please uphold so we can get on with our lives

Today, the Supreme Court will hear oral arguments in King v. Burwell, a case challenging the legality of the federal subsidy provision of the ACA, because rather than just having a robust legislative debate culminating in a law, and then moving on with their goddamned lives, Republicans have voted to repeal it 56 times since President Obama signed it in March 2010, unleashing the tyranny of private market health insurance on all of us. After today’s oral arguments, the Supremes will hang out, have some drinks, braid each other’s hair, and then issue a decision in June as to whether the ACA’s federal subsidies are good to go in states using the federal insurance marketplace, or whether people in the states that declined to set up their own exchanges will suddenly, oops, no longer be eligible for federal subsidies. And then there will death spirals everywhere! Let’s ACAsplore.

Wait, what is the ACA again?

You can also call it Obamacare, and it has three parts. Everyone is required to have health insurance coverage or pay a fine – this is the individual mandate. It gives insurers lots of customers and a big risk pool, so that super-sick people won’t bankrupt the whole system. Insurers can’t deny coverage to people based on pre-existing conditions. And federal subsidies are available to help people afford coverage if they can’t otherwise afford it. It’s not single-payer, but it works better than a stick in the eye.

States were given the option of whether to set up their own health insurance markets (exchanges) or to have the federal government set up exchanges for them. The feds are running or involved in 33 state exchanges (mostly in red states), and 17 states are running their own. Guess who will lose their subsidies if SCOTUS strikes down the ACA? Eight million low- and middle-income people in red states! Or maybe six million. 6 or 8 or 9 or however many, A LOT. Sounds an awful lot like the whole Republican base, hmm? This is making some Republican governors feel very nervous. Didn’t they think of this before they started screwing everything up? Maybe not.

Haven’t we already been to this rodeo?

Conservatives first thought they could sink the ACA on the issue of individual mandates, because obviously Ayn Rand didn’t include mandates when she wrote the Constitution. But in 2012, in NFIB v. Sebelius, Chief Justice Roberts, who is obviously a total RINO (oh, wait, the Court isn’t supposed to be partisan) wrote for the majority, which upheld the constitutionality of the individual mandate on the grounds that it is part of Congress’s power to tax all y’all. The Court did strike down the requirement that Medicaid be expanded, but whatever, that was only for really poor people anyway (this part of the decision was terrible). We were pretty happy that day, because we thought hooray, the Chief Justice is sort of on our side, and he said it’s mostly constitutional, plus now Republicans won’t throw any more tantrums, because of how they say they love the Constitution so much. We were so crazy back in 2012, those were good times.

King v. Burwell and the Clueless Wingnut Plaintiffs

After the NFIB decision, Republicans in Congress voted to repeal the ACA a bunch more times, which was fun, and then they dug up some wingnut plaintiffs to challenge it on a different ground. We picture the wingnut-to-wingnut convo going like this: “Um, let’s see what we can come up with, oh! When the government provides subsidies in states where the feds run the exchanges, hmm, that somehow hurts us! Yeah! We can misread these four words in the statute!” The plaintiffs have absolutely zero clue what they’re talking about, and their lawyers haven’t kept them in the loop. Although they all say they hate government healthcare, three out of four of them will be eligible for Medicare soon, and we are pretty sure they will sign up, because everyone freaking signs up. When interviewed by reporters in recent weeks, they seemed “befuddled” that their actions could result in millions of people losing their health insurance.

Which brings us to today’s case. King v. Burwell is a statutory interpretation case. SCOTUS will have to decide whether the ACA drafters meant to exclude people in states using the federal exchange from receiving subsidies to buy insurance when they referred to exchanges “established by the state.” Yeah, the drafters could have said it another way and avoided this particular problem, but we are pretty sure the wingnuts would have just found another phrase that they could willfully misunderstand. SCOTUSblog says:

The challengers note that Congress said the subsidies would be available on exchanges “established by the state,” so the outcome of the case should turn on those four words, as well as what they imply about Congress’s design of the system. The government counters that this is a big and complex law, with a purpose of setting up a nationwide system, and many parts of the law’s content point to a universal system of exchanges operating within the subsidy system. Focusing on just the language of the law, each side can cite some words with a “plain meaning” in support of their view. [emphasis ours]

