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Protesters outside the Supreme Court during oral arguments on the Affordable Care Act.
It's not over yet.

In the coming days, two federal courts will rule on the most laughable of challenges to Obamacare. Or they would be laughable, if the Supreme Court majority hadn't already proven that it's perfectly willing to make bullshit decisions about the law. This one, though, is different because what's at stake is the insurance 4.7 million people obtained this year through the federal exchange.

The theory in these suits is purely resting on semantics, that the language of the law does not allow for health insurance subsidies to go to people who buy their insurance on the federal exchange. They contend that the drafters of the law specifically said that the subsidies were only available "through an exchange established by the state," and by "state" they meant one of the 50 states. It's an interesting interpretation, since it was news to the drafters:

It was so secret that it was never mentioned in any of the voluminous debates or hearings on the act. Indeed, not even the heads of the House and Senate committees in charge of the legislation knew of it, as they have stated in briefs filed in the courts. It was, rather, hidden deep in the statute for someone some day to find and use to bring down the law and the protections it offers to uninsured Americans.
The problem is, we've seen how little the Supreme Court cares about congressional intent in Hobby Lobby. The drafters of the Religious Freedom Restoration Act filed a brief explaining that the law did not apply to for-profit corporations, and look how seriously the Supremes took that. But before these cases come to the SCOTUS, they have to make it through the appeals level, and there we're looking at kind of a mixed bag.

The three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit who heard Halbig v. Burwell seemed split along party lines in the oral arguments, with one judge Judge Thomas Griffith, a George W. Bush appointee, leaning toward the challengers. If this panel decides for the challengers, the administration will undoubtedly ask for a ruling from the entire DC Court, which (thanks to filibuster reform) will surely reverse it.

Meanwhile, the U.S. Court of Appeals for the 4th Circuit is pondering an identical complaint, and from those oral arguments, seems more than likely to toss it as the ridiculous stunt that it is.

“You are asking us,” Judge Davis capped off an especially testy exchange near the end of the session, “to kick millions of Americans off health insurance, just to save four people [Carvin’s four individual plaintiffs] a few dollars.”
One really doesn't want to believe that the SCOTUS would look at the previous rulings by appeals courts and even consider taking this case, which undoubtedly will go to them on appeal, because these people are intent on destroying the law. Since this one doesn't have anything to do with icky sex, maybe they'll deny to hear it, but no one should be holding their breath on that.

Originally posted to Joan McCarter on Thu Jul 10, 2014 at 12:02 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (20+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Thu Jul 10, 2014 at 12:02:19 PM PDT

  •  I Can See the KRATS Straight-Facedly Saying (2+ / 0-)
    Recommended by:
    Mopshell, OooSillyMe

    "Congress can fix this" knowing full well the situation.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jul 10, 2014 at 12:09:03 PM PDT

    •  Prediction (0+ / 0-)

      The Hobby Lobby case will be overturned by the end of this year or mid way through next year at the latest. Just watch. I also predict at least one if not two of the cavemen on the Supreme Court will "retire" in that time time period as well.

  •  I do worry about the Halbig case (3+ / 0-)
    Recommended by:
    Proud Liberal Dem, Mopshell, hbk

    I hope Griffith doesnt side with the challengers. A few people have pointed out he is considered a relatively moderate judge, several Dems voted for his confirmation, including Obama, Biden, Reid and others.

    I mean, IANAL, but it does seem clear that the law provides for tax credits through the federal exchange. It certainly doesnt make sense that a law that is about providing affordable health insurance for ALL Americans, would block subsidies for potentially millions of people.

  •  So by this argument: (4+ / 0-)
    Recommended by:
    cjtjc, MufsMom, dewtx, hbk
    They contend that the drafters of the law specifically said that the subsidies were only available "through an exchange established by the state," and by "state" they meant one of the 50 states.
    I guess that means John Kerry is only the Secretary of State for one of the 50 states, I wonder which one?
  •  I fear this one (4+ / 0-)
    Recommended by:
    VClib, dewtx, Justanothernyer, OooSillyMe

    It would be a Biblical hammer-blow, and I fear it.

    The DC Circuit panel will rule for the wingers.  If the full circuit court hears it en banc, the ACA will prevail.

    But as you said: put nothing past this Supreme Court.

