What’s wrong with Cannon, Halbig & King in 5 tweets

When the latest post from Michael Cannon–he who seeks to sink the subsidies attached to the Federal exchange–hit my inbox, I wondered, “Why don’t his opponents stop arguing the specifics, and instead explain what the Supreme Court ought to do. I also don’t see why Mark Andreeseen (@pmarca) should have all the fun with long Twitter essays. So in only 5 tweets complete with misspellings and other contortions to get my thoughts into 140 characters, this is what I sent back

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  1. Based upon Gruber the intent was to force states into creating exchanges. I just heard that Scalia made some comments that were very similar to mine.

    Partisans may make the argument you are making, but the fact is that there are many legal problems with the ACA and if one accepts Madison vs Marbury one recognizes that the Supreme Court has the right to be involved in this case.

    Maybe they will do what they should have done in the first case and said the bill needs to go back to Congress for a legal rewrite. If you are interested in “congressional intent ” that is one of the best ways to find out what the intent of Congress is.

    Noting your later comment, we have agreement on both sides of the argument. Enter the 9 Justices.

      • “the fact is that there are many legal problems with the ACA”

        Not relevant to King v Burwell. Sections 1311 and 1321 are the only pertinent clauses regarding this petition.

        • Not directly relevant, but then one could also argue that the ACA was not relevant to the Constitution. Some might feel that way, but it is still Constitutional unless the Supremes say otherwise. …And what is relevant or not is determined by the Supremes, not you or me.

          • “what is relevant or not is determined by the Supremes, not you or me.”

            We agree on something. Imagine. My Con Law prof (and Thesis Chair) once remarked: “What is Constitutional?’ Whatever SCOTUS says it is.”

            And, while I think they will uphold (probably 5-4, with Kennedy giving Roberts cover), neither would I be surprised by a 5-4 vote to strike the federal HIX subsidy authority.

            Kennedy’s questions and comments today seem to me that he will vote to uphold the ACA on this count.

          • I don’t guess based upon the interest or lack of interest of judges. Sometimes a judge will ask questions making it look as if he were favoring one side only because his mind was made up and he was trying to make sure by giving another chance to the side he didn’t intend to favor.

      • Gruger was the intellect behind the bill something those that voted on it never read. I’m sure over drinks the staff aids discussed how that portion of the bill would force the states to create the exchanges. We may hear a lot of denial on Capital Hill, but the Dems own that provision. They could have gotten rid of it before the law was passed.

          • That is what you think. But what you think doesn’t matter. Only 9 people count.

          • Bobby, you spend too much time guessing what the Supreme Court is going to do. Political division has been with us before the nation was born yet we expect that division to be solved by 9 human beings that have human fallibilities.The only reason we accept a majority opinion as law is because the alternative way of making decisions is at the point of a gun. The sum total of many of these decisions revolves around the debate of freedom vs coercion. Choose your poison.

  2. I don’t know why people are so horrified or surprised that this case ended up in the Supreme court. The bill was not complete and because of the death of Ted Kennedy was passed under dubious conditions. It would not have passed had the bill been cleaned up as usually done and then voted upon. The Supreme Court has been known to return such bills to Congress for them to finish writing instead of the Supreme Court.

    We now have a problem. One part of the bill says there is no tax credit while other clauses can be interpreted to say there is a tax credit. That type of decision is beyond any of our pay grades so it goes to the Supreme Court. Who knows what they will say, but at least both sides will have been heard and ruled upon.

    • This is what is known as “motivated reasoning.” King v Burwell turns not on constitutional Branch perimeters but on the clarity of congressional intent as it goes to HIX. Notwithstanding the general Frankenstein cut ‘n paste pastiche nature of the PPACA (or any large piece of federal legislation, for that matter), 1321 (pp 85-86) plainly supplants and trumps 1311(d) (page 72).

  3. Seems to me that “Separate but Equal”, “Sodomy is illegal”, “abortion is illegal” “Marriage is only between a man and a woman” and once upon a time “Slavery is legal” were all clearly written down in laws with no ambiguity.

    I seem to recall that various activist judges put their own interpretations on them, and made the opposite the law and practice of the land.

    I’m no scholar of jurisprudence (which might qualify me as a candidate for this Supreme Court) but I don’t see why SCOTUS can’t just do the same thing here, and why it has to care what the legislature said any more than in the days of “Separate but equal” & Brown vs Board of Education.

    • Judges did not eliminate slavery

      With respect to comparisons to Brown v. Board of Ed or Lawrence v. Texas, those where state laws that SCOTUS determined violate the 14th Amendment. 14th Amendment cannot be used against Congress.

      • You’re right–William Wilberforce eliminated slavery….

        But not that I really care as it all proves my point but didnt SCOTUS strike down DOMA in 2013. And wasn’t DOMA a federal law passed by Congress, so doesn’t that make you, err.. wrong on the facts. or was DOMA in contravention of some other Amendment which can be used against Congress? (And if so, how stupid is that!)

        • Oh, Jeez! Now you’re talking about a different country! Slavery was eliminated by the 13th Amendment. But even in Britain, Wilberforce caused a change in public opinion against slavery. He did not abolish slavery. Parliament abolished slavery.

          • As ever John because you are not a trained Marxist (unlike me), you mistake the relative importance of the forces of production compared to the relations of production.

          • Your point was that Amendments don’t apply to Congress whereas in the case of DOMA it was clearly Federal Act that was overturned by SCOTUS.

            Anyone looking at this from a macro view can clearly see that the Courts are creating policy….and have been doing for most of the Republics history. So saying that they can’t do it in the King v Burwell case is clearly wrong.

            You, Michael and the fellow rightwing nut jobs clinging to those 4 words to try to defeat Obamacare politically, must admit that the Court doesn’t have to be bound by what the written law says. They can do what they like. Hopefully they’ll do the sensible thing here.

    • I agree that they can do whatever they want and will do whatever they want. SCOTUS has not been bound by the Constitution for over half a century. It is out of control. I have not the slightest idea what they will do wrt King v. Burwell.

  4. oh, Jeff, dry up. Courts exist to “decide what you meant” – why even pretend otherwise?

    Once Roberts sinks the harpoon in Scalia’s bloated, sclerotic carcass on Burwell, we’ll have seen the last of the Sup Ct taking frivolous cases mounted on the interpretation of 4 words buried in a 906 page statute for – oh, at least a year.

    • I’m just saying . . . if you care about what you’re writing, you leave as little to chance or politics as you can. . .

  5. I apologize in advance to the Textualists but this is a ridiculous lawsuit. But even more ridiculous is how much of life in general and healthcare in particular is governed by statutory language. This absurd lawsuit is a mirror to even greater absurdities.

    I hope common sense – aka rock star John Roberts – prevails.

  6. As someone who drafted legislation earlier in his career knows, the job of a good draftsman is to ELIMINATE all doubt about legislative intent to proof your law against precisely challenges of this sort. It isn’t a “cut and paste” exercise; it’s a labor of love. It’s also why OCD types are prized legislative staffers. You should never put Courts in a position to decide what you meant. . . .

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