it would be really shamelessly openly inconsistent in the service of a desired result, in a way that seems out of character to me.
You're joking, right?
No. I could be wrong about the outcome, but Roberts seems to me to be a big figleafer -- does what he wants, but does what he can to make it look respectable. Going the other way on Yates would seem to me to both be defensible in itself, and as if it'd go quite a ways to make a bad decision on King look better.
1: It would be a new low, though.
The Fish Who Saved Pittsburgh Obamacare?
really shamelessly openly inconsistent in the service of a desired result
The ways in which ruling for the plaintiffs would shamelessly openly inconsistent is massively overdetermined.
So 1.
But I do hold out some hope along LB's line of thinking. I'm trying to imagine how much of dick Scalia is going to be during arguments (and I'm sure the sneering bigot, Alito, will have a gem or two).
Also starring Anthony Kennedy in the role of surficially confused old man.
I think it was Lemieux who correctly characterized Scalia as basically being a heckler these days.
As for King, I frankly don't think the Chief Justice is going to do it. The time has passed.
But I don't have a high degree of confidence in that take. I didn't think Justice Kennedy would go the way he did in the last round of cases.
Yates is a good reminder that there has never been a majority of Justices who were more than fair-weather textualists. They do that occasionally. Interesting that Justice Kagan led the dissenters, though.
I'm long past the point of thinking that the basic sanity of the arguments in play matters much to the conservative side of the surpreme court when something they want is involved. but I do get at least some sense of hope from the fact that eliminating federal subsidies would completely and totally screw up the insurance companies for a while. That might not matter in the end, but Roberts at least has a pretty long record of pushing corporate interests and the subsidies are the part of the bill that makes it not disastrous for them.
And, I suppose, there's at least some consolation if they do overturn the subsidies because, hey, fuck you insurance companies.
9: So why didn't they do it already? They already had a better test case, and Roberts passed it up.
I think the insurance company/overall health industry considerations will be what would stay John "Dick" Roberts' hand. Then he'll marshall the required figleafs.
One of my favorite moments from recent Supreme Court arguments:
"So what can a corporation do to protect itself against punitive-damages awards such as this?" Roberts asked in court.
The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people."
The rare sound of laughter rippled through the august chamber. The chief justice did not look amused....
Roberts seemed the most agitated as he argued that Exxon wasn't responsible for the captain's unauthorized drunkenness. "I don't see what more a corporation can do," he said. "What more can the corporation do other than say 'Here is our policies' and try to implement them?"
I don't know why all the King stuff upsets me more than other crap that goes on all the time in US government, but for some reason there's a watching a car crash aspect to it, like I can't believe this is the excuse they're going to use to kill thousands of people a year. Maybe it's that the ratio of reasonable legal argument to practical effect is lower than any other case I can think of. It just feels like if they go ahead with this they're not only playing Calvinball (that was obvious in Bush v. Gore) but explicitly saying fuck yeah we're changing the rules, what are you going to do about it? Sure you might get your House majority, Senate supermajority, presidential signature, and have no reasonable legal argument against you but 5 justices will still act as a de facto arm of the Republican party.
I think the insurance company/overall health industry considerations will be what would stay John "Dick" Roberts' hand. Then he'll marshall the required figleafs.
I'm sure what will happen is the overall subsidies will get upheld, and then they'll take some bizarro linchpin from left field and declare that unconstitutional - yes, subsidies are obviously what they are supposed to be, and this case is actually about ...I can't even finish the hypothetical. But that's what he likes to do, right? We "upheld" the VRA except for this part! We upheld ACA except for the state mandate. Etc.
Yeah, I assume it all hinges on Roberts, and he's so craven in so many ways it's more or less impossible to predict.
But I know one thing: the ACA elsewhere forbids states from tightening their existing Medicaid eligibility limits until an "exchange established by the state" is operating there. So if they win on this, CMS had damn well better make Medicaid a perpetual ratchet for the red states (NC is already trying to throw people off, or maybe already did).
oh, they're making an argument that Congress meant to deny the subsidies, but it is weak to the point of being almost literally unbelievable
This drives me nuts. Most of the Congresspeeps who made that law are still around. So, if there's ambiguity as to what Congress meant, they could, you know, ask.
