Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

so is Donald Verelli.

Can't believe how they are going to brush over the standing issue:

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.

http://www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/#more-225683

a complete cave in on standing. damn.

the only possible explanation is Ginsberg thinks she has the votes today and she knows that she'll have to retire soon.

oh great:

Trained constitutional lawyers will find it noteworthy that his focus here is on the consequence for states as such, and not for their citizens; Kennedy’s concern is about the federal/state balance and his distrust of a reading that puts a gun to the head of states that fail to set up their own exchanges – threatening them with the almost certain destruction of their statewide insurance systems if they do not comply. That concern might be interpreted (as a matter of legal theory) in a few different ways: Justice Kennedy might believe that Congress would not have intended to set up such a dubious system; he might believe that this reading is required but actually unconstitutional (so that he would strike down the statute’s condition that subsidies apply only to exchanges established by the state); or – perhaps most likely – he might believe that the statute should be interpreted so as to avoid the “serious constitutional problem” he identified.

For those less immersed in the legal niceties, however, I think the key takeaway is that – in a case that seemingly pits literalism against contextualism – Justice Kennedy was very attentive to the consequences of the reading that petitioners urged. He seemed to realize that state legislators would be in an impossible position under that reading – more or less forced to “adopt” or “endorse” the ACA system in order to avoid unmanageable consequences in their states. His plausible conclusion was that Congress either did not intend to put them to that choice, or that the statute shouldn’t be read to have done so, because that’s not typically how our constitutional system works. Instead, the federal government makes and administers federal laws without forcing the states to do some of the work for them. Kennedy seemed to be thinking that this provision should be read more like the typical case, and rather unlike the kind of unusual provision the petitioners suggested.

http://www.scotusblog.com/2015/03/king-v-burwell-updates-kennedy-concerned-about-consequences/

The transcript. For lunchtime laffs, turn to page nine and read how Elena Kagan flummoxes the plaintiff's lawyer Michael Carvin with a question about Elizabeth, Will, and Amanda, three imaginary tasks assigned writing and editing duties.

*three imaginary clerks

is the weakest of the early Cure records

Can't believe how they are going to brush over the standing issue:

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.

http://www.scotusblog.com/2015/03/continued-updates-on-oral-arguments-in-king-v-burwell/#more-225683

― curmudgeon, Wednesday, March 4, 2015 11:21 AM (2 hours ago) Bookmark Flag Post Permalink

i'm fine with them having standing to sue. kind of a bad look for liberals to want this case to be thrown out on standing but get all mad when courts throw out surveillance cases on standing.

really loved the highlight reel, on NPR this morning, of Republicans assuming the state's arg (that the subsidy extends regardless of the state's decision to establish a marketplace). really put things in perspective re how shitty this whole mess is

x-post--seems like the Justice Dept blew it by not looking into standing earlier. Mother Jones writer thought of it, but they never did. Weird.