control over the oral arguments. Also, if Roberts is part of the majority opinion, he decides who writes that opinion. If Roberts gets pissed at Scalia, he can restrict Scalia's opportunities to write influential opinions. He may also become less likely to be persuaded by Scalia's arguments.

[Marty]

In another thread, where it is more than an aside in the post, I would love to compare which side makes up the most names for their opposition.

If there is anyone whose intelligence seems to be waning its Roberts. And his has been questionable all along.

I have never received a subsidy so it is pretty irrelevant to my low deductible very expensive plan. I'll check back after they bankrupt me.

[Countme-In]

The stock market approved:

http://www.motherjones.com/kevin-drum

Remember when back in lala land when every jot and tittle of every closing print on the stock market tape was considered either total approval of Republican blah-blah, if up, and urgent condemnation of very liberal policy proposal, if down.

I do.

Larry Kudlow, etc.

Horsesh*t. Never ending horsesh*t.

[Countme-In]

I'm not going to look it up, Marty, because I don't know how, but didn't you confess here to signing up for Obamamare and then intimate that you had spent your 401K funds paying the high deductibles, and on the basis of that regarded Obamacare as crappy insurance.

Correct me of I'm wrong and I'll cheerfully admit it.

Nothing personal, but you are eminently quotable.

[russell]

thanks everyone for the helpful replies to my 1:26.

marty, everybody calls everybody else bad names. maybe just let it roll off your back?

medical care costs a lot here. I don't think insurance plans are the problem.

[Ravi]

Marty, if you purchased a plan in the individual market in a state that didn't set up their own exchange, King v. Burwell was always relevant to you (whether or not you got a subsidy and even whether or not you got your policy on healthcare.gov).

As I understand it, other provisions of the ACA require insurers to treat the whole individual market (on-exchange and off-exchange) as a single risk pool, so had King v Burwell blown up the exchange risk pools of states that relied on the federal backstop, it would have also blown up the risk pool of the off-exchange part of the individual market as well (see: http://acasignups.net/15/03/06/reminder-if-king-plaintiffs-win-its-not-just-7m-people-whod-be-screwed-14m for more on this). Naturally, the cost increase wouldn't have been as bad as for someone receiving a subsidy, but there would still be a pretty serious spike (see link).

[bobbyp]

If there is anyone whose intelligence seems to be waning its Roberts. And his has been questionable all along.

Heh. I would agree, but I suspect for wildly different reasons!

[bobbyp]

dang.

[bobbyp]

Bobby! Bobby! Bobby!

[Hartmut]

In another thread, where it is more than an aside in the post, I would love to compare which side makes up the most names for their opposition.

That's actually a fair question, although I think it's less about the pure number but the style and creativity. Tealiban vs. Gaystapo, GOPster vs. Demonrat, conservatard vs. libtard etc.

Or take the nicknames for the last two presidents:
http://brainshavings.com/supplements/bush-nicknames/
http://brainshavings.com/obama-nicknames/

[Julian]

"If there is anyone whose intelligence seems to be waning its Roberts. And his has been questionable all along."

One reason I was confident that the government would prevail is that none of the *respected* conservative legal intellectuals who were so excited about NFIB v. Sebelius were uttering a word (as far as I could see) about King v. Burwell: the Volokhs, Dale Carpenter, Randy Barnett, Richard Epstein, etc. The only people writing about the case were Michael Cannon and Jonathan Adler. I surmised that this was because the respected intellectuals knew the case was a joke.

[Countme-In]

Here are the 9-year old snots America elects:

http://talkingpointsmemo.com/livewire/scotuscare-act-brian-babin-obamacare

[grumbles]

One, nearly pure schadenfreude point is that Scalia seems to be developing a problem with being too frank in his opinions. But with Siebelus and in Lawrence, he hands his opponents enough rope to hang him with. A classic "smartest guy in the room" mistake.

