Greg Sargent To SCOTUS: Ignore The US Constitution (Guest Post)

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Washington Post columnist Greg Sargent, on January 2, wrote:

Now, it’s possible that expected swing vote John Roberts won’t bother considering such disruptions and consequences in reaching his decision.

He actually wrote that! He advocates that the Supreme Court ignore the US Constitution and find in a manner that suits him, to consider factors that have absolutely nothing to do with the ObamaCare law. The US Supreme Court has agreed to hear a challenge over the Affordable Care Act via King v. Burwell, and Sargent is worried that the Supreme Court will actually decide based upon the US Constitution rather than what he wants.

It seems that the Supreme Court will decide if ObamaCare subsidies in the three dozen states on the federal exchange is constitutional. An unconstitutional finding could, in Sargent’s words, “potentially depriving millions of health coverage….”

Is Sargent serious? One must wonder given some reasons Sargent gives for ignoring the US Constitution:

… the law, now heading into its second year, is clearly working as intended …

One thing to watch as we approach the SCOTUS hearings on King v. Burwell this spring is how many people are newly qualifying for subsidies in those states as this year’s enrollment period continues.

… enrollment data that suggests that number could be very large – which could (theoretically, at least) make it harder for SCOTUS to gut the law.

So we could be looking at a lot of people who would lose subsidies in the event of a bad SCOTUS ruling… [‘lot’ emphasized in the original, ‘bad’ emphasized by me]

… it’s too early to determine how many new people would be adversely impacted by a SCOTUS ruling against the law.

… in general terms a very high percentage of those on the federal exchange appear to qualify for subsidies:

Highlighting the potential for such a SCOTUS decision to result in widespread disruptions and dire consequences …

In federal-exchange states where the largest numbers of people might lose subsidies if SCOTUS rules against the law, state officials might be less likely to then set up their own exchanges to keep the subsidies flowing.

Sargent even cites Larry Levitt of the Kaiser Family Foundation: “The impact of a potential Supreme Court decision against the law continues to grow.”

So there you have it. Sargent thinks that potential disruption of subsidies should override the US Constitution, and that Supreme Court justices should consider what may happen to millions of people over the law.

Sadly, Sargent is serious.

Be very careful writing an article that advocates ignoring the Constitution. The next session may see the first amendment, you know, the amendment that speaks about freedom of the press, ignored, and a law suit that could put (and your liberal friends) out of business could be offered.

Cross-posted at The Pot Stirrer

35 Responses to “Greg Sargent To SCOTUS: Ignore The US Constitution (Guest Post)”

  1. 1

    Redteam

    We all know the Obamacare law was written to force the states to create exchanges so that the states would have to administer the plan in their states, providing subsidies to do so. No subsidy through the fed exch. Federal subsides are clearly in violation of the law. The constitution is either the law of the land, or it’s not.

  2. 2

    Pete

    What do you expect from a leftist? Truth and principle are worthless. All that matters to the leftist is forcing their insane dystopia upon the rest of us, facts, truth, honor, common sense be damned.

    Note how yet again the left totally ignores the conundrum of how something they claim is “affordable” requires over 80% of participants forced into compliance to have >70-75% of the monthly premium be subsidized by taxpayers.

    Nothing about obamacare is good, nor worth saving. Get the government out of the healthcare business. Get the government out of the price control business, and pass an amendment that prohibits all members of government from being exempted from the laws they pass/force upon the rest of us.

  3. 3

    VoteOutIncumbents

    Just sick and tired of these people. So now to get what they want we have to ignore the ordinary meaning of words. Their arrogance knows no bounds.

  4. 4

    Greg

    Republicans had better be careful what they wish for. They might get it. In the run-up to the 2016 elections, they could suddenly be confronted with a choice between either quickly passing legislation to correct the flaw in the ACA that results in unequal treatment under the law for federal vs. state enrollees, or doing nothing at all and allowing it all to fall apart.

