04 March 2015

King v Burwell oral argument... may come down to Kennedy after all

From what I read in Slate and in Talkingpointsmemo today, it appears from the questions and comments of the justices during today's King v. Burwell (Obamacare) oral argument, that it may well be Kennedy, after all, and not Roberts, who is the best chance for the government's position to prevail. He expressed serious concern about the effect of deciding with the plaintiffs on States' prerogatives, and he did seem to have at least a scintilla of concern for the chaos and human suffering a decision in their favor would likely cause. Stay tuned. Decision likely at the end of June.

If the Right Wing majority does in fact strike down the subsidies for Federal Exchanges (it will be 5-4 if they do), the Republicans in Congress will be in a real pickle. Some of them are already talking about an "18 month extension" to be passed as legislation. I will go out on a limb and say if they do that, the "extension" will eventually be made permanent. After all there would be no issue if you could change the words "by the State" in one sentence in a humongous law to "by the State or the Federal Government in lieu of the State, as provided for in this section." That's it. No issue. Even just taking out the three words "by the State" would actually be enough.

If the Righties do this, they will be shredding hundreds of years of judicial practice of interpreting statutes in such a way as to avoid their being totally meaningless or having large sections of them be nonfunctional. There is NO QUESTION in the mind of any serious person, not motivated by naked ideology, that it was the intention of the drafters of the legislation that the subsidies would apply to the Federal exchanges. Anyone who tells you different is a mendacious asshole. Period.

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