ObamaCare, Chevron, and Congressional Delegation

[Draggingtree]

:

JV DeLong Contributor

Opinions expressed by Forbes Contributors are their own.

 

11/19/2014 @ 1:25PM

1,613 views

ObamaCare, Chevron, and Congressional Delegation

According to most analyses, the outcome of the Supreme Court review of ObamaCare in King v Burwell will depend on the Court’s application of an esoteric doctrine of administrative and constitutional law called “the Chevron CVX +0.72% Doctrine.”

 

This is true, but with a twist. Chevron applies, but it leads to a more fundamental question about the structure of government: how far can Congress go in delegating its legislative power?

 

The Chevron Doctrine

 

Congress routinely passes laws that are ambiguous or silent on particular points. So a recurrent question is, who gets to resolve the ambiguities and decide what a law means? Someone must, because in any law suit people with real interests are in front of the judge, they must be told their rights and obligations, and asking Congress for a clarification is not feasible. The choices are between the implementing agency and a reviewing court.

[Draggingtree]

King vs. Burwell and the Importance of 5 Words

By: davenj1 (Diary) | March 2nd, 2015 at 05:58 AM |

 

On Wednesday, the Supreme Court will hear argument in the case of King vs. Burwell. This is the so-called Obamacare subsidy case and whether those tax subsidies should be extended to those taxpayers who purchased insurance on the Federal exchange known as Healthcare.gov. As I mentioned in the previous article, this is not a case of the constitutionality of the law, but one of statutory interpretation- an area the Supreme Court handles and deals with more often than outright constitutional issues. Given the complexity of today’s laws, that is to be expected. Given Obamacare, which is complexity on steroids, this case was inevitable.

But there is another equally important consideration- Chevron deference.

http://www.redstate.com/diary/davenj1/2015/03/02/king-vs-burwell-importance-5-words/

[Draggingtree]

5 Things To Watch In SCOTUS' Obamacare Arguments

 

These questions will help determine who comes out ahead in the challenge to the Affordable Care Act's insurance subsidies.

 

BY SAM BAKER

March 1, 2015 Obamacare's third date with the Supreme Court is almost here.

But this isn't like the 2012 case over the individual mandate, or even the Hobby Lobby case—both of which centered around high-minded constitutional questions about the limits of congressional power—or the nature of commerce. Wednesday's arguments will focus on the nitty-gritty of the law's text, and whether it has been implemented legally in accordance with that text.

 

The implications for the law are significant: some 7 million people would likely lose their coverage if the court sides against the White House. Here are five questions to watch for, which will help determine who walks out of the courtroom victorious in King v. Burwell:

 

How broad is John Roberts' focus?

 

http://www.nationaljournal.com/health-care/5-things-to-watch-in-scotus-obamacare-arguments-20150301

[Draggingtree]

The Volokh Conspiracy

 

Did the challengers in King really ignore federalism? Their response

 

By Randy Barnett March 3

 

[in this guest post, attorneys C. Boyden Gray, Adam White and Adam Gustafson respond to the claim made in the Politico by Yale law professor Abbe Gluck, and on Balkinization by my Georgetown colleague Marty Lederman, that the challengers to the IRS regulation in King v Burwell have entirely ignored the federalism implications of their challenge:]

 

Liberals would rather pretend that conservative arguments don’t exist—at least it feels that way, sometimes. But on the eve of King v. Burwell, that is exactly what’s happening. Recognizing the significance that constitutional federalism could come to bear in interpreting the Affordable Care Act’s provisions for health insurance exchanges, some of the Administration’s defenders have begun to argue that their opponents have not even attempted to make a federalism argument in support of their challenge. Which comes as quite a surprise to us, because federalism was a central point in our own brief (on behalf of State Legislators and the Galen Institute), as well as the brief filed by Oklahoma and several other States

 

As the petitioners and others have noted, King v. Burwell presents a straightforward issue of statutory interpretation:

 

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/03/did-the-challengers-in-king-really-ignore-federalism-their-response/

[Draggingtree]

King v. Burwell Reveals The Threat Of The Administrative State

The question in today’s Supreme Court case, King v. Burwell, is whether laws mean whatever the president wants them to mean.

By John Daniel Davidson MARCH 4, 2015

The U.S. Supreme Court