Friday, March 6, 2015

King v. Burwell

I have full faith in John Roberts to keep Obamacare alive. USA Today reports:

The principal argument advanced by the law’s opponents—that four words in the 906-page statute permit the use of tax credits only in states that set up their own health insurance exchanges—appeared to please the court’s most conservative members.


In combative terms, the court’s four more liberal justices argued that limiting tax credits used by millions of Americans to pay insurance premiums, as the challengers said the law requires, would throw the insurance markets in 34 states into a “death spiral.”

“We’re going to have the death spiral that this system was created to avoid,” Justice Sonia Sotomayor said. “Tell me how that is not coercive in an unconstitutional way.”

You see, the law can’t mean what it plainly says because without socialism there would just be too much pain in the world. The ends justify the means.

During the second half of the oral argument, Justices Antonin Scalia and Samuel Alito said the law clearly does not include tax credits in federal exchanges—and that if the court rules that way, states or Congress can step in and fix it.

“How can the federal government establish a state exchange?” Scalia said. “That is gobbledygook.”

The lawyer for the challengers, Michael Carvin, returned repeatedly to the wording of the law itself. “This is a straightforward case of statutory construction, where the plain language of the statute dictates the result,” he said.


During the second half of the argument, Solicitor General Donald Verrilli—who successfully defended the health care law in 2012—argued that it would make no sense if essential tax credits were excluded from two-thirds of the states, as the challengers suggest was either Congress’s intent or error.

“Their reading produces an incoherent statute that doesn’t work,” Verrilli said. “That cannot be the statute that Congress intended.”

It wouldn’t be the first time a major branch of government failed internal consistency. Verrilli seems incredulous that Congress would do something so stupid. Is it because progressives are too smart to make one mistake in 906 pages of incoherent socialist utopian lawmaking? My Bible is about 900 pages and it’s not as dense or as moralistic as Obamacare.

Michael F. Cannon writes at Forbes:

The plaintiffs in King v. Burwell claim the Patient Protection and Affordable Care Act only offers premium subsidies, as the statute says, “through an Exchange established by the State.” Members of Congress who voted for the PPACA—most recently Sen. Bob Casey (D-PA) and former Sen. Ben Nelson (D-NE)—now swear it was never their intent to condition Exchange subsidies on state cooperation.


Ironically, Casey’s and Nelson’s decision to wade into the King debate demonstrates why, when a statute is clear, courts traditionally assign no weight to what members of Congress claim they intended a law to say—especially if, as here, those claims come after a clear provision has proven problematic. While he claims he never intended to condition subsidies on states establishing Exchanges, Casey repeatedly voted to condition Exchange subsidies on state cooperation, has misrepresented what Congress intended the PPACA to do, and continues to misrepresent the PPACA on his Senate web site. Nelson’s claims about what Congress intended should likewise be taken with a grain of salt. In an unguarded moment in 2013, Nelson admitted that in 2009 he paid no attention to “details” such as whether the PPACA authorized subsidies in federal Exchanges.


Conditioning Exchange subsidies on state cooperation is hardly a foreign concept to Casey. In 2009, he supported and voted for another health care bill that even the Obama administration and congressional Democrats acknowledge conditioned Exchange subsidies on state cooperation. That bill was S. 1697, reported by the Senate’s Health, Education, Labor, and Pensions Committee.

As Jonathan Adler and I explained in a brief we filed before the district court in King, every Democrat on the Senate’s HELP Committee voted in favor of S. 1697, and therefore in favor of conditioning Exchange subsidies on state cooperation.

In Casey’s words, then, he himself voted for a bill that “included the threat” that residents of uncooperative states “would lose access to premium... credits intended to ensure that those residents could afford health insurance.”

If you were a judge, what would you consider a better indicator of what Casey actually intended: what he repeatedly voted to enact, or what now he says to influence the courts after the clear language he voted to enact has proved problematic?

These men are so smart they made healthcare decisions for millions of patients they don’t know for health conditions even the patients themselves don’t know they have. Sic semper tyrannis.

How is it that the mythically “disfunctional” Congress of the last 4 years has sacrificed Congress’s credibility? The worst they’ve done is go along with the idiocy that came before. Remember, the temporary liberal supermajority of 2009-2010 passed this horrible law.

[Scalia] and Alito also asked why the states or Congress couldn’t fix what the court breaks if it rules that 34 states should not be offering tax credits. Alito said “it’s not too late” for the states to set up exchanges, while Scalia intoned, “What about Congress?”

“You really think Congress is just going to sit there while all of these disastrous consequences ensue?” Scalia said. That brought knowing smiles and chuckles from the lawmakers seated adjacent to the news media section.

As if the do-anything-to-pad-the-federal-register-with-rationalizations-to-do-whatever-our-socialist-hearts-desire Congress that created this mess is any better than the one we have today.

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