A second point is the buyer's remorse over Roberts. Republicans seem to have genuine difficulty distinguishing reliable partisans from jurists with other motivations. Roberts seems to be a reliable friend of corporatists, not a reliable Republican. (Alito was a solid pick - seems at least as much a team player as Scalia.) I wonder if this is a problem they can resolve:

- unlike with congress-critters, there is no stick with SCOTUS picks after confirmation.
- Republican partisan priorities shift, so even a reliable hack picked today might not be on board with whatever the plan is next week.
- Democratic picks are expected to be something closer to free thinkers - for structural and historic reasons, no one expects (although many lament) that the Dems can't manage the lockstep parliamentary unity the Rs manage, and Den priorities tend to be more flexible and open to compromise.

If that is right, I predict Republican nominees to be even more Bork-like in the future - without significant true-believer signaling (think Bork), an 'imposter' like Roberts might slip through again. But even that is hard - as a Nina-Republican, he had me fooled, too.

[grumbles]

Damn autocorrect. A few typos, but 'non-Republican'. I don't know what a Nina Republican is, although I'm curious.

[dr ngo]

Very similar to a Pinta Republican or Santa Maria Republican, I'd guess.

[wj]

Republicans seem to have genuine difficulty distinguishing reliable partisans from jurists with other motivations.

See Warren, Earl

Maybe their problem is they sometimes select judges who actually care more about the law than ideology. And then feel betrayed.

[Countme-In]

It ain't over until it's never over.

http://www.motherjones.com/kevin-drum/2015/06/obamacare-still-isnt-safe-and-liberals-better-not-forget-it

[wj]

Count, whyever would you think this battle would be over already. Consider how many people seem to still be fighting the Civil War. In short, it may be a long time until defeat is conceeded.

[Bruce Baugh]

This is literally the difference between life and death for several of my friends, people who are poor and not previously eligible for Medicaid. If it had gone the other way, at least half a dozen people I know and like would inevitably have died in the next year or two. I gotta say, I'm glad they don't have to.

[Marty]

Count, I have done both, bought high deductible and then the expensive low deductible. Both making a significant dent in my IRA. In neither case did I get a subsidy. Interestingly perhaps, I didn't qualify for Medicaid either, having no income. So I didn't get a subsidy, or Medicaid, but I was qualified to have no insurance without a tax penalty. I am not impressed with the safety net so far. The vast majority of people I know on ACA had insurance, were low income so they switched for the subsidy. Probably could have accomplished that with the tax code.

[Doctor Science]

Marty:

You're the second person I've seen today saying I didn't qualify for Medicaid either, having no income. I am *deeply* confused -- isn't Medicaid intended for people with incomes below $X, where X varies with state?

[thompson]

Doctor:

I'm not Marty (obviously), but in addition to income, there are a number of categories for eligibility. Quick list here:

http://longtermcare.gov/medicare-medicaid-more/medicaid/medicaid-eligibility/general-medicaid-requirements/

Although part of the ACA was to extend coverage to more people, and I don't think that is reflected in this list.

[Countme-In]

Marty, I hope you find an insurance arrangement that is satisfactory.

The safety net is not impressive.

Qualifying is akin to slut shaming.

If you are a single male without children, in most states you are out of luck with Medicaid, unless disabled and/or require nursing home care, in which case, you must relinquish all assets, minus a car and a couple thousand dollars in cash.

Obamacare has major flaws.

Compromise = major flaws.

For some reason in this society, if you fall through the cracks, the cracks being deliberately introduced into every scheme, you have achieved some kind of moral standing in the balance between suffering and freedom.

The award ceremonies must be held in secret because we never hear the names of the winners.

Suffering, and equal access to it, is freedom.

These last two items are the same in some eyes.

Those who run the show have read their Dostoevsky and their Kafka.

Fifty shades of don't let anyone get a leg up.

[Marty]

Doc, for some reason, I have not been inclined to delve into it, you have to make something. I'm not sure what. Then there are other criteria. Who knew.

[KithKanan]

Marty, if you don't qualify for Medicaid despite having no income, it's because your Republican-controlled state government refused the Medicaid expansion part of Obamacare.

Your state was only allowed to refuse that expansion because of John Roberts' opinion in NFIB v. Sebelius.

So the only reason you're stuck paying an amount you can't afford for health insurance is a Republican-appointed Supreme Court justice allowing a Republican state governor and/or legislature to refuse the part of Obamacare that was meant to help you and others like you.