    What, exactly, are Congressional-majority republicans imagining they would have to deal with if the Affordable Care Act suddenly fell apart? The public, the health insurance industry, the healthcare industry, and businesses all across America have had 5 years to gradually become familiar with and adjust to ACA provisions. Ten million Americans would be without insurance coverage without it. Are republicans totally clueless about the level of chaos that would follow, if all of that changed overnight? Does anyone imagine they’d be capable of quickly putting together an acceptable replacement?

  5. 5

    Nanny

    If ObamaCare gets overturned based on its illegal federal subsidies, do we all get our money back?
    People have been taxed for O’Care for YEARS so it would look financially healthy (at first).
    Yet financially, it looks horrid.
    No one is being helped by it.
    To subsidize 87% of all people on it is UNSUSTAINABLE!
    And, even they are sticker-shocked when they try to use the insurance.
    It is insurance without coverage.
    It needs to go.

  6. 6

    Greg

    The legality of federal subsidies has yet to be finally determined. Two federal appeals courts have come to different decisions, one determining them to be legal and the other determining them not to be. It will be up to the Supreme Court to decide.

    I don’t know specifically what issue of constitutionality is being argued here. What the Supreme Court will be examining is an assertion that federal subsidies are illegal which is based entirely on an imprecision in the wording of a bill. The problem with this position is that the intention of the writers is entirely clear. I rather think the Supreme Court will side with the Fourth U.S. Circuit Court of Appeals on that point and allow their determination to stand. To conclude that the legislation was actually meant to treat state and federal enrollees unequally simply makes no sense. That sort of unequal treatment under the law likely would be found to be unconstitutional.

    I guess we’ll find out who’s correct sometime midway through the year.

  7. 7

    Redteam

    @Greg:

    Ten million Americans would be without insurance coverage without it.

    wow, that’s a lot less than were without insurance before. So you’re saying canceling Obamacare would get more people insurance? The funny thing is that the people don’t have the coverage now, the government is paying premiums that cover 6-10,000 deductible insurance which will never be paid. Want something screwed up, let Dimocrats get involved.

  8. 8

    Redteam

    @Greg:

    one determining them to be legal and the other determining them not to be.

    one of Dimocrats, one of Repubs. Can we get some Americans that believe in the constitution to rule?

    The problem with this position is that the intention of the writers is entirely clear.

    LOL, yep it sure is. It clearly says that the government will subsidize you if the state has set up and maintains the market for their state, but since the Federal govt will have all expenses if they have to do it, that they won’t pay the subsidies. Extremely clear, you do it through Fed, you don’t get it.

  9. 9

    Greg

    We’ll get an illustrated lesson in “screwed up” if the ACA collapses, and republicans suddenly find themselves having full responsibility for remedying the chaos that follows. Anyone who imagines free market forces would sort everything out in short order is seriously delusional. What would most likely get finally sorted out is the Republican Party. The last thing anyone would see of that ship would be pointing fingers, followed by bubbles.

    But hey, they know what they want. They just don’t know what anyone else does. People might more clearly understand what an economic recovery means if it suddenly went away. We shouldn’t underestimate what all might be covered by the term “chaos.”

    Got a preexisting condition? Maybe you’ll be lucky and last long enough to qualify for Medicare. Of course the far right doesn’t much like Medicare, either. It’s one of those socialist programs, like Social Security.

  10. 10

    Redteam

    @Greg:

    themselves having full responsibility for remedying the chaos that follows.

    Well, gee Greg, If you like your plan, you can keep it, if you like your Doctor you can keep him. See how simple that would be.

  11. 14

    Greg

    @Redteam, #13:

    It was done so there was no ambiguity, the states would have to do it for buy in, if they didn’t, no subsidy..

    So, the “unambiguous” language was intended to compel states to set up their own exchanges in order to avoid having their poorest residents punished with the financial burden of non-subsidized premiums? And 36 states knowingly decided to let that to happen? Even though the negative consequences of uninsured residents are felt locally, rather than off in Washington DC?

    Additionally, if the ACA was the federal power grab people on the right constantly assert, why would it have been designed to make the federal exchange less attractive than state-level exchanges?

    To me, the argument that the wording was intentional simply makes no sense.

  12. 15

    Redteam

    @Greg:

    To me, the argument that the wording was intentional simply makes no sense.

