US Politics: Check with a Court before you see your Doctor

[lokisnow]

continue:

Why wouldn't he do it again? He changed his vote for a reason the first time and it's likely to happen for the same reason if this comes up again.

Roberts had his shot at the ACA already. He didn't take it, why would he change his mind?

Why wouldn't he do it again? Because he gets to have his cake and eat it too.

Last time he upheld the law because of backroom politicking, he traded his vote to support the ACA in order to get the votes of the liberals against the medicaid expansion.

Now he can strike down the federal ACA exchange in only red states on top of his previous vote trading that allowed red states to not expand medicaid.

He gets to have his cake an eat it too, further dividing the country by playing politics with the highest court of the land.

[Paladin of Ice]

Kind of premature to speculate about it, being that the even if court does see the case rather than dismiss it, that probably won't happen until sometime next year at the earliest. And I think the swing justices will be reluctant to overturn the law based on exact words contrary to the spirit of the law, and to suddenly strip the benefit from people by that point, as both will cause chaos, and the former will open a lot of laws up to legal challenges.

[Shryke]

continue:

Why wouldn't he do it again? Because he gets to have his cake and eat it too.

Last time he upheld the law because of backroom politicking, he traded his vote to support the ACA in order to get the votes of the liberals against the medicaid expansion.

Now he can strike down the federal ACA exchange in only red states on top of his previous vote trading that allowed red states to not expand medicaid.

He gets to have his cake an eat it too, further dividing the country by playing politics with the highest court of the land.

That doesn't make any sense. He could have killed both. He has the votes for it.

[Mudguard]

It's not that Roberts has to change his mind to rule against the subsidies provision. They are separate legal issues with completely different legal justifications. I also think it's very possible that Roberts could vote against the subsidies provision. The argument that the legislative text unambiguously states that subsidies are to be provided to "exchanges established by the state" does not seem unreasonable. If the intent was to provide subsidies regardless of who set up the exchange, the language of the provisional was drafted very, very poorly. So far, the rulings of each judge has followed partisan lines. Losing the subsidies in states that did not establish their own exchanges would hurt a lot a people, but I don't think it will sink the entire ACA.

I believe that the government will request an en banc hearing before he DC Court of Appeals, where the majority of the judges were appointed by Democrats. Those 4 newly appointed DC circuit judges are now looming very large. Seems very likely that the en banc court will overturn the decision, which will be important since open enrollment for next year is starting very soon I think.

It also seems likely that the Supreme Court will then pick up the case, where things become much more uncertain. If I had to make a guess right now, I'd say that Roberts rules against the subsidies provision.

[lokisnow]

I more or less agree with Mudguard on that. it's what makes the grammer error such a dangerous problem.

Really what it indicates is that democrats need to be more like Republicans. We need a democrat organization like ALEC with millions of pages of model legislation prepared long in advance of elections, and just use that. Republicans don't create any of their own legislation anymore, I don't know why Democrats should either, Democrats probably should be discouraged from drafting legislation if a grammer mistake is going to result in millions of people suffering pain at the hands of activist Republican judges determined to inflict misery upon the poor.

***

On the other hand, the fourth circuit decision is rather delightful:

http://www.vox.com/2014/7/22/5926879/the-most-delicious-part-of-todays-obamacare-rulings/in/5690430

In fact, Appelants' reading is not literal; it's cramped. No case stands for the proposition that literal readings should take place in a vacuum, acontextually, and untethered from other parts of the operative text...

If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino's, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino's with a ham and pepperoni pizza has still complied with a literal construction of my lunch order. That is this case: Congress specified that Exchanges should be established and run by the states, but the contingency provision permits federal officials to act in place of the state when it fails to establish an Exchange.

[Shryke]

It's not that Roberts has to change his mind to rule against the subsidies provision. They are separate legal issues with completely different legal justifications. I also think it's very possible that Roberts could vote against the subsidies provision. The argument that the legislative text unambiguously states that subsidies are to be provided to "exchanges established by the state" does not seem unreasonable. If the intent was to provide subsidies regardless of who set up the exchange, the language of the provisional was drafted very, very poorly. So far, the rulings of each judge has followed partisan lines. Losing the subsidies in states that did not establish their own exchanges would hurt a lot a people, but I don't think it will sink the entire ACA.