So the government will argue, “hell yes, when we set up this huge system with the intent of insuring everyone, obviously we meant for everyone on all of the exchanges to get subsidies if they are poor! Why else would we even be doing this? Read this phrase in the context of the statute. Plus, you should defer to the IRS’s interpretation of the subsidies, because precedent.” And the wingnut lawyer will argue “sorry, no, if Congress had meant for everyone to get health insurance, they would have said so in a different but perfect and magical way, they obviously want total freedom for states.”

In an unrelated decision handed down just last week, Justice Ginsburg, writing for a plurality and joined by Roberts, laid down some awesome language on statutory interpretation. ThinkProgress reports:

“Whether a statutory term is unambiguous,” Ginsburg explains, “does not turn solely on dictionary definitions of its component words. Rather, ‘[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’”

Justice Scalia joined Justice Kagan’s dissent, which also contained strong and awesome language to this effect. It would be great if Roberts and Scalia continued to think this way for the next few weeks. But the chance of Scalia upholding the ACA is about zero.

If the wingnuts win this case, up to eight million low- and middle-income people in 33 states (mostly red states, remember) will no longer be eligible for federal subsidies. The risk pool will shrink as people opt out of buying insurance, premiums will rise for the remaining people, driving more people out, causing higher premiums, and this keeps going, and it is bad, and it is called an economic death spiral.

What’s the contingency plan if SCOTUS invalidates the subsidies?

Glad you asked! There isn’t one! President Obama’s theory seems to be “why on earth would I have a contingency plan to fix a thing that was starting to work fine and that you guys are trying to wreck, on purpose?” Last month, Republicans on the House Energy and Commerce Committee, which is one of the committees with jurisdiction over health insurance laws, demanded at a hearing that HHS Secretary Sylvia Burwell hand over the administration’s double-secret contingency plan, which Burwell said doesn’t exist.

 It’s hard to fathom that the administration would bury its head in the sand and fail to engage in any contingency planning,” Pitts wrote in a statement Wednesday ahead of the hearing.

Yeah, well, we find it pretty hard to fathom that Republicans have spent years trying to burn down this law and then expect the administration to help them fix it. As Democrat Eliot Engel (D-NY) pointed out at the hearing,”It’s somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created.” Somewhat ironic is the understatement of the year, good one, Rep. Engel!

Congressional Republicans are at a loss, because the only big idea they ever had on health reform looked a lot like the ACA (see: Mitt Romney, Massachusetts). Congress could, of course, solve the problem by amending the ACA to clarify the subsidy issue, but the Republican majority would probably rather eat their own children. Or states using the federal exchange could set up their own exchanges. This seems marginally more likely, at least in some states. The Washington Post says:

a group of lawmakers led by Paul Ryan in the House and Orrin Hatch in the Senate have come up with what they call an “Offramp from Obamacare” — legislation that would temporarily restore the lost subsidies and then replace them with other forms of financial aid like tax credits. They’d also do away with the law’s minimum coverage requirements and the individual mandate.

But why would a party that can’t agree on how to fund the Department of Homeland Security agree on a strategy to take advantage of a win in King v. Burwell?

Washington Post, you ask an excellent question. The answer is they won’t. Congressional Republicans are terrible losers and they are also terrible winners. They will hope for SCOTUS to rule against the ACA and then watch their constituents lose their health insurance because they can’t afford premiums without subsidies. Dying on principle because you don’t have health care is easy when it’s not you who’s doing the dying (members of Congress have health coverage, so they’re fine, thanks for asking).

But it’s time to water the tree of liberty, blah blah. Let us fervently hope that Chief Justice Roberts cares about his legacy, that Justices Ginsburg, Kagan, Sotomeyer, and Breyer continue to kick ass, and that Justices Alito, Scalia, Thomas, and Kennedy go away.


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  • NorthStarSpanx

    Oddly enough, Stick-in-the-Eye is a preferred condition for righties like Sheriff Mack, than accepting the ACA.