I suspect that they will not be able to find a single person who voted for the ACA who will vouch for having had the plantiff's interpretation of what the law means. And, while that's a somewhat imperfect way of judging the intent of legislation, its a lot better than the default method of "lets make some shit up."
BTW, if you want to bone up on the briefs, the ABA has them collected here.
One of my favorites is "BRIEF OF THE STATES OF OKLAHOMA, ALABAMA, GEORGIA, NEBRASKA, SOUTH CAROLINA, AND WEST VIRGINIA LYING GOOBERS, AS AMICI CURIAE SUPPORTING PETITIONERS"
In particular the short section:
"In making their Exchange-establishing decisions, the States were well aware that the plain text of Section 36B conditioned the availability of tax credits on States establishing exchanges."
Which section offers almost precisely zero evidence that any of them were well aware of shit. (To be fair to the unfair, Oklahoma did note concern in some litigation--I'm not really sure where that fell during their determination on what to do with their Exchange.)
Instead you get stuff like this:
As a result, the States are well-equipped for parsing through the
various pros and cons of cooperating with federal
prerogatives and they did just that in deciding whether
to set up an Exchange. To be sure, the States were
aware that the IRS was claiming that tax credits would 16
be available regardless of the States' decisions, but the
States (1) could read the plain text of Section 36B and
see that it conditioned the subsidies, and (2) were
aware of the many arguments--including those made
by the State of Oklahoma in litigation some two
months prior to the exchange-establishing deadline
imposed by HHS--that the IRS Rule was contrary to
Congress's intent.
They could have read it they way we are telling them to read it now!
*Many* arguments! Finding them left as an exercise for the court.
My problem with this kind of inference, is that Kagan is the Roberts-whsiperer and so what on earth is she doing writing the dissent if this is really setting the stage for King? Or is this some weird triple bank shot where she writes it in a way to force Roberts to go on the record on certain points?
Who decides who writes the dissent? The most senior dissenter? So Scalia here?
17: They're not quite that sneaky. And Justice Ginsburg wrote the majority in Yates, and if the Chief Justice comes to a point later in the Term where he has to distinguish an RBG majority he joined earlier in the Term, he won't lose a minute's sleep over it. I mean, quite possibly she'll quote it back at him, but she'll have a lot worse things to say if she's dissenting in King.
I do think the result in Yates tells you something about King, but what it tells you is that the ordinary meaning of words only ever gets you so far in interpreting statutes. (It still gets you pretty far! But only so far.)
Yes, I think the senior dissenter assigns the principal dissent, although that matters less for dissents because anyone who wants to can write separately. The assignment of the majority matters much more because as a matter of practice the assignee writes the first draft of any kind that gets circulated, which often then becomes the opinion of the Court very quickly.
I thought, based on general reading about these matters, that the result in Utility Air Regulatory Group v. EPA (Scalia reaffirming his commitment to contextual reading of statutes, a so-called whole text canon) was just as damning to plaintiffs' case in King as Yates might be.
In terms of tea leaf reading, rather than substance, I think the fact that Scalia has said something that will make him look inconsistent in an unprincipled way is less likely to have any effect than Roberts having said something similar. If you see what I mean. Scalia is beyond shame, but I don't think Roberts is.
20: Right, that occurred to me moments after hitting post.
In more general terms, if and when the court contradicts its prior rulings in matters like this, is there not some fallout regarding the prior rulings? (I suspect the answer is no: it's just a reversal, perhaps dressed up with some elaborate rationale on why this is different from that other one, with no incumbent sense that the prior rulings must be revisited. Does the court ever have to revisit prior rulings? I'm probably being naive: attention to precedent is just traditional, not, like, a rule, so contravening it carries no consequences.)
Gah, this is certainly making me grumpy. What a farce, but a potentially significant one in terms of trajectory of important US government institutions. Intellectually dishonest practitioners of law launch intellectually dishonest lawsuit in justified belief that there is a workable chain of intellectual dishonesty leading to the Supreme Court with its nest of intellectual dishonestarians.
Over the long run I fear the baleful influence of the Federalist Society and its ilk far more than groups like ISIS.
