I’m sure most people on the Dope have heard about this upcoming Supreme Court ruling. This concerns a case heard in March - vertically integrated into the GOP consciousness by two rightwing zealots - that threatens to take health insurance subsidies away from ~7 million people in 34 (or 36, depending on the metric) states that use HC.Gov.
I’ve made it clear elsewhere on the Dope that I believe this entire lawsuit is baseless and devoid of all merit. If the ACA weren’t so politicized, the Court probably would’ve never agreed to hear it.
Still, the ruling is less than a month away, so it’s time to lay out your predictions.
How do you think the ruling will come down? On what do you base that assessment?
I agree there is a very strong likelihood King will be upheld, though I’m not so sure it will be done on deference, I think the court would just as soon leave Chevron out of this and instead use something like constitutional avoidance and/or the idea the simple phrase fell way short of providing adequate warning to the states. I believe Chevron was only mentioned once tangentially in oral arguments, the justices seemed much more concerned about other problems with the case.
If you think about it, if the plaintiffs were to prevail in King it would only encourage bad behavior by Congress in the future, who could hide a giant vaguely worded booby trap when writing a bill and get it passed under the radar only to spring an “oh by the way…” gotcha a few years later. I really don’t think the court wants to go there.
I think the plaintiffs will get - at most - 3 votes in favor of their interpretation. There may be some splits as to exactly how the court rules against the plaintiffs but they will rule against them. Worst case scenario, they rule that the ambiguity needs to be clarified by Congress but allow the subsidies to stay until Congress resolves it. Actually the very worst case scenario would be that they rule the exchanges do have to be state established but at least one of the dissenters will provide a roadmap for the administration on how to circumvent such a technicality, but it’s very unlikely such drastic measures will have to be resorted to. In any event the status quo will be preserved.
So at the end of the day the subsidies stay, John Roberts and his court will look like the hero to millions of Americans (something he really wants), the Democrats will be content that Obamacare lives (though depriving millions of insurance would have made a great 2016 campaign issue for them) and the Republicans will be breathing a huge sigh of relief they won’t have to offer up an alternative while continuing to rail against it. Everyone wins, this is an easy call. All the while the press had their field day writing horror stories ad nauseum about how terrible this was going to be, knowing all along it had little chance of actually playing out.
FWIW, I’m expecting either a 6-3 or 5-4 affirm of the government’s interpretation. At oral arguments, one of the few times that Roberts said anything was when asking Verilli about applying Chevron to the case, and what the ramifications of that would be. I’m assuming that that’s his “out” for the case: Roberts will apply Chevron to uphold the government’s position, but with the understanding that a future (GOP) administration would be legally free to interpret the law as the challengers see it.
The thing that makes me nervous, however, is that the Court is also deciding SSM this term. A bunch of people have pointed out that such a confluence of high-profile cases means that Roberts is going to be enormously reluctant to issue two liberal rulings at once. The idea that the ACA has to be tarnished so that SSM can survive - or vice versa - is a sickening example of “connectivity” in the Court, but it’s a real concern.
Why is it a “real concern”? Because “a bunch of people” are concerned about it? Well, “a bunch of people” are also concerned that God is sending us bad weather because we’re sinful.
My prediction is a 5-4 or 6-3 ruling in favor of the Federal Subsidies.
A 6-3 win for the ACA. Roberts joins the majority to make the court seem less political and to write the opinion.
A 5-4 loss for the ACA. Stevens joins the conservative gang of 4.
I would bet (though not for money of course) that Scalia, Alito, and Thomas all vote against the ACA. Generally, one can pencil in their votes before arguments.
If I had to pick only one outcome, the 5-4 loss would be it.
(1) I really don’t think that Roberts wants his Court to be seen as a political tool, which, let’s face it, would become the public perception if they rule 5-4 against the ACA in what would clearly be a political decision.
(2) That said, I also REALLY feel that he doesn’t want to be the fifth vote again, which is why he’ll probably bend over backwards to get Kennedy on board with the four lib Justices. Still, I think that he’ll hold his nose and provide the 5th vote if he has to.
The way FDR threatened to increase the SC from 9 to 15 as a way to force the court to pass on his programs before them. That he was willing to undermine the independence and integrity of the SC as the 3rd branch of government is evidence to my eyes that he wanted to subvert its functions to his wishes.
I wouldn’t call that “political use”. Political pressure, maybe. The court-packing plan failed, though SCOTUS did become less hostile to New Deal programs.
He also tried to strong arm Congress into passing his legislation without Congressional alterations. He alienated many of his allies; after an intense short window of success he was unable to get further progressive legislation through Congress. IIRC Robert Caro detailed this in his series of LBJ biographies.