Thursday, June 25, 2015

My call on King

I hope I don't end up thrashing myself for wishful thinking, but I think the Supreme Court will rule for the government in King -- no odds on whether it's Chevron deference (the law is ambiguous, and the IRS interpretation is reasonable) or that the law's intent to provide subsidies to all states is unambiguous. I would hope that my bias -- I think the case is a fraud -- is balanced by superstition --an unwillingness to predict what I wish (overridden by being asked, as part of a list).

I can't wrap my mind around both Roberts and Kennedy agreeing to a) blow up the economy and b) credit the plaintiffs' bogus narrative that Congress intended a form of coercion that no one recognized and that the law does not spell out (a state only gets premium subsidies if it establishes its own exchange).  On both counts I take some reassurance from the dissent as well as the majority opinion in NFIB v. Sebelius, the challenge to the ACA's constitutionality ruled on in 2012.

The dissent in that case shows both thorough awareness of the interdependence of the ACA's core provisions and a wariness of causing massive economic disruption:
What is known, however, is that severing other provisions from the Individual Mandate and Medicaid Expansion necessarily would impose significant risks and real uncertainties on insurance companies, their customers, all other major actors in the system, and the government treasury. And what also is known is this: Unnecessary risks and avoidable uncertainties are hostile to economic progress and fiscal stability and thus to the safety and welfare of the Nation and the Nation’s freedom. If those risks and uncertainties are to be imposed, it must not be by the Judiciary (dissent, p. 57).
Three years later, with the nongroup insurance market remade and over 10 million people in subsidized private plans, the certainty of massive disruption if the subsidies credited on the federal exchange are disallowed is driven home by the amicus briefs filed by hospitals, health centers, doctors and insurers. It's hard to imagine Roberts, who made his bones arguing corporate cases in the Supreme Court, ignoring their very real warnings of uncreative destruction if the federal exchange subsidies are disallowed.

Further, as Yale law professor Abbe Gluck has highlighted, whichever of the NFIB dissenting justices rules for the plaintiffs (and rumor has it that Roberts was originally a party to that dissent) would have to decide that he misread the statute in 2012 before the King plaintiffs opened his eyes to Congress's real intent:
If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State (pp. 43-44).
Of course, the decision is probably not about logic, and maybe my read isn't about logic either. It's hard to jump off the motivated reasoning shadow.  But for both Roberts and Kennedy to blow through the barriers of both logic and fear of disruption to rule for the plaintiffs will prove, I hope, a bridge too far.
Any confidence that this reasoning (if you can call it that) might lead me to feel is offset by the fact that at least four justices agreed to hear the case when there was no circuit court split (or rather, the split was almost certain to be healed in an en banc rehearing in the D.C. circuit.

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