# It's time to predict the ruling of King v. Burwell! **URL:** \ **Category:** In My Humble Opinion\ **Created:** [June 2, 2015, 10:41pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482 "2015-06-02T22:41:10Z")\ **Posts on this page:** 17\ **Page:** 4
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 11, 2015, 9:15pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/61 "2015-06-11T21:15:44Z")
> [@2ManyTacos](#): > > There is a canon called “Constitutional Avoidance” that everybody was discussing immediately after oral arguments; it dictates that the Court not interpret statutes in ways that would make them unconstitutional. > > So your hypothetical, though certainly a dream for ACA opponents, is unlikely. Law says what it says. Up to Congress to fix. Not up to the Court to re-write the law to make it constitutional. May be an unlikely result, but one that avoids constitutional issues. If they go that way, a Chevron analysis starts with the language. If the plain language is clear, then game over. Period. That is how one of the lower courts ruled against the PPACA. No one seriously thinks Kagan, Sotomayor, Breyer, or Ginsburg to against the government’s position. And good money is that Alito, Scalia, and Thomas will vote against the government’s argument. I think most of use are on the same page there. I’m just not sure the government can count of Kennedy or Roberts to rule their way. Most discussion I’ve seen seems to focus on those two as being the most likely to cast the deciding vote(s). Kennedy ruled with the three die-hard conservative on key issues in the prior PPACA case. Only Roberts saved the administration’s bacon there. And [in the words of ThinkProgress](http://thinkprogress.org/justice/2012/06/29/508522/dissenting-opinion-analysis-justice-kennedy-abandons-all-pretensions-of-being-a-moderate/), Kennedy’s vote “_would happily blow up our entire health care system simply to lash out at President Obama’s signature accomplishment, forcing millions of Americans to face uncertainty, financial ruin or potentially even death after they suddenly lose their ability to access affordable health care_.” i would not bank on him having seen the light now. And there was much speculation that Roberts’ vote was a late switch, only after the taxation issue won him over. I don’t see such an out here. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 11, 2015, 9:33pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/62 "2015-06-11T21:33:15Z")
It doesn’t avoid constitutional issues because the law would then be an equal protection violation, most likely. Having said that, I’m not sure the challengers have actually put the EP violation squarely before the court. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [June 24, 2015, 1:53am UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/63 "2015-06-24T01:53:35Z")
The decision may come out as soon as Thursday, so I’m bumping this thread in case anybody would like to add something else. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 25, 2015, 2:13pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/64 "2015-06-25T14:13:56Z")
The Court votes 6-3 to uphold subsidies on federal exchanges. Roberts and Kennedy join the liberal wing of the court in affirming the lower court decision. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 25, 2015, 2:16pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/65 "2015-06-25T14:16:32Z")
The decision did not go to Chevron deference, so cannot be reversed administratively by a future President. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 25, 2015, 2:40pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/66 "2015-06-25T14:40:56Z")
Interestingly, the [Court](http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf) specifically held that _Chevron_ was inapplicable. > [@](#): > > When analyzing an agency’s interpretation of a statute, thisCourt often applies the two-step framework announced in Chevron, 467 U. S. 837. But Chevron does not provide the appropriate framework here. The tax credits are one of the Act’s key reforms andwhether they are available on Federal Exchanges is a question of deep “economic and political significance”; had Congress wished toassign that question to an agency, it surely would have done so expressly. And it is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in craftinghealth insurance policy of this sort. I am a little disappointed that none of us participating in the prior threads on the subject thought of that last part. However, points go to **Richard Parker** , who almost perfectly predicted the court’s holding on the statutory interpretation issue. As for me… > [@](#): > > The administration’s interpretation will be upheld on administrative deference grounds. I’m about 99% confident in this prediction. … let’s hear it for the 1%! 😉 ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 25, 2015, 3:36pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/67 "2015-06-25T15:36:05Z")
Indeed the lack of Chevron based ruling means a future administration could not just reverse the IRS interpretation administratively. Any dramatic changes will have to come by a vote of Congress, subject to veto threat by the President, assuming no veto-proof majorities develop in the next Congress. So what will the next challenge be? How soon does someone in the Territories challenge the lack of subsides there? Equal protection 14th Amendment grounds. Or find a plaintiff that wants to move from a State with subsidy to a Territory that doesn’t get a subsidy. Does the lack of subsidy unconstitutionally inhibit free travel by effectively unreasonably penalizing a person who would lose a subsidy? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 25, 2015, 3:39pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/68 "2015-06-25T15:39:56Z")
I’m not aware of any precedent suggesting that the federal government has to treat citizens of different states, much less states and territories, equally in its spending decisions. Are you? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 25, 2015, 3:41pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/69 "2015-06-25T15:41:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > However, points go to **Richard Parker** , who almost perfectly predicted the court’s holding on the statutory interpretation issue. Even I was too pessimistic, it seems. I thought we’d get Roberts or Kennedy, but not both. On the other hand, I thought the FHA majority would get Scalia. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 25, 2015, 3:58pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/70 "2015-06-25T15:58:39Z")
