"Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say."

A NYT article about the Obamacare case that's pending in the U.S. Supreme Court. A key word in that headline is "now." At this point � with so many states having decided not to set up their own exchanges � those who support Obamacare have a strong interest in saying that the discrepancy in the text is meaningless:

At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.

But senators and staff lawyers came to believe that some states � �five or 10 at the most� � would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.

At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. �We failed to include a cross-reference to the federal exchange,� Mr. Condeluci said. �In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.�

The words were written by professional drafters � skilled nonpartisan lawyers � from the office of the Senate legislative counsel, then James W. Fransen. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.

So... skilled, professional drafters... failing to check the cross-references. That's the story. As opposed to the idea that the loss of the subsidies was supposed to motivate the states to set up exchanges.

I think the main problem is that if there were a big incentive on offer, it needed to be clearly stated so the states would know what they were giving up if they failed it set up exchanges. But there's still the question whether the Court can remedy that unfairness. If it doesn't, Congress will need to step up.

"For many people, the President of the United States is the government of the United States. It�s why he gets the credit and blame for so many things..."

"... like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him."

Writes Jeffrey Toobin in The New Yorker about the King v. Burwell case.

Did Anthony Kennedy just reveal the outcome in King v. Burwell?

That's the pending case about whether there can be subsidies on the health insurance exchanges set up in the states by the federal government. On Monday, Justice Kennedy, testifying before a House committee on the court�s budget, said:

It is not novel or new for justices to be concerned that they are making so many decisions that affect a democracy. And we think a responsible, efficient, responsive legislative and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes, and we say, �Well, if this is wrong, the Congress will fix it.� But then we hear that Congress can�t pass the bill one way or the other, that there�s gridlock. And some people say, �Well that should affect the way we interpret the statutes.� That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

That is, Justice Kennedy clearly and soundly rejected the argument that the inability of Congress to fix a problem should not keep the Court from deciding that there is a problem with a statute that it is the role of Congress, not the courts, to fix.

When this problem came up at oral argument, Justice Scalia said something that � as I explained here � some people thought was amusingly out of touch:

What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the �� you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

The Solicitor General drew a laugh with the response "Well, this Congress?"

This Congress can't (or won't) fix it, so that was supposed to be a reason why the Supreme Court should fix the statute for them. In Monday's testimony, Anthony Kennedy called that "a wrong proposition." It's not the Court's role to perceive or predict gridlock. The Court must "assume" a "fully functioning" Congress. That is, the Court's approach to statutory interpretation � its idea of where the judicial role ends and when a problem with a statute needs a legislative solution � remains the same. The dysfunction of Congress doesn't change the function of the judicial branch, and Congress's inability to rewrite statutes does not give rise to an otherwise nonexistent judicial power to rewrite statutes.

Justice Kennedy is standing tough on separation of powers. Get ready!

Now, Kennedy could still find a way to use his idea of proper interpretation and still reach the result the government wants, and the difficulty of a congressional fix could affect the decision even if that's a dirty little secret not fit to mention in the written opinion. And, of course, as in the last Obamacare case, the 5th vote for the government could come from Chief Justice John Roberts.

So to answer the question in the post title: It's impossible to give a yes. But Kennedy revealed something that weighs against victory for the government.

"The debate over the efficacy of 12-step programs has been quietly bubbling for decades among addiction specialists."

"But it has taken on new urgency with the passage of the Affordable Care Act, which requires all insurers and state Medicaid programs to pay for alcohol- and substance-abuse treatment, extending coverage to 32 million Americans who did not previously have it and providing a higher level of coverage for an additional 30 million," writes Gabrielle Glaser in The Atlantic.
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"Antonin Scalia�s unintentional humor."

I don't think that was unintentional.

What Scalia said was:

What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the �� you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

What got the laugh was the response � "Well, this Congress?" � from the Solicitor General.

Steve Benen, whose headline I've used as the post title, fails to appreciate the comic skill of the straight man. As Jerry Seinfeld once explained:

Where did the idea of, in Seinfeld, your character being a comedian for a profession, but be the straight man for your friends, come from? I always thought that juxtapositioning for the show was genius.

Very good observation and analysis on your part, Baxter. You are truly exhibiting a good comedic eye. The reason I would play straight was it was funnier for the scene. And very few people have ever remarked on this, because it was a conscious choice of mine, only because I knew it would make the show better, and I didn't care who was funny as long as somebody was funny and that the show was funny. So you have hit upon one of the great secret weapons of the Seinfeld series, was that I had no issue with that.

