I am really sick and tired of being right about this shit:
See what they are doing? Degenerate sociopaths like Scott Walker, Rick Scott, Rick Perry, and Bobby Jindal are all screwing their own citizens by refusing to set up exchanges, and then, their Republican allies in the House and Senate are going to try to make it impossible for federal subsidies to be allowed. I’m sure at this very minute Randy Barnett is hatching up a legal theory that will make Antonin Scalia moist in the loins.
Via Thinkprogress, this:
Now that the Supreme Court has upheld the health insurance mandate in the Affordable Care Act (ACA), two conservative scholars have come up with another legal argument for attacking health care reform. In a paper released Monday, Jonathan Adler and Michael Cannon argue that an IRS regulation implementing the ACA’s tax credits and cost-sharing subsidies is “illegal.”
The IRS rule provides credits and subsidies to those enrolled in new health insurance exchanges operated by the states or the federal government, but the scholars claim the ACA limits tax credits to those enrolled in state exchanges. Adler and Cannon argue that middle-class Americans enrolled in federal exchanges should not receive tax credits to help them afford health insurance.
The only thing I got wrong was which non-Volokh it would be brewing up the bullshit. This time it was Adler, not Barnett.
Just Some Fuckhead
Welcome to Balloon Juice, John Cole!
Napoleon
I am so glad it is a clown that teaches at the law school I graduated from – it makes me proud.
kindness
NPR ran this one this morning, drive time. To their credit they gave equal time to a gentleman that knocked the socks off the republican trolls. I wish that happened more.
JGabriel
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Think Progress:
Shorter Conservative Scholars: (Baseball bats in hands, brandished threateningly) Okay, John Roberts, we’re gonna give you ONE. MORE. CHANCE. To get this right.
.
c u n d gulag
I’m sure that in “The Federalist Society,” there are many people who can argue that the whole feckin’ Constitution was illegal – and that the legal document for running America needs to be “The Articles of Confederation.”
There are all sorts of nuts of all sizes, shapes, and stripes – and TOO DAMN MANY OF THEM are in the House, the Senate, the Federal Judiciary and the Supreme Court.
If Scalia’s moist in the loins, then Thomas’s, Alito’s, and probably Kennedy’s, are also a little verklempt around their private parts.
Depends, “gentlemen?”
Roberts? Wtf knows.
OY!!!
Comrade Mary
@Just Some Fuckhead: Beat me to it, you fuckhead.
/pouts
Lurker
If it cheers anyone up, health reform continues to roll along despite opposition.
1) Democrats attempted and failed to pass health care reform for decades.
2) In 2009-2010, it looked like health reform would not pass at all. The Republicans in the House and Senate refused to cough up a single vote for the final bill. It passed solely on Democratic/Independent votes.
3) Then it looked like the Affordable Care Act would not survive the judicial system. It did.
4) Now Republicans are fighting the federal exchanges. They can’t do a blessed thing about state exchanges.
I’m not saying we should stop fighting FOR health care reform. I’m just saying we’re gaining more ground each year.
Punchy
Pppppfffffftttt. At least 2+ years in federal courts + appeals, then 0.5-1 yr. before the USSC even has a chance to take it. By then, fully functional, and maybe if we’re lucky, new prog Justys riding the pine.
Non starter, released for the rabids to chew to prevent them from chewing on each other.
joes527
@JGabriel: funny (not funny) how the whole tort reform thing is always about denying the other guy access to the courts.
We need an AMA to get mirrors into the hands of these needy people.
Citizen Alan
Who even has standing to challenge the act’s constitutionality on that basis?
Judas Escargot, Acerbic Prophet of the Mighty Potato God
I love how one of the most corrosive, anti-Federalist forces in American politics is named “The Federalist Society”.
JPL
Thanks John, I had bets that you were on an island with a hot babe..
We missed you.