    • anniegetyerfun

      The ol’ stick-n-grift.

    • david green

      He is the one who is nowbot on the internet begging, right?

  • memzilla

    Justice Ginsburg… laid down some awesome language on statutory interpretation.

    I just had a little robegasm, picturing The Notorious RBG channelling Samuel L. “Pulp Fiction” Jackson when Burwell gets argued: “ENGLISH, MOTHERF*CKER! DO YOU SPEAK IT?”

    • cousin itt

      As presented in MOTHERF*CKER v. Kittens.

  • JohnBull

    You know what other six-word phrases are also dangerous?

  • Reddishrabbit

    It is all on Roberts. One hope is most of the companies involved (hospitals and insurance companies) do not want King to win. It feels weird siding with insurance companies, more use to hating them. Then again, hospitals also wanted the expansion. So it comes done to what one man has to say. Makes sense in a democracy.

  • dshwa

    Jee, if only there were months of congressional debate to look at and see what the people who wrote the law intended the law to do.

    Wait, what?

  • Beowoof14

    Not giving a shit about the people that put you in office, it’s the republican way.

    • dshwa

      And yet they keep getting rewarded for it. “Who’s more foolish, the fool or the fool that follows him?”

  • House0fTheBlueLights

    Repugs will then blame the Democrats for taking away everyone’s health care AGAIN and win all branches of government and then eat not only their own children, but our as well the end I am moving to Canada

    • Blank Ron

      I’ll leave the door unlocked for you.

  • noen

    Oh, hi millennials. Hey… you know that election you didn’t bother to show up for? It was kinda important. Thanks a lot.

    • Thatsit Fortheotherwon

      Should the wingnutz prevail here, 2016 should be REAL interesting.

    • JohnBull

      Hard to believe they’re the second-biggest voting block.

    • Shalimar

      When I was young, people my age and a little older didn’t bother to vote either. Which was a good thing then, since 60%+ would have voted for Reagan and other Republicans. Imagine the damage that asshole could have done with majorities in the House and Senate like they have now.

      18-30 year olds of any generation never vote in numbers. They didn’t cause our hellscape, and it isn’t their fault not enough of them recognized in time how badly things were already fucked up before they came of age.

      • Zippy

        Nonsense- 18-30 year olds ALWAYS cause our hellscape, because with a few rare exceptions, they stay home relative to older voters. Year in and year out our politicians skew far more conservative than the population at large because the youngsters leave it up to the olds to pick them

        • Shalimar

          So, old people pick shitty politicians who fuck over 99% of the population. They have lifetimes of experience, yet they still make the same horrible choices over and over.

          Young people prioritize other things in their lives and don’t take the time to understand issues outside their personal bubble, so they don’t vote yet because they don’t realize for themselves how important it is.

          Yes, they should vote. And I understand if you think older people are set in their ways and aren’t worth the effort to argue with. I don’t see any way in hell it’s younger people’s fault that other people who actually vote do it so fucking poorly though.

          Ps It’s also possible you don’t understand the difference between cause and contributing factor.

          • Zippy

            Actually olds pick shitty politicians who screw over young people. Olds tend to skew conservative, people tend to get that way as they age. Their priorities also change. Those old people aren’t voting against their self intetest, they’re voting against yours. Raise taxes to pay for education? Pfft. They’re done with school and so are their children. If they have grandkids they probably live elsewhere. Try funding education in a place like AZ where all the retirees vote against it. That 40 year water and sewer plan? They don’t Care, they’ll be dead by then so why should they pay for it? Municipal WiFi or mass transit? Those are things that matter to young people, not old.

            Those seniors elect politicians who do their bidding- small government so there’s no new taxes for their fixed income. Most of them are not going to be pro choice because they come from a different era. Besides, they won’t be having an abortion these days.

            No, those olds vote for what is best for them, at the expense of what is best for young people. If those kids voted, gay marriage would have been legal everywhere years ago, so would pot . We’d have single payer decades ago. But they can’t be bothered to put down the Xbox or the iPhone long enough to notice there’s an election, let alone vote. So old people vote for politicians who will make life hell for young people because it keeps life better for them.