    I would expect no less. That’s what happens when you don’t learn to read.

  13. 16

    Me

    Greg, your interpretation that the wording being intentional makes no sense only holds water if you truly believe the ACA is an end unto itself. If, conversely, you understand the ACA as the camel’s nose under the tent in the pursuit of “single-payer” medical insurance, it suddenly makes all the sense in the world.

  14. 18

    Greg

    @Me, #16:

    If ambiguous wording was part of a backdoor strategy to assure failure of the ACA so that a single-payer solution could be put forward, I have a hard time understanding why republicans would be so enthusiastic about making certain that such a failure occurs. It’s not as if they’re ready to roll out an alternative that most Americans are going to like.

  15. 20

    Greg

    @Randy, #19:

    An important part of the last sentence in #18 was that most Americans are going to like.

    I think they’ll probably spin out a lot of similar bills, knowing that that they’ll all be protected from being harshly tested on that point by Obama’s veto pen. Then they’ll claim in 2016 that they would have solved many problems and done many great things with their Congressional majorities, if only a democrat in the White House hadn’t blocked them.

    This is their only viable strategy for 2016 that doesn’t actually involve doing something that they could be judged on by their own opposing factions. It allows them to continue to conceal their own deep dysfunctions from their base. It also guarantees that they’ll do nothing useful for the next two years.

  16. 21

    Randy

    @Greg: Greg, a lot of people do not like certain speed limits. If they violate the law, they, you and all others are lawless. When we as a country fail to follow proper procedures then we are no better than any 3rd world country. Did you once take an oath to defend the Constitution? That is the basis for all of our laws. If you want to change it, pass an amendment By the way, the oath you took is not supposed to expire when ever you feel like it. You can also give up your citizenship and be free from our laws.

  17. 23

    Greg

    Words, like communism, have specific meanings. People would do well to look them up before using them. You won’t find many people in America who advocate abolishing the private ownership property. You will find a lot who believe that the playing field has become increasingly tilted to the advantage of those who already have great wealth and power, however. The reason they believe this is because it’s a demonstrable fact.

  18. 24

    Nick Digger

    “You will find a lot who believe that the playing field has become increasingly tilted to the advantage of those who already have great wealth and power, however.”

    And the Far Left’s timeless solution is to consolidate even MORE wealth and power in the hands of these select few central planners. (Amazing how things only seem to keep getting worse…)