> [@Richard\_Parker](#): > > I’m not aware of any precedent suggesting that the federal government has to treat citizens of different states, much less states and territories, equally in its spending decisions. Are you? I don’t think it’s much a reach to get there from [Shapiro v Thompson](https://en.wikipedia.org/wiki/Shapiro_v._Thompson). The Court held that a State could not refuse to provide AFDC to a new arrival who did not meet a one year residency requirement. And they did so by ruling it “has a chilling effect on the right to travel.” Simply extend that logic to the federal government and rule they cannot deny a subsidy solely based upon moving from one jurisdiction to another. But heck, I am not a lawyer. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 25, 2015, 4:02pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/71 "2015-06-25T16:02:15Z")
But the denial of insurance subsidies is not a “waiting period”. It is a deliberate (and permanent) decision of Congress to treat states and territories differently, something it can do. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [June 25, 2015, 4:14pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/72 "2015-06-25T16:14:57Z")
I just got around to this thread. Winners include: > [@BobLibDem](#): > > Even odds either way: > > A 6-3 win for the ACA. Roberts joins the majority to make the court seem less political and to write the opinion… > 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. > [@ElvisL1ves](#): > > Roberts signaled in the DOMA and ACA rulings that he doesn’t want his place in history to be as the CJ who let the Court be used as a tool of partisan spite. I suspect he’s aware that a ruling for the plaintiffs would be widely seen as just that, and he’ll find some narrow, inoffensive grounds to rule for the government. Whether Kennedy or Roberts sought to act in honorable ways cannot be proven. If they were driven by only crass political advanatge for the GOP, it was still wise for them to defend Obamacare. If they had allowed plaintiffs to disrupt American healthcare at this point, for no intelligible reason except that Obamacare rhymes with Obama whose middle name is Hussein-from-Kenya, it would have demonstrated to the voters what crass and twisted saboteurs the GOP have become. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 25, 2015, 6:03pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/73 "2015-06-25T18:03:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Interestingly, the [Court](http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf) specifically held that _Chevron_ was inapplicable. > > I am a little disappointed that none of us participating in the prior threads on the subject thought of that last part. However, points go to **Richard Parker** , who almost perfectly predicted the court’s holding on the statutory interpretation issue. As for me… > > … let’s hear it for the 1%! 😉 I read that but I’m still not getting it. All I understand is that not using it means the President can’t reverse it. Layman’s explanation of Chevron? How would the law differ if upheld under Chevron vs. not under it? What was it about the Chevron case that affects this one? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 25, 2015, 6:09pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/74 "2015-06-25T18:09:17Z")
One reason that hadn’t occurred to me until today is that a Chevron-based ruling would allow a future President to reverse the ruling administratively. A plain-intent ruling is much harder to flout. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 25, 2015, 6:55pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/75 "2015-06-25T18:55:38Z")
> [@YogSosoth](#): > > I read that but I’m still not getting it. All I understand is that not using it means the President can’t reverse it. Layman’s explanation of Chevron? How would the law differ if upheld under Chevron vs. not under it? What was it about the Chevron case that affects this one? Okay, so when Congress (or state legislatures) pass laws, they nearly always have to leave some spaces for the executive to fill in. For example, the Clean Air Act says “[t]he Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970, after consultation with appropriate State and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards.” Sometimes they also leave spaces but don’t specify that the executive should be filling them in, but the executive does because somebody has to interpret the statute. This sort of delegation to an administrative agency is totally kosher as long as Congress provides guidelines for how the authority is to be used. However, if someone feels the agency’s use of this authority is beyond the scope allotted by Congress, or unconstitutional, or otherwise objectionable, they can challenge it (first by administrative hearing, and subsequently in court.) When the courts are asked to review this sort of agency action, they follow _Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc._, 467 U.S. 837 (1984). In that case, SCOTUS basically said that that when Congress delegates power to an agency, it does so because the agency is staffed by experts in the relevant field. Thus, it’s not for the courts to second guess the agency when it exercises the delegated power (it’s for Congress to amend the underlying legislation if it feels the agency got it wrong.) This is called _Chevron_ deference: if the agency interpretation is reasonable (not “correct”, or even “a good interpretation”, just reasonable) it will be upheld. The executive branch agencies are nearly all subject to the whims of the president. So if SCOTUS had said, “Chevron deference, the IRS and DHHS say the subsidies are for all states, fine by us,” President Rubio (or any future POTUS) could tell the IRS and DHHS to reverse its opinions and stop allowing all states to share the subsidies. You may recall that GWB ordered the EPA to narrow a lot of its rules immediately prior to leaving office, and then Obama reinstated most of them; that’s the sort of action we’re talking about. In _King_, SCOTUS said Congress did not delegate authority to the IRS to interpret the ACA. So SCOTUS didn’t have to defer; it could review the IRS’ interpretation for correctness. It did, and found that the current interpretation is correct, so President Whoever won’t be able to change it since it now _part_ of the ACA for all intents and purposes. A future SCOTUS could, of course. ---
**Author:** ![steronz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steronz/32/11765_2.png) [@steronz](https://boards.straightdope.com/u/steronz)\ **Post date:** [June 25, 2015, 7:14pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/76 "2015-06-25T19:14:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > A future SCOTUS could, of course. Or a current or future congress, for that matter. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 25, 2015, 8:27pm UTC](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482/77 "2015-06-25T20:27:35Z")
That makes sense, thanks RNATB. You seem, in actuality, to be RATB [Previous page](https://boards.straightdope.com/t/its-time-to-predict-the-ruling-of-king-v-burwell/721482.md?page=3)