  • cousin itt

    Death Panel for Cutie

  • Wonkaholic

    I think it’s fitting that Needful Things is pushing a maroon aca scuse me t-shirt on this post. it would have been more fitting if it was ultramaroon.

  • sosuume

    Advice to the 4 wingnut plaintiffs: start sweating bullets.

  • Lizzietish81

    This is why we can’t have nice things. Because those red state folks losing their insurance? Will STILL VOTE REPUBLICAN!

    • I live in a red state, I voted blue across the board for where I could. I hate this place damn place but I’m too poor to move (yet) ):< .

    • Zippy

      Mark my words- those fucking idiots will blame Obama for losing their health insurance

    • Blank Ron

      But without any health care they’ll die sooner, reducing the Thugs’ base.
      It may be one molecule thick, but it’s still a silver lining. Sorta. If you’re cynical enough.

  • JustPixelz

    Couldn’t affected states simply contract with the Feds thereby establishing their own exchange in a legal sense?

    • Spurning Beer

      Sure, but how many Republican votes would that draw?

      • JustPixelz

        I’m thinking of blue/purple states that didn’t bother to set up an exchange. Pennsylvania, NJ, Maine. But when I googled this further, I see there are four kinds of exchanges with different degrees of state vs federal involvement:

        State-based Marketplace: States running a State-based Marketplace are responsible for performing all Marketplace functions. Consumers in these states apply for and enroll in coverage through Marketplace websites established and maintained by the states.

        Federally-supported State-based Marketplace: States with this type of Marketplace are considered to have a State-based Marketplace, and are responsible for performing all Marketplace functions, except that the state will rely on the Federally-facilitated Marketplace IT platform. Consumers in these states apply for and enroll in coverage through

        State-Partnership Marketplace States entering into a Partnership Marketplace may administer in-person consumer assistance functions and HHS will perform the remaining Marketplace functions. Consumers in states with a Partnership Marketplace apply for and enroll in coverage through

        Federally-facilitated Marketplace: In a Federally-facilitated Marketplace, HHS performs all Marketplace functions. Consumers in states with a Federally-facilitated Marketplace apply for and enroll in coverage through

  • WiscoJoe

    What state does the Secretary of State currently represent?

    Based on my willfully ignorant interpretation of the word ‘State,’ it’s clear that the State Department must refer to one specific state. Which one is it?

    • RevZafod

      Let me edumacate you. According to Wiktionary, “state” means “Any sovereign polity. A government.”. If they had intended to exclude the feds, they should have said something like “any of the several states”.

      Too bad those ignorant Rethuglicans never consulted a dictionary. The whole case could be tossed if the right half of the supremes just read the definition.

      Shakespeare had it right about the lawyers. Or this:
      Q: What do you call it when a cruise ship with 5000 lawyers sinks with no survivors?
      A: A good start.

      Or this:
      Q: What do you call it when a man starts thinking with the head on top of his shoulders instead of the other one?
      A: Unusual.
      Q: When a woman does?
      A: Thinking outside the box.

  • Spurning Beer

    Under Republi-Care, insurance companies will be allowed to deny coverage for post-existing conditions.

    • WiscoJoe

      Yep, they call it ‘lifetime caps.’ That was actually a thing before the ACA.

      • Spurning Beer

        Hmm, that gives me an idea for regulating health care executive compensation….

  • WiscoJoe

    Hey you guys, the Supreme Court has literally become a death panel for millions of Americans. Chew on that Frank Luntz and Sarah Palin! Death panels are for realz!!!

  • JustPixelz

    If the grammar, syntax and dictionary definition of a phrase in a law is the only criteria, then I’d like to revisit …

    “keep and bear arms” … in 1789, arms meant “muskets”

    • Thatsit Fortheotherwon

      Well regulated…

      • Msgr_Moment

        We don’t need no stinkin’ badgers muskrats.

