Monday, February 23, 2015

Do King v. Burwell supporters want to destroy the healthcare system or not? Hard to tell.

Over at Roll Call's Wonk Wire, Taegan Goddard lays out the fundamental problem that Republicans face in trying to convince Chief Justice Roberts to join with the presumed four SCOTUS justices who want to destroy the Affordable Care Act through King v. Burwell:
“One conservative source close to the case recently explained that the Republican discussions about contingency plans were largely aimed at the chief justice. The source, who requested anonymity to speak candidly, described it as an attempt to ‘make the world safe for Roberts to overturn’ the subsidies and to ‘not let our guys look like they’re going crazy and letting the world spin into chaos.'”
“That’s easier said than done. Scratch beneath the surface and the GOP effort to devise an alternative is a mess.”
So, Republicans are trying to convince Roberts that siding with them won't destroy the health care system, even as the King lawyers are trying to convince Roberts that the federal government intended to compel states by threatening to destroy their health care system. This is the Republican difficulty: they want to take away people's health care, while not being seen as taking away people's health care. And it won't work.

The hypocrisy of the King v. Burwell plaintiffs

Brian Beutler's incisive writing at TNR gave me the idea to document the hypocrisy of the intellectual leaders of the King v. Burwell case, and I wrote that up for Daily Kos this Sunday. In case you missed it because there was a little thing called the Oscars happening that night, the tl;dr version is:

Before the IRS wrote the rule confirming that subsidies would be available on the federally-facilitated exchange, the conservative lawyers now behind King were building a case that forcing states to develop an exchange in order for their residents to receive subsidies violated the Dole text for constitutional federal compulsion. But now, these same lawyers are arguing that the authors of the Affordable Care Act intended this exact sort of compulsion. Of course, a century of SCOTUS jurisprudence says that courts can't rule in favor of a statutory interpretation that raises constitutional questions--which means that now, the lawyers are taking the exact opposite approach and saying that the compulsion that they initially thought was illegal actually happens all the time.

In short, the conservative ideologues behind King have no actual integrity, and are perfectly willing to flip their argument a full 180 if they feel it's a faster path to destroying the Affordable Care Act.