In the event that the subsidies are eventually struck down, what effect should we expect to see on the ACA as a whole? Is there any plausible outcome that will allow insurance companies to disqualify pre-existing conditions again? Or that would remove the requirement to allow children up to age 26 to be covered under the family policy?
I don’t know.
Theoretically those are separate requirements, and killing the tax subsidies for federal exchanges shouldn’t affect them.
But it’s an extremely complex and interrelated scheme, so I can’t say what the secondary effects would be.
The government has pretty consistently taken the position that the Act’s provisions are not severable, so my guess is they won’t be.
Then there’s still some hope that the ACA will break the health insurance industry, right?
It appears it was already broken.
So will the decision to grant an en banc rehearing in Halbig really effect the likelihood of SCOTUS granting cert in King?
And if SCOTUS does grant cert in King, would the full DC Circuit stay the Halbig rehearing?
IANAL, but it seems to me that the en banc rehearing in *Halbig *would be moot if SCOTUS grants cert in King.
Of course the government argued the mandate was not a tax one day before arguing it was a tax the next day. I wouldn’t count on any consistency in their arguments should the subsidies be ruled unconstitutional. Of course SCOTUS didn’t seem to have any problem severing the Medicaid expansion mandate.
In the case of a loss of subsidies, I suspect insurers might withdraw from a state’s market entirely if they were left with a risk pool that could not be salvaged. That could raise voter pressure for states to implement their own exchanges
Heh. Yeah, but I’m talking completely inoperative, to the point where the companies stop trading publicly, because nobody wants to own shares, and they can’t hire talent into the C-suites or even GIVE away seats on the BoDs.
This is a different case, but same argument. The ruling is against the feds:
A federal judge ruled in Oklahoma’s favor Tuesday in a lawsuit challenging part of the Affordable Care Act.
Oklahoma Attorney General Scott Pruitt has said that parts of the law do not apply to Oklahoma and other states that did not set up their own health insurance exchanges.
This case is Pruitt v. Burwell
This ruling certainly boosts the likelihood that the SCOTUS will take up the case of King v Burwell for which a writ of cert is pending. SCOTUS starts meeting for their new term soon and have to decide which cases they will take.
And they granted cert today!
I was a bit surprised when they didn’t grant it at last Friday’s conference. But they relisted it for today, and they are going to hear it.
So whaddya say, Bricker? Will you give 3:1 odds that the Supreme Court rules against the government? 
“The Supreme Court follows the election returns”, said Finley Peter Dunne. But even he didn’t mean it quite this literally.
Maybe Pelosi should have taken the time to see what’s in it before passing it?
If you care about the context: PolitiFact | Texas GOP says Speaker Nancy Pelosi said people will know contents of terrible health-care plan after it passes
“Four justices would not have voted to accept this case if they did not know for a certainty that they already had a fifth vote to overturn the ACA.” - some random internet commenter
Any merit to this?
I hope not. But assuming none of the liberal justices want to vote for it to be heard, four of the conservative justices might vote for it to pressure the fifth.
No, not really. We usually don’t know for sure, but we can easily surmise that the people who voted to take a case are sometimes in the dissent when that case comes out. Indeed, we know that the people who voted to take a case sometimes themselves vote to uphold the case they are reviewing, even in the absence of a circuit split (so it’s not like they are implicitly correcting some other case).
Moreover, it’s not a sure thing that it was the conservatives who voted for cert. Failing to resolve the issue leaves Obamacare in uncertain waters. If you think that the issue will eventually reach the Court–which is probably right even if the D.C. Circuit flipped back since the Fifth or someone else would eventually toss it up–then the liberals probably think it’s better to sort it out now than later.
I don’t really buy that theory personally, but you can’t discount it entirely. I think this was probably the dissenters from the first Obamacare case chomping at the bit, refusing even to wait to see what the D.C. Circuit does before taking another shot at legislation they don’t like. Which is troubling, because that puts Roberts in the drivers seat, whereas Kennedy would have been the more reliable vote on a case of statutory interpretation for which the text is, at best, ambiguous and the other evidence of intent is overwhelming.
Wait, so something about the circumstances changes that? Wouldn’t he have gone the way he thinks right regardless of how the case got there?
The tea leaves suggest he might have voted to take the case, which makes it less likely that he thinks the court below got it right. That’s all. But it’s just tea leaves.
The essay by Justice Stevens criticizing the preference for literal interpretation over legislative history and declared intent. A clear and cogent argument even for us who don’t know an estoppel from a stark staring decisis.