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Wednesday, March 4, 2015

"ObamaCare" back at SCOTUS Orals

 King v Burwell was heard today at Orals. The decision will likely be announced in June.

I'm feeling pretty vindicated. Legal analyst Jeffrey Toobin, writing in The New Yorker, "Hard Cases."
The plaintiffs can’t assert that the A.C.A. violates the Constitution, because the Justices narrowly upheld the validity of the law in 2012. Rather, the suit claims that the Obama Administration is violating the terms of its own law. But the A.C.A. never even suggests that customers on the federal exchange are ineligible for subsidies. In fact, there’s a provision that says that, if a state refuses to open an exchange, the federal government will “establish and operate such Exchange within the State.” The congressional debate over the A.C.A. included fifty-three meetings of the Senate Finance Committee and seven days of committee debates on amendments. The full Senate spent twenty-five consecutive days on it, the second-longest session ever on a single piece of legislation. There were similar marathons in the House. Yet no member of Congress ever suggested that the subsidies were available only on the state exchanges. This lawsuit is not an attempt to enforce the terms of the law; it’s an attempt to use what is at most a semantic infelicity to kill the law altogether.
See my post of November 7th, 2014. Again, per Mr. Toobin's allusion, ACA Section 1321 [pp 85-86] clearly supplants and trumps Section 1311(d) [pg 72]. The Feds plainly have backup HIX authority in the event of states' failures to act on Exchanges. A "semantic infelicity" has to be dipositively incapacitating with respect to effective administration of the statute for SCOTUS to rule that the law in the Dock is lethally unclear. All major laws are constructed more of less in Frankenstein cut 'n paste pastiche fashion. The slop at issue here is trivial; it is nil in the face of clear aggregate Congressional intent. Whether you like the ACA or not is irrelevant per this case.

ACA page 110:
"Subtitle E--Affordable Coverage Choices for All Americans."
Not "Affordable Coverage Choices for ONLY Those Americans Living in States That Follow PPACA Legislative Intent and Establish Health Insurance Exchanges."

We've wasted more millions of dollars on yet another fatuous ACA challenge, money that could have gone to actual health care.

Well, we'll know in about 4 months.


This man, Michael Carvin, Esq, should be disbarred, minimally for incompetence, worst case for lying to the Supreme Court in one or the other of the PPACA cases in which he participated as Counsel. As reported by ThinkProgress:
The Lawyer Telling The Supreme Court To Gut Obamacare Explained Why He Should Lose In 2012

On Wednesday, a lawsuit seeking to defund much of the Affordable Care Act appeared to hit a roadblock when Justice Anthony Kennedy expressed concerns that the plaintiffs’ reading of the law is unconstitutional. Though Michael Carvin, the lead lawyer challenging the law, attempted to extract himself from this roadblock, he quickly ran into an entirely different obstacle — his own past writings.

Carvin claims, in a case called King v. Burwell, that Obamacare should be read to deny tax credits that enable millions of Americans to afford health insurance in states that elected not to set up their own health exchange (under the Affordable Care Act, states have “flexibility” to decide whether to set up their own exchange or to allow the federal government to do so). During oral arguments on Wednesday, however, several justices raised concerns about the catastrophic damage Carvin’s reading of the law could inflict on those states’ insurance markets.

If the tax credits disappear, millions of people’s out-of-pocket costs for their insurance will more than triple, leaving many healthy individuals unable to afford to remain insured. Yet, as healthy consumers drop out of the health insurance markets, the insurers will lose revenues they need to cover the costs of their sick consumers, forcing them to raise premiums even more. The result is a “death spiral,” where higher premiums beget fewer customers, which beget higher premiums.

During oral arguments, Justice Kennedy said that this risk of a death spiral raised a “serious constitutional problem” for Carvin. Under the Supreme Court’s first Obamacare decision, Congress may not coerce states into acting against their will, and Kennedy was concerned forcing states to choose between setting up an exchange or having their individual insurance markets collapse amounted to unconstitutional coercion. Given two different ways of reading a law, Kennedy indicated that he may be obligated to choose the one that doesn’t raise this constitutional concern.

Carvin tried to downplay the risk that consumers would simply stop buying plans in the law’s health exchanges if the tax credits were cut off, claiming that these consumers would still be attracted to exchange plans by the fact that the exchanges offer “one-stop shopping” for people looking to buy insurance. He also claimed that Congress wasn’t worried about the risk of death spirals if the tax credits get cut off. According to Carvin, “there’s not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral.”
But Carvin himself sang a very different tune three years ago. Indeed, Wednesday was not the first time he’s stood in the well of the Supreme Courtroom and asked the justices to gut the Affordable Care Act. Carvin was also one of the lead attorneys in NFIB v. Sebelius, the first Supreme Court case attacking the law.

