King v. Burwell is as Test of the Supreme Court, Not Obamacare

So King v. Burwell is going to the Supreme Court.  The news came out Friday, but I figured I would discuss it today.

I haven’t talked very much about the King and Halbig cases, partially because they came down at a time when I was too busy and partially because the correct outcome in both cases was idiotically obvious.  Hey, dear reader, when you see the word “state” in a federal law, what do you think that means?  Well, the average layperson’s guess is pretty much what the law says: the states.  You know, like Virginia, Maine, California, Alaska.  Those things represented by stars on the flag.  The only difference between what a layperson would guess, and what the law typically says, is that often the law defines the District of Columbia as a “state,” and that is the case here.  But here’s what it never means in Federal law: the Federal government.

So it is blindingly obvious that where Obamacare says that an exchange “established by the State,” it is not referring to one set up by the Federal Government.  I try to give fair weight to the merits of the other side’s arguments.  There is none.  Likewise, I tried to come up with a way the other side could honestly believe that their side is right, but the argument is so lacking in merit I cannot believe they all have 1) good information and 2) having good information honestly believe what they are saying.  This is evidenced by the prevalence of people claiming that this was a “typo.”  As a dyslexic man, I am an expert in typos and this wasn’t one of them.

Now, it is true that where a statute is ambiguous, that the appropriate administrative agency can fill in the blanks.  Let me give you a valid example of this.  In the ADA, in order to avoid discrimination against the disabled employers have to provide “reasonable accommodations” to their employees’ disabilities.  In turn, the ADA defines reasonable accommodations in part as ones that do not put an “undue burden” on employers.  Folks, those quotes terms are not easily-defined, and since one can’t easily be certain what they mean, this gives appropriate agencies the right to define those terms.

But we aren’t dealing with that.  We are dealing with a statute that is crystal clear.  A state is not the Federal Government.

And we can talk about the impact that losing will have on Obamacare, and how its alleged architect might have intended it to create political pressure on the states to make them adopt it.

But in the end, the question really isn’t what Obamacare says.  It is blindingly obvious what Obamacare says to anyone who actually looks into the question for more than five minutes.  The real question is whether the obvious meaning of the law will be followed.

In other words, King is a test for the Supreme Court more than it is for Obamacare.  Can they follow the law as written when there is literally no wiggle room?

For conservatives, the fear is that Chief Justice Roberts will “creatively misinterpret” the statute as he did previously.  But there is a significant difference, between King and National Federal of Independent Businesses v. Sebelius.  In NFIB, Roberts creatively interpreted Obamacare’s penalty to render it a tax.  I have long said that I think that the evidence that it was a penalty or a tax was correct, including the fact that a prior draft of the law called it a tax, and that part was changed.  But Roberts was invoking, in part, an old principle of statutory interpretation: that statutes should be interpreted as to avoid serious constitutional questions.  In other words, Roberts argument went like this:

1.         Obamacare’s mandate is almost certainly unconstitutional under the Commerce clause,

2.         If the mandate was a penalty, it could only be justified under the Commerce Clause,

3.         But the mandate is not unconstitutional as a tax,

4.         Therefore we will read it as a tax as to avoid the danger that it would be found unconstitutional as a penalty.

Like or hate it, that is Robert’s reasoning.  Roberts also had some statutory interpretation arguments, of course, but the deciding factor was that this would avoid striking it down that day.

I say “that day,” because some commentators have pointed out that by reading this as a tax and not a penalty, they read the statute in a way to create a new constitutional problem under the origination clause, requiring all bills raising revenue to originate in the House.  So Roberts’ ruling might only delay the inevitable striking down of the statute in its entirety.

By contrast, the constitutionality of Obamacare is not on the line in the King case, just its effectiveness.  Which means Roberts will no longer have that reason to twist the statute like a pretzel.

Of course that begs the question: why did Roberts twist the statute like a pretzel?  I just gave you the doctrinal reason, but is it the actual one?  Of course there were wild conspiracy theories about why he did so, and frankly my gut instinct is that they are unfounded.  But here’s a non-conspiracy theory explanation: traditionally the Supreme Court has been scared to limit federal power in Commerce Clause cases.  Back before FDR came along they used to strike down statute invoking the Commerce Clause all the time.  They even struck down a law aimed at banning child labor.  Then FDR came into power and started threatening the Supreme Court with a Court-packing scheme, and suddenly the Supreme Court started upholding laws under the Commerce Clause they never would have before.  The most infamous example was Wickard v. Filburn where a farmer growing food for his own consumption was deemed to effect interstate commerce because by growing his own food, he wouldn’t buy others.  Yes, really.

So the non-conspiratorial theory is that Roberts was worried that if he dared to interpret it as a penalty, he would have to strike the statute down as a violation of the Commerce Clause and that institutionally he was afraid that Obama and the Democratic congress would throw a hissy fit and start threatening the viability of the Supreme Court.

I don’t know if it is the truth, but let’s suppose that it is?  First, that fear has little application to the King case, and has even less application now given that the Republicans took back the Senate last Tuesday.  You can’t pack the courts without the Senate’s cooperation and barring some surprising turn of events Obama is not going to have a cooperative Senate again while he is in office.  So aside from doctrinal reasons, there is much less of a political case for thinking Roberts will creatively misinterpret the statute to mean something that it doesn’t.

In other words, the only chance the pro-Obamacare side has is politics, and it looks much less likely that politics will help them, this time.

The most shameful part is seeing liberals think that an outcome where the Supreme Court says that the word “state” means “state” and not “the federal government,” would somehow be a sign of political corruption—as if political corruption isn’t the only chance the pro-Obamacare side has.  Josh Marshall and his Talking Points Memo seem to be leading the charge on this point:

The Fix may be in on this one >> Supreme Court Will Hear Lawsuit Aimed At Crippling Obamacare @TPM http://t.co/4e4QTTwKZD
— Josh Marshall (@joshtpm) November 7, 2014

That linked to a more or less straight news item discussing the decision to hear the case, but he also posted this:

.@tpm_dk explains here why SCOTUS decision to take this case reeks so bad http://t.co/p4d2f4hhKr
— Josh Marshall (@joshtpm) November 7, 2014

This linked to a piece that says that discussed the decision to rehear Halbig in the D.C. Circuit, and claimed that Conservatives are “working to delegitimize in advance the pending en banc decision of the DC Circuit Court of Appeals as purely political and without legal foundation.”  Well, I fully agree that any opinion pretending that the word “state” means the “federal government” cannot possibly be based on a legitimate legal foundation, so what other explanation exists?  Seriously, some things in law are normally beyond reasonable debate, and this should have been one of them.

It is also worth circling back to a truly atrocious piece of guilt-by-legal-association by Mother Jones and apparent hack Stephanie Mencimer: To Beat Obamacare, Opponents Resurrect an Old Birther Argument.  This was written before the Supreme Court decided to hear the case and wanted to smear them for even asking.  You see, in order to get a case heard by the Supreme Court, you file what is called a petition for certiorari, which amounts to a request to hear the case.  One common argument is that there is a conflict between circuit courts, meaning that in different parts of the country, the same rule is being applied differently.  Since this offends the principle of equal justice under the law, that is often seen as a good reason to take a case.

Up until recently those appealing the King and Halbig cases had that in their favor.  But as mentioned above, after winning in Halbig, the entire D.C. Circuit decided to hear the case (en banc) and therefore there was no longer technically a conflict in the circuits.  So, the Mother Jones piece, points out, they fell back to a much weaker argument:

In their petition to the Supreme Court, the King plaintiffs write, "Given the self-evident enormous importance of the IRS Rule to the ongoing implementation of the ACA, to the immediate economic decisions of millions of Americans and thousands of businesses, and to the currently flowing billions of dollars in expenditures that the D.C. Circuit ruled illegal, the need for this Court's review is plainly and uniquely urgent."

And this, Mother Jones, explains, makes them just like Birthers.  Yes, really:

That dire language, though, bears some resemblance to the legal rhetoric frequently employed by some of the nation's most dogged litigators: the birthers—those people who've spent the past six years filing lawsuits trying to prove that President Obama is not an American citizen. In years of legal filings, they've repeatedly begged the court to rule on Obama's "legitimacy"—even though every lower court has rejected their claims—because, you know, if it turns out that he's not really a citizen, that's a problem the court should fix right away.

Here's just one example, from the Supreme Court petition in Charles Kerchner v. Barack Hussein Obama II:

If the President and Commander in Chief is ineligible for those offices, both our civilian and military sector need to know that as soon as possible. The President is the Commander in Chief of our military forces. Whether he is legitimate is also vital in maintaining the proper chain of command in our military and in giving legality to all military orders that emanate from him.

Since the President signs all acts passed by Congress into law, it is vitally important that the President be legitimately in power so as to give those laws domestic and international legality.

Ian Millhiser, a constitutional policy analyst at the Center for American Progress, says this sort of argument is common among not just birthers, but also tax protesters and other fringe litigants looking to kill off government programs.

Well, in fact, this is a downright common argument made by anyone who can’t take advantage of more compelling explanations.  In fact, it is actually written in the Supreme Court rules itself.  From the Supreme Court’s own rules of court:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:

…

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

Or to put it all more pithily:

Do you know who else filed his lawsuits on legal sized paper? Hitler. @AaronWorthing @MotherJones
— Mr. X (@GlomarResponder) November 2, 2014

Mother Jones goes on to quote more from Millhiser: “The Halbig and King plaintiffs, he says, are essentially saying, ‘Because we have created this crisis whereby filing this lawsuit we have raised the possibility that all of this disruption has happened, it is therefore imperative that you, Supreme Court, take this case to end all this disruption we have created.’”

He tries to make this sound unfair, but exactly how did they create this problem?  It is the Obama administration that started handing out tax credits based on an interpretation of the law that is not backed up by any reasonable reading of the statute.  Would Mr. Millhiser say that Oliver L. Brown “created a disruption” when he sued on behalf of his daughter Linda in Brown v. Board of Education to seek an equal education for his child?  How about Fred Korematsu?  Was he a troublemaker for arguing it was wrong to lock him up for being Japanese?  Isn’t the actual person creating the chaos the person disregarding the law, not the person seeking that it be upheld?

The only valid point the article makes is that it is a legal “hail mary play.”  It is undeniably that.  Then again, most meritorious cases are denied review by the Supreme Court.  They have many times more petitioners than they have room on their docket to accommodate them.  Thus if you guessed that every single case seeking Supreme Court review would be denied, you’d almost always be right.

Which leads me to another point.  If it was safe money that they wouldn’t take the case, what does it mean that they did take it?  If I was going to analyze it as bald politics, I might think that Roberts and company want to strike this law down, now that the Republicans took Congress.  But the less baldly political analysis is that they don’t want the statute to be in effect too long, without potentially millions of tax payer dollars being passed out, if it is in fact illegal.

But that kind of speculation has little purchase in fact.  It’s fun to “wargame” these ideas, but they really are just educated guesses based on almost no evidence.  The truth is it is often hard to figure out why the Supreme Court takes one case or another.  But it is interesting that the Supreme Court did choose this unlikely case for Supreme Court review.

Still, whatever their reason for taking the case, it is the Supreme Court whose legitimacy that will be on trial, as much as Obamacare.  And there is good reason to think for that reason that they will make the right decision.  This becomes obvious if you “wargame” the two scenarios out for a moment.

On one hand, suppose that the pro-Obamacare forces win this round?  Conservatives will be mad, but more importantly they will have a point.  They will say, “how they hell can you say that an exchange established by the Federal Government, is an exchange ‘established by the State?’”  Among lawyers or laypeople it is hard to tell them they are wrong with a straight face.

But on the other hand, suppose that the anti-Obamacare forces win this round?  Liberals will be mad, to a degree, but will the debate be so devoid of the merits that the ordinary people won’t realize how empty this argument is?  Even the false claim that it is a typo still puts the majority of the blame on whoever screwed it up in the first place.

And certainly the lawyers, present and future, will find the second outcome easier to defend and harder to assail than the first.

So which outcome will harm the institution of the Supreme Court more?  Obviously the second scenario, which is why I have hope the second one is the one that will happen.  As I wrote in a similar, but not identical context, discussing how Heller decision upholding the Second Amendment protected the Supreme Court as an institution:

people understand that if you want to protect an institution, you have to get a large amount of “buy in.”  But conservatives were increasingly not buying in, because they felt that the Supreme Court was treating the constitution as a way to shove rules they didn’t want down their throat.

So by giving the pro-gun-rights side the majority in Heller, the Supreme Court greatly increased its prestige among conservatives and made it easier for conservatives to swallow liberal decisions they don’t like.

Would you allow a person to serve as referee if they were plainly and blatantly biased against you?  Of course not, which is why Conservatives have to win now and then, especially when the law is clear as it is here.  It would be an embarrassment to the court, for years to come if they rule that the word “state” can include the Federal Government (other than D.C.’s actual government) and therefore I feel confident that they won’t interpret the statute this way.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.