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Obamacare Meets Rudy

Rudy

Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does.

And then, there were moments that made your heart sink:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the you, know, the bankruptcy court decision [Northern Pipeline v. Marathon]? Congress adjusts, enacts a statute that—that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I—I—

[Laughter]

To paraphrase Notre Dame coach Ara Parseghian (as portrayed in Rudy): In one single sentence, Mr. Solicitor General, you have just summed up your entire miserable theory of this case. We—you—the Court—must torture this misshapen statute until it confesses because we—you—must not return it to a Congress that has been, is, and forever will be a joke—but for a few blissful weeks back in 2010, when a bunch of accidentally elected Solons triumphed over the stupidity of the American voters and, after mature Madisonian deliberation, enacted a statute that none of them had ever read. That’s the government’s case; the rest is bells and whistles.

The idea of involving Congress in the country’s government is good fun for the likes of Dana Milbank. (The Washington Post’s resident nihilist has yet to encounter a political event that can’t be milked for a cheap sneer. He is quite bitter, however, about his seating at yesterday’s argument.)

But once you think about the government’s premise and its implications, you stop laughing. At least I do.

Reader Discussion

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on March 05, 2015 at 10:43:32 am

In one single sentence, General, you have just summed up your entire miserable theory of this case. We—you—the Court—must torture this misshapen statute until it confesses because we—you—must not return it to a Congress that has been, is, and forever will be a joke—but for a few blissful weeks back in 2010, when a bunch of accidentally elected Solons triumphed over the stupidity of the American voters and, after mature Madisonian deliberation, enacted a statute that none of them had ever read. That’s the government’s case; the rest is bells and whistles.

The idea of involving Congress in the country’s government is good fun for the likes of Dana Milbank (the Washington Post’s resident nihilist, who has yet to encounter a political event that can’t be milked for a cheap sneer….)

Speaking of cheap sneers….

1. Is Greve arguing that the court should avert its eyes from the practical consequences of its decisions? That the phrase “absurd result” should be drummed out of judicial decisions?

2. Is Greve arguing that Congress is not in gridlock over this statute?

3. Or Is Greve saying that Verrilli’s argument should be dismissed because Congress is perfectly capable of altering a statute if it wants to? If so, then Greve’s concerns grow even more obscure.

I can respect thesis 1, the “tho’ the heavens fall” thesis. Thus, courts should have ruled that prisoners in Guantanimo were detained in a manner that exceeds Executive authority, and thus should be released immediately -- consequences be damned. Wisely or not, courts have generally not embraced this thesis.

So we’re left with theses 2 and 3. Perhaps Congress is in dysfunctional gridlock. Alternatively, perhaps it is perfectly capable of altering statutes when it wants to. In either case, I don’t see the harm of rendering a decision under the assumption that Congress is in dysfunctional gridlock. If the assumption is wrong, then the remedy is contained in the premise: Congress will simply amend the statute to clarify its intention. No problem, right?

To the extent you recognize there is a problem, you vindicate Verrilli’s argument.

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nobody.really
on March 05, 2015 at 11:43:45 am

Seems to me that you miss a fundamental issue here:

American government was INTENDED to be slow and cumbersome. It was supposed to be difficult to make law.
Your counter-argument seems to be that since the government is working as it was intended to work, let's change the dang thing so that we may make of it what we will. Moreover, have you considered where your argument ultimately leads (in fact has lead to re: the Black Robes)? Were the Court to consider the consequences of a decision, and let us use as one example this notion of the doctrine of *constitutional avoidance* that many are deploying to justify maintaining this legislation, would the court not be entering the Legislative realm by selectively rejecting / accepting parts of the law in order to maintain it on the theory that the Legislative would not (oh, heavens, never!) have intended to coerce the states via exchanges, etc to accept this law. And because the Legislature would never have intended that, we, the Black Robes are going to change the meaning of the text so that the Legislature is no longer guilty of such a constitutional crime - and thus in our little *consequentialist* minds, we have both assured a good outcome while exercising judicial restraint. after all, the Congress can not be trusted with the all important task of correcting its' errors - why, well, because of gridlock.
Heck, the whole enterprise was supposed to border on gridlock anyway. Just look at the structural components of the regime.
Let's amend Mr. Johnsons' admonition: No man is safe while the Legislature is in session (nor when the court is adjudicating!!!)
No, the simple (and correct) thing to do is to declare that the text means what it says, the law (such as it ever was a duly enacted law) simply is what it is - defective - and leave it to the Legislative Branch to either correct it or not. After all, that is why we have a Legislative Branch. It is for that Branch to be *consequentialist* not the Judiciary.
BTW: Would you also consider a consequentialist approach for Roe v. Wade. Consequences have been pretty awesome for all of those *ghost* citizens. We are here talking about one's very existence - not some stupid subsidy.
How much parsing are you prepared to do in your *consequentialism?

