NYTimes: The Phony Legal Attack on Health Care

[spanone]

On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity that, if successful, will tear a huge hole in the Affordable Care Act and eliminate health insurance for millions of lower-income Americans — exactly the opposite of what the law was passed to do.

The central claim of the lawsuit, which was filed on behalf of four Virginians by a small group of conservative activists who have long sought to destroy Obamacare, is that the law does not allow tax-credit subsidies to be made available to anyone living in the 34 states whose health care exchanges are operated by the federal government, which stepped in when those states declined to set up their own.

This is, to put it mildly, baloney.

In the long, tangled history of the debate over the Affordable Care Act, no member of Congress ever indicated a belief that the law would work this way. To the contrary, the law explicitly provides for “quality, affordable health care for all Americans.”

http://www.nytimes.com/2015/03/01/opinion/sunday/the-phony-legal-attack-on-health-care.html

[randys1]

1. I submit that Americans best be prepared for a gutting of ACA, and if that happens

what do we ALL do about it?

Is there an entity dedicated to what to do if that happens, a group of people preparing for national protest, strikes, something?

I have a bad feeling they are going to do it and I would just hate to see the whole country just lay there and take it.

Can we get together with any national liberal organizations to do something?

Anything?

[cheapdate]

8. I strongly agree that Americans should be prepared for a loss.

The phrase “Exchange established by a state under Section 1311” leaves nothing to the IRS’s imagination.

This court has been extremely reluctant to entertain "congressional intent" arguments in the past and I highly doubt that they'll start now, especially when the language is crystal clear.

I expect that they'll rule against the IRS's rule making authority. They'll say it's congress' job to fix the language, not theirs.

What can be done?

I think that expecting this congress to fix the subsidy provision is an impossibility. It is to me, what William James called a "dead hypothesis". These Tea Partiers and conservatives are rock-solid in their resolve to oppose a law, a president, and a "liberal class" who they hate. They're completely unmoved and unmovable by any argument.

The PPACA passed only when Democrats controlled both houses and the White House.

So there's really nothing that can be done at the federal level except win elections.

Problem is, I don't think that crippling the PPACA will be a short term "game changer" for their brand.

Here in Tennessee we just lost a heartbreaker when our senate killed the Governor's proposed Medicaid expansion called Insure Tennessee. Two years of work down the drain. There's a movement to try to resurrect it, which I'm participating in, but realistically, the chances of success are low.

[randys1]

12. The appropriate reaction to a purely political decision, like CU and voting rights, which is what

this would be, is a general strike, the entire country saying give us universal healthcare or else.

But not enough of us are in bad enough shape yet to risk everything, which that would be doing.

The case they are hearing. the plaintiffs dont even have standing.

[onethatcares]

13. die ins

at every repuke congress critters office, every day.

[randys1]

14. Something...if we play it right we can get single payer

If we do nothing, we get nothing

[Hoyt]

2. I do not believe that even this conservative court can arrive at the conclusion that Congress did

not intend subsidies would be available for those insured through the federal exchange in states that took the easy/cheap way out by letting the feds use their computer system.

The court is quite conservative, but I just don't believe they can find a way to limit subsidies to states who ran their own exchange. I think if they try to do that, the women on the Court will beat the hell out of the old white guys, and Thomas.

[cilla4progress]

3. When there is a lack of clarity about the intent or meaning of a law,

jurists are supposed to go back to the "legislative history" to see what was intended by its drafters - the actual conversations, minutes, from the law's genesis.

Let's hope the conservatives on the Supremes Court read the NY Times.

[cheapdate]

6. Problem is, there is no lack of clarity.

The phrase “Exchange established by a state under Section 1311” leaves nothing to the IRS’s imagination.

This court has been extremely reluctant to entertain "congressional intent" arguments in the past and I highly doubt that they'll start now, especially when the language is crystal clear.

I expect that they'll rule against the IRS's rule making authority. They'll say it's congress' job to fix the language, not theirs.

[cilla4progress]

9. There's definitely a lack of clarity, in that

parties with standing are interpreting it differently.

"State" is often used to mean government, as a whole.

Here's an article from today's Think Progress that recites a number of recent opinions where Justices opined that statutory language be interpreted and applied IN CONTEXT. Both conservative and progressive Justices have recently stated this position.

Let's hope they are consistent in the King decision...



http://thinkprogress.org/justice/2015/03/02/3628103/justice-likely-vote-case-obamacare/

[Rstrstx]

11. Well, apart from the language being crystal clear, there are other flaws

Section 1311 tells states to establish Exchanges, that's crystal clear. Problem is it's not constitutional.

Section 1311 also defines an Exchange as "a government or nonprofit entity that is established by a state". That's also crystal clear.

Section 1321 then goes on to direct the HHS to establish "such Exchange" (as defined in 1311) if the state fails to do so. That's also crystal clear.

Then there's the problem of who is qualified to use the Exchange, the section escapes me. One of them is that a person using the Exchange must be a "resident of the state that established the Exchange". Again, crystal clear. Just one obvious problem: how could anyone qualify for a federal exchange?

And those are just the statutory arguments against the case. There are also constitutional arguments.

The most serious (and what I feel the court, or at least Roberts, is most likely to rule in the government's favor) is the question of whether that four-word passage is sufficient to provide clear notice to the states that not establishing an exchange would result in the loss of tax credits. If Congress intends to convey a threat to a state it needs to make that threat clear in express language. The only threat they ever make to the states regarding exchanges is that, if they don't do it themselves, the HHS will step in and do it for them. NOTHING was ever mentioned about withholding tax subsidies to those states.

Personally I feel that, while statutory arguments are already against the plaintiffs, the constitutional argument is going to be very difficult for the plaintiffs to overcome. My hunch is that Roberts wants to further cripple Chevron (not the ACA) and this case gives him the perfect cover to do it.

And finally, even IF in the very unlikely scenario the plaintiffs win, if you interpret the ACA down to the very last letter of the law exchanges could be established in other states for those states that refuse to do it themselves. Now doing THAT would require a very strained, extremely strict to-the-letter reading of the law, but if the court rules in favor of the plaintiffs the only way the court could do it is by doing the same thing. But I really doubt it will ever come to that.

Read some of the amici briefs submitted for the government's side. The SEIU's brief is my favorite:

http://b.3cdn.net/seiumaster/29f219ac2d3268bbd5_cbm6b54je.pdf

[Fred Sanders]

4. Still no cameras or recording allowed inside SCOTUS, a remarkable cloistering of a government branch.

[Madmiddle]

5. Legal standing.

The four people that bought the suit do not have legal standing. SCOTUS shouldn't have brought it up. SCOTUS is breaking the law in this case...

[muntrv]

7. I thought the same too. I thought none of the plaintiffs showed that they were harmed by ACA.

The lawyers arguing for ACA should be pounding this point home.

[cilla4progress]

10. Literalists on the Court are of the same ilk

as literalists of the Bible. Seriously. Any thinking person knows otherwise!

[NYtoBush-Drop Dead]

15. If the felonious five overturn this...

WOuldn't that set up a case of "equal Protection"?