SCOTUS Watch

[stessier]

The justices appear to have some harsh words for the way that bill is written.

[El Guapo]

The justices appear to have some harsh words for the way that bill is written.

(1) That's probably fair;

(2) Who cares.

[stessier]

The justices appear to have some harsh words for the way that bill is written.

(1) That's probably fair;

(2) Who cares.

The people's whose job it is to interpret it?

[Fireball]

Hopefully this is the last silly challenge to the ACA. Both decisions today were wonderful.

I guess gay marriage is going to be Monday after all....

[Scraper]

Breaking news of the morning is that the Court rules in favor of the ACA and federally provided subsidies (6-3 vote).

Let me guess Thomas, Scalia, and Alito are the dissenters?

[Scraper]

I just looked at the opinion and I was dead on. So predictable.

[El Guapo]

The justices appear to have some harsh words for the way that bill is written.

(1) That's probably fair;

(2) Who cares.

The people's whose job it is to interpret it?

I know, I just mean they can vent all they like as long as they uphold the subsidies.

[noxiousdog]

I just looked at the opinion and I was dead on. So predictable.

What that they are philosophically consistent?

[noxiousdog]

Actually reading through the dissent does make me angry irritated. It is clearly the logical decision. Full opinion Short version: majority - "We knew how they meant to write it." Dissent - "But that's not what the law says and Congress is dumb, so they probably did it on purpose."

Far from offering the overwhelming evidence of meaning
needed to justify the Court’s interpretation, other contextual
clues undermine it at every turn. To begin with,
other parts of the Act sharply distinguish between the
establishment of an Exchange by a State and the establishment
of an Exchange by the Federal Government. The
States’ authority to set up Exchanges comes from one
provision, §18031(b); the Secretary’s authority comes from
an entirely different provision, §18041(c). Funding for
States to establish Exchanges comes from one part of the
law, §18031(a); funding for the Secretary to establish
Exchanges comes from an entirely different part of the
law, §18121. States generally run state-created Exchanges;
the Secretary generally runs federally created
Exchanges. §18041(b)–(c). And the Secretary’s authority
to set up an Exchange in a State depends upon the State’s
“[f]ailure to establish [an] Exchange.” §18041(c) (emphasis
added). Provisions such as these destroy any pretense
that a federal Exchange is in some sense also established
by a State.
Reading the rest of the Act also confirms that, as relevant
here, there are only two ways to set up an Exchange
in a State: establishment by a State and establishment by
the Secretary.

Making matters worse, the reader of the whole Act will
come across a number of provisions beyond §36B that refer
to the establishment of Exchanges by States. Adopting
the Court’s interpretation means nullifying the term “by
the State” not just once, but again and again throughout
the Act. Consider for the moment only those parts of the
Act that mention an “Exchange established by the State”
in connection with tax credits:
 The formula for calculating the amount of the tax
credit, as already explained, twice mentions “an Exchange
established by the State.” 26 U. S. C.
§36B(b)(2)(A), (c)(2)(A)(i).
 The Act directs States to screen children for eligibility
for “[tax credits] under section 36B” and for “any
other assistance or subsidies available for coverage obtained
through” an “Exchange established by the
State.” 42 U. S. C. §1396w–3(b)(1)(B)–(C).
 The Act requires “an Exchange established by the
State” to use a “secure electronic interface” to determine
eligibility for (among other things) tax credits.
§1396w–3(b)(1)(D).
 The Act authorizes “an Exchange established by the
State” to make arrangements under which other state
agencies “determine whether a State resident is eligible
for [tax credits] under section 36B.” §1396w–
3(b)(2).
 The Act directs States to operate Web sites that allow
anyone “who is eligible to receive [tax credits] under
section 36B” to compare insurance plans offered
through “an Exchange established by the State.”
§1396w–3(b)(4).
 One of the Act’s provisions addresses the enrollment
of certain children in health plans “offered through an
Exchange established by the State” and then discusses
the eligibility of these children for tax credits.
§1397ee(d)(3)(B).
It is bad enough for a court to cross out “by the State”
once. But seven times?
Congress did not, by the way, repeat “Exchange established
by the State under [§18031]” by rote throughout the
Act. Quite the contrary, clause after clause of the law uses
a more general term such as “Exchange” or “Exchange
established under [§18031].” See, e.g., 42 U. S. C.
§§18031(k), 18033; 26 U. S. C. §6055. It is common sense
that any speaker who says “Exchange” some of the time,
but “Exchange established by the State” the rest of the
time, probably means something by the contrast.

[hepcat]

Man, all this jiggery-pokery...it just makes me flimmanate.

