Wednesday, March 4, 2015

King v. Burwell: What Will the Supreme Court, or at Least Chief Justice Roberts Do

King v. Burwell: The Supreme Court Heard Oral Arguments Today in the ObamaCare Federal ;Exchanges Case: Will Chief Justice Roberts Cave Again? Or Will it Be Justice Kennedy This Time? The issue is the statute’s language versus legislative intent. Or it may be standing. The legal analysis should be simple. A majority of the Court in recent decades has consistently held the first place to look in interpreting a statute is the plain language of the statute. If the language is clear on its face, then the Court will not look further at “legislative intent.” The critical four words exchanged “established by the state“ seem clear and unambiguous on their face. A “state” is not part of the “federal” government” in the United States. If the Court proceeds further, then the legislative intent, as often occurs is murky or mixed. The overall intent of the statute was to provide health insurance to all Americans. Thus, it should not matter whether subsidies are available through federal or state exchanges. If that was Congress’ intent, the statute failed. The numbers with insurance grew a few million, but many who joined the exchanges did so because their existing policies were cancelled for not complying with some the ObamaCare’s mandates. So much for “If you like your current provided, you may keep the provider.” Congress’ intent is unclear except for a general intent to pass a health insurance bill. Members of Congress were provided 72 hours to read the 2,000 page bill. Speaker of the House Nancy Pelosi famously said: “First, we need to pass the Bill to find out what’s in it.” Yet, the omission of state federal exchanges was not a legislative mistake in drafting the statute. The expenditures under the exchanges are based on the Spending Clause of the Constitution. Congress can offer funds to the states pursuant to the Spending Clause with conditions attached. Congress cannot force the states to accept the monies, but it can bribe them to do so. The historical reality is that the fiscally starved states almost always accept Congressional funds with the conditions attached. Thus the Democrats intentionally drafted ObamaCare with the expectation that the states would, as usual, accept the funds. Only 13 states and the District of Columbia established state exchanges. They found the exchanges unpalpable, even with substantial federal funding. Many also refused to extend Medicare to their citizens under the Act. The loquacious Jonathan Gruber, who may or may not have been a primary drafter of the bill, so much as said so. He is caught on tape saying the state funding was intentionally premised on their setting up exchanges. Another reality is that the Court must be well aware by now that the President acts oblivious to the Constitution and the separation of powers. He does what he wants irrespective of statutes and procedures. He rewrites provisions he doesn’t like and fails to enforce others. The usual Obama Plan is in effect to obtain the Supreme Court’s imprimatur. A parade of horrors is cascading through the media of the consequences if the Court strikes down the federal exchange subsidies: the millions effectively thrown off of health insurance because they would be unable to afford the premiums or copays. That’s already the case with many existing policy holders! We are told that the often-demonized insurance companies would be devastated in their actuary analysis without the larger pool. Here’s a shorthand summary of today’s oral arguments. The four liberals on the Court were highly deferential to the government. Justices Alito and Scalia were the opposite. Justice Thomas, as usual, was quiet, but will clearly vote with Justices Alito and Scalia. Justice Kennedy, who was believed to be highly hostile to ObamaCare three years ago on the Constitutional issue, asked tough questions of both sides, thereby not tipping his hand. Chief Justice Roberts, perhaps realizing he blew it three years ago, was mostly silent this time. If his goal three years ago was to maintain the integrity of the Supreme Court, he failed. His decision appeared to the American public as a political decision and not a legal one. Plain language versus intent – which will it be? Justice Alito offered a way out if the Court holds the federal exchange subsidies illegal: stay the holding through December, thereby allowing the states and Congress to work out a solution. Of course, if either Chief Justice Roberts, or Justice Kennedy, want a third way out, then they could hold the four plaintiffs lack standing, thereby tossing the case That was how the majority decided California’s Prop 8 Gay Marriage Case. Yet, to deny standing in King v. Burwell will only delay the decision. It will return to the Court. , Do?

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