My Burwell Bet

Supreme Court

 

The Supreme Court is hearing oral arguments today for yet another Obamacare case, this time, it’s King v. Burwell.  What’s the case about?  In short, from the text of the ACA:

“…the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311…”

The key phrase is “an Exchange established by the State.”  So since most States didn’t set up an exchange forcing people into the Federal exchange, none of the subsidies given for health plans through the Federal exchange are legal.  The ACA plainly stated that subsides could only go through State exchanges and the IRS, which crafted a rule allowing subsides through the Federal exchange, overstepped its boundaries outside of the text of the law and is in error.  This should be an open and shut case.  The IRS violated the text of the law, it was wrong, and subsidies should be halted from going through the Federal exchange, right?

Heh!

I don’t believe the law has anything to do with how the Supreme Court arrives at decisions.  If there were any questions to that, the way the Court handled the individual mandate should settle them.  The Court is a political animal.  If it were ever truly interested in a just and reasoned weighing of law and the Constitution, those days are long passed. Of course that makes it easier for me to predict the Court’s behavior.

That’s how I was able to predict the Court’s decision over the individual mandate.  As I wrote then:

“My gut feeling is that the odds are better than even that the court will uphold the mandate.  I base that on the fact that the mandate has 4 automatic votes for.  So that means that only one vote is needed to be swayed among the other five Justices who actually have to study this case (unlike Ginsberg and Breyer, who will be windsurfing instead of reading law books). “

I was right because the Court decision (Robert’s changing his vote) was purely political.  So since I’m feeling cocky, I’ll go ahead and lay my marker down now.  So in spite of the actual text of the law limiting subsidies to State exchanges, I predict that the Court will find against the plaintiffs and rule that the subsidies can pass through the Federal exchange.  The 4 liberal judges will of course vote to uphold the subsidies because…Obama.  The magical swing vote will either be Kennedy or Roberts.  If Kennedy votes against the plaintiffs, then Roberts, to save the law, will vote for.  But if Kennedy votes for the plaintiffs; abolishing the Federal subsidies, then Roberts will vote against, since he will then have a free vote to show his independence; as long as it means nothing.

Of course, I could be totally wrong and the Court could surprise me.  But no breath holding on my part.

 

 

 

 

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