King vs Burwell arguments this morning.

[Wisconsin Beth]

from www.scotusblog.com/2015/03/first-mid-argument-update-king-v-burwell/  Mods, if this needs to be trimmed, please do so. 


Mid-argument updates: King v. Burwell (Latest update: 11:06)

First update: Liberals lead line in questioning of Petitioner in King, but Kennedy asks important question about disrupting federal state balance.

Counsel for the petitioners – who are seeking to invalidate subsidies in states with federal exchanges – faced tough questioning from the more liberal Justices in the first 20 minutes of today’s argument. In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it. Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion. While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.

[Wisconsin Beth]

Second update: Perceptive hypothetical from Justice Kagan forces petitioners to focus on context, not just text.

Petitioners in King focus very heavily on the text, which they say only provides subsidies to states that set up their own exchanges under the literal terms. After Justice Ginsburg asked about standing, Justice Breyer opened the merits questioning whether that’s even true based on the way the statute defines exchanges (namely, as state-created entities) and then directs the federal government to establish “such an exchange” when the state fails to do so. But much of the early questioning was dominated by a real-life hypothetical from Justice Kagan, suggesting that petitioner’s reading does not accord with everyday usage.

She offered (something like) the following example: Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A’s memo, and then I tell law clerk C to write such memo if law clerk A is too busy. And imagine that happens – law clerk A is too busy, so law clerk C writes it. Should law clerk B edit it? The answer seemed obvious: of course, and Justice Kagan all but told petitioner’s counsel (and her clerks) that they would be fired if they didn’t do their job under those circumstances. In response, petitioner’s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance. But that seemed to play into Justice Kagan’s hand, who made clear that this was her point – that in understanding this text, the context obviously mattered.

That turn to context seemed unprofitable initially for petitioners. Many Justices, including Justice Breyer, Justice Sotomayor, and Justice Kennedy expressed skepticism that the statute would function as intended, in a reasonable fashion, and even constitutionally if petitioners’ reading were accepted.

[Wisconsin Beth]

Third update: Kennedy raises a critical question for the petitioners.

In the midst of a discussion of context and the consequences of petitioners’ reading, Justice Kennedy raised a question that will surely receive a lot of scrutiny in the coming discussion of the case. He pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges. That’s true not just for the headline reason covered by this case – that their citizens would be denied benefits – but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular 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. 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. Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.”

[Wisconsin Beth]

Fourth update:

Those thinking that the decision in this case could potentially break along the same lines as the Court’s previous healthcare decision will be anxiously watching the Chief Justice, who was the swing vote the last time around. This morning, he asked no questions to the petitioners and seemed skeptical of Justice Ginsburg’s efforts to question standing when the government stood up to give its case.

[Wisconsin Beth]

Same blog but different author/poster regarding the standing of the 4 persons bringing the case.  I'm fairly sure it was talked about somewhere on the boards but I don't remember where so I'm adding it to this thread. 

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.

eta link www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/

[Wisconsin Beth]

www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/

First update (11:26 AM): Skepticism about anomalies from Justices Breyer and Kagan

A bit more detail about the “anomalies” discussion at the end of Carvin’s argument: Justice Breyer began by offering Carvin “5 to 10 minutes to respond” to the idea that his interpretation of the statute would create anomalies, i.e., that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical. Carvin responded by going through Breyer’s list of anomalies and offering his responses to them. He also argued that the federal government’s interpretation would create more anomalies, including the potential loss of Medicaid funding for states that don’t establish exchanges because they could not ensure coordination between the federal exchanges in their states and other relevant officials (a prerequisite to Medicaid funding).

The most interesting “anomaly” raised, and the one that received the most attention, refers to “qualified individuals” under the statute. The statute provides that insurance shall be made available on exchanges to “qualified individuals,” and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.” The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).

Carvin’s answer was very interesting. Basically, he argued that this argument was a bluff by the government. He argued that if the petitioners prevail in this case, the federal government will never concede that there are no qualified individuals, but will instead try to find other ways to shoehorn people into the definition, or find ways to argue that federal exchanges are not limited to offering insurance only to qualified individuals. He offered some of those possible arguments, but did not go into detail.

[Wisconsin Beth]

Full transcript is here, all 97 pages of it. 

www.supremecourt.gov/oral_arguments/argument_transcripts/14-114_lkhn.pdf

[EVT1]

I await John Oliver's dogs   Someone will post it.

Should be an interesting opinion- might even go 6-3.  One justice mentioned delaying the opinion in order to allow states to set up exchanges- a good idea if it goes that way.  That's what is more interesting to me- what are states going to do if the subsidies fall?

I am sure they are not going to be pleased that all of this federal money is going to benefit only a few states- they are not happy now that certain states are getting Medicaid dollars for their citizens and businesses while other states are paying for it and getting nothing in return- which really shows what the state GOP legislatures are really all about- they would rather screw over their own citizens, their own local businesses and chambers of commerce than allow Obama any kind of victory. 

At least SCOTUS is concerned about what happens to the people- that's a lot better than these shameless politicians that want to destroy the law at all costs.

[resolution]

Several republican legislators are talking about drafting legislation to extend the subsidies if the SCOTUS rules against them. They seem to realize that the 6 million people that would lose insurance are mostly living in red states.

www.washingtonpost.com/opinions/we-have-a-plan-for-fixing-health-care/2015/03/01/e0925502-becc-11e4-8668-4e7ba8439ca6_story.html