I believe that the government will request an en banc hearing before he DC Court of Appeals, where the majority of the judges were appointed by Democrats. Those 4 newly appointed DC circuit judges are now looming very large. Seems very likely that the en banc court will overturn the decision, which will be important since open enrollment for next year is starting very soon I think.

It also seems likely that the Supreme Court will then pick up the case, where things become much more uncertain. If I had to make a guess right now, I'd say that Roberts rules against the subsidies provision.

What's legal reasoning got to do with this? Roberts is a smart guy, he could find legal reasoning for either direction. Just like he could with the previous case.

These are the same issue in that both are a chance for Roberts to strike at the ACA directly. He forbore last time and I suspect he hasn't changed his mind on that.

[Mudguard]

What's legal reasoning got to do with this? Roberts is a smart guy, he could find legal reasoning for either direction. Just like he could with the previous case.

These are the same issue in that both are a chance for Roberts to strike at the ACA directly. He forbore last time and I suspect he hasn't changed his mind on that.

As noted by previous posters, Roberts has struck down other individual provisions of the ACA before, like the expansion of Medicaid. That portion of the previous ruling hurt many people as well, so I don't think he's constrained to upholding the subsidy provision just because he didn't completely strike down the entire ACA the last time.

[snake]

A new Politico poll suggests Americans are becoming more isolationist as the world gets messier and messier. Do you people think that this could play a roll in the next presidential election if the trend continues?

Poll.

[Fez]

The argument that the legislative text unambiguously states that subsidies are to be provided to "exchanges established by the state" does not seem unreasonable.

On the other hand, that particularly passage is in the section of the law dealing with the formula for the size of the subsidies. In the section dealing with who is eligible for credits, there isn't this distinction between the exchanges. Its pretty clearly typo. And even if someone wanted to argue that its not, the best they could say is that the law isn't clear. And we have a couple centuries of precedent saying that when the law isn't clear, agencies get wide discretion in creating rules implementing the law; with it being Congress' job to step in if they are getting it wrong.

So Roberts really should come in down in favor of the subsidies, and I think there's a decent chance he will. However, my point has been that there's absolutely no guarantee that he will. He could easily argle bargle his way to striking them down, all while claiming that this is a minor decision that could easily be rectified by the states just establishing their own exchanges with the arrangement that HHS runs them.

[DanteGabriel]

A new Politico poll suggests Americans are becoming more isolationist as the world gets messier and messier. Do you people think that this could play a roll in the next presidential election if the trend continues?

Poll.

Considering that the Republican presidential aspirants seem to have gathered into the Rand Paul non-interventionist camp and the Dick Cheney war criminals Rick Perry invade-everyone camp, yes, I am pretty sure it will play a role in the next Presidential election.

[snake]

Considering that the Republican presidential aspirants seem to have gathered into the Rand Paul non-interventionist camp and the Dick Cheney war criminals Rick Perry invade-everyone camp, yes, I am pretty sure it will play a role in the next Presidential election.

But do you think Hillary's hawkishness could hurt her if a Republican candidate is selected who preaches a more hands off approach to foreign affairs? Assuming Hillary continues to be the front runner leading up to the next election.

[DanteGabriel]

But do you think Hillary's hawkishness could hurt her if a Republican candidate is selected who preaches a more hands off approach to foreign affairs? Assuming Hillary continues to be the front runner leading up to the next election.

If she's up against Rand Paul, he can and should make it a campaign issue, and in such an event I sincerely hope he does force a level-headed conversation about America's proclivity for foreign military intervention. But he has to get the nomination first, so it'll be interesting to me to see how much of the Republican Party is still in the thrall of Cheney's morally and intellectually bankrupt dead-enders. I predict Paul will come some percentage of the way toward the Cheney position to woo the GOP's troglodyte base, who never saw brown people they didn't think could benefit from some bombing.