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gabe
on March 05, 2015 at 12:30:10 pm

Would you also consider a consequentialist approach for Roe v. Wade. Consequences have been pretty awesome for all of those *ghost* citizens. We are here talking about one’s very existence – not some stupid subsidy.

How much parsing are you prepared to do in your *consequentialism*?

Whatever the merits of the rest of your remark, I think this argument does not follow and really leads down a rabbit hole.

I understand Roe v. Wade to be rendered to defend a person’s autonomy. And I believe the ruling has had this effect. Thus, whether or not Roe was decided on the basis of a consequentialist argument, it certainly could have been. A consequentialist argument is not rendered irrelevant or irrational merely because *you* don’t like the consequence being pursued.

If we’re concerned about the impediments to maximizing “ghost citizens,” then abortion is a minor player. The big culprit is chastity. At this very moment you are reading this web page, which leads me to suspect you are not having sex. And in refraining from having sex, you are dooming some potential human to non-existence. Mostly we recognize a person’s autonomy to refrain from having sex, the consequences for potential future generations be damned. We might imagine circumstances (e.g., The Handmaid’s Tale) in which we would feel compelled to draft unwilling people into procreation, but for better or worse, most people recognize that we’re not in such circumstances today.

Yet inexplicably, some people still feel the need to selectively draft people into procreation. I don’t share this feeling -- for consequentialist reasons among others.

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nobody.really
on March 05, 2015 at 12:35:36 pm

The statute is clear that only state exchanges allow federal government subsidies and that the Congress intended to impermissibly strong-arm the states into creating exchanges because they intended those that needed subsidies to get them. I suspect that Justice Kennedy will rule that statutes must be read constitutionally if possible and, therefore, ironically he’ll find for the government because he cannot find that the Congress was doing what it was actually doing. This is truly what sausage looks like.

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Ron Johnson
on March 05, 2015 at 12:47:59 pm

Well, I didn't know we were going to get into ones preferences today - Oops, I thought that talk of one's *preferences* was verboten nowadays. I am surprised at you. Nobody.really cares about ones preferences these days. Ha!!!

However, there is a significant difference between abstinence and the consequence of procreation (non-abstinence, if you will). with the former, one speaks only of a potential; with the latter one speaks of a consummate (if you will) act with a flesh and blood consequence.
I am not charged by my utility company because my 200 amp service had the potential to gobble up 50,000 KWH of electrical power but only for the 2500 kwh that my climate hating family has consumed.

I suppose it is the difference between limiting oneself to what is at *hand* which is a somewhat solitary endeavor and not subject to judicial review (my god, consider the images!) as opposed to entering into a more fruitful conjoining effort to create something of substance, both physically and intellectually speaking. The former is onanistic and the latter is somewhat more *consequential* wouldn't you say. I guess I must be a consequentialist, after all! Ha!

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gabe
on March 05, 2015 at 13:22:26 pm

[T]here is a significant difference between abstinence and the consequence of procreation (non-abstinence, if you will). with the former, one speaks only of a potential; with the latter one speaks of a consummate (if you will) act with a flesh and blood consequence.

Joe could have been born, but for an abortion.