  19. 25

    Disturber

    @@Greg. Greg, I had thought that you were a much better lawyer based upon your arguments on other matters on other threads, but you are not cutting it here. The issue before the SCOTUS is not whether the ACA is functioning, but it is whether an Administrative Agency has the power to read into a statute language that isn’t there. Gruber the Grub’s videos make it very clear that the language in question was intentional and he speaks authoritatively as he was the author of that language. In seeking to ascertain the intent of Congress, the normal approach is to examine the legislative history of the statute and the language in question. Remember that there is no legislative history for the ACA because Harry Ried suppressed all debate, no amendments were permitted, and the Senators were required to vote without having read the statute. There were no committee reports, no floor debate, and none of the materials which traditionally are available to understand what was intended by Congress. (“We have to pass it to know what is in it.”) In fact, it was passed by reconciliation rather than by a normal floor vote.
    So, all we have is the language itself and the comments by its author, Gruber the Grub.
    But the issue before the Court is larger and more important than you admit. This is a separation of powers question. Does an Administrative Agency (in this case the Treasury), which is part of the Executive Branch, have the power to read into a statute language that isn’t there in order to achieve a political objective? Because the government has been working not on appropriation bills, but rather on “continuing resolutions”, the treasury has been able to spend billions on these subsidies without any Congressional oversight or budgetary constraints. Last time I looked, we have a Republic and not a dictatorship. The foundation for the American social compact is the Constitution and the Declaration of Independence. It is not Das Capital.
    The doctrine of judicial deference to the agency responsible for the administration of a statute originated during the New Deal era when the progressives were first erecting the administrative state. When I went to law school in the 1960’s that doctrine was taken as given because the statutes were fairly explicit in their directions to the agencies, and the administrative state was small in its reach and in its authority. The doctrine was not then questioned.
    Today, the administrative state is by far the largest branch of government and its tentacles reach into almost every aspect of our lives from what we eat to where we crap. Certainly some of this regulation is necessary and useful, but much of it is not. More importantly, the progressives seek to Federalize everything from education to law enforcement to whatever, and that creates considerable tension with the Constitutional intention that the states have considerable say in how they are governed and how they operate. Even more important is the over-reach of the agencies with the objective of achieving political objectives that Congress either rejected or which the progressives are unable to get through Congress in the ordinary fashion.
    The SCOTUS has ruled on, I believe, 13 or 14 instances where the Administration’s appointments to the agencies have done precisely what the treasury did here, read into the statute language that isn’t there. Gruber the Grub has made it absolutely clear that the language in question was deliberate and not a drafting error. The administration has lost in every single instance where this issue has arisen. Even Kagen and Sotomeyor, two lightweights to say the least, voted with the majority in most of these cases. (I clerked on the Second Circuit for a towering judge and I know the difference between a competent judge and a lip flapper.)
    As for the political dangers of the SCOTUS ruling against the ACA, studies show that people who feed at the government trough do not vote in large numbers. In the meanwhile, the 2014 election shows that the American people are waking up to the progressive excesses and to the destruction that Obama’s policies have had on the economy and they don’t like it.
    The latest figures show that 93 million people are out of the work force, a number that competes with those who were out of the workforce during the Great Depression. During this administration, the middle class has been decimated, incomes are stagnant, and all of the bromides offered by the left have failed. The regulatory state is choking off small business formation while the rich and those who have capital are enjoying one of the greatest stock market booms in history. There has never been a time when crony capitalism (Solyndra and lots of others) and rent seeking by the wealthy and powerful has been more effective in gathering further riches then any time in history. Left out of all of this is the middle-class, which is the backbone of any democracy. The progressive policies both domestic and foreign are abject failures and that includes the ACA. Paying a Canadian company $600+ million dollars in a no bid contract for a failed effort to build the ACA website because the officers were Michelle Obama’s close friends tells us all we have to know about how the ACA is being administered.
    Sorry Greg, but the ACA is very likely to lose in this case and the consequences will be very positive because it will help accelerate the end of the abuses and excesses of the progressive administrative state.

    Greg. Greg, I had thought that you were a much better lawyer based upon your arguments on other matters, but you are not cutting it here. The issue before the SCOTUs

  20. 26

    Greg

    @Disturber, #25:

    Greg. Greg, I had thought that you were a much better lawyer based upon your arguments on other matters, but you are not cutting it here.

    I’m not a lawyer at all. I am, however, aware of the fact that administrative agencies are delegated the authority to interpret the intention of laws and statutes to the best of their ability when they write the regulations and procedural guidelines that delineate how such laws are applied in the real world. I’m also aware that a single sentence cannot be taken totally out of context and used to override or negate the clear intentions expressed in the rest of a bill when making such an interpretation—particularly when the result of doing so would be to create a situation where unequal treatment under the law exists.

    There’s simply no way that such an argument will withstand close scrutiny in the highest court in the land. I can see the flaws in it as a layman. Pushing it all the way up to the Supreme Court is probably more of a political exercise than anything else. If I’m wrong about the outcome, it will be interesting to see how republicans fare with getting what they claim they want. The entire resulting disaster–the creation of yet another sort of vacuum—would be their problem to deal with. It could prove wonderfully illustrative of what happens when a totally dysfunctional political party is given a really big problem to fix with an election year bearing down on them. The squawking and running for cover probably wouldn’t leave a favorable impression with voters who suddenly realize just how much damage republicans have finally done.

  21. 27

    Redteam

    @Greg:

    Words, like communism, have specific meanings. People would do well to look them up before using them. You won’t find many people in America who advocate abolishing the private ownership property.

    Oh, contrare! Millions that stand in the food lines want the private property of others to be distributed to them. They want others to pay for their own desire to not work but still be able to live at a comfortable standard. That is communism. What they really would like is not to have to stand in the line, but to just have the others property delivered to them, as in welfare deposits into their bank accounts.