    The ACA language defines 'state' in common terms: the states.  So strictly by letter of the law, the challengers here have a point.  

    And GOP judges never even need one.

    •  No, they don't really have a point... (15+ / 0-)

      Yes, the act does define "State" as the 50 states and DC, but Sec. 1321 (c) clearly lays out that if a state does not set up an exchange than

      "the Secretary shall (directly or through agreement with a notfor-
      profit entity) establish and operate such Exchange within
      the State and the Secretary shall take such actions as are
      necessary to implement such other requirements."
      Therefore the "federal" exchange is actually a grouping of "State" exchanges set up by the Secretary as provided by law.  The law itself says the Secretary shall operate the exchange within the State, meaning it is still a state exchange and therefore qualifies for the subsidy provisioned by the law.  Just because they are set up on one web site or that the media calls them the "federal" exchange does not change the fact that these are state exhanges, set up pursuant to the law by the Secretary of Health and Human Services.
  •  A certain sense to the Hobby Lobby decision. (0+ / 0-)

    Remembering that it does not apply to publicly held companies, there was no reason to distinguish between not-for-profit and for-profit corporation, and certainly not from a first amendment standpoint, when long established case law says that an individuals do not surrender their first amendment rights when they band together in an association.

    If they were going to deny Hobby Lobby, the proper thing would have been to strike down the RFRA.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Thu Jul 10, 2014 at 05:05:04 PM PDT

  •  Here's my re-post on how to save the ACA (2+ / 0-)
    Recommended by:
    Eric Nelson, hbk
  •  Can you explain (0+ / 0-)

    How the plaintiffs have standing?

    •  Sure (1+ / 0-)
      Recommended by:
      Justanothernyer

      One of the plaintiffs alleges that he is a low-income individual living in a state that did not set up its own exchange.  Without a subsidy, he is not subject to a penalty for failing to comply with the individual mandate because he cannot (due to his low income) purchase an "affordable" exchange policy. However, with the subsidy, exchange policies are affordable and thus he is subject to penalties if he doesn't purchase a policy. His injury is that he has to purchase a policy or pay a penalty because of the "illegal" subsidy.

      "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

      by Old Left Good Left on Thu Jul 10, 2014 at 06:31:15 PM PDT

      [ Parent ]

  •  When a conservative uses the term (0+ / 0-)

    "The State," he is referring solely to one entity:  the FEDERAL government.

    How do we know this?   Because conservatives have full faith in and support for A state, since they believe that is the real sovereign.

    Besides, ANY court must take into account in its ruling the legislative intent of a law.  Even if the law is slightly vague the court must look at what the lawmakers intended for the law to do.

  •  Resting on ...the language of the law (0+ / 0-)

    This may be news, but the language of the law is the starting point for any legal analysis and argument.

    Unfortunately, some of the language of the law supports the plaintiff's arguments - at least enough so this is not an unreasonable case to bring.

    Fortunately the language of one provision is not the end of the analysis and we have some good arguments also.

    Also, fortunately, the consequences of an adverse decision will be fairly bad for the Republicans.

    •  The deadline in question has an "after". (0+ / 0-)

      "You can pay me on the 15th", "You can pay me on or after the 15th" and "you can pay me after the 15th" all mean different things.

      The law was written to allow traditional executive branch implementation.

      But before you even get to that question, what is the concrete harm to Congress?

      I'll always be...King of Bain...I'll always be...King of Bain

      by AZphilosopher on Thu Jul 10, 2014 at 11:13:44 PM PDT

      [ Parent ]

      •  What's the concrete harm to congress? (0+ / 0-)

        Well, I figure the GOP in congress figures there's harm to it in that they gambled their dominance on whether or not the law worked for a majority of Americans. Since it does, they fear that they will have to suffer the consequences for their actions. So they view it as an existential threat. To themselves, not to America.

  •  It's the fault of every citizen. (0+ / 0-)

    Until the American people are willing to remove the power from the corrupt organization that the Supreme Court has become (and possibly always was), they are going to keep oppressing and, in many cases, killing us. You don't try to be nice and have a debate with someone who has a gun pointed at your head. You don't yell in the streets that people are being mean to you when they've already shown they don't care what you think. The baying of the cows on their way to the slaughterhouse won't save them, but a stampede can.

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