ORIGINAL INTENT

The upcoming Supreme Court decision on the healthcare reform law might be the most important since Citizens United, not only because striking down the law would impact the ability of many Americans to afford health insurance. It is more important as a barometer of just how far down the rabbit hole of partisan hackery the right-wing majority on the Court has traveled.

The latest "legal" challenge essentially based on a typo and a ridiculously overly-literal reading of one sentence in the bill that, if the logic of this argument is followed, implies that only insurance exchanges run by individual states and not by the Federal government can subsidize insurance. This is the kind of argument you make when you have lost an argument. You start measuring the margins and checking the font size to see if some irrelevant minutiae of the code of bureaucratic requirements has been violated. You pull out the dictionary and parse every word according to the most obtuse reading of its literal meaning. You take individual phrases out of context and read them in a vacuum while entirely disregarding the meaning of the text in its entirety.

At least four people on the Supreme Court think this case is worth hearing, which is alarming given how sophomoric and pedantic this argument is. These are people who argue that aside from the text itself the most important consideration in interpreting the Constitution is the intent of its authors – and here they are poised to completely disregard the intent of the people who wrote and voted on a piece of legislation. Irony doesn't get more ironical than that.

If the law is struck down on this basis – and it might be – the five ancient right-wing hacks on the Court have initiated an entirely new era of jurisprudence wherein every law, rule, and regulation will be subject to legal challenges based on a pedant's most intentionally obtuse reading of the text. Where would be the limit? This is not an invocation of a Slippery Slope; it is a legitimate question. Could a law be invalidated for being printed on the wrong kind of paper? Could it be invalidated if something is misspelled? If a punctuation mark is used incorrectly? If a member of the leadership in the House or Senate misspeaks or pronounces a word incorrectly during the procedural stage of voting on the bill? If I get an audio recording of a voice vote and argue that some members were saying "eye" instead of "aye"?

Answering questions of this variety seems like an excellent use of the time of our nation's jurists. This type of argument used to get laughed out of court; hell, it used to get laughed out of a second-year law school seminar room. And now because OBAMA it is being entertained seriously by the most powerful court in the land. Cool.

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40 Responses to “ORIGINAL INTENT”

  1. Xynzee Says:

    My dad once had a conversation with a lawyer (back in the 70s) who told him that the "Law" and the "Truth" belong to the one with the better argument.

    Most likely the decision hinges on who is offering those on the Right the better retirement package, combined with how conflicted they feel about their principles (if they have any).

    The ACA is the greatest thing to happen to insurance companies since States introduced compulsory car insurance. Do you think they'll let this go quietly? I'm surprised that the insurance companies even let this be a thing.

    There must be a well financed element(a) in the Right that really is/are opposed to this. That or they're distracting us from the real game.

  2. Anonimus Says:

    We on the left have been watching the endless parade of lawsuits against the ACA and the president and laughing along, but really…like, really, deep down, I think we all knew that eventually, at least one case would reach a higher court. Of course, no one wanted it to, but when faced with an infinite number of legal challenges, eventually one of them will get through. It's simply probability.

    And when such an eventuality was to occur, we were probably all certain the supreme court wouldn't hear it. As hacky and full of shit as they are, and as much damage as they've already done to the ACA and other pieces of legislation ostensibly meant to protect people, we probably all thought there was no fucking way in hell they'd strike the ACA down, even though it would surely be trivially easy for Scalia or Thomas to invent some novel argument to justify themselves on one of their daily coke binges.

    And then THIS happened.

    We've heard the old joke, "There is no peak wingnut!" Well, here is the ultimate proof. We're approaching the the wingnut event horizon, and if they actually do the unthinkable and rule to strike those subsidies down, then we will have entered a new dimension of hackery from which there will be no returning. There will be no depths they won't plumb. No argument too specious. No measure too extreme. No limits what so ever on how many goats, rats, and mothers they are willing to fuck to service their agenda. You thought Republicans were shameless already? You ain't seen nothin'. This case, if the Supreme Court rules the wrong way, will be a signal to every Republican bastard that there are no longer any boundaries or rules. Absolute power, motherfuckers. That's where we're headed.

  3. Tim H. Says:

    Amusing, this sort of legal practice was once a favorite target of conservative scorn, how quickly they toss out their moral compass…

  4. Matt Says:

    "Where would be the limit?"

