Where You Sit Is Where You Stand

The usual suspects are lining up in the usual way on the subject of how the justices of the Supreme Court will decide King v. Burwell, the latest case against the Affordable Care Act. The editors of the New York Times think the case is frivolous and can’t see how the justices could fail to decide in favor of the PPACA:

The case, King v. Burwell, will determine the fate of legislation that has transformed the American health care system. But the argument provided few solid clues to how the justices will rule.

The chief justice remained virtually silent for the entire argument, while most of the others took predictable positions in questioning the government or the challengers. The surprise this time came from Justice Anthony Kennedy, who had voted with the dissenters from the 2012 decision that upheld the Affordable Care Act and appeared to have no interest in protecting the law.

Nevertheless, Justice Kennedy flagged a “serious constitutional problem” with the current challenge, which focuses on a single phrase — “established by the State” — embedded deep in a subsection of the act.

Michael Carvin, the plaintiffs’ lawyer, had been arguing — against all evidence and logic — that when Congress passed the act in 2010, it simultaneously undermined the law’s central goal of affordable health care for all Americans by supposedly denying tax-credit subsidies to all residents in the 34 states where the federal government runs the health care exchange.

while the editors of the Wall Street Journal argue that the plaintiff’s case is a strong one:

King v. Burwell turns on the statute’s plain text limiting health subsidies to those insurance exchanges established by the states, rather than the 36 run by the federal government as fallbacks. This condition for federal dollars was meant as an incentive for Governors to participate in ObamaCare, which is the normal framework whenever Washington wants to enlist the states to act on its behalf under cooperative federalism, from Medicaid to highway funding to clean-air laws.

But Justices Anthony Kennedy, Elena Kagan and others wondered if this arrangement crosses over from Congress merely attempting to influence state decisions into using spending and regulation to compel these sovereigns to join ObamaCare. “From the standpoint of the dynamics of federalism . . . there’s a serious constitutional problem if we adopt your argument,” Justice Kennedy told plaintiffs counsel Michael Carvin.

I have no idea how the justices will find. I do find the prevailing wisdom in the blogosphere, that the justices will simply vote their political affiliations, appalling. I think that’s a drastic oversimplification. In my view the justices’ theories of jurisprudence and judicial review, their ideologies, and their political affiliations are interwoven in complicated ways and all will play roles in how the case is ultimately decided.

Keep in mind that the same people who’ve been arguing all along that the case was completely frivolous and couldn’t possibly make it as far as the Supreme Court are now arguing that it’s completely frivolous and the Supreme Court will reject the plaintiff’s case. And that the Obama Administration’s record on cases brought before the Supreme Court has been, frankly, lousy. They’ve been defeated by unanimous votes of the justices too many times for an administration that’s supposed to have so many smart lawyers.

All this to say that I won’t be surprised whether the justices support or reject the plaintiff’s case and I don’t think anybody else should be, either.