Apart from the implications for King, I don't get why Yates was prosecuted under Sarbanes-Oxley. Aren't there other federal laws covering the destruction of evidence in this kind of case?
23: Yes, and Yates was convicted under one of those as well. There was a longer sentence available under the SOX anti-shredding provision, I think.
There's no live stream of the arguments it seems. I thought the last few big cases had them. Am I misremembering or are they going lower profile with this one?
Over the long run I fear the baleful influence of the Federalist Society and its ilk far more than groups like ISIS.
Easily.
Soctusblog: We will have two updates during the #King #ACA argument at #SCOTUS. First around 10:35a ET.
25: It's not like the public has any stake in hearing what's happening as the Supreme Court decides to wantonly kill thousands of people.
WSJ has a liveblog that seems to have someone on the inside: http://blogs.wsj.com/washwire/2015/03/04/live-blog-supreme-court-hears-king-v-burwell-health-law-case/
Scotusblog 1st update--I've not read yet.
Counsel for the petitioners - who are seeking to invalidate subsidies in states with federal exchanges - faced tough questioning from the more liberal Justices in the first 20 minutes of today's argument. In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it. Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges - likening this to an unconstitutional form of federal coercion. While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.
Everyone seems very interested in that comment of Kennedy's saying that if the ACA were to make the subsidies dependent on the states setting up their own exchanges then that could be unconstitutional. But it's not clear whether that means he's on the fence or whether that means he's gunning to go further and get rid of the whole law.
I am confident that whatever the outcome, it will be consistent with whatever a bunch of guys meeting in the late 18th century originally intended.
This case seems really unusually untethered from reality. It seems that Carvin actually said that the states clearly all knew that they wouldn't get subsidies if they didn't set up their own exchanges because the text of the law is so clear. It's not unusual to have arguments about say, what the framers thought because we don't actually know what they thought. But in this case we actually have access to what the states thought since they've written briefs. It's really bizarre.
21 -- They don't revisit prior rulings. If you're in jail, you can try to get retroactive application of a new case, and there's a whole body of law about when you can and when you can't. A body of law that gets applied by the district court. As for the USSC, they just say 'we thought X before, but now we see that not-X is actually correct, on the facts before us.'
Earlier this week, there was a case on sales taxes for internet sales* -- Kennedy's concurrence was basically begging for a case that would be a proper vehicle to overturn their current Dormant Commerce Clause holdings on that.
* The case was actually on retailer reporting requirements, which is a workaround states have adopted based on DCC holdings, which is why this case wasn't the right vehicle.
Kennedy's concurrence was basically begging for a case that would be a proper vehicle to overturn their current Dormant Commerce Clause holdings on that.
Because he's right and they're self-evidently stupid. I've done a lot of work in this area, and Quill is about the dumbest decision I've seen without any obvious nefarious political motivation.
Quill! I think I've printed out that case more times than any other.
I wonder what kind of majority there is for that. It's obviously a different thing, but the trend on personal jurisdiction is going the other way, making it harder to sue out-of-staters.
Thanks for the WSJ link. Their latest update is pretty funny:
If the court's ruling turned out to be so disastrous, [Scalia] said, "you really think Congress is just going to sit there?"
"This Congress?" Mr. Verrilli replied incredulously. The courtroom erupted in laughter.
Irrelevant to anything but Carvin (arguing for the plaintiffs) seems nice:
In contrast, Wednesday's argument involves "a statute that was written three years ago, not by dead white men but by living white women and minorities," Mr. Carvin said. "It hasn't had time to 'grow' or 'evolve,'" he adds, mocking terms liberals have invoked for constitutional doctrines that conservatives deride as unsupported by the 18th century text.
It's really indefensible that the Supreme Court even accepted this case.
||It's impolite to say "I was right", but the DOJ has now concluded that (1) based on an exhaustive review of the physical evidence and potential witness testimony, there was and is no basis to indict Darren Wilson because he simply cannot be proven guilty beyond a reasonable doubt to have used unreasonably excessive force (thus agreeing with the determination that the Ferguson grand jury made) and (2) that the Ferguson police department had a long history of other civil rights violations that are serious and should be civilly prosecuted.
