Prediction: Supremes will uphold ObamaCare by 6-3 margin

Supreme Court Building

You read it here first:

In the case of King v. Burwell argued this morning, the U.S. Supreme Court will rule 6-3 in favor of the Obama administration and against conservative critics of ObamaCare, thus putting an end to the final legal challenge to the health-care law.

It will do so for the following reasons:

— Taken in its totality, the law is clear. In various sections and in various ways, the Affordable Care Act repeatedly makes clear that insurance subsidies are to be paid to qualified Americans regardless of whether they buy insurance through a state-run or federal-run exchange. Unfortunately for opponents of the law, one four-word segment of a 400,000-word law does not change that.

— When the law passed and long thereafter, everybody understood and accepted that subsidies would be paid both through state and federal exchanges. It was not even an issue. For example, when Georgia Republicans announced that they would refuse to establish a state-run exchange and would instead defer to the federal government, not a single person in the entire state believed that decision meant that no subsidies could be provided to Georgia citizens. The same is true of the other 33 states that did not create their own exchanges.**

— In 2012, when conservatives challenged the constitutionality of ObamaCare in NFIB v. Sebelius, they filed legal briefs with the Supreme Court that made it clear that they too understood that subsidies would be paid through the federal exchange. (The fact that those same conservatives now claim to believe the exact opposite has not gone unnoticed.) The four conservative justices in the minority in that 2012 case — Thomas, Scalia, Alito and Kennedy — made it equally clear in their dissent that they too saw no functional distinction between federal and state exchanges (see here, pages 185-187).

— It is longstanding Supreme Court practice to interpret laws as a whole, rather than focus too much attention on one small section that might appear to conflict with the larger legislation. As one justice reminded us in oral arguments on an earlier case this year, “we look at the entire law. We have to make sense of the law as a whole.”

“You have to look at the whole law… when all parts are read together,” Justice Antonin Scalia went on. “You don’t look at each little piece, you look at the whole law.” Scalia has also written that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” although I have no doubt he will find such justification in this case.

— Even if you take the highly technical approach that Scalia has consistently argued must not be taken — .i.e., using one small section to subvert the larger law — the wording of the bill remains clear.  Yes, the law does say that subsidies shall be paid to those who buy insurance through a state exchange. However, it also says that if the state government declines to create an exchange, the federal government “shall establish and operate such Exchange within the State.

” … such exchange,” as in equivalent exchange.

— Despite all the above, I doubt that Scalia, Alito and Thomas will be able to resist the opportunity to strike a blow in such an ideologically fraught case. However, Chief Justice John Roberts and Justice Anthony Kennedy are clear-headed enough to understand the implications of overturning such a major law on such flimsy legal grounds, particularly when they know it will throw millions of Americans into a health-care wilderness.

— More importantly, Roberts and Kennedy must understand that if they do overturn the Affordable Care Act in defiance of centuries of precedent and practice, they will do major and probably fatal damage to the court’s reputation as a legal rather than partisan institution. And that in turn would call the functionality of the entire constitutional system into question. I cannot believe that they would sign their names to such a decision.

So, 6-3.

——–

** In fact, 23 states that chose not to create their own exchanges make just that argument in a brief filed before the court.  Defending their citizens’ right to collect subsidies, they cite repeated Supreme Court precedent requiring that the federal government be clear with the states when demanding action of them, such as creating exchanges or risk making their citizens ineligible for subsidies. 

As the court ruled in a 1981 case, “There can, of course, be no knowing acceptance (of a contract with the federal government) if a State is unaware of the conditions or is unable to ascertain what is expected of it.” The states also cite the opinion authored by Chief Justice Roberts in the 2012 ObamaCare case, concluding that while “Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or ‘retroactive’ conditions.’ ”

The states make it clear that they had no such notification or expectation that a state exchange was needed in order for their citizens to be eligible for subsidies, because nobody at the time believed that to be true.

Reader Comments 0

720 comments
hamiltonAZ
hamiltonAZ

for the sake of the needy, let's hope Jay's right.

JoeBobJoe
JoeBobJoe

6 to 3.   Whatever jay is smoking, he needs help,  only the female libtards will agree with jay.   I can't wait to see what he has to say  when odumabama  care is done.

honested
honested

@JoeBobJoe 

Poor little feller.

Keep your camera handy 'cause I want a selfie when your head explodes.

td1234
td1234

Here is a part of the Federal report not beings talked about. The "hands up don't shoot" was total BS.


"“there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead [but] their accounts do not support a prosecution of Wilson.”

“As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness’s own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision,” 

Nick_Danger
Nick_Danger

@td1234 

Don't expect "Hands up, don't shoot" to go away, td.  Its meaning has evolved beyond the description of an event, into an expression of human rights.  I know you won't like it, but there it is...