[Kraken]

I'm glad common sense prevailed. Ruling otherwise would have caused chaos among the states that were cut loose with no fallback.

[Pyperkub]

Actually reading through the dissent does make me angry irritated. It is clearly the logical decision. Full opinion Short version: majority - "We knew how they meant to write it." Dissent - "But that's not what the law says and Congress is dumb, so they probably did it on purpose."

Far from offering the overwhelming evidence of meaning
needed to justify the Court’s interpretation, other contextual
clues undermine it at every turn. To begin with,
other parts of the Act sharply distinguish between the
establishment of an Exchange by a State and the establishment
of an Exchange by the Federal Government. The
States’ authority to set up Exchanges comes from one
provision, §18031(b); the Secretary’s authority comes from
an entirely different provision, §18041(c). Funding for
States to establish Exchanges comes from one part of the
law, §18031(a); funding for the Secretary to establish
Exchanges comes from an entirely different part of the
law, §18121. States generally run state-created Exchanges;
the Secretary generally runs federally created
Exchanges. §18041(b)–(c). And the Secretary’s authority
to set up an Exchange in a State depends upon the State’s
“[f]ailure to establish [an] Exchange.” §18041(c) (emphasis
added). Provisions such as these destroy any pretense
that a federal Exchange is in some sense also established
by a State.
Reading the rest of the Act also confirms that, as relevant
here, there are only two ways to set up an Exchange
in a State: establishment by a State and establishment by
the Secretary.

Making matters worse, the reader of the whole Act will
come across a number of provisions beyond §36B that refer
to the establishment of Exchanges by States. Adopting
the Court’s interpretation means nullifying the term “by
the State” not just once, but again and again throughout
the Act. Consider for the moment only those parts of the
Act that mention an “Exchange established by the State”
in connection with tax credits:
 The formula for calculating the amount of the tax
credit, as already explained, twice mentions “an Exchange
established by the State.” 26 U. S. C.
§36B(b)(2)(A), (c)(2)(A)(i).
 The Act directs States to screen children for eligibility
for “[tax credits] under section 36B” and for “any
other assistance or subsidies available for coverage obtained
through” an “Exchange established by the
State.” 42 U. S. C. §1396w–3(b)(1)(B)–(C).
 The Act requires “an Exchange established by the
State” to use a “secure electronic interface” to determine
eligibility for (among other things) tax credits.
§1396w–3(b)(1)(D).
 The Act authorizes “an Exchange established by the
State” to make arrangements under which other state
agencies “determine whether a State resident is eligible
for [tax credits] under section 36B.” §1396w–
3(b)(2).
 The Act directs States to operate Web sites that allow
anyone “who is eligible to receive [tax credits] under
section 36B” to compare insurance plans offered
through “an Exchange established by the State.”
§1396w–3(b)(4).
 One of the Act’s provisions addresses the enrollment
of certain children in health plans “offered through an
Exchange established by the State” and then discusses
the eligibility of these children for tax credits.
§1397ee(d)(3)(B).
It is bad enough for a court to cross out “by the State”
once. But seven times?
Congress did not, by the way, repeat “Exchange established
by the State under [§18031]” by rote throughout the
Act. Quite the contrary, clause after clause of the law uses
a more general term such as “Exchange” or “Exchange
established under [§18031].” See, e.g., 42 U. S. C.
§§18031(k), 18033; 26 U. S. C. §6055. It is common sense
that any speaker who says “Exchange” some of the time,
but “Exchange established by the State” the rest of the
time, probably means something by the contrast.

Scalia has really turned into a wanna-be legislator from the bench.

[raydude]

Chief Justice Roberts reminds Scalia that he is arguing against what he argued in the previous case.

[noxiousdog]

Chief Justice Roberts reminds Scalia that he is arguing against what he argued in the previous case.

That part is irrelevant. I think it's perfectly plausible Congress intended subsidies only to go to State exchanges, and that withholding subsidies would be a penalty. Further, if Congress had no preference, why not just set up a Federal exchange only?

As soon as this became an issue, Congress could have changed it to make it more clear, and yet they haven't.

This is a great example of the problems in our current system. Congress is incompetent, so the other branches are having to make law.

[Fireball]

I think it's perfectly plausible Congress intended subsidies only to go to State exchanges, and that withholding subsidies would be a penalty.

It's a plausible reading of the passage, but those involved in drafting the bill say that this was not their intent. Are we supposed to pretend like we don't know that?

Further, if Congress had no preference, why not just set up a Federal exchange only?