    You will find a lot who believe that the playing field has become increasingly tilted to the advantage of those who already have great wealth and power,

    You mean as in seeing Obama see that the friends that donated to get him the power to dole out many more millions back to them? Yes, that does tilt it more. If you could afford to donate a half million to him, I’m sure he could have found a way to funnel several times that back to you after he was elected. Yep, that’s tilted.

  22. 28

    Disturber

    @Greg, ” I’m also aware that a single sentence cannot be taken totally out of context and used to override or negate the clear intentions expressed in the rest of a bill”

    Have you read the rest of the bill? I have, and there is nothing in the “rest of the bill” that either supports or detracts from the issue at hand. If you can find some language in the bill that supports your position, quote it here with the citation. It is the narrative that drives your position, not the facts and facts have a stubborn way of getting out in front of the narrative. Gruber wrote the provision. He has stated publicly what the provision was supposed to mean. He has stated it repeatedly. He has stated that the Administration deliberately mislead the public so as to get the bill passed. Those are facts. In the meanwhile, the narrative was that there were 30 to 40 million uninsured yet less than 10 million have signed up. We were told that there were millions with preexisting conditions that prevented them from obtaining insurance (even though there was an existing program to solve that problem), yet the number that are participating in the program is slightly more than 100,000. There were many other lies that we were told, but you know all of that and it doesn’t matter to you because in your mind, only the narrative matters. As Chuck the Schmuck Schumer said, “blowing up the entire healthcare system for a mere 7 million votes was a mistake.” I don’t have the exact quote, but that is close enough.

    The last election was a wave election by anyone’s definition. Americans rejected the progressive agenda overwhelmingly, handing the Senate to the Republicans and almost 2/3rds of the statehouses. Meanwhile, 2016 is coming up and what have the Democrats to offer. Hillary, who is over the hill and is a despicable liar who has shown absolutely no ability to administer anything – look at our foreign policy which is shambles. And, Elizabeth Warren who has had no administrative experience, and has a record that when it comes to light – as it will – that is not going to be very exciting to normal Americans. Of course there is Joe Biden, the poster boy for foot-in-mouth disease. There is another wave coming and it will match or exceed the McGovern election – that is, unless Hillary can ride around in a tank looking presidential!

    As for big issues and Republicans, I seem to recall that the Civil Rights Legislation was pushed and ultimately passed by Republicans over the implacable resistance of the Democrats in Congress. The Medicare Drug benefit which is the only such program that is in the black is another example. There was a time when practical legislating brought the sides together. Those days seem to be gone and instead of dealing with the business of the Senate, we find Harry Reid, drunk as always, babbling in the well about the Koch brothers while the business of the American people languishes in his deranged ideologies.

  23. 29

    Greg

    @Disturber, #28:

    Have you read the rest of the bill? I have, and there is nothing in the “rest of the bill” that either supports or detracts from the issue at hand.

    One of the main objectives of the bill was to put health insurance within the reach of Americans who couldn’t previously get any. You don’t accomplish that by depriving millions of lower income people of the very subsidy that is intended to help do it. Claiming a legislative intention to provide subsidies to some but not others entirely on the basis of whether they approach the Affordable Care Act through a state or the federal exchange is total nonsense.

    The last election was a wave election by anyone’s definition.

    Only by a self-serving republican definition. Winning a bit over one-half of the votes in an election where only 36.3 percent of all registered voters turned out to begin with meets most people’s definition of “a ripple.” It was the lowest voter turnout in 72 years. Such is the enthusiasm for republican policies and promises. At some point in the not-so-distant future, republican delusional thinking is going to collide head on with with reality. 2016 sounds about right.

