John Davidson: King v. Burwell Reveals The Threat Of The Administrative State

(Photo: Karen Bleier, AFP Getty Images)

What happens to the subsidies should not be the court’s concern. The only question that matters in King is whether the administration used the IRS to rewrite a law Congress passed

John Davidson writes: The U.S. Supreme Court will hear oral arguments today in what is probably one of the most straightforward questions of statutory interpretation ever to come before the court.

“Over and over, the law says premium subsidies are only to be disbursed ‘through an Exchange established by the State.’ It says this nine times.”

At the heart of King v. Burwell is whether the text of the Affordable Care Act (ACA) means what it says. Specifically, the case hinges on what the word “state” means. Does it mean one of the fifty states, or does it mean the states and the federal government?

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At issue are the tax credits (subsidies) the law doles out to help Americans pay for health insurance premiums sold through the exchanges. Over and over, the law says premium subsidies are only to be disbursed “through an Exchange established by the State.” It says this nine times.

“Their assumption was that states would set up the exchanges and federal subsidies would flow through them, as described in the law. When 37 states opted instead to let the federal government set up exchanges, it exposed the weakness of the law’s reliance on cooperative federalism.”

If Obamacare is to be faithfully executed, say the challengers in King, then federal subsidies for health insurance are not allowed in the 37 states that failed or refused to set up a state-based exchange and obamacare-design-250instead have federal “default” exchanges. Two different sections of the law authorize exchanges and distinguish in statute between an exchange a state has established (section 1311) and an exchange the Secretary of Health and Human Services has established in states that fail to create one (1321). Subsidies are available only to those who purchase coverage on a state-based—section 1311—exchange.

Cooperative Versus Competitive Federalism

Suffice to say that Obamacare’s exchanges are built on the idea of cooperative federalism: the federal government, unable to simply commandeer state agencies, invites states to implement federal policies in return for federal funding or favorable regulatory treatment.

States carry out a great many federal policies and programs using cooperative federalism, like Medicaid, Common Core, and a host of environmental regulations.

“It comes down to a question about the rule of law and whether, in an advanced administrative state, laws can have a fixed meaning.”

States carry out a great many federal policies and programs using this scheme, like Medicaid, Common Core, and a host of environmental regulations. Because Obamacare meddles so much with health insurance markets, which states traditionally regulated, it relies on the practice of cooperative federalism to an astonishing degree. Congress had hoped to induce states to cooperate by making subsidies contingent on states setting up their own exchanges—a policy proposition that, like Medicaid expansion, could bring millions or even billions of federal dollars into a state. At least, that’s what the Kingchallengers contend.

obamacare-hindenburg

That’s where Obamacare’s legislative history comes into play. When Senate Democrats passed the ACA in December 2010, they hadn’t a vote to spare. When Republican Scott Brown won a special election the very next month to fill the seat vacated by Sen. Edward Kennedy’s death, Senate Republicans gained enough votes to filibuster a conference report on the House and Senate bills. Congressional Democrats therefore had to resort to the budget reconciliation process to pass the final version of the law: they opted for an imperfect bill, one that didn’t go as far as many Democrats had originally wanted, instead of no bill at all.

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[VIDEO] Hidden Camera Footage Surfaces of Supreme Court Debate

Mario Trujillo  reports:  Hidden camera footage of what appeared to be Supreme Court proceedings from earlier this week surfaced on Thursday, offering one the of the first public recordings of the High Court’s proceedings.

“I rise on behalf of the vast majority of American people who believe that money is not speech, corporations are not people, and our democracy should not be for sale to the highest bidder…”

A video posted on YouTube and recorded by 99 Rise, a group that supports tougher campaign finance laws, shows proceedings leading up to and during a rare protest that took place in the court Wednesday.

Noah Kai Newkirk, a leader of the group, is seen in the video standing up and calling on the court to overturn the 2010 Citizens United ruling that opened the door to corporate political donations and led to the creation of super-PACs.

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[VIDEO] The November 14th interview with Clarence Thomas

Ann Althouse writes: Discussed previously here, linking to an Above the Law item that is now titled “Justice Clarence Thomas Speaks!” but was previously titled “Justice Clarence Thomas Speaks — And Oh What A Speech!”

I’m going to guess that the “And Oh What A Speech!” part got dropped not because ATL wanted to back away from expressing enthusiasm but because it’s not a speech. It’s an interview. And part of what’s good about it is that the interviewer 7th Circuit Judge Diane S. Sykes is excellent. Read the rest of this entry »