Professional Purists.

Know the Game.  Make the Call.
Luckily, referees, like justices, don't have to read all the hype leading up to the Big Game. *nod*  Just the facts, ma'am...

It is legally and factually incorrect to describe these cases as “challenges to the ACA.” This is particularly important because the actual legal posture of these cases is far more troubling.

The plaintiffs in King are not asking the Supreme Court to block any part of the ACA. They are asking the Court to uphold the Act by blocking the IRS’s unilateral attempt to strike down the Act’s clear language.

Here’s how:  Section 1311 directs states to establish exchanges, and Section 1321 directs the federal government to establish exchanges “within” any state that fails to do so.

Section 1401 authorizes subsidies (nominally, “tax credits”) for exchange enrollees whose household income falls between 100 and 400% of the federal poverty level, who are not eligible for qualified employer coverage or other government programs, and who enroll in coverage “through an Exchange established by the State.” Each of these eligibility restrictions is as clear as the next.

The statute makes no provision for subsidies in federally established exchanges.

The mere availability of exchange subsidies triggers penalties under the ACA’s employer and individual mandates. Under the statute, then, if a state does not establish an exchange: (1) those subsidies are not available; (2) a state’s employers are exempt from the employer mandate; and (3) the lion’s share of its residents are exempt from the individual mandate.

This appears to have been the IRS’s initial interpretation of the statute, at least until something went terribly wrong.

Early drafts of the IRS’s implementing regulations reflected the statutory requirement that exchange subsidies are available only through “an Exchange established by the State.” Following sweeping Republican gains in state governments in 2010 and discussions with the White House and Treasury Department, however, the IRS changed its draft regulations in March 2011.

In August 2011, the IRS issued a proposed rule announcing it would provide tax credits (and implement the resulting penalties) in states with federal exchanges too. Treasury and IRS officials later admitted to congressional investigators they knew the statute did not authorize them to issue tax credits through federal exchanges, and that they have no records of researching the statute or its legislative history before deciding to jettison this requirement.

The proposed rule provoked immediate and sustained criticism from the public, academics, and members of Congress. The IRS nonetheless finalized its “tax-credit rule” in May 2012. The final rule cited no statutory authority for the agency’s reversal. It contained only a cursory, one-paragraph explanation claiming this rewrite was consistent with the statute’s goals. Not until October 2012, under sustained pressure from members of Congress and after the rule had been challenged in federal court, did the agency cite any supposed statutory authority.

Confounding expectations, thirty-six states refused or otherwise failed to establish exchanges. When that happened, criticism of the IRS rule turned into legal action...

Justices, like referees, need not take into account consequences of their calls on the field to the final score, and they need to block out loud jeering from the biased crowds in the home stands.

Referees, like justices, simply need to know the game --  the rulebook -- better than any of the rest of us, those trained who continually study the plays, and those who would continually manipulate the rules, always keeping one toe in bounds and arguing for legitimacy...

Jeering Loudly from the Good Seats

Today, David Leonhardt in the New York Times, reduces a legal argument to a historical comparison of Union Reconstruction / Restoration.  The pundits are spinning mightily on this one, warning of dire consequences of loss.

If the Supreme Court does the same — a big if — it will be a remarkable moment. A Republican-appointed majority of justices would do what Republican politicians have been trying, without success, to do for the last five years: Repeal much of Obamacare. And the court would be doing so only three years after upholding most of the same law.

When I asked historians if they could think of any similar undoing of an existing part of the social safety net, several said they could not. The court blocked parts of President Franklin D. Roosevelt’s New Deal, but never dismantled such a large program already underway. The best-known piece of health care law to be repealed by Congress — a 1988 law expanding catastrophic coverage in Medicare — was far narrower than the Affordable Care Act. It was also only starting to go into effect when Congress undid it, in 1989.

Julian Zelizer, a Princeton historian and the author of a new book on the 1960s expansion of the safety net, said the closest analogy might be Reconstruction and the reaction to it. An enormous federal effort initially succeeded in expanding civil rights in the South, only to be reversed in later years. The reversal lasted decades.

Reconstruction is obviously a charged, and imperfect, analogy. (For one thing, the people who would lose health insurance now would be predominantly white Southerners.) But the fact that no better precedent comes to mind underscores the highly unusual nature of what could happen at the Supreme Court.

Fear not, David.
The Court rules on questions of statutory construction often.
Think not of the Court undoing a progressive piece of legislation that was pushed through over the People's will.  Think of the Court merely as interpreting language as written, and letting the chips fall where they may...

This Court is not a political body.
Despite the pundits' best efforts to delegitimize the work of Justice and buy yet another branch of government to overcome Reason, and the rules.