It looks like the government will win the King v. Burwell challenge to the ACA (Obamacare). They will not win because of the “Pennhurst doctrine” (which I call Vogon Logic in a previous blog), but because the swing votes feel that not giving subsidies to states without exchanges would be an unconstitutional threat.
The thinking is this: If the law really told states “Set up an exchange or we will not give you subsidies”, this would be tantamount to putting a gun to their head and saying “you must set up an exchange.” Having this kind of threat in the ACA is an overreach for the federal government.
Here is the relevant part of the exchange. First, justice Sotomayor (an Obama appointee) gives the plaintiff some hard questioning:
JUSTICE SOTOMAYOR: That was the choice. If we read it the way you’re saying, then we’re going to read a statute as intruding on the Federal-State relationship, because then the States are going to be coerced into establishing their own Exchanges.[...]
Tell me how that is not coercive in an unconstitutional way?As the plaintiff was trying to answer the question, Kennedy chips in to support Sotomayor:
JUSTICE KENNEDY: Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral. We’ll have people pay mandated taxes which will not get any credit on — on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument.This is very telling. It indicates that Kennedy appears to be willing to reject the plaintiff’s arguments in King v. Burwell based on constitutional principles. I can see why Kennedy thinks this way. It satisfies progressives like myself because the court does not whittle away at our universal health care system. It satisfies the conservative federalist principle of upholding states rights. It satisfies business interests because the medical industry in states without exchanges do not have the rug pulled from under them. And, finally, it allows Kennedy to wax about constitutional principles and overreaching federal power in a case that would otherwise be a mere discussion of statutory interpretation.
I can understand why Verrilli, the lawyer defending the ACA (Obamacare), doesn’t fully support Kennedy’s reasoning. As a lawyer for the United States government, he is not about to support a line of reasoning that reduces federal power.
It’s obvious Roberts doesn’t want to use the Chevron deference to save the ACA. My sense when I was reading the transcript of the oral arguments is that Roberts does not want to make a court decision that expands federal and executive powers. He will probably concur with Kennedy.
==My King v. Burwell prediction==
My prediction is 6-3 for Obamacare. Kennedy doesn’t like the notion that the federal government would compel states to set up their own exchanges or lose subsidies. Roberts will probably agree.
Alito/Scalia/Thomas would probably argue that the moon is made out of green cheese if they thought it would hurt Obama; Sotomayor/Breyer/Kagan/Ginsberg will, of course, vote to uphold Obamacare.
In honor of Leonard Nimoy’s death last week, I am now watching one episode a night of the original Star Trek. So far, I have watched three episodes. Below are my thoughts; spoilers follow. Since the story are nearly 50 years old, at this point anyone who is interested has probably already seen them.
There is, in “The Man Trap”, a strange conflict between the idea of the last of a dying species and the pressures to make a simple “monster” plot to have more perceived appeal. The fact that the story has as compassionate as a portrayal of the monster as we see was very impressive for a story from this era.
It would have been a better story if the monster did not kill its long-term companion (it didn’t in the original draft) and if they did not kill the monster, but that would have been difficult to get past the censors half a century ago.
This is the story of an insecure adolescent kid who is more than he seems.
This is one of my favorite episodes because I can relate to Charlie: Immature, unable to see or understand that others have feelings as much as he does, selfish, unable to accept life on life’s terms, despite all the love and care Captain Kirk and others give him. I’ve been all that, as we all have been.
This story would have had a happy ending if Charlie was merely a boy, learned he couldn’t always have his way, and grew up. In this alternate version, it would have ended, after some frustration, with Charlie realizing that Tina Lawton (the young yeoman Janice introduces Charlie to) was just as beautiful a girl as he thought Janice Rand was, and them having a happy date together.
The story was very well acted; Robert Walker has a look in his eyes which perfectly conveys Charlie’s deep discomfort. William Shatner does a good job playing the captain forced in to the uncomfortable role of being a father figure, and the recently departed Leonard Nimoy shines as the first one able to figure out what is really going on.
==Where No Man Has Gone Before==
While “The Man Trap” was the first Star Trek episode aired, “Where No Man Has Gone Before” was the pilot episode.
Like “Charlie X”, this story explores how a man with the powers of God is not a good thing. Since the purpose of this story was to make an action-filled episode to sell the series to NBC, it doesn’t explore the man-as-God theme as well as “Charlie X” did.
What makes this story interesting is that it’s the first story to have Spock as an emotionless alien who makes all of his decisions using logic. Namely, Spock is the first one who realizes the logical thing to do is to kill the man-becoming-God antagonist. In later stories we find out that Spock is not always this cold; the motivations for his logical decisions are kind.
Coming back to the 21st century, if Spock were to look at King v. Burwell, he would have concluded that the most logical thing to do is uphold the ACA law and decide against the plaintiffs. While Spock did occasionally logically decide that someone needed to die for the greater good, he would look at the text of the law as a whole and conclude there is no logical reason to kill about 9,000 people a year based on what is nothing more than a questionable technicality.
I will be watching an episode of the original 1960s Star Trek every night and continue to post my thoughts on my blog.
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