The straight man doesn't get the laughs, but he's setting up the humor. It's Scalia, not the Solicitor General, who deserves credit for that comedy. To say that his contribution was unintentional is to ascribe a ridiculous naivete to him. An honest person � that is, a person not in a lawyer role � answering the question "Why is that not going to happen here?" would describe the story of how one party rammed the Affordable Care Act through Congress, without any buy-in from the other party, and without building any consensus among the people, who were told to quiet down and wait and see that it would ultimately turn out to be good. The people subsequently shifted control of Congress to the party that had zero buy-in. Scalia knew all that when he asked his question. The humor already inhered. It's very dark humor, of course. The Solicitor General � tasked with upholding the work of a party that wielded power ruthlessly and consequently lost it � succeeded in lightening the humor, but that doesn't deserve comedy credit. It deserves lawyer credit.

Reading the King v. Burwell transcript.

Here's the PDF of today's oral argument. I'm going to read it right now and give my immediate impressions.

1. Justice Alito topped Justice Kagan at page 11, lines 7-13. Kagan had just sprung her elaborate clerks-writing-memos hypothetical, and Alito said "Well... if I had those clerks, I had the same clerks and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it? Would the answer be it was written by Will, because Amanda stepped into Will's shoes?" Kagan had to respond to the laughter in the courtroom: "He's good."

2. Justice Sotomayor stumbles at page 16, line 2, after raising a principle of statutory interpretation from last year's Bond case (the chemicals-on-the-doorknob case, where the Court read a federal statute not to criminalize a matter that lay within the traditional powers of the state). She'd just spoken for a page and a half, and the petitioners' lawyer Michael A. Carvin was beginning to explain that this principle had never been applied in the context of a condition on federal spending. Sotomayor interrupted to "Oh, we did it -- we said it last year." But she just meant to repeat her point about Bond, which wasn't about conditional spending.
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"Chilling comment on Adam Liptak's NYT piece on the South Carolina employment benefits lawyer who focused attention the statutory text that might wreck Obamacare."

Liptak's article about Thomas M. Christina is titled "Lawyer Put Health Act in Peril by Pointing Out 4 Little Words":

�I noticed something peculiar about the tax credit,� he told a gathering of strategists at the American Enterprise Institute.... He pointed to four previously unnoticed words in the health care law... They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been �established by the state.�...

�Resistance is futile,� Mr. Christina said at the 2010 Washington conference, referring to state officials. �You can�t get re-elected if you turn down free money that would otherwise have been paid as tax credits to your citizens.�...

Mr. Christina did not anticipate that the Internal Revenue Service would in August 2011 propose and in May 2012 adopt regulations interpreting the law to allow subsidies in all 50 states, including those where the federal government ran the exchanges.

37 states did turn down the money and the feds stepped in and set up exchanges in those states and offering the subsidies even though these exchanges were not literally "established by the state." So now there's a case in the Supreme Court, to be argued tomorrow, which would take away the subsidies in those 37 states.

There are 709 comments on Liptak's article right now. I don't hold the NYT responsible for all the comments. I certainly don't vouch for what my commenters say, but I would take this out if I saw it in my comments. In fact, I'm only showing a screen shot because I don't want to create searchable text here:



There's only that one pushback comment from NYHuguenot � which itself goes too far � and it only arrived 11 hours after Cold's chilling remark, which has 11 thumbs up. I read Cold's comment in the middle of the night and hit the "flag" icon but I couldn't bring myself to check any of the options. "Inflammatory" and "Personal Attack" seemed closest but not precisely apt. I decided to blog about it here instead. It's evil to waft the suggestion of a violent attack. It might influence someone, though it's certainly not an imminent enough incitement to support arresting Cold. It's evil, but it's also ludicrous for Cold to project her political will � her desire to preserve the legislation � onto the seriously ill, as if they'll use their waning hours on earth to go out on an attack � they've got nothing to lose � and they'll fixate on some lawyer who noticed something in a 900-page statute that was so terribly important and yet so miserably unread.

"Obamacare threatens to end John Roberts�s dream of a nonpartisan Supreme Court."

Just one headline that I'm quoting to stand in for all the articles I'm seeing that seem to be mostly only about scaring/manipulating/massaging the Supreme Court into feeling deep down inside that it simply must not ruin Obamacare.

To my eye, this effort seems so transparent and desperate that it heightens a perception that the text of the statute just won't work for what they really, reeeeeally need it to do.

Pay no attention to that statutory text behind the curtain!!!