General Stuck
I think it is about a given that the wingnuts are going to pull out all the stops to kill the ACA, now that the court has let it proceed to implementation. It is a big bill with a few thousand pages to thumb through to find a loose strings to pull and unravel enough of it to cause a problem. I don’t know about this legal pic nitting, and whether it has validity. But they aren’t going to stop doing anything they can to kill the bill. It is their White Whale and the GOP is Ahab against the political survival wall, and it is going to be so for a while longer.
CraigoMc
@c u n d gulag: Believe it or not, there is a tiny minority of nut that claims that the Constitutional Convention was not authorized to replace the Articles.
Omnes Omnibus
Of course they were going to keep fighting it. It is what they do. There is less and less that they can fight though; eventually, they will be arguing that the word should was used instead of shall and therefore exchanges don’t need to be functioning on Saturday mornings. They lost, but they just can’t accept it.
schnooten
Seriously. Fuck these people. Nihilistic motherfuckers. The only thing that matters to them is their wallets and god damn anyone who thinks that this country should show some sort of decency as a whole.
NonyNony
Wait, let me get this straight.
The net upshot of this is that if they fight this all the way to the Supreme Court and win it, then people who live in states that have idiot governors and legislatures who refuse to set up exchanges will not get a tax break that people who live in states that don’t have idiot governors and legislatures will get.
Do I have this right? That this legal theory means that people who live in states governed by Rick Scott, Bobby Jindal, and my own John Kasich may have their taxes raised while people who live in states governed by reasonable people won’t?
I … don’t see how this helps Republicans actually. If anything it incentivizes the states that don’t have exchanges to get them set up so that the folks who live there can get tax credits. Anyone know who would have standing to take this to the courts and how that would work?
JGabriel
@Judas Escargot, Acerbic Prophet of the Mighty Potato God:
We have always been at war with EastAsia.
.
catclub
@kindness: And for further credit NPR yesterday reported on an actual program that Romney might sorta propose — personal retraining accounts —
and then reported that they were tried in 2004-2005, did not particularly work and were dropped, and when NPR asked the Romney camp for comment they got no response.
Low key, but pretty damning.
JPL
What if they win everything? Then what? The President has already instituted their ideas, so they don’t have anything else unless it’s to make us a subservient nation. Get rid of banking regulations, well at that point they have better get rid of the FDIC also cuz no more free stuff.
Gosh I hate these people.
Omnes Omnibus
@JPL: Gosh? Are you running for president, for Pete’s sake?
JPL
@Omnes Omnibus: Nope but I’m writing a note to my rep and senators and pointing out that if they get rid of ACA they had better get rid of Emtala plus the points I mentioned.
I’m still hoping John is blogging from an island with a hot babe. I think he needs a break from the pets.
edit..maybe it’s me that needs to think about an island with a hot dude.
Triassic Sands
The idea of having universal health care coverage in the United States is obviously one that would have horrified the Framers, who clearly wanted poor people, and those of moderate means to die for want of proper medical care.
Ignore that stuff about “promote the general Welfare,” — they meant that to apply only to the generally wealthy.
If everyone in the United States had real access to high quality medical care, it would be the end to freedom. A Free People are a Sick People.
BC
I’ve listened to these “legal minds” on this issue and it seems like so much garbage to me. First of all, the exchanges will be state exchanges whether the states design them or whether the federal government designs them. So, if Florida does not set up an exchange, the federal government will set up a “Florida Insurance Exchange.” The federal government may use a template for designing the exchanges, but there will be no “Federal Government Insurance Exchange” – there will be the Alabama Insurance Exchange, the Louisiana Insurance Exchange, ad infinitum. IANAL, but I think I understand this law better than these yahoos who have attorney-at-law after their names.
NonyNony
@BC:
They’re arguing on technicalities on the language that Congress used when drafting the law. It isn’t that they don’t know what the law says, they’re saying that because Congress used this language and didn’t use this other specific language, they can’t give this tax credit.
It’s the same as arguing that since Congress didn’t call it a tax explicitly in the law, the implementation doesn’t fall under Congress’s tax authority the way it’s written and they’d have to draft a completely new version make it a tax explicitly. 4 justices bought that line of reasoning last time after all.
