Thursday, March 5, 2015

King v Burwell

King v Burwell is not about statutory interpretation. If it were, the conclusion of the Supreme Court would be a resounding rejection of the claims of the plaintiff. No, this is a matter that tests the limits not of judicial wisdom but political prejudices.

The history behind this legislation could not be clearer: the intended expansion of health insurance coverage to the broadest extent possible. State versus federal exchanges as the predicate for subsidies was nowhere evident in the enormously extended and heated debate. It is a mirage created out of whole cloth well after the ink was dry. Yet now, there is strong likelihood that at least 4 of the justices seated in the most elevated of all positions will bend logic, ignore facts and present fictional options in an attempt to undo what their conservative brethren have been seeking in what seems like a 100 votes in Congress.

Make no mistake, this is a case solely about whether the Affordable Care Act should live or die. For those who seek the death penalty there is no lengths they will not go to reach a conclusion supporting the executioner's right to proceed.

It is a sad commentary regarding the Supreme Court that we can not look upon this body as one whose holy grail is a search for justice. Rather, we have come to understand, and seem resigned to accept the notion that some of these men and women sit not as impartial arbiters but active proponents of the same perversions and preconceptions that mar our political landscape. This is far from what we have a right to expect or demand of those who are supposed to be not only our brightest but our best.


Bruce said...

This is why ALL US Supreme Court proceedings should be televised. Why the secrecy and seclusion? Maybe they don't want to show Clarence Thomas sitting there all day with no questions since 1946.

Robert said...

It would be very enlightening to watch Scalia and Alito as they maneuver the arguments, and Thomas as he remains forever mute. It is as if we are not entitled somehow to look behind the curtain to find out that the Wizard of Oz is really a fiction.


Anonymous said...

If facts matter: the ACA's Democratic drafters wanted the states to participate and assumed all of them eventually would, as with Medicaid and other programs under cooperative federalism. Conditioning subsidies on state action was intended to give Governors and state legislatures an irresistible incentive to contribute to Obamacare's implementation and lend political legitimacy. In return, their constituents were eligible for benefits. As the Mountain States Legal Foundation and other amici briefs point out, previous versions of the ACA extended subsidies to the federal exchanges too. But that language was deleted in the secret negotiations to combine various Senate bills. After Scott Brown's special election ended the Democratic supermajority, Democrats accepted and President Obama signed the final Senate bill as the last stagecoach out of Dodge. Democrats made a deliberate choice. As they tried to assemble 60 votes in the Senate, holdouts like then Nebraska Senator Ben Nelson and others intensely desired state partners. Because the federal government could not commandeer the sovereign states by mandating participation, the subsidy bait was Congress's constitutional option to encourage buy-in.

It'll be interesting to learn what the best and the brightest decide.