      • JustPixelz

        I mentioned the “well regulated” on some other site and got shit from ammosexuals about how, at the time, that phrase had nothing to do with regulation, per se. It was more like “smooth running”. Also that “militias” don’t exist any more so that phrase of the Amendment doesn’t count anyway. Also that I was a dickhead.

        • Thatsit Fortheotherwon

          They are consistent in their inconsistencies.

  • i fucking HATE this ‘intent’ crap’ that all The Important Lawyers are talking about.

    I mean seriously, what?? this is not john adams. Or a derrida exercise. the only originalism that should be allowed is walking up to capital hill and asking nancy pelosi what she was thinking when she crammed obamacare down our throats.

    (seriously, I hope RBG has some brief aside about how the framers of this law are still alive and many still in office).

  • Spotts1701

    This will be an epic exercise in word parsing, I can tell. I wonder if Scalia is going to talk about broccoli mandates again.

  • I can explain how lawsuits and decisions like this are dumb, why they are dumb, and how they affect people, and I will still have dumbasses go “durrr I can’t afford Obamacare anyway! It’s terrible!” You couldn’t afford shit before the ACA bill, but you sure as hell can afford that Galaxy S5 you got and all the data you’re eating up, so go jump in a shallow pool I hope you crack your skull ಠ_ಠ.

  • RubyTuesdayDONO

    Sotomeyer → Sotomayor

  • Biff52

    These same idjits claim to know what the “original intent” was for the constitution. Hey, assholes–this time, most of the folks who wrote it are still alive. Why not just ask them?

  • BeliTsari
  • Notreelyhelping

    As Roberts lifts his moistened middle finger into the breeze….

  • Mormos

    “obviously we meant for everyone on all of the exchanges to get subsidies if they are poor! Why else would we even be doing this?”

    What was that thing wonkette published just the other day about how the courts can’t rule on the intent of a law but only on what the law actually says? It was that article on how the law against teens sexting can’t be enforced as it is written. I’m not going to look it up.

    Yeah, SCOTUS is going to shoot down those exchange subsidies. Fuck you poor people.

  • I_Buttle

    This bullshit is proof positive that this author’s argument is correct. America’s democracy is doomed.

  • Steverino247

    Many of those persons who will suffer from ACA crashing will just find a way to blame Obama and you all know it.

    • Paperless Tiger

      Danged Obama kept me alive just so SCOTUS could kill me later.

  • ibnyamin

    To all conservative believers in the free markets I bring good news! As it is a simple science fact that the markets know best, we need not parse the words of the SCOTUS justices to determine their likely ruling. We need only observe what happened to the stock prices of publicly traded companies what benefit from the ACA insurance subsidies. AMIRIGHT!!!!?

    On a day when the Dow is down .49%, the S&P 500 is down .41%, and the Nasdaq is down .18%, large hospital systems are way up! Companies like Community Health Systems (CYH up 5.87% in today’s trading), HCA Holdings (HCA up 6.14% in today’s trading), and Tenet Healthcare (THC up 5.12% in today’s trading) joined an amicus brief in support of the government’s position saying they depend so much for revenue on sweet sweet subsidies granted to the poors what bought insurance on the federal exchange that they would have to close up shop in those red states without them. So now all you free marketeers will bow to the wisdom of the markets and agree that King et al will have to just deal with the fictional pain of having to buy insurance (if they are not VA or Medicare eligible) from the federal government exchange or pay their taxes if they don’t.

    Hurray for the free market!

  • Biel_ze_Bubba

    There’s also the small matter of “standing”: if none of the four “plaintiffs” have been harmed by the law, there’s no “case or controversy” for the court to resolve. And “I don’t like how the gubmint spends my tax munniez” doesn’t count. The teabagger plaintiffs don’t have Obmacare now, and they won’t have Obamacare if they “win”, so “why the fuck are you even here?” is a fair question. (Maybe RBG will ask it, for the lulz.) The Supremes, however, are pretty good at ignoring that nicety when they really, really want to decide an issue, even if there is no such issue in the case.

    In NFIB v. Sebelius, even Scalia called the Fed subsidy a “backup” for when states don’t create exchanges . . . not that he’ll hesitate to say the opposite, when his ideology requires it.

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