Earlier today, the Supreme Court heard oral arguments in
King v. Burwell, the conservative lawsuit aimed at destroying the Affordable Care Act over a speciously narrow reading of a single line in the law. But never underestimate Antonin Scalia's ability to be specious and narrow! Predicting the outcome of a major case based entirely on 90 minutes of chit-chat between lawyers and justices is folly, of course, but here are a few highlights, courtesy of
SCOTUSblog and the
Wall Street Journal. (The full transcript of today's hearing is
here.)
One hot topic in recent weeks has been whether the plaintiffs actually have a legitimate injury that would allow them to bring this suit in the first place, a legal concept known as standing. The Notorious R.B.G. started right in on that:
The challengers' attorney Michael Carvin barely got a dozen words out before Justice Ruth Bader Ginsburg interrupted him to ask about his plaintiffs' standing.
Justice Ginsburg asked Mr. Carvin detailed questions about the four individuals who have brought the case, and their ability to show they had been harmed by the law's tax credits. She asked about the veteran status of Mr. Hurst, in particular, and was told by Mr. Carvin that Mr. Hurst had served ten months on active duty in 1970 and that this alone was insufficient to qualify him for Veterans Affairs care.
If the Supreme Court buys into the idea that the plaintiffs lack standing, then this whole thing could be for naught, since our system of jurisprudence prohibits courts from ruling on cases where there's no actual harm done.
Please read below the fold for more on this story.
Justice Anthony Kennedy also raised another serious issue that just might save the government's health care bacon (too bad it's not Canadian health care bacon):
Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state.
For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein.
It would be quite something if the worst part of the 2012 decision that upheld the ACA—namely, the part that made Medicaid expansion optional on a state basis—wound up saving the ACA's critical mandate for individuals to purchase health insurance. Also note that Kennedy voted against protecting the ACA last time but seems more inclined to do so this time. If you're looking for a shred of hope here, there's your shred.
Oh, but remember what I was saying about Scalia? Here's some vintage Tony:
If a statute has a plain meaning, it means what it means, even if the consequences of that interpretation are significant, Justice Scalia said. It "can't be the rule" that a court's job is to "twist" words of a statute for them to make sense, he said.
He and his buddy Sam Alito are either absolute idiots when it comes to their understanding of how Congress works, or they're just mendacious scum. But maybe both:
Justice Alito then challenged the prophecies of doom the government and its allies have made should the plaintiffs win. If the consequences were so bad, states without exchanges doubtless would quickly act to set them up. "Going forward there would be no harm," he told Mr. Verrilli. The solicitor general said that was easier said than done, stressing how complicated it is to set up an exchange and lamenting that until it was up and running, individuals currently getting subsidies would have them taken away. Justice Alito said the court could mitigate that problem by delaying implementation of such a ruling so that states could get their exchanges up.
Justice Scalia was thinking along similar lines. If the court's ruling turned out to be so disastrous, he said, "you really think Congress is just going to sit there?"
"This Congress?" Mr. Verrilli replied incredulously. The courtroom erupted in laughter.
Yeah, har-dee frickin' har har. As everyone with any sense knows, if the SCOTUS strikes down the ACA's federal exchanges, the Republicans in charge of Capitol Hill will gleefully do nothing to fix them. Let's pray that the court's four liberals, plus Kennedy (and perhaps Chief Justice Roberts, the guy who saved us last time) aren't as cruelly stupid as Scalito.