Wednesday, March 04, 2015

Kennedy throws cold water

The general consensus is that ultimate swinger Justice Kennedy is leaning towards the defendants in King v. Burwell.  Hot Air: "Supreme Court oral argument: Kennedy leaning towards White House’s view on ObamaCare subsidies?"  Although I fancy myself an armchair lawyer, I don't get the line of his reasoning.  He seems very concerned about federal coercion of the states but views removing subsidies from the federal exchanges somehow exacerbating this coercion because the states would be under tremendous pressure to set up their own exchanges.  Um....OK.  Then, as if to jerk us around some more, Reuters tells us he said: "Kennedy added that the challengers may win anyway based on the plain meaning of the provision at issue."

None of the liberal justices gave the slightest consideration to the textualism argument so it's (probably) all on Kennedy and the signs are not good.


"Those are my principles, and if you don't like them... well, I have others." --Groucho Marx said...

In 2012, lawyer Michael Carvin argued the losing side in NFIB v. Sebelius. This week, he argued King v. Burwell. This is from the court transcript.

Michael A. Carvin, arguing on behalf of the petitioners: We know textually that they [Congress] thought Exchanges without subsidies work, because again, they have territorial Exchanges, but the government concedes no subsidies.

Justice Elena Kagan: That's not --

Michael A. Carvin: We have legislative history which --

Justice Elena Kagan: Mr. Carvin, that's not -- that's not what you said previously when you were here last time in this never-ending saga.


Justice Elena Kagan: You said the -- you said without the subsidies driving demand within the Exchanges, insurance companies would have absolutely no reason to offer their products through Exchanges. And then you said the insurance Exchanges cannot operate as intended by Congress absent the subsidies.

Michael A. Carvin: That is entirely true. They wouldn't have operated as intended because Congress intended all 50 States to take this deal. So eliminating --

Justice Sonia Sotomayor: So why create 1326 at all? Obviously, they thought that some States wouldn't.

Michael A. Carvin: Well, they thought it was possible and --

Justice Sonia Sotomayor: Very possible.

Michael A. Carvin: And then --

Justice Sonia Sotomayor: Because they set up a mechanism for that to happen.

Michael A. Carvin: And then they -- what happens? You still get the Exchange. It's not like Medicaid where the entire Federal program is thwarted. You get the benefits that were lauded. But nobody -- no one's going to visit the program if there are no subsidies because not enough people will buy the programs to stay in the Exchanges. That is demonstrably untrue and not reflected anywhere in the legislative history. The legislative history quite clearly contradicts that. Many senators got up and said there are very valuable benefits to the Exchange, one-stop shopping, Amazon, as President Obama has said. The government came in the last case and told you these two things operate quite independently. We don't need Exchange without subsidies. In contrast, there's not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral. Not a word.

Justice Sonia Sotomayor: Wait a minute. That was the whole purpose that drove this bill because States had experimented with this, and those that didn't have subsidies or other -- other provisions of the Act didn't survive.

Michael A. Carvin: They didn't have --

Justice Sonia Sotomayor: You said it yourself in the prior case.

Michael A. Carvin: No. The prior case was about the individual mandate. The government came in and said the individual mandate is necessary to affect death spirals. No one, in the findings in Congress or anywhere else, suggested that subsidies were available. Will subsidies reduce the number of people available on the individual --

"Those are my principles, and if you don't like them... well, I have others." --Groucho Marx said...

Justice Sonia Sotomayor: My problem -- my problem is that -- the reverse. You're talking about Congress, how -- hiding, borrowing the phrase of one of my colleagues, a -- a -- a huge thing in a mousetrap. Okay? Because do you really believe that States fully understood that they were not going to get -- their citizens were not going to get subsidies if they let the Federal government? What senator said that during the hearings?

Michael A. Carvin: The same amount of senators who said that subsidies were available on HHS Exchanges, which is none. They didn't deal with it in the legislative history just as they didn't deal with Medicaid because the statute was quite clear. Let's talk about it in context again, Justice Sotomayor. The context is the only provisions in the Act establishing any limit on the subsidies is found in 36B. So it's not a mouse hole. It's the place you'd expect to find it. It's the only place in the Act that limits subsidies to purchases made on Exchange.

Justice Ruth Bader Ginsburg: But it's a --

Justice Elena Kagan: I don't know think that's quite right, Mr. Carvin.

Chief Justice John Roberts: Justice Ginsburg.

Justice Ruth Bader Ginsburg: It's a tax code provision that's an implementation provision. It tells you how you compute the individual amount.

Michael A. Carvin: It --

Justice Ruth Bader Ginsburg: It -- it's not in the body of the legislation where you would expect to find this.

Michael A. Carvin: No. Your Honor, if that's true --

Justice Ruth Bader Ginsburg: And if it --

Michael A. Carvin: Sorry. Please.

Justice Ruth Bader Ginsburg: What Justice Kagan just read to you, you had the idea that the subsidies were essential --

Michael A. Carvin: No.

Justice Ruth Bader Ginsburg: -- to have the thing work. That's what you told us last time.

Michael A. Carvin: What I told you was it wouldn't work as expected, and that's because they thought this deal would work just like the Medicaid deal where all 50 States would say yes, so you would have both of congressional purposes.

Justice Ruth Bader Ginsburg: Then why in the world would they set up this whole extra thing if they didn't think anybody was going to take it?

Michael A. Carvin: Well, that -- that was my response to Justice Sotomayor. That -- that is completely unsupported empirical observation made post hoc by amicus. There's no reflection of that in the legislative history. Indeed, the legislative history refutes it.

Chief Justice John Roberts: Mr. Carvin, we've heard talk about this other case. Did you win that other case?


Chief Justice John Roberts: So maybe it makes sense that you have a different story today?

Michael A. Carvin: I'm really glad Your Honor said that.