Or -- not to be too much of an asshole about this, but I've already firmly established a blog persona as asshole-adjacent --exactly what GSwift and I argued months ago would happen and should happen, to great outrage here. But I assume that won't provoke any apologies or stop anyone from continuing to assert that the Ferguson grand jury members Federal civil rights prosecutors who routinely investigate and prosecute this stuff are inexplicable racist monsters who credited a literally unbelievable story. .|>
I'm not even going to read that before I assert that the feds said there wasn't enough to indict on federal charges but said nothing about the state charges that everybody here was about earlier.
43 is true, of course, in the sense that the DOJ was interested in federal law, but the standards aren't materially different and the DOJ report on Wilson doesn't rely on material differences in the federal standards as opposed to the state ones. In both cases the question is really whether or not there was sufficient evidence to support a criminal jury finding that the use of force was objectively unreasonable, given the applicable standards for unreasonableness.
I apologize that you were right on something everybody agreed with and something similar to what you were wrong about.
I don't even know what you're talking about.
You said that you were right because the DOJ (1) didn't indict Wilson and (2) did find that the department had a long history of serious civil rights abuses. The first of those isn't making you right because it is a different charge with different things that need to be proven. The second of those is something that I'm fairly certain that not a single person here disagreed with.
The argument as I recall it was about 1) whether McHonky should have recused himself 2) whether he could have gotten an indictment if he had so desired 3) whether he could have gotten a conviction with the evidence as we knew it and 4) whether the grand jury process had been fair.
Today's decision might have some bearing on 3, but even that seems contestable.
41 is wrong. In a sane world the Supreme Court would have accepted the case, in order to make a clear statement* to the lower courts about ruling in favor of the kind of absolute gibberish the plaintiffs are arguing.
*By which I mean one including a lot of swears, and ending with the phrase "...and the law school you got your degree from."
I don't recall people being naive enough to think that something like this wouldn't happen, or at least not for very long.
You are both moving the ball pretty outrageously. What I was saying then is exactly what I am saying now. The question was whether or not an indictment was justified. The report clearly concludes that it wasn't, despite (the contention of most people here) that it was,
The argument here as to why an indictment was justified was either because (a) grand juries can (and therefore should?) "indict ham sandwiches" and therefore should just be indicting people even without proper justification, or something, and (b) because, as people here were arguing at length, an indictment would actually have been justified. The DOJ quite clearly concludes that an indictment (not just a conviction, but an indictment) was not justified.
I'm not moving the ball. The ball is staying exactly where it was and you are moving the window through which we are looking at the ball.
who credited a literally unbelievable story
God, Klein is an idiot. Even though all kinds of things he finds unbelievable like the grabbing of the gun, the charging while being shot, the handing off of the cigs during the fight, etc. turned out to have happened, nowhere AFAICT does he ever have a moment where he realizes that maybe he has not the slightest bit of background or ability to accurately judge these things.
Christ, can you people give Ferguson a rest? Nobody is going to change their mind on anything.
That claim can be extended beyond Ferguson to every other goddamned issue. Let's agree that Klein is a doofus, though.
55: What 56 said. I'm just especially annoyed by journalism lately.
1) That they got the correct answer when being lead through the process by a person of questionable disinterestedness doesn't mean it was okay; they might well have gotten fucking lucky
2) If the only cases the prosecutor works by the book or with any real deference to exculpatory evidence are ones involving cops...especially if the prosecutor is a person of questionable disinterestedness... then, why yes, something is amiss!
56: I'm willing to change my mind on anything other than Ferguson and the fact/opinion distinction. Maybe global warming isn't real. Maybe the Civil War was really about tariffs. Maybe time keeps on ticking, ticking, ticking, into the future. These are all more productive topics of discussion than Ferguson.
But we agree that Klein is a doofus, right?
These are all more productive topics of discussion than Ferguson.
Well that's just, like, your opinion, man.
My own subjective opinion and recollection was that there was an awful lot of "Wilson's story can't be true because [armchair reasoning]." Not here in particular, because I wasn't reading a lot of the discussion here, but fb and so on. So far (I'm about halfway through) the DOJ report seems to confirm or find credible a lot of claims that were in dispute.
63: Did they confirm gswift's claim that Brown was "a shithead"?