  24. 30

    Disturber

    Greg@ You confirm that it is the narrative and not the facts that matter. Whatever the purpose of any legislation, what is not expressed in the language of the law is not the law. The legislative purpose is not some evanescent presence that hovers above the actual language shepherding interpretations and understandings into vague crevices in which the ideologues wish to dwell. The inquiry is not what “I” wish the law to say, it is what the law says. The Democrats had absolute control over the statutory language. If the intention of the provision in question was to do what you say, it would have been a very easy task to say it directly and unambiguously. However, the SCOTUS had ruled many times that the Federal Government could not compel the states to do various things and it was a matter of reading those cases to conclude that the states could not be compelled to enact health exchanges by Federal legislation. Accordingly, as Gruber the Grub has confirmed over and over, the device used was to hold out an incentive of subsidies for three years if the states would build those exchanges. Thus, the statutory language encompasses a specific “tactic” adopted to “reward” states that build exchanges. As Gruber the Grub has said, “If they build the exchanges, they get the subsidy. If they don’t, they forgo the subsidy.”
    But Gruber’s intelligence over leaped itself and fell within, for his certainty of 50 (or is it 57) states marching in lock step didn’t materialize for reasons that this medical expert should have foreseen.

    In most states, the cost of Medicaid is one of or the largest budgetary items and one of the most difficult to manage. Many states were wary of participating in still another open ended program which, after three years, would be hugely expensive and would bust many state’s budgets. Besides, virtually all states had programs that provided medical services to the uninsured and so, in the minds of those state governments, provision of medical services and not availability of insurance was the burning question. ( In fact, that is the fundamental flaw in Obamacare.)

    At the Federal level, the drafters of the legislation and particularly Gruber the Grub believed that no subsidies would be necessary as the only participants were likely to be Federal employees and they were already covered. Accordingly, no provision for subsidies on the Federal exchange can be found in the language of the bill. You see, Gruber the Grub couldn’t fathom that any states would forego the proffered subsidies and so, he believed, (as he has said repeatedly) that he anticipated that all states would take the bait. But he was blinded by his ideology and by his religious belief in the narrative that giving away goodies to favored groups at the expense of taxpayers is the only meaningful and effective solution. Reality and the narrative have clashed and reality has prevailed. The states cannot run deficits. Detroit anyone??

    There was no legislative intention in Obamacare. Congress did not make a deliberative effort to craft an understandable piece of legislation. Pelosi and Reid couldn’t take that risk. Instead, they rammed it through, unread by anyone except the draftpersons, in the middle of the night, using a procedural gimmick that had never been used to pass legislation of this magnitude. As a result, they got a dysfunctional bill, full of problems, full if inefficiencies, and ineffective in its objectives for the most part.

    One has to wonder what might have emerged if instead of using the throat ramming technique, the provisions had seen the light of day, the bill had been processed through the committee process in the normal fashion, public support obtained not by deliberately misrepresenting the bill’s contents and effects, but by considering public opinion fairly and openly, and making the compromises necessary to obtain bi-partisan support. That is the hard work of legislating, but Pelosi and Reid have become rich without any meaningful effort and being so enamored with their power, they lacked the decency or the energy to do it right. The current mess is the result. They are despicable human beings.

    Elections are won by those that vote. The Democrats spent more than a billion getting out the vote, even more than the Republicans. Somehow, their minions just didn’t feel it was important enough to fall into line. George Orwell warned us of your attitudes Greg.

  25. 32

    Redteam

    @Greg:

    It was the lowest voter turnout in 72 years.

    seems as if you’re saying the Dimocrats were not thrilled to support those in office.
    Basically the law says: If you can not afford the insurance and you sign up through your state exchange, your premiums will be subsidized by the Federal government. If you do not sign up through the state exchange, but through a Federal exchange, your premiums will not be subsidized by the Federal government.

    I am so dumb, I can’t figure out what that means, could you interpret it for me, Greg?

  26. 33

    Greg

    The Supreme Court of the United States should be able to sort out how the sentence in question relates to the intention of the entire bill without too much difficulty. It’s ridiculous to think that federal exchange enrollees would be intentionally deprived of subsidies extended to state enrollees. The Supreme Court generally doesn’t waste much time with the ridiculous.

  27. 35

    Redteam

    @Greg:

    The Supreme Court generally doesn’t waste much time with the ridiculous.

    and that’s why this will be dispensed with quite readily. Unlike liberals, some of the judges can read.

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