In a brief filed in NFIB, Carvin explained that “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” And, contrary to his more recent suggestion that Congress never envisioned any danger if the tax credits are cut off, Carvin wrote in 2012 that “the insurance exchanges cannot operate as intended by Congress absent those provisions.”

In a subsequent brief, Carvin elaborated that “the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges.” He also seemed to contradict his central claim that different states are treated differently depending on whether their exchange is operated by a state or the federal government. The Affordable Care Act, according to the Michael Carvin of 2012, “enables uniform and acceptable federal premium subsidies” (emphasis added).
Carvin’s inconsistencies did not go unnoticed by the justices...
Maybe he didn't willfully lie to the Court on one ACA case occasion or the other, maybe he's just indifferent to truth. One reason litigators have the bad rep they have is that cases are often seen simply as raw materials for winning. It's nothing personal, it's all about prevailing in the argument before the court on day X. In sports jargon, it's about "selling the foul." On the Street, it's known as "pimping."

I am reminded of professor Harry G. Frankfurter's delightful book "On Bullshit."

The notion of carefully wrought bullshit involves, then, a certain inner strain. Thoughtful attention to detail requires discipline and objectivity. It entails accepting standards and limitations that forbid the indulgence of impulse or whim. It is this selflessness that, in connection with bullshit, strikes us as inapposite. But in fact it is not out of the question at all. The realms of advertising and of public relations, and the nowadays closely related realm of politics, are replete with instances of bullshit so unmitigated that they can serve among the most indisputable and classic paradigms of the concept. And in these realms there are exquisitely sophisticated craftsmen who—with the help of advanced and demanding techniques of market research, of public opinion polling, of psychological testing, and so forth—dedicate themselves tirelessly to getting every word and image they produce exactly right.

Yet there is something more to be said about this. However studiously and conscientiously the bullshitter proceeds, it remains true that he is also trying to get away with something. There is surely in his work, as in the work of the slovenly craftsman, some kind of laxity that resists or eludes the demands of a disinterested and austere discipline. The pertinent mode of laxity cannot be equated, evidently, with simple carelessness or inattention to detail.

Frankfurt, Harry G. (2009-01-10). On Bullshit (pp. 23-24). Princeton University Press. Kindle Edition.
To Dr. Frankfurter, indifference to truth -- bullshit -- is actually worse than willful lying, given its corrosive, toxic effect on rational discourse. I agree. Counselor, are you a liar, or a bullshitter?

This is no game, Mr. Carvin, not theater, not high school debate class, not some abstract jurisprudential intellectual exercise (for which you are paid handsomely, no doubt). This is about people's lives and health care coverage.
Two lawyers are on an Alaskan vacation fishing trip, when they encounter a huge, angry Momma grizzly bear, who charges them. They run for their lives.

Lawyer one, frantically: "She's gaining on us; I don't think we can outrun her."

Lawyer two: "I don't have to outrun her, I only have to outrun you."

Sotomayor May Have Saved Obamacare
How she backed Kennedy and Roberts into a corner.

By Cristian Farias

In a dispatch on King v. Burwell, the closely watched Obamacare challenge, NPR’s Nina Totenberg observed that the plaintiffs’ attorney, Michael Carvin, argued before the Supreme Court with “red-faced passion.” Indeed, Justice Sonia Sotomayor hadn’t even finished the preamble to her first question when Carvin interrupted her to finish an earlier thought. He then caught himself and apologized, at which point Sotomayor tempered him: “Take a breath.”

Carvin needed that moment, because Sotomayor was about to ask a bombshell question about federalism, a subject that later dominated a key portion of the hearing. In setting it up, she said she was “concerned” by Carvin’s reading of the Affordable Care Act—in essence, that Congress wrote it so that only states with their own insurance exchanges receive federal subsidies. The problem with that reading, Sotomayor noted, is that lawmakers gave states a “choice”: set up exchanges of your own, or let the federal government do it for you via

That choice is not at issue in King. The dual system of federal and state exchanges is a feature of the law. And to Sotomayor, this choice cannot be squared with Carvin’s interpretation that tax subsidies are available only to people participating in state-run exchanges. That’s a constitutional problem. “If we read it the way you’re saying,” she said, “then we’re going to read the statute as intruding on the federal-state relationship, because then the states are going to be coerced into establishing their own exchanges.”...
Take a breath, indeed, Mr. Carvin.

More to come...

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