My take on King v. Burwell: Promising, but states should still move their butts NOW
2018 MIDTERM ELECTION
Time: D H M S
Some people were disappointed (and others no doubt relieved) that after flapping my gums about it for the past 9 months, I didn't have anything to say about the actual King v. Burwell oral arguments yesterday. As I noted, I'm neither an attorney nor a SCOTUS or Constitutional scholar. I really don't know much about the actual mechanics of Supreme Court procedures--heck, until yesterday evening, I didn't even realize that the 2-3 hours of lawyers and Justices chit-chatting was the whole ball of wax:
— Charles Gaba (@charles_gaba) March 5, 2015
— Nicholas Bagley (@nicholas_bagley) March 5, 2015
Yes, it turns out that after all the fuss and bother, the actual "trial" part of the process (yes, I know it's not a trial) was over and done within a few hours. No "witnesses", no "cross examination" or any of that stuff.
As was explained to me last night:
I saw your tweet about how startling it is that the oral arguments are done now.
Just to note, the next step (invisible to us) is actually this Friday, when the justices meet and vote. Usually that vote decides the case. It seems so sudden! But the oral arguments are really the beginning of the end, since everybody at the court reads up ahead of time and uses the arguments to sort of tee up final issues before their meeting to vote.
Then, of course, if the Chief Justice is in the majority, he assigns the opinion to somebody (probably him?) to write; otherwise the senior person in the majority does so. The justice writing the opinion circulates their draft, they get little written comments back, they strategize about changes to attract additional votes without losing any they already have, and so on — and once in a blue moon, somebody switches sides and actually reverses the outcome. So all that, plus all the other opinions and arguments on other cases, is what they’ll be doing for three and a half months after Friday. The amazing thing is that the result never leaks.
This actually explains a lot to me; I never understood why, if the oral arguments were in early March, it would take 3 months for them to actually render the decision.
Anyway, so apparently that's that. Unless there's a leak, no one will have a clue until June what the situation is (and even then, unless the Justices themselves confirm it, how would anyone know whether the leak was the real deal anyway)?
- Anthony Kennedy, supposedly the "swing" Justice, gave several indications that he's taking the potential "death spiral" impact on the 34 states in question very seriously.
- Ruth Bader Ginsberg, one of the solid Liberals on the Court, brought up the issue of "standing" (ie, whether the plaintiffs actually have anything resembling a legitimate reason to bring the case), but it was pretty much shrugged off by all involved, even the defense.
- Anthony Scalia, a solidly anti-ACA Conservative, actually (seriously?) suggested that Congress would probably "fix" the wording of the law in the event of a plaintiff win. This was apparently laughed at by all involved after the defense pointed out the absurdity of that concept (as tactfully as possible, of course).
- Elena Kagen, another Dem appointee, summed up the case using a simple analogy about 3 of her clerks writing/editing a memo. It was nicely stated, but not nearly as fun to read as an earlier judge's "Pizza Hut" analogy re. the same case.
- Stephen Breyer delved into the actual "4 words of text" context issue.
- Sonia Sotomayor was the one who brought up the "death spiral"/"threatening the states" issue, although it was Kennedy who ran with the ball.
- Chief Justice John Roberts, another Conservative (but also the one who ended up saving the ACA a few years ago, at the expense of national Medicaid expansion) said almost nothing...until the very end, when he pointed out that even if they ruled in favor of the government, a future Presidential administration could completely reverse the IRS's "interpretation" of the wording and kill the federal tax credits later on.
- Clarence Thomas, as usual, didn't say or do anything useful (in fact, according to the transcript, he didn't say a word at all).
- Samuel Alito, one of the most rabidly right-wing Justices, surprised everyone (at least, the indication I get from the response is that this was a huge surprise...to everyone except myself, anyway) by bringing up the possibility of a 6-month (or longer?) stay on their ruling.
For my money, the most jaw-dropping bit was this bit by plaintiff attorney Michael Carvin:
Mr. Carvin said there was “not a scintilla” of evidence that state insurance markets would go into a death spiral if subsidies weren’t available for residents.
The Wall St. Journal liveblog then helpfully links directly to this article from just 1 day earlier:
Insurers’ Biggest Fear: A Health-Law Death Spiral
As the Supreme Court hears arguments on Wednesday in the latest challenge to the Affordable Care Act, health insurers are struggling to prepare for a decision that could unravel the marketplaces created by the law.
In the end, none of this necessarily means much. It's all sheer speculation. Perhaps Kennedy is planning on voting against the plaintiffs today, but will change his mind by tomorrow. Who the hell knows?
The most noteworthy thing to me, however, is the fact that both Scalia and especially Alito brought up "workarounds" or "solutions" to the problem at all. Yes, it's absurd to think that "this Congress" would take the most obvious (rational) route by scribbling "...or the federal government" into the appropriate sentence of the law, and no, a 6-month stay on a ruling for the plaintiffs still probably wouldn't be nearly enough time for all 34 states (or even most of them) to get their asses in gear in time for 2016; they'd likely need at least a year or so, which would take us into the 2017 open enrollment season.
HOWEVER, the fact that these two staunch Conservatives brought up such possibilities at all at least shows that a) they're both well aware of the potential damage caused by their decision, and b) they're also well aware of who would be blamed for that damage.
This alone is promising to me.
In any event, my advice to all 34 states in question remains the same: Do NOT simply twiddle your thumbs for the next 3 months!!
Yes, it's entirely possible that the SCOTUS will rule for the Government, in which case this will turn out to be a massive case of "Never Mind!"
However, the cost (in time, energy and money) of at least getting the legislative/paperwork ducks in a row now in the event of a negative ruling is far less than the cost would be if the Court does tear away the federal exchange tax credits and those states are still caught with their pants down.