[EL] Where have the federalists gone? Obamacare, King, and the Court

[Rick Hasen]

It's not me---It's Abbe Gluck.  Please see the author of each post.

On 3/2/15 8:23 AM, Sean Parnell wrote:
>
> Rick suggests below that the reading of plaintiffs in /King v. 
> Burwell/ would amount to “the most draconian modern statute ever 
> enacted by the U.S. Congress that included a role for the states.” The 
> draconian-ness, presumably, would be regarding the loss of $25 billion 
> in annual subsidies distributed through the federal exchanges. 
> Perhaps. But I think it’s worth noting the more draconian nature of 
> the original Medicaid expansion language in PPACA, namely that states 
> who failed to comply with the expansion would lose ALL of their 
> current Medicaid funding, which if memory serves correct is roughly 
> $235 billion each year at stake.
>
> The fact the PPACA explicitly, in regards to Medicaid expansion, told 
> states to get on board or lose all of their funding, also suggests 
> it’s hardly beyond the pale that a similar thought process led them to 
> include a punishment for states that don’t establish their own 
> exchanges, such as making them ineligible for federal subsidies.
>
> There are reasonable arguments about what Congress did or did not 
> intend (my favorite being that Congress did not intend PPACA to become 
> law as written in the first place, so let’s enforce /that/ intent), 
> but I have a hard time putting much stock in the argument that 
> Congress would never have dreamed of denying a benefit to some 
> citizens if their state didn’t go along, given that Congress did 
> exactly that in drafting the Medicaid section of the law.
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com>
>
>
>     Where have the federalists gone? Obamacare, King, and the Court
>     <http://electionlawblog.org/?p=70582>
>
> Posted onFebruary 27, 2015 7:14 am 
> <http://electionlawblog.org/?p=70582>by*Abbe Gluck* 
> <http://electionlawblog.org/?author=15>
>
> The Obamacare case, /King v. Burwell/, which the Court will hear next 
> week, has deep importance not only for health care but also for law.  
> I have previously detailed why the case istextualism’s big test 
> <http://www.scotusblog.com/2014/11/symposium-the-grant-in-king-obamacare-subsidies-as-textualisms-big-test/>. 
> Today, in/Politico/, I explain why the case is also fundamentally 
> about state rights.  The question is whether the Court’s federalism 
> doctrines–which, let’s not forget, the Court applied against the 
> Government in the last Obamacare case–whether these federalism 
> doctrines, like the Court’s  textualist rules, are sufficiently 
> legitimate and objective such they will apply regardless of which side 
> they happen to support, even in a case as politicized as this one.  
> After all, isn’t that the point of have a rule of law in the first place?
>
> Here is an excerpt and alink 
> <http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#.VPCGCU0o_Dc>.
>
> The issue in/King/is whether the ACA penalizes states that opt out of 
> setting up their own health insurance exchanges and, instead, let the 
> federal government do it for them. The challengers have seized on four 
> words in this 2,000-page law that, they contend, contain a dramatic 
> consequence for the 34 states that have made this choice and allowed 
> the federal government to step in: the loss of critical insurance 
> subsidies that make health insurance affordable and sustain the 
> insurance markets under the law. Without the subsidies—which are 
> estimated at $25 billion across the 34 states—more than eight million 
> Americans will likely lose their insurance. And, as a result, the 
> insurance markets in those states will face near-certain collapse.
>
> The challengers maintain that the case is simply about reading plain 
> language. (I have detailedelsewhere 
> <http://www.scotusblog.com/2014/11/symposium-the-grant-in-king-obamacare-subsidies-as-textualisms-big-test/>why 
> their hyper-literal reading of four words out of context is anything 
> but plain and is not how the Supreme Court usually reads statutes.) 
> But/King/is about a lot more than this. The case is about 
> federalism—the role of states in our national democracy. The reason 
> the challengers don’t want anyone to realize that is because the very 
> text-oriented justices to whom they are appealing are the exact same 
> justices who have consistently interpreted federal laws to protect 
> states’ rights. And the challengers would read the ACA in the opposite 
> way—as having devastating implications for the states.
>
> The challengers’ interpretation turns Congress’s entire philosophy of 
> states’ rights in the ACA upside down. Congress designed the exchanges 
> to be state-deferential—to give the states a choice. But under the 
> state-penalizing reading that challengers urge, the ACA—a statute that 
> uses the phrase “state flexibility”/five///times—would be the most 
> draconian modern statute ever enacted by the U.S. Congress that 
> included a role for the states. What’s more, if interpreted as the 
> challengers hope, the ACA would have been debated, enacted and 
> implemented for two whole years under intense public scrutiny, 
> including the scrutiny trained on it during the last major 
> constitutional challenge in the Supreme Court in 2012, without 
> anyone—no state, congressman or blogger—noticing these consequences or 
> objecting to them.
>
> Abrief 
> <http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_affirm_va.authcheckdam.pdf>filed 
> by Virginia and more than 20 other states attests that any clue of the 
> dramatic penalty the challengers have read into the statute was 
> entirely lacking. In the end,/King///is about whether an invented 
> narrative that only emerged for purposes of this case should be 
> permitted to work the greatest bait and switch on state governments in 
> history.
>
> Read 
> more:http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#ixzz3SxSbOrL4
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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