MattR
@JPL:
If John is on an island with a hot babe, blogging should be the last thing on his mind.
liberal
@schnooten:
Not really. They’re just bastards being bastards. The people I hold in contempt are those who either don’t understand that the right wing is cancer on the body politic, or who do but aren’t willing to act as though it were. (That goes for much of the Democratic leadership; as for the “centrists!”, they deserve a special place in hell.)
SenyorDave
In a parallel universe somewhere, Bobby Jindal is Bobbi Jindal, a single mother of three who has a pre-existing condition and can’t get insurance.
liberal
@joes527:
God knows how many times I’ve bitched about that.
burnspbesq
I’ll cut you some slack about this one, but the legal argument that has your knickers in a twist today … is frivolous. As in loses in district court on a 12(b)(6) motion.
This isn’t even a constitutional issue. This is a plain-vanilla Chevron analysis. The statute is ambiguous, so they lose on step one, and the regulation is a reasonable interpretation, so they lose on step two. Adler must have slept through his Ad Law class, or he would know this.
Someday you will learn to keep your yap shut when you don’t know what you’re talking about. Or maybe not.
burnspbesq
@Triassic Sands:
Those would be the very same Framers who in 1789 caused the first Congress to pass a law mandating that ship-owners provide health insurance for their crews, correct?
El Cid
@c u n d gulag: The only truly Constitutional part of the Constitution is the 2nd Amendment; the 10th Amendment is legitimate, but is just there to make sure that no one attempts to mess with the 2nd Amendment.
wrb
@Triassic Sands:
You don’t understand. They wanted to protect us from proper medical care.
If the doctors of their day didn’t try to drain the blood from any victim too ill to run away it might have been different.
Xenos
@NonyNony:
It is high time these constitutional scholars learn a thing or two about administrative law. Unless they now want to overturn Chevron and really screw up the legal landscape.
Zach
Based on the blurbs I’ve read, not even this Supreme Court will take Adler’s argument seriously. There’s no confusion what-so-ever about legislative intent; you only get BS “objective” readings of law from Scalia on things written hundreds of years ago when you can’t, you know, ask the people what they meant when they passed the law. Maybe there’s more to the argument, but I’m not going to waste my time on someone who thinks they, too, can vault themselves into GOP legal celebrity by inventing nonsense.
However ridiculous the constitutional objections to the mandate were, it was, at least, an unprecedented application of the Commerce Clause. So even though similar mandates were precedented based upon Congress’s power to raise armies and regulate the sea and whatever, it’s fair enough for the Supreme Court to say “the buck stops here!” and pretend it’s logically consistent. This is just pedantic nonsense, though.
Citizen_X
@CraigoMc:
Hell, there is a bigger minority that thinks the whole secession and civil war thing was totes constitutional, because it’s What the Founders Would Have Wanted.
NonyNony
@burnspbesq:
So you don’t think that this ridiculous claim will get any traction at all?
Just like the claim that ACA was a violation of the Commerce Clause was thrown out by a 7 to 2 court judgment, right?
Zach
@Xenos: Not a lawyer or law student even, but this would go way beyond overturning Chevron. That was about deferring to regulatory agencies to interpret law; this is about ignoring the obvious intent of Congress as expressed in thousands of hours of testimony all of a few years ago. If it was about HHS’s novel way to get around state intransigency or something, OK, but the ACA was written knowing that states might be run by idiots and grants the Feds authority to run their own exchanges, etc.
Citizen_X
@burnspbesq:
Weren’t you, like, four votes off on the whole ACA ruling thing?
ETA: Argh! Beaten by NonyNony!
Xenos
@Zach: True, but Chevron is like a block in this scenario. It is what gets the case dismissed at the first hearing, and nobody needs to waste time briefing about congressional intent.
That said, maybe there is a Federalist Society project to overturn Chevron just like there has been for Wickard. I just wish there was a consistent way to stick these bastards on rule 11 when they pull this crap.
DBaker
Also, too, to get to the “Why” on this – the argument is not about giving all of those middle class people a tax break but that those poor corporations that will not comply with the employer mandate will be subject to taxation (hence the cute “taxation without representation” title /snark).
