Overturning Obamacare Would Change the Nature of the Supreme Court by Linda Greenhouse
In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.
The court very nearly got the answer wrong with an exceedingly narrow reading of Congresss commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congresss tax power.
I thought the court was seriously misguided in denying Congress the power under the Commerce Clause to intervene in a sector of the economy that accounts for more than 17 percent of the gross national product. But even I have to concede that the debate over structure has deep roots in the countrys history and a legitimate claim on the Supreme Courts attention. People will be debating it as long as the flag waves.
But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.
At the invitation of a group of people determined to render the Affordable Care Act unworkable (the nominal plaintiffs are four Virginia residents who cant afford health insurance but who want to be declared ineligible for the federal tax subsidies that would make insurance affordable for them), the justices have agreed to decide whether the statute as written in fact refutes one of the several titles that Congress gave it: Quality, Affordable Health Care for All Americans.
If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very death spiral that the Affordable Care Act was designed to prevent.
It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasnt received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, its neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)
http://www.nytimes.com/2015/02/05/opinion/overturning-obamacare-would-change-the-nature-of-the-supreme-court.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region®ion=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0
napi21
(45,806 posts)Sure the hard RWers will, but I don't think Roberts will, and he will lead the majority. I don't like Roberts, bur he's not INSANE like some of the others. He's actually human and he will realize the damage that would be done to millions if the court voted to overturn.
elleng
(131,075 posts)and I'm sure L.Greenhouse does too.
'Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that the sun may be a star, but starry sky does not refer to a bright summer day.
Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. . .
Readers of this column may recall my expression of shock back in November when the court agreed to hear King v. Burwell. A three-judge panel of the federal appeals court in Richmond, Va., had unanimously rejected the challenge to the law, and the plaintiffs appeal didnt meet the normal criteria for Supreme Court review. A defeat for the government for the public at large, in my opinion seemed all but inevitable.
While Im still plenty disturbed by the courts action, Im disturbed as well by the defeatism that pervades the progressive community. To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association. ) Having read them this week, Im beginning to think for the first time that the government may actually prevail. . .
There are abundant Supreme Court precedents that require Congress to give states clear notice of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The governments own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation in technical sub-clauses. . .
So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the governments defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.
I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the courts docket were happy to help themselves to a second chance to do what they couldnt quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do not to me, but to history.'
global1
(25,265 posts)Are they anticipating a favorable decision on their part by SCOTUS?
Check out this link: http://www.democraticunderground.com/10141007034