64: Lab results were inconclusive on that score. The only testimony bearing on that was impeachable.
31: I'm going to venture a halfhearted prediction that SCOTUS will rule against the King petitioners, with C.J. Roberts in the majority, on the grounds that their reading of the law would imply unconstitutional coercion of the states, and a constitutional reading of the statute must be therefore be preferred, if one is available. And I am going to open up a 1.8 litre handle of 80 proof Schadenfreude, since right-wing activists invented that particular interpretation of federalism to gut the Medicaid expansion.
I have a question, for Kermit or Minivet or someone. A friend lives in Arizona. She has had an enraging experience trying to find a primary care provider. The major problems are these:
1. Practices/physicians listed as accepting "XYZ insurance" actually only accept SOME plans from XYZ -- and none of those are Marketplace plans. Apparently there are only two primary care providers within 40 miles of her (Tucson area) who accept Marketplace plans.
2. The healthcare provider directory for her insurance company is horrendously out of date (doctors moved, left practice, closed, etc) and the customer service people have been unwilling to admit any fault ("It's doctors' responsibility to tell US when they move").
She is furious and thinks this (primarily the first, although she wishes there were a govt punishment for the second) is a problem with Obamacare.
I have no idea what to tell her. IS this an ACA issue? Or it that Arizona implemented the ACA poorly? Or something else entirely?
She previously lived in Washington state under one of the most progressive, consumer-friendly insurance commissioners I've ever witnessed, so it's also possible that she's having some WA-to-AZ culture shock.
Yes, but what pretend-innocent poison pill will Roberts stick into the decision to screw people over later and/or to screw people over now but in a more-in-sadness-than-political-hackery way?
87.1: Yes, my one kid had to navigate that very carefully--the best-looking initial plan turned out to be not available anywhere near where she lives. Fortunately it appears that the directory was up-to-date, but she needed to be *very* specific in specifying the plan name to get the correct info. Collectively we have found (also in play in some plans I can get through work) that some of the surficially best/cheapest plans will contain some code word like "Community" in their name, have and very narrow networks/geographically-limited coverage.
The upside of that reasoning is that it would appear to stop a republican president from changing to the "unconstitutional" interpretation in the future.
I'd say half the people I work with blame the ACA for the current nasty (and ACA-unrelated*) UPMC/Highmark fight here in P'burgh. And my employer made some choices in reaction to that spat that were in my opinion quite sub-optimal for employees.
*As discussed before, the ACA gets to own all the ills of the system--completely unsurprisingly.
70: Yes, and the potential for future change was Roberts' only question--although in the context of Chevron. (Transcript available here, btw.)
if you're right about Chevron, that would indicate that a subsequent administration could change that interpretation?
67: To some extent it is an ACA issue. By design, the ACA deprived insurers of most of the traditional tools for taking claims cost out of individual products (medical underwriting, $10,000 deductibles, devious exclusions, annual and lifetime limits, etc.). So practically the only lever left was limiting the network to doctors and facilities that would accept reimbursement below prevailing commercial rates. In a sense, the ACA was working as designed; competition pushes down provider prices (which are hugely inflated by every international comparison).
The sticking point was that the states, which are supposed to regulate the adequacy of the networks attached to insurance products, fell down on the job. Insurers were and are deliberately cagey about who is in their network, and for what products, because being honest and forthcoming can only hurt them, and it costs money to keep the provider directory up to date.* The regulations to compel transparency are (or were) toothless; just try to go online and download a list of every PCP in your insurer's network. You can't do it, and that's no accident.
The good news is that the Administration recognizes that the insurers went way overboard in some markets with the bare bones networks, and has taken some steps to remedy the situation. They have increased the minimum standard for inclusion of critical facilities**, imposed federal oversight over state review of network adequacy (a huge preemption of a state authority that went almost unremarked in the press), and required insurers to release data about their networks in a more transparent way, which should ultimately lead to the emergence of some consumer-friendly search and comparison tools.
All of this is a work in progress, though. The situation for many patients is still very challenging.
* In fairness, it is difficult to keep these things up to date, especially the data on whether a particular provider is accepting new patients.