Perhaps they should have. A lot of things in the final bill could have been better (a public option being the clearest example).

As soon as this became an issue, Congress could have changed it to make it more clear, and yet they haven't.

Let's not be silly. You know good and well why a bill didn't sweep through Congress to the President's desk to correct this minor drafting error. The House Republican leadership wouldn't allow a vote on it.

[noxiousdog]

I think it's perfectly plausible Congress intended subsidies only to go to State exchanges, and that withholding subsidies would be a penalty.

It's a plausible reading of the passage, but those involved in drafting the bill say that this was not their intent. Are we supposed to pretend like we don't know that?

I don't think that was at all mentioned in the justices opinions, so.. yes? And I think that's further solidified by the fact that, as Justice Robert's says, "Congress wrote key parts of the Act behind closed doors, rather than through 'the traditional legislative process.' Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013)." meaning that just because the writers thought that doesn't mean that Congress thought that.

Let's not be silly. You know good and well why a bill didn't sweep through Congress to the President's desk to correct this minor drafting error. The House Republican leadership wouldn't allow a vote on it.

Assuming it was a minor drafting error and not an intentional one. But I highlighted that Congress is broken.

[noxiousdog]

Actually, I guess it doesn't really matter. Either the subsidies were available on the Federal Exchange or they weren't. We know they are, so it makes it moot.

edit: were->are Also, I could see suing to remove the subsidies, but cutting down the ACA would not be appropriate.

[Zarathud]

If the Supreme Court, IRS and other regulatory entities had no discretion to apply the laws Congress writes, we might have chaos.

The key dysfunction in US government comes from Congress. If legislative drafting was more clear, the other branches of government wouldn't have to clean up their messes.

[Fireball]

And I think that's further solidified by the fact that, as Justice Robert's says, "Congress wrote key parts of the Act behind closed doors, rather than through 'the traditional legislative process.' Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013)." meaning that just because the writers thought that doesn't mean that Congress thought that.

All due respect to the Chief Justice, but he's wrong. The ACA was not written in a manner any differently than any other piece of legislation that is passed in the modern era. In fact, having gone through multiple committees of jurisdiction, and then through the reconciliation process, which limits changes that can be made, it went through a more transparent process than most bills.

Also, one of the briefs submitted to the Court was written by the legislator's drafters, which should answer questions about legislative intent.

[RunningMn9]

Actually, I guess it doesn't really matter.

Tell that to Glenn Beck.

The system that our founders put together, which was follow the Constitution and three equal but separate branches of government that each have their own specific role, is over. We no longer live in that America. That is done now.

Welcome to Amerika.

[Moliere]

The Antonin Scalia “Sick Burn” Generator

“One would think that hepcat's sentiments are a milestone of judicial overreaching. I would hide my head in a bag.”

[hepcat]

That's the first time I've ever been accused of being sentimental.

[Isgrimnur]

One would think that Moliere's vision is pretentious and diseased. Words no longer have meaning.

[Moliere]

One would think that Moliere's vision is pretentious and diseased. Words no longer have meaning.

As long as it's only my vision that is diseased.

[Pyperkub]

Actually, I guess it doesn't really matter.

Tell that to Glenn Beck.

The system that our founders put together, which was follow the Constitution and three equal but separate branches of government that each have their own specific role, is over. We no longer live in that America. That is done now.

Welcome to Amerika.

George Will continues to go off the deep end too:

Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit...

...The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture.

[Daveman]

One would think that Daveman's showy profundities are a tutti-fruti cocktail. Really?

[Defiant]

Justice Scalia's dissenting opinions sung

[Smutly]

ACA and gay marriage aside, I am distraught at the dysfunction in government. I agree with Scalia that the SCOTUS did great damage to our democracy in its ruling. It has nothing to do with how I feel about either of the recent issues (against in the former, for in the latter). It is in how they acted in a way no other court before has acted. Words matter. Words matter because they form ideas and ideas are powerful and have meaning. It's why I admire so much the Founding Fathers and the brilliant documents they created at the birth of our democracy. Words matter. To add words or to re-interpret words in law is, in my opinion, blasphemous by the SCOTUS. It does not matter to me if the result of the SCOTUS ruling against the ACA would cause chaos, turmoil, or otherwise negatively impact millions of Americans. Keeping the pillars of our democracy in place is more important than all of that. I also believe the President over-stepped his authority to delay parts of the ACA from being enacted as the law was written. In my opinion, the President damaged our democracy when he did this. I am also sad because I see the critical need for a 'free press', which used to mean something when journalists were journalists. Now there is always spin and anytime I listen to 'analysts' I can predict exactly what crap I will hear on both sides. Given that the vast majority of people don't think for themselves, this only serves to polarize and polarization is exactly why we can't get anything done anymore.