Paul42
Paul42

@td1234

Just can't bring yourself to comment on the information in the Justice Department report, can you?

Jackie_36
Jackie_36

@td1234 You are delusional.

You still have not accepted the fact that Mr. McCulloch refused to accept the evidence presented and was on tape and is being sued by several members of the Grand Jury.

Why do you exercise willful ignorance?

td1234
td1234

@Jackie_36 @td1234 Accept evidence from witnesses that claimed Brown had his hands up? Where in the Federal report did it say that the DA did not examine all the evidence? 

straker
straker

Nick


Blacks seem to take to the streets every time a White officer shots a Black man.


I'm just wondering why they don't do the same when a Black man shoots and kills a Black officer.

skydog12
skydog12

@Jackie_36 @td1234 @straker


I got behind the "Marietta Tank" the other day in traffic. Frightening, but the "Doraville Tank" is the baddest.


You never know when your going need a tank? I haven`t seen the "Alpharetta Tank" yet. Probably a Beamer.


straker
straker

KUTGF - "the DOJ report forces some to look anyway"


Does that include their decision not to punish the officer who shot Michael Brown?

JamVet
JamVet

Del is good Republican.

Racists on this forum, if they too are Republican, get nary a squeak from him.

Not one.

Ever.

Witness infraredguy and his racist mockery of John Lewis and the Edmund Pettus Bridge recently. Which not ironically was the exact same vein of overt racist posting by Philo before that. (When he was sunkenwitch)

Del has even gone so far as to call trish a "fine young lady".

Mind you, she was the most depraved, unabashed racist that I have EVER read.

And poor racist coddling td, that kid lives a world of his own insane definitions to justify his supporting this racist filth.

Years of observance confirm this fact - if the racist is a Republican they will get nothing but tacit approval in the form of silence from these racist coddlers.

Not me.

I made it a point to fully expose that disgusting woman, the net effect that she has left this forum.

There are plenty of other on line places where perverse people like her gather.

And to this very day the southern (especially) GOP is still damn near as segregated as the K-KK.

White Power.

http://www.youtube.com/watch?v=XS0OOCfdMus


Philo_Farnsworth
Philo_Farnsworth

Remember WOW? He was phun-knee...

Didn't last long tho...

Tuna Meowt
Tuna Meowt

@JamVet "Del has even gone so far as to call trish a "fine young lady".  Mind you, she was the most depraved, unabashed racist that I have EVER read."


Can't argue with that.  Trish says some HORRIBLE things and doubles down on them when anyone objects.


kayaker71
kayaker71

@Philo_Farnsworth We could use more Trishs on this liberal love fest.  This political correctness is killing us. 

td1234
td1234

@JamVet I have yet to see a sign out in front of a GOP meeting that say "whites only"/ Maybe the problem is to many in the black community is into group think or they just can not think at all? 

Jackie_36
Jackie_36

@td1234 @JamVet It sounds like you have your $%#* wires crossed.  It certainly appears YOU are the one that does no thinking, PERIOD!!!!

LeninTime
LeninTime

This has become a societal issue Court.  Certainly not the third branch of our govt.

***

Oh it's a 'societal issue court' alright. A revanchist counterrevolutionary arm of the most right wing elements of the corporate and political elite, openly legislating reactionary social policy from the bench.

Peachs
Peachs

Healthcare is a lot like police in communities. A diseased society is akin to a criminal society yet cons have no problem understanding a theft at their back door creates need for Barney in a tank while that germ from an unhealthy citizen that is forever mutating through the use of the uninsured bodies is too costly to fix. I would say we could probably use about half the police and homeland security we have today and put that into healthcare, we would be far better off. Rogue terrorist against armed Americans will not end this country, but disease in the hands of the same gorillas that don't understand it will destroy us we have no answer for it.We are so willing to leave our people exposed, one day the terrorist will figure out that the weak link in America is the way they treat the poor, especially in the South and they will start an epidemic, like a forest fire on dry wood.

kayaker71
kayaker71

@Peachs Cut the police in half?  Man, that's rich.  Better stock up on ammo, if you can find any. 

skydog12
skydog12

@Peachs 


We have "Hillside Stalker Police" up here in Acworth.


I am for enforcing the speed limits, but these cops sit on the down side of these hills around here with their radar guns.

If you are not familiar with the terrain and don`t know to ride your brake down the hill then you get a ticket. They stay "busy" all day, every day. That`s BS. Cut the force in half.

Tuna Meowt
Tuna Meowt

@skydog12 @Peachs Those Hillside Stalkers have some hangouts in Sandy Springs, too, but fortunately I don't live there.