Mary could have been born, but for the fact that her potential parents refrained from sex.
From the perspective of potential (“ghost citizens”), they are identical – with the only relevant distinction being that there are a lot more Marys than Joes. You choose to attach more significance to one rather than the other. And you’re welcome to your worldview/religion. But the Court found that you aren’t welcome to impose it on others.

I am not charged by my utility company because my 200 amp service had the potential to gobble up 50,000 KWH of electrical power but only for the 2500 kwh that my climate hating family has consumed.

There is no end of rabbit holes you want to explore today!

In point of fact, utilities incur cost to make power available to you upon demand, whether or not you choose to demand it. And utilities must recover the cost from somewhere. This is manifest in the bills of large industrial customers, which typically pay an explicit “demand charge” based on the peak amount of capacity required to serve the customer in the past, in addition to an “energy charge” based on the number of kWh the customer consumes.

The same principle applies to all customers, but given the historical cost of metering demand separately from energy, a typical utility will combine the cost of energy and demand into a single per-kWh charge for residential customers.

Historically the inefficiency that results from this billing arrangement has been small relative to the cost of installing more elaborate meters. But now more residential customers are installing their own generators (typically solar panels) for their own consumption, and even selling the power back to the electric utility via “net metering” (sending the energy backward through the meter). But the kWh that a customer sells the utility is not the same as the kWh that the utility sells the customer. After all, the customer can demand virtually limitless power at any time of the day or night; the utility does not impose similar demands on the customer. It is only in the meter that these two dissimilar things get measured as if they are the same.

As a consequence, some utilities are now charging stand-by rates to customers that have their own generators – that is, a rate designed to reflect the utility’s cost of standing ready to provide power, whether or not the customer chooses to actually buy the power. Don’t want to pay for stand-by service? That’s fine; the utility can disconnect your house from the grid. THEN you will learn the difference between the electric service you provide yourself and the electric service provided by the utility.

In short, reliability has a value, and a cost. If you just value energy, not reliability, then you should be willing to disconnect from the grid. If you want the value of reliability (distinct from the value of energy), you should be willing to bear that cost (distinct from the cost of energy).

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nobody.really
on March 05, 2015 at 13:47:01 pm

My goodness, you are going far afield now aren't you. Generators, etc etc etc.
The point is that there is a difference between potential and use or a separate sperm cell and egg and a fertilized embryo. all your talk of industrial vs consumer electrical rates can not distract from the discussion of the difference between living breathing human embryos and somewhat simple cells nor of the Courts so called correct consequentialism, as you would have it.
How about the consequences for the "autonomy" of the ghost citizen, then, my friend - or are you too NOW positing an acceptable difference between potential and actual - with the woman being actualized in her autonomy and the embryo being non-actualized (disputable, at best BTW). Well just where does this autonomy end or begin for that matter. Oh, of course, in the minds of actualized, autonomous Judges!!!! - consequentialists all!!!
No, I think all the *autonomists* should stick to *onanism* as it better reflects, and is less disruptive of their autonomy - after all it is far less consequential, is it not?

BTW: Of course, the utilities impose a rate based upon their cost of providing standby on-demand service. foolish of them not to do so. BUT, a) I know this, b) I recognize this as the price of service, just as I know that the costs of a pair of trousers at Nordstroms includes a cost for pilferage and c) they still only charge me for the NUMBER of hours I use not on the POTENTIAL number of hours that I use - just as Nordstrom does not charge me for two pair of trousers because my neighbor stole a pair. So your usual obfuscatory tricks are to no avail.

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gabe
on March 05, 2015 at 15:47:18 pm

Ron:

You have just ruined my recipe for pasta sauce. How can I ever include sausage in it again if this is how it is made.
Now that is consequential!!!

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gabe
on March 05, 2015 at 20:03:19 pm

I've never actually read one of these transcripts before, but I read this one. It was fascinating, but no surprises here. This section locks it up for me.

"JUSTICE SOTOMAYOR: States are obligated, insurers are obligated to make sure that in their States, whether they're part of this program or not, that they have guaranteed coverage ... So if they have to do that, then costs are going to rise on every ... insurance plan offered in the country in those 34 States, 3 or 6 ... or 9 of your States will have tightened their Medicaid eligibility requirements in contravention of the Act, so they're taking money by breaking their compacts. They would have to lose all of their Medicaid money.