**The press attention on narrow networks focused on the exclusion of high cost prestige hospitals and academic medical centers from exchange products, but the Administration doesn't actually give a shit about that. It's the community hospitals in underserved areas, many of which have very high commercial reimbursement rates (to make up for their high proportion of Medicaid and Medicare patients), that regulators want to ensure are included.
Collectively we have found (also in play in some plans I can get through work) that some of the superficially best/cheapest plans will contain some code word like "Community" in their name, have and very narrow networks/geographically-limited coverage.
It's worth knowing that some of those community plans are among the highest quality commercial products available, in the sense of taking good care of patients and ensuring that the vulnerable and chronically ill get properly coordinated care. That's very different from Anthem saying, "OK, let's create a product where we offer whatever random collection of do-gooders and rusty scalpel doofuses who will accept a 25% pay cut." Seriously, liberal health policy wonk types practically jerk off over these guys.
It's my latest thought that provider networks are too important an informational factor to leave to the private sector. Even with better enforcement, a system where regulators merely follow up on complaints made about inadequate transparency (the system in states with better regulations) is bound to fall short. Let all networks go up on the same standard website, cross-referencing every insurance product on the market, so no mistakes can be made about what doctor will see you. Maybe also "open enrollment" for providers, so they can change what networks they're in and insurers can vary contractual terms only once a year, with updates to the system timed so people can consider those updates when deciding to renew.
Thank you both, sincerely. This is extremely helpful.
If she does want to complain, should she do so to her state insurance commissioner? Or is there someone in the "federal oversight" that you referenced that she could reach out to? I'm not optimistic about Arizona....
I thought my statist impulses were strong, but Minivet has me beat. I take the view that the best outcomes will result from HHS requiring prompt and comprehensive disclosure, and then putting the data out in the public domain, where entrepreneurs and social venture do-gooders can make it usable for consumers. The government has a pretty piss poor record of building that kind of thing.
The idea of an annual enrollment period is intriguing, but I am inclined against it, because experience teaches that anything that gives more leverage to providers tends to redound to the detriment of the consumer.
76: the federal government isn't really getting in the business of handling consumer complaints, but rather has arrogated for itself the power to review and second-guess the network adequacy determinations of the state departments of insurance.
Your friend will need to take her chances with the Arizona DOI, or, better yet, with her insurer. I don't know Arizona regs, but states typically have fail safe standards that compel insurers to cover out of network care if in-network coverage is not reasonably available. The strength and specificity of what constitutes "reasonably available" varies widely by state. My guess is that Arizona has a vague discretionary standard that the insurer can try to hide behind. But even then, the consumer can always appeal an adverse determination by the insurer to the regulator. This might do your friend more practical good than trying to get the regulator to force a network expansion.
Overall, this has been a semi-sucky and confusing experience* for my two kids who used the exchanges. But a brilliant experience in comparison to what their pre-ACA experience would most likely have been.
*Lack of easily predictable income for the coming year especially with incomes near important borderlines (with added Pennsylvania uncertainty) and movement between states with short-term gigs.
77.1: That's a good principle (sometimes I wonder if the only way to cut providers down to size is Medicaid-for-all, i.e. make those rates the new normal), but I think in my system both providers and insurers would be equally annoyed at being locked into each other for set periods of time.
I'm pretty sure old people wanting to be sure they get the doctor they want more easily because Medicare pays more than Medicaid is about 80% of the non-insane reasons for opposition to Obamacare.
Just catching up, 11.1 gets it right, and it's the main reason that I've been relatively confident that the case will come out the right way (after initially being spooked by the cert grant itself, which wasn't necessary to resolve a split and thus seemed like it reflected a desire to reverse the 4th Circuit). Post-argument, I'd say that 13 is also likely right: they'll hold up the subsidies but use the opinion to advance an increasingly aggressive non-coercion federalism doctrine, i.e. what 66 says. That'll be annoying but I suspect so fact-bound that it won't generalize to something very constraining. Opinion by Kennedy, Roberts will be happy to step aside this time. Yates very unlikely to be a factor (though I do think Ginsburg framed the opinion with King in mind). The Court doesn't decide cases like this on precedent.
25: they've never live-streamed. Transcripts shortly after end of argument, audio a little later.
And audio set to video of dogs in judicial robes a week or two afterwards.