The only companies subject to the employer mandate are those companies with 50 or more FT employees that don’t offer proper health insurance. (if I am not mistaken the Full Time Employee definition is also aggregated so that companies Wal-Mart can’t screw their employees by making them work 39 hours a week.) The same large companies that currently foist a lot of their health care costs of their working, underpaid poor unto Medicaid already. The employer mandate is there to stop or at least alleviate that issue somewhat.
The State of Maryland actually tried to impose a tax on large employers to offset some of these costs and failed after extensive lobbying efforts by Wal Mart among others a couple of years back.
Finally, another issue which struck me with that paper was the reliance on the issue that when Senator Brown was elected that those darn Democrats passed the law without getting approval from President Snowe and her 41 member majority. There is no real evidence presented about Congress’ intent other than a mention of Senator Baucus’ Finance Committee testimony. The paper really smells of typical conservative science – come up with intended outcome and then find the facts to form your narrative.
cunning linguist
@Citizen Alan: That was my first thought exactly. This can’t even get into federal court because no one has standing to challenge the fact that someone else is getting a tax credit.
Egilsson
Unbelievably, people need to take what is posted on Volokh seriously – however stupid it is. Based on the leaks by the conservative wing DURING deliberations that Randy Barnett and Ilya Somin apparently received which were intended to pressure Roberts, those guys have a line to clerks and/or justices.
Look it up, around 5/22/2012 they suddenly started shrieking that *Obama* was unfairly pressuring the court. In fact, it appears they were part of a cynical effort by other clerks/justices DURING deliberations to influence Roberts.
This is a bigger scandal than people appreciate, imho. Factions of the court leaking information DURING deliberations to pressure other factions is just something the Court has not participated in. The fact that Volokh was used in part for this is very troublesome.
I encourage people to start participating in their comments.
Even though several of the bloggers are in fact intellectually dishonest (like David Bernstein, Todd Zywicki and Jonathan Adler), if you actually say that they will ban you, so say it as politely as you can.
Chris from Arlington, VA
@John Cole
Looks like the northern panhandle of WV just got hammered by storms, everything alright out there? Hope the power stays on…
mai naem
Oh, jeebus, please resist this. Please. Pretty please. Then you get people talking during holiday get togethers about how they pay only this much for their healthcare and how xyz is covered under their new coverage. They get the not as sick people moving to the states that participate leaving the super sick people who can’t move in the states that don’t participate. This leads to guess what? Dem candidates running and talking about how their state would have what their neighboring state has if they vote for them. It’ll happen. Maybe not next year but within five years and the Republicans will then try to take back the “Obama” from Obamacare and absolutely insist on calling it the PPACA
sab
I’m about to go Galt and uncheck the organ donor box on my driver’s license. I have friends and family members with pre-existing conditions, minimum wage jobs, uninsured and under-employed kids, etc. Why should we let rich people with good insurance benefit from our catastrophes?
burnspbesq
@Citizen_X:
Getting it mostly right makes me a moran and getting it completely wrong makes you a genius?
Oh-Kay, then.
Steve
I think the standing argument is stronger than the Chevron argument. Who the heck has Article III standing to challenge someone else’s tax credit?
TenguPhule
Again, nothing that a liberal amount of bloodshed of Republican Elite would not solve.
TenguPhule
Easy. “Blackity Black Black raised your taxes!! Vote Republican Forever!!”
Mass trials, convictions and executions are the only way to solve this and go forward.
Maude
@TenguPhule:
I see you’ve toned it down. Are you feeling okay?
TenguPhule
@Maude: I’m tired as always. But Mitt’s disaster in the making is cheering me up some.
Mnemosyne
@wrb:
Fun fact I found because your comment made me think of it: apparently Benjamin Rush, the only doctor among the Founding Founders, was inordinately fond of bleeding patients and was accused by his contemporaries of killing them by over-bleeding. He even won a $500 libel judgement against someone who made that accusation.
He did have a clue about psychiatry, at least, and basically wrote the disease model of addiction (specifically alcoholism).