I recognize that many on this message board are very happy that the President did what he did and are very happy that the SCOTUS did what they did. I say that is very short-sighted from the standpoint of keeping something sacred, in my mind, whole. Again, I am not arguing against progress or moving issues forward together as a nation -- I am happy those things are occurring. I am just extremely distraught at how it was done.

I accept that there are those who do not understand or care about what I've said above and I find that even more disturbing and sad.

[GreenGoo]

I appreciate you taking the time to write out your opinion for us.

[Fireball]

Or perhaps we care about and understand these issues, but disagree with you.

[Zarathud]

To add words or to re-interpret words in law is, in my opinion, blasphemous by the SCOTUS.

Actually, it's their job to interpret the law. It's the Framer's intent, and design. I'm disturbed that offends you.

[Chaz]

Words do have meanings. Often, those words have multiple meanings, with multiple possible interpretations. That's just the nature of language, even well-constructed legal language. Sometimes, words in law need to be clarified or re-interpreted, and that's the job of the court.

[RunningMn9]

I'm confused. I was always taught that it was the job of the Legislative branch to CREATE law, the job of the Executive branch to ENFORCE law, and the job of the Judicial branch to INTERPRET law. Words have meaning, but we all must understand that laws have intent. We aren't a nation of automatons, slavishly devoted to grammatical mistakes.

Any system that compels injustice out of principle is not a system worth following. Thankfully, ours doesn't. Also, if you think that anything that this Court has done is out of character for the SCOTUS, you haven't been paying attention to the last 215 some-odd years.

[Jaymann]

Also, 215 years ago there were no hospitals and gay men married women.

[Smoove_B]

Also, 215 years ago there were no hospitals and gay men married women.

Well, almost. Lest we forget the Marine Hospital service that was created 217 years ago by a literal act of Congress:

The Act required the Department of the Treasury to "provide for the relief and maintenance of disabled seamen." This Act led to the formation of several loosely controlled hospitals at sea and river ports all across the United States, which was officially the Marine-Hospital Fund. The Act specified the revenue for the Hospital Fund to come from the merchant seamen. It created a tax of 20 cents each month to be withheld from seamen’s wages for support of marine hospitals. The money was paid to the U.S. Collector of Customs.

Sounds a bit like socialism to me...

[Zarathud]

Socialist seamen, to be exact.

[Jaymann]

Well yeah, but did it have wifi?

[Smutly]

There are reasons why this "interpretation" has offended a segment of the USA, including members of the SCOTUS. Think about that. Wait. No really, go back and think about that. These are not uneducated men who are fucking their sisters and have their own personal arsenals in their homes 'cause the gubmint is out to get them. Easily dismissing that is cavalier. I am a sane, well educated person and I know many, many people who are questioning the manner in which the government is doing business.

I've done what I wanted to do. I realize there is nothing to be 'won' here. Snipe away.

[Fireball]

Those members of SCOTUS, and people like you who side with them on the merits, if not their intent, in Obergefell, are expressing the profound privilege they enjoy as straight people. To you and them, the expansion of civil rights for gay people is not of timely concern. You can fetishize process because it's not your lives being maligned, distorted, and, often, destroyed. You can get your feathers ruffled because the Court is using an approach that you do not prefer, despite it having been the same approach and reasoning that the Court has employed many, many times on issues related to equal protection under the law, because to you it really doesn't matter. It's all academic. Even though the Court has many times employed the Fourteenth Amendment's guarantee of due process and equality under the law to expand the civil rights of American minorities, you don't like that; and you don't care that your "proper route" to extending these rights may be impossible for years, if not decades, for some citizens of this country.

You're content to let those previously rendered second-class citizens under the law before Obergefell languish in pain and sorrow because, fundamentally, you've got your rights, and you don't really care about those of others.

[Zarathud]

I am a sane, well educated person and I know many, many people who are questioning the manner in which the government is doing business.

I blame (1) a lack of civics education, (2) the growth of a reactionary, revisionist view of the Supreme Court as not being a co-equal government branch, and (3) FOX News with other conservative propaganda. Asking a question proves nothing -- particularly when there are answers.

Not to mention plenty of Federal judges besides the 5 Supreme Court justices who held in favor of the ACA and same sex marriage. Also, the Supreme Court can't decide anything until someone brings a controversy and makes arguments on both sides. The conservatives are sore losers repeating the same arguments they LOST repeatedly.

Repeating the same questions over and over does not make them right.