Even if Paul gets the nomination, the stink of the GOP's foreign policy failures will still cling to him, and Clinton is probably an experienced enough dissembler and triangulator to shrug off some of her past hawkishness.

[TrackerNeil]

As noted by previous posters, Roberts has struck down other individual provisions of the ACA before, like the expansion of Medicaid. That portion of the previous ruling hurt many people as well, so I don't think he's constrained to upholding the subsidy provision just because he didn't completely strike down the entire ACA the last time.

I don't know if the Medicaid expansion is quite the same thing. With that, Roberts gave the states the power to opt in and out, thus making state government the bad guy, and in any case the change affected only poor people. Pulling federal subsidies from millions of middle-class Americans because of an uncharitable, narrow reading of one sentence, is a horse of a different color. I just can't imagine why Roberts would pull the trigger on the Wave Motion Gun in 2015 when, years before, he declined to do so on a crossbow.

[TrackerNeil]

I predict Paul will come some percentage of the way toward the Cheney position to woo the GOP's troglodyte base, who never saw brown people they didn't think could benefit from some bombing.

Even if Paul gets the nomination, the stink of the GOP's foreign policy failures will still cling to him, and Clinton is probably an experienced enough dissembler and triangulator to shrug off some of her past hawkishness.

Agreed. To secure the nomination Paul would have to appease the get-tough foreign-policy wing of the GOP, and he's not going to be able to easily reverse course in the general election. He'll have staked out positions that, like it or not, he will then have to defend.

[Shryke]

But do you think Hillary's hawkishness could hurt her if a Republican candidate is selected who preaches a more hands off approach to foreign affairs? Assuming Hillary continues to be the front runner leading up to the next election.

No. Because there's no way the GOP frontrunner makes it through the primary on any stance that isn't just as if not more in favour of US foreign militarism then the Democratic position.

The GOP has never been consistent on anti-interventionism to any degree that would produce an actual anti-foreign-policy candidate.

[TheKitttenGuard]

But do you think Hillary's hawkishness could hurt her if a Republican candidate is selected who preaches a more hands off approach to foreign affairs? Assuming Hillary continues to be the front runner leading upup to the next election.

At least since WW2 the candidate who is viewed as Hawkish is viewed as more of the realist. So Paul will have a Historical hill to climb. This could cause true schism in both parties with cross voting. Though you also have to consider how much this is situtational like pre-2008 Democrats. Once their guy in well he may have to show how tough he is and needs to be understood.

[snake]

I did think both parties feel the need to get involved abroad, usually for vastly different reasons, but neither were isolationists. Be interesting to see how that changes if more and more of the public wants the US to stay out of things that do not directly involve them.

And Rand Paul is a serious contender for the Republican nomination?? Who knew.

[DanteGabriel]

And Rand Paul is a serious contender for the Republican nomination?? Who knew.

Do you remember what kind of dingbats were serious contenders in the last go-round? Newt Gingrich, Rick Santorum, and Herman Cain were all serious contenders at some point. The GOP is the party of Dumb and Crazy.

Rand Paul at least, whatever beef I have with his positions, seems to have a pair of neurons to rub together.

[The Marquis de Leech]

I think we're possibly getting ahead of ourselves. With the exception of some freak elections like 2004 (and possibly 1964, 1968, and 1980, but even those had other things going on), foreign policy isn't a major issue in US elections. Domestic policy is.

Assuming Hillary runs (in which case she's a prohibitive favourite for both the nomination and the general election), I don't think she'll dwell too much on foreign affairs. Nor does she really need to (with a weak economy, Clinton era nostalgia comes into play).

[snake]

Do you remember what kind of dingbats were serious contenders in the last go-round? Newt Gingrich, Rick Santorum, and Herman Cain were all serious contenders at some point. The GOP is the party of Dumb and Crazy.

Rand Paul at least, whatever beef I have with his positions, seems to have a pair of neurons to rub together.

Point taken.