I HOPE CHIEF JUSTICE ROBERTS DOESN’T WIMP OUT AGAIN: Obamacare Courts Death Yet Again.
The law’s supporters are dismayed, and no wonder. There’s currently a circuit split on the issue, but the court that ruled against the administration agreed to review it en banc — that is, with a full panel of judges, rather than the smaller three-judge panel that originally heard the case. That court is now packed full of liberal judges, thanks to outgoing Senate Majority Leader Harry Reid’s decision in November 2013 to nuke the filibuster for presidential appointees. The administration was hoping that the en banc ruling would resolve the circuit split, and the Supreme Court would simply decline to take the case. The Supreme Court has decided not to wait.
Meanwhile, by granting cert, the Court is signaling that at least four judges are probably prepared to rule against the government. Now, maybe they’ll change their minds later. But I doubt it.
I’m not going to prognosticate about how they will rule, and I will point and laugh at any journalist who tries to punditsplain to the Supreme Court that they can’t, or conversely, that they must, a class of article that you might categorize as “predictive exhortation.” The actual forecast value of these sorts of articles is pretty low; it’s at best reminiscent of high school student government meetings. The Supreme Court’s gonna do what the Supreme Court’s gonna do, and they’re probably not much interested in my expert legal analysis.
It is safe to say, however, that the government is going into this round with a significantly weaker hand than it had even a few months ago. The law remains unpopular, and no, I don’t want to hear your explanation about how actually it’s really popular if you look at the polls right. The past election created unified control of Congress, which means there’s a reasonable chance of repealing or fixing the law in the face of an adverse ruling — though not easily, and only over the screaming protests of President Obama and the Democrats, who will be outraged at what Republicans will demand. Also, since the initial Halbig ruling, evidence has emerged that at least one pro-Obamacare reporter, Jonathan Cohn of the New Republic, believed during the negotiations that the subsidies would only be available on state exchanges. The argument that no one reasonable can ever possibly have ever thought that this was the case has basically collapsed, though that won’t necessarily stop the administration from making this argument anyway.
Well, no. Neither facts nor self-respect will stop them from making any argument they deem expedient.