What you call “overriding legislative will” can also be called “upholding the Constitution”, you know. History has not judged the Warren court to have been motivated by a desire to fuck Eisenhower, nor the Marshall court to fuck Jackson. Do you recognize and understand that?
If so, how do you think future historians will see this case, and votes for the plaintiffs, as being motivated by anything else?
No sane person believes that this court has a desire to fuck Obama. Some people think his means are unconstitutional. Righties hate Obamacare. Lefties hate the NSA. These matters arent science where there is an objectively correct answer. Opinions can vary. Just because people dont agree on some issues doesnt mean that they have evil motives.
As a body, no. Multiple individuals on it, yes, that’s a common view. The point is about how Roberts wants the institution to be perceived - and a vote to gut ACA over some inanity that requires flouting all precedent and basic sense would be perceived as just that - because it would be. There most certainly will be actual votes by actual Justices that way, as I’m sure you’d agree.
If they can’t explain them in factual and reasoned and principled terms, just continue ranting about their personal hatreds, then yes, the inescapable interpretation is that those are their true motivations.
Would you care to expound on your interesting theory about Warren and Marshall? It sounds fascinating.
What I cannot understand about the case is how the plaintiffs have standing. They could decide they don’t. Otherwise, I predict 5-4 to dismiss the case.
They have standing because they are forced either to purchase insurance or pay the penalty, and if the subsidy didn’t exist they would qualify for the unaffordability exemption and not have to pay the penalty. (26 U.S.C. § 5000A)
Also, this.
As we get closer to the ruling, more and more I’m wrapping my head around the idea that 9 unelected philosopher kings have the power to screw over this many people.
I predict that the subsidies are going nowhere, but there is more than one way to get that result.
50% chance: 5-4 ruling for Burwell.
25% chance: compromise opinion where the government gets a bloody nose again(as it did with the Medicaid expansion), but the core of the law remains in place.
25% chance: ruling for Burwell, but with stern warnings in the majority opinion that the court is under no obligation to uphold laws that are badly written just because it is imagined that those who voted for it “intended” a result. Read the damn bills! The fact that doing so is hard is of no consequence. It’s their job and they are well compensated for it.
I just don’t see a path to victory for King here, because it seems to be a result no one really wants at this point.
That didn’t stop them in* Bush v. Gore.*
Au contraire, there were a lot of people that wanted that result.
From my perspective, if I was only interested in getting rid of ACA, a better way to do it is just to let the death spiral happen, as it looks like it might now due to the individual mandate being mostly ignored and insurance companies raising prices high as a result of that. If ti happens that way, Republicans can’t really be blamed. The Democrats chose a weak mandate.
The problem with ruling for King, from my perspective, is that then we have to fix the law, like right now, and the Democrats will probably take a hardline position that the fix should be unconditional. I don’t want that fight, even if there’s a chance we can win it, because I’m sick of partisan warfare. Let the subsidies stand and dismantle ACA through the normal legislative process. Elections have consequences, and if Americans give Republicans everything in 2016, one of the possible consequences is the end of ACA.
It is to laugh. They tried to soften the bill to make it palatable to Republicans, and when it succeeds it’s being shoved down their throats, and when it (arguably) fails, it’s weak.
The Republicans didn’t demand a weak mandate. That was recognition of the reality that a tough mandate would have sparked public outrage. And even the very limited enforcement available to the administration has not been fully used. They are allowing all sorts of exemptions they don’t have to offer. Which just means more healthy people who can pay for insurance being left out of the pools.
But that’s why even Republicans don’t want the subsidies struck down now. That puts the onus on the Republican Congress to do a fix on a system that could be collapsing under its own unworkability. The Republicans are under no obligation to save ACA from itself, but they might be under an obligation to save it from an adverse court ruling over a technicality.
The mandate only survived because it was considered a tax because of the minimal nature of the penalty. Beef up the “tax” to where it starts to look like a penalty, and it risks being unconstitutional.
What if The court rules rules for King that the language is plain and thus the bill that was enacted does not permit subsides in federally run exchanges?
Then take Kenndy’s commment during oral arguments to the effect that such a distinction would be unconstitutionally coercive on the States.
Then the entire subsidy scheme, both federal and state run exchanges gets the boot. 14th Amendment grounds.
I don’t see how the whole scheme gets tossed under that rationale. If the Court reads the law as the Plaintiffs see it: You get a tax break ONLY IF your state establishes an exchange, and the Court further finds that beyond the powers of Congress to be so coercive to the states, then the end result is that you get a tax break no matter what your state does.
Your remedy to the situation would be that nobody gets a tax break, but why would the Court fashion such a harsh remedy when mine is so much easier? It would be like if SD v. Dole (the 21 year old drinking age case) went the other way and the Court found it to be coercive, but instead of striking down the penalty, they imposed it on all of the states no matter their drinking age.
I think that the Court would simply strike out what follows the “only if” part. The law doesn’t work without the subsidies, and instead of striking a comprehensive scheme because of a single word, fix it a better way.
Duh. Yes of course. Kennedy decides every case now.
My *hypothetical *requires the court to take a literal reading of the statute, as it was passed, as King has asked they do. If they do that (and no telling if they will), then how do they reconcile such a literal reading with giving subsidies to all? I don’t think the two are mutually compatible.
*If *availability of subsidies is contingent on a State setting up an exchange, the court could say that is too coercive to be constitutional. But the law doesn’t permit subsides to those on the federal exchange. So the solution to avoid unequal treatment is to void subsidies all around. It is good enough for the Territories after all. That comports with the idea that the court can strike down a law but not rewrite it.
I’ve been trying to think of how this decision will somehow crawl beyond the boundaries of what is commonly speculated. I still think there will be some twist that will surprise us all.
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.
What 2ManyTacos said. The court will reach constitutional arguments only if they cannot resolve the case some other way.
Will, or should?
Depends on your perspective. Bricker would probably say “should”, since the canon of constitutional avoidance is an example of deference to the legislature. Those who argue for the judiciary to take a more active role would probably say otherwise. Personally, I don’t much care either way. I think of it as analogous to the order of operations in mathematics: a somewhat arbitrary rule that courts impose on themselves to make the law more predictable (and predictability is a good thing, regardless of your perspective.)