"Tell me how that is not coercive in an unconstitutional way? And if it is coercive in an unconstitutional way, in Bond ... we said that that is a primary statutory command; that we read a statute in a way where we don't impinge on the basic Federal­-State relationship.

"MR. CARVIN: This Court has never suggested outside the very unusual coercion context of the NFIB Medicaid that a funding condition somehow invades a State police power. Obviously ­­--

"JUSTICE SOTOMAYOR: Oh, we did it --­­ we said it last year.

"MR. CARVIN: ... In Bond, there the Federal government was taking away a police power. Here, all the Federal government is doing is saying you want billions of free Federal dollars. That's hardly invading State sovereignty and it's the kind of routine the funding condition that this Court has upheld countless times."

The reason the law is unconstitutional in my opinion is because of the issue of dependency. When a large body of people become dependent on "billions of free Federal dollars" and the federal government threatens to take the money away, its actions are coercive. Obamacare, in giving away so much money to people who will become dependent on it is setting up a condition of dependency and therefore it can and will become an instrument of coercion. The Court both recognizes the problem of financial dependency and its coercive effects, and then it pretends the problem does not exist. Carvin's response makes me wonder if he comprehended the reality of that.

The justices, I think, have been well selected for their positions by the powers be.

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Scott Amorian
on March 06, 2015 at 10:14:42 am

IF there is a problem with the statute AS WRITTEN, then it is decidedly NOT the job, or within the authority, of the Supreme Court to fix it. We have this thing in America called the Constitution. It enacts a concept referred to as Separation of Powers, under which different branches of the Government have separate, distinct, and specific roles. The authority of the Court is limited by Article III of the Consitution, and that is to exercise the JUDICIAL power, while Article I grants the LEGISLATIVE power exclusively to Congress. Rewriting a statute which does not work as intended is NOT part of the Judicial power. That is a job exclusively delegated to Congress. The fact that this particular Congress might not "fix" the problem, or might "fix" it in a way that you, or certain liberal members of the Court, might not like, is no excuse for the Court to abandon the boundaries of its authority and make an illegitimate foray into the legislative domain.

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Daniel Artz
on March 06, 2015 at 11:50:57 am

It would seem that Professor Greve remains focused on this court's function within the Constitution.

That function is to determine whether a government agency has been empowered by statutory wordings to take specific actions.

That function is not to be concerned with the EFFECTS of their determination.
Those effects are the Constitutional function of other bodies.

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R Richard Schweitzer
on March 06, 2015 at 11:58:22 am

Minus a genuine opposition what else would you expect? The Republicans do have a few stalwarts in their ranks, therefore they are routinely ignored and the time serving hacks dominate. It's was a great opportunity but principles take a back seat and posturing rules. Ah, the quickly passing hope of 2014 has died a quiet, inglorious death. The nation continues its slide.

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john trainor
on March 07, 2015 at 12:27:56 pm

Not so much an opposition, but just some neutrality. The Constitution has the Executive appointing the justices who put a check on the Executive. Isn’t that a bit like having the bank robbers in charge of hiring the bank guards?

I’m less inclined to play the finger pointing game, and more inclined to work on fixing the structural problem. Someone who is not the Executive or the Legislature and who is not deeply connected to either of those branches needs to be appointing the justices. The method of selection and approval could be improved to reduce bias, or at least redirect bias so it is not as destructive.

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Scott Amorian
on March 10, 2015 at 10:49:54 am

[…] Obamacare Meets Rudy […]

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Image of Obamacare Oral Argument: Still a Winner | Freedom's Floodgates
Obamacare Oral Argument: Still a Winner | Freedom's Floodgates
on March 11, 2015 at 12:49:16 pm

[…] Obamacare Meets Rudy […]

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Image of The Dangerous Weakness of Modern Progressivism | Freedom's Floodgates
The Dangerous Weakness of Modern Progressivism | Freedom's Floodgates

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