    Simple: the court's new RW consensus is "whatever conservatives want is constitutional, everything else (even if it's the SAME DAMN THING but in a different case) isn't". Blatant political hackwork.

    The only hope for the ACA is that the insurers (who would prefer to keep that sweet, sweet free money) can shriek louder than the Tea People; that the money wing of the party can shout down the "fuck the poors" wing.

  5. c u n d gulag Says:

    The SCOTUS's Chief Troll Justice, is Scalia.
    And then, there are his Assistant Troll Justices – Alito and Thomas.
    Too often of late, Kennedy has trolled the US with these three.

    So, that leaves CJ Roberts – a die-hard and loyal Whoreporatist. He may again be the deciding vote, and, due to his love of corporations, side somewhat with Obamacare.

    I say somewhat, because he won't want his SC blamed for killing the law outright, so he may fiddle with it some more – like he did giving states the option on Medicaid.
    That was his previous "poison-pill."

    Let's see what creative way he finds to screw the people, but leave it up to the Republican Congress to do the actual dirty work and hard fucking – using broken glass, metal shards, and pumice, as lubricants for the screwing.

    Oy…

  6. Bob Says:

    They won't stop until we have gone back to an 18th century reading of the Commerce Clause.

  7. Chicagojon Says:

    I have some hope on this one that the only way there would be 4 justices willing to consider this case is that at least one (or possibly all 4) want to hear the case to get it over with and make it clear that the supreme court isn't responsible for congressional typos.

    The alternative is that either Kennedy thinks it will be a good idea for him to swing vote on this and I have no idea which 5-4 it will be or Roberts has gone of the deep end and is taking the power of the 3 jackasses on the court to new levels in wanting to hear this case.

    So…does it all pin on Kennedy as usual? Or could this actually be a 7-2 decision as it should be where the court steps in and takes away this talking point? I just don't know…but I tend to think an overturn is the least likely result.

  8. Barry Says:

    Xynzee Says:

    "There must be a well financed element(a) in the Right that really is/are opposed to this. That or they're distracting us from the real game."

    Trashing the second greatest and most visible accomplishment of a Democratic administration will help greatly in 2016. And as we've seen from Bush II and Reagan, a GOP administration (with a GOP Congress) is literally worth several trillion dollars, and will pay dividends for at least three decades.

  9. Greg Says:

    The shitbag significantly behind this, Jonathan Adler, was my Con Law (ha ha ha) professor in law school. I made it a point to ask questions challenging the historical analysis he and Originalists proffered. (He used a case book edited by the other architect of this shit, Randy Barnett)Before the semester was over, he stopped calling on me. His eyes would just glide on by. Even classmates who were politically aligned with him noticed this and were troubled by it. That's the kind of mature intellect we are dealing with. Ed, you are a hammer and this post is the nail's head.

  10. John Danley Says:

    Fugazi: Fast and spurious.

  11. Chris Ekman Says:

    I know nothing of the law. But I am not reassured by the arguments that Roberts wouldn't want to do something so radical and obviously political as striking down this big part of the ACA. It seems to me he can rule against and still maintain his impartial act, saying that Congress could easily fix this mistake themselves, and it's not the court's job to do it for them. Like he said in his confirmation hearing, "Umpires don't make the rules; they apply them." He'd be technically correct – Congress could easily clarify the passage – but he knows full well they wouldn't. Liberals will fume, but if he bats his big blue eyes and acts disingenuous enough, what's the cost to him?

  12. Mo Says:

    Refresh my memory – Democrats would need a majority in Congress to impeach a Supreme Court justice?

    That could be done, yes?

  13. T S Says:

    I really like your posts Ed been reading for years, but I think there is a fair legal challenge to this.

    It was intentionally written this way to coerce states to create their own exchanges. The feds were using it as a bribe to basically say if you don't create your own exchange you won't be eligible for the federal subsidies. The feds were basically caught off guard with the number of states that didn't setup their own exchanges and are now trying to change the meaning of the law.

    TL;DR: To say its just a typo isn't correct, I believe they intentionally worded it this way. I think the supreme court will probably rule that the intention of the law was only states are eligible for subsidies.

  14. Emerson Dameron Says:

    These are the people who insinuated that the Kenyan Usurper was never really the president because Roberts fucked up trying to swear him in.

    @T S:
    Like speed limits? Didn't Montana try to set up rural Autobahns based on that logic?

  15. Chris Ekman Says:

    Mo wrote:

    "Refresh my memory – Democrats would need a majority in Congress to impeach a Supreme Court justice?

    That could be done, yes?"

    Technically yes, but the likelihood is vanishingly small. I just looked it up, and it takes a majority in the House to proceed and a two-thirds majority in the Senate to convict. Apparently only one Supreme Court justice was ever impeached, in 1805 – and he got acquitted.

  16. Whatver Says:

    Fine. I challenge the Constitution. Alexander Hamilton, in writing down the name of the state each delegate was from, penned down "Pensylvania", which, by SCOTUS standards, would suggest that the representatives of the state of Pennsylvania never signed the Constitution, and therefore those fuckers should be kicked out of the union as illegitimate fuckheads. So there!

  17. blahedo Says:

    @TS "It was intentionally written this way to coerce states…":

    That's the current version of the talking point, yes. The problem is, there is no evidence to support that claim (and considerable evidence against)—at the time this was being drafted, there was an assumption that states would want to run their own exchanges but _no_ discussion of forcing them to. And after the law was passed, no discussion or indication of pressure on the states to run their own exchanges. And when the websites first started rolling out, nothing at all suggesting that there was any subsidy distinction between state-run and fed-run marketplaces.

    Even the major proponents of the "intentionally that way" argument are _on record_ as having previously indicated that it was not intentional.

    There is no reasonable reading of the historical record—and it's a very well-documented historical record—that is consistent with the drafters and proponents of this law using it to force individual state-run exchanges.

  18. jon Says:

    This lawsuit, if successful, doesn't overturn the law. It would overturn the ability of people living in the 36 states that haven't set up exchanges to receive subsidies for the insurance they would otherwise not be able to afford. So what it would do is put a lot of people off their insurance. And then those people will be able to say "Wait, what?" and their governors and legislatures will hear about it. And there will then be lots of footage of Fox News trying to sell it as a good thing and hooting and hollering and then making solemn faces as they discuss why the Democrats failed here.

    I have no doubt that somehow Obama will be blamed for this, just as he mismanaged Katrina and the invasion of Iraq and the timeline for removal of troops as well. But I think those people with insurance who suddenly find themselves unable to afford it, mixed with their actual realization that they are excused from the HORRIFIC MANDATE because they actually can no longer afford it, will not destroy the law but will instead make many Republicans have to answer questions about why they're so happy about people losing insurance.

    In a dream world, this will lead many voters to conclude that voting for Republicans is a stupid thing to do. In the real world, there's going to be a very large contingent of people who think the black man stole their healthcare somehow, because of evil tyranny mooslim socialism or something equally impressively well-thought-out.

    Elections have consequences, and this case could bear that out.

    I also wonder what the 14 states who created exchanges will do with the windfall of money collected for that purpose. When California decides to cover all transgender surgeries for free, I expect to see Sean Hannity have a conniption of epic proportions.

  19. Both Sides Do It Says:

    T S,

    You're being snookered by whatever sources you're reading.

    Section 1311 defines Exchanges and says Exchanges will be established by the State. "Exchange", with a capital E, is a specific term of art. It refers to one thing.

    Section 1321 outlines a scenario in which, if certain deadlines are not met by a state in establishing an Exchange as outlined in sec. 1311, the HHS is given authority to "establish such an Exchange" for the state.

    The claim that the IRS is required to withhold subsidies on Federal exchanges rests on the argument that an Exchange established by the Feds and an exchange established by the State are different entities.

    They are not. There is one type of Exchange.

    There are two independent knockdown arguments for this.

    – States establish them. If they do not, the Feds establish such an Exchange. Exchange is a term of art defined in the statute that refers to one specific entity. Sec. 1311 has states establish Exchanges. If they don't/can't, sec. 1321 has the Feds establish Exchanges. Not a sub type, not a different genus, but the same damn thing. How do we know? Because the statute told us by using the same term, Exchange, without modification.

    – When sec. 1321 has the Feds establish "such an Exchange", "such" can only mean "referring back to the previous use of a term" in that context. And the previous use of "Exchange" in sec. 1321 was "an Exchange established in sec. 1311." A sec. 1321 Exchange is explicitly defined as a sec. 1311 Exchange. They are not different.

    Each of the above arguments independently shows that state and fed Exchanges should not be treated differently. But taken together, there is no. possible. way. to parse that text in such a manner as to conclude that Exchanges set up by the state and exchanges set up by the Feds are to be treated differently.

    I'll just mention that there are more arguments against the IRS treating state and federal exchanges differently, but for abstract reasons the ones I presented actually concede the most ground. Parsing these sentences in this manner gives the Halbig and King arguments too much credit, and even then, they're still asinine.

  20. mothra Says:

    Y'all are forgetting that Roberts saved the ACA by deeming the mandate penalty provision as falling under Congress's tax powers. So he might not be the one wielding the sword on this one–I have read from some court watchers that they think the other right wing justices want to stick it to Roberts this time.

    Hard to tell….but it will upset the apple cart in so many ways. Unfortunately, it will not, as Jon observes, throw any shit back on Republicans. It will all be the Democrats' fault and the Democrats will shake their heads and agree.

  21. ConcernedCitizen Says:

    @Bob

    Ah, the Commerce Clause! From "regulate…Commerce among the several States"to "Regulate all production and distribution within the United States." It's close to my heart because this is the constitutionality-establishing clause for the Controlled Substances Act–the fulcrum by which hundreds of thousands of nonviolent drug offenders are levered into prisons.

    Talk about interpreting intent!

  22. Bob Says:

    @ConcernedCitizen
    I wouldn't count on that one particular use of the Commerce Clause being overturned by this court.

  23. Xynzee Says:

    Oh jon: after reading that I just might have go have a "lie down" ;)

    If only, and the idea of the GOP and its mouth being having to give a "please explain" and Hannity's head exploding…

    @Barry: I was actually thinking along the lines of the Rs going in there to "fix" this clause and in the process ripping the guts out of the clauses referring to "preexisting conditions", lifetime caps, and other protections. The really important parts of the law that keep people from getting (see CU's description above).

  24. Skepticalist Says:

    The Supreme Court are behaving like screaming children at Walmart.

    This is the kind of thing one would expect if some infant on the order of Wayne Lapierre were Chief Justice. Forget the gun rants. He's just the best example of such behavior.

  25. Lless Says:

    From this Court that challenges standing on about every claim, who has standing to complain that someone else's health care purchase is subsidized?

  26. Suttree Says:

    While there may be some bullshit legal issue here that is not the main problem. The problem is that Americans are idiots! I have two "republican" friends who bitch about the ACA. One is now covered by medicare and the other pays $200 a month for insurance. Neither had a goddam thing before! Their fucking RWNJ families have them believing that the blackity black black socialist commie muslin is taking away their rights and guns (neither owns a gun but believes in freedum) and they are being FORCED to purchase healthcare (did I mention one was on medicare)! Both of these people when questioned admit that they know nothing about politics. When asked why they vote republican they have no prudent answer. It is mostly because daddy told them it was the right thing to do. They also frown when I tell them about the rest of the civilized world having universal healthcare as somehow paying your fucking taxes is evil.

    The republican mindset is a malignant tumor on this country. I wish I had the means to move elsewhere and see this country shrivel and die from afar. Unfortunately I will be here to watch it from my cozy spot under the bridge fighting for the leftovers of the rat carcass.

    Sorry for the rant. I just get angry at people who couldn't care less to learn a few things but are sure that they know what's best for everyone else. /ffs

  27. Suttree Says:

    Also/too my apologies for punctuation and a far. I am livid!

  28. Skepticalist Says:

    It's stunning how we put up with Dark Age politicians. We've been made an embarrassment to the rest of the civilized world.

  29. Robert Says:

    Skepticalist – 'been made'? We should be used to it by now. Between guns, healthcare and the metric system* that's been the case for a while.

    *As in, lots of the first, erratic on the second, and nowhere on the third.

  30. Ursula Says:

    Sophomoric and pedantic? That describes the 4 extreme RW members of the court anyway. They're eating that shit up like a blowhard high school debater.

  31. Paul Says:

    "wingnut event horizon": Let this enter common usage.

  32. Skipper Says:

    If you want to have fun, go to Europe and try to explain our healthcare system to them. It's even more fun if you do it in their language. (Have alcohol nearby. You'll need it.) for extra credit, try to explain our gun worship to them. I've done both — in Spanish — and all they can say is "But that doesn't make any sense." No matter what explanation you give, you get the same response. After a while, you begin to realize that they're right.

  33. Davis X. Machina Says:

    The organs of the State, like the courts, exist to serve the needs of the Party, and not the other way round, because it is the Party, and not the State, which is the Vanguard of the Revolution. In fact, come the Revolution, the State is fated to wither away.

    All power to the soviets of preachers and hedge-fund managers!

  34. Xynzee Says:

    Well how about a bit of comic relief?
    While America—and by assumed extension, Obama—frets whether the ACA will survive the asshattery of the SCOTUS and the GOP activists. The Australian PM has the audacity to whine that Australian voters rejected his $7 GP visit tax.
    Yes Bunny, the major players in the G20(8) offer single payer healthcare, the US is trying to over come extreme internal opposition to getting its citizens some form of healthcare and here you are trying to limit access to healthcare. Not a good look.

    http://m.smh.com.au/business/g20/g20-summit-tony-abbott-laments-to-world-leaders-his-failure-to-pass-tax-on-gp-visits-20141115-11nccp.html

  35. Anonymouse Says:

    @Skipper and Xynzee: here's a sample of deranged USAian healthcare: the college-age kid went to the G.P. for a well-visit back in September; a flu shot and a meningitis shot (meningitis is really common in college dorms). Instead of billing our current insurance (which costs me $850/month for family coverage), they tried to bill an insurance plan I had about a decade ago. Just last week I got an indignant letter from them demanding instant payment and threatening legal action for insurance fraud. The bill? $695. How does it cost $695 for a medical assistant (probably making $10/hr) to give 2 shots, one of which the local grocery pharmacy will give to anyone who walks in for $20?!??! Also, how is it MY FAULT if the billing office can't bill our ACTUAL insurance (and they photocopy your insurance card every time you go, so there's no excuse for them billing a long-defunct plan)?

    Single-payer would really knock a lot of the obscene profit out of medical care.

  36. Mo Says:

    The republican mindset is a malignant tumor on this country.

    Suttree, make that "malignant ass tumor" and I'll agree with you 100%.

    Now can I have a bite of that rat leg?

  37. Xynzee Says:

    @Anonymouse: I thought that this rampant profiteering was what the ACA was to start help to combat.
    So here's Obama trying to drag the US to join the rest of the "First World" by at least getting people healthcare—even if it's by moving public funds into private pockets—despite the best efforts of the GOP. Contrast that with a man who fantasises about being the Gipper and whinges that he cannot get the voters let him take healthcare away from them*. WT… Talk about face palm.

    Back in the day—I'm only a couple of years behind you :)—I was walking across one of the art rooms and walked into a low stool/table. When I looked down I had an X-acto knife (3/4" blade) sticking out of me leg next to the knee. Off I went to the Emergency room. Gave them my parents' insurance details, doc comes in wiggles my leg, asks a about my last tetanus shot/numbness? Swabs me with some iodine and gives me a band-aide. Cost us $150 for a band-aide! Ludicrous!

    *I believe the country he's referring to that requires a "co-pay" to see the doctor is the US.

  38. HoosierPoli Says:

    It doesn't really worry me that the court would grant cert on this. It's pretty clear there are four assholes that would want to make a supreme court case out of it just to get another venue to air their dislike of 19th-century advances in governance.

  39. Jado Says:

    When the RWNJs finally rescind the subsidy and effectively throw all those people off their insurance, they will blame the Democrats and especially OBAMA.

    I expect something along the lines of "Look what you made us do."

    We are getting close and closer to a Stockholm Syndrome society, where those who are actively damaging the most people are aided and abetted by the hostages. It's really depressing

  40. bs Says:

    Remember, it's a for-profit model, so the obscene profiteering is a feature, not a bug. It's just publically subsidized now. Any measures to control costs (primarily single payer/public option) were stripped from the ACA early on.
    If good patient outcomes (and not fat cash for the right people) were the desired result, we'd have single payer, and comprehensive preventive care.
    We all know the mandate to buy insurance is enforced by a tax penalty, but what enforcement mechanisms (as in, making it cost more for them to do it than they'll save by doing it)are there to prevent the insurance Cos. from droppping sick patients, or those with preexisting conditions? Probably the honor system, which works so well.
    bs