An interesting editorial why the SC may destroy the ACA completely

[still_one]

http://www.nytimes.com/2014/11/13/opinion/law-in-the-raw.html?_r=0


"Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”

What I meant was this: In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.

That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.

Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.

A panel of the United States Court of Appeals for the District of Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’ argument that the language of the statute limits the tax subsidies to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s judgment and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. The absence of a circuit conflict and an imminent rehearing by the country’s most important court of appeals would, in the past, have led the Supreme Court to refrain from getting involved."

[elleng]

1. Posted twice.

http://www.democraticunderground.com/1016106681

It does deserve attention.

[still_one]

2. Thanks, didn't realize that

[elleng]

3. I do hope it gets some attention, still_one,

as I think it's a very important ( ) analysis.

[still_one]

4. I agree. I looked at the other links that you put, and either people didn't see it or are not

Interested, but it can hurt a lot of people and it is important

[Rstrstx]

5. I'm thinking, wishfully perhaps, that Roberts won't let the subsidies fail

The consequences would be disastrous no two ways about it. I've seen arguments to the effect that some recent rulings may indicate he may change his mind and effectively kill the ACA. If anything I'm thinking the opposite, that he might be opening up a can of worms for the court if he did such a thing. His decision striking down of the Voting Rights preclearance parts by suggesting that Congress could just simply rewrite the rules to represent modern conditions have not exactly gone as planned to say the least.

No, I think he is either going to find the statute ambiguous enough that the IRS' allowance of tax credits is permissible or may come up with a clever way of sort of splitting the baby (has the SCOTUS ever invalidated a law and then stayed their decision until corrections could be made? I don't know of any cases but that's not to say it hasn't - or couldn't - happen). He was creative before in saving the mandate and in fact in his decision to strike down the Medicaid part of the ACA may form part of his thinking for King.

I find this article to be an excellent read, maybe because I'm growing tired of the simple black-and-white articles being churned out ad nauseum from the usual suspects, most of whom have a dog in this fight (especially from the right):

http://thinkprogress.org/justice/2014/11/10/3590596/how-chief-justice-roberts-could-score-a-big-victory-for-conservatives-and-save-obamacare/

[elleng]

6. I hope you're right, Rstrstx.

MAYBE Linda Greenhouse's piece will give him pause about his and the Court's long-term reputation.

[riderinthestorm]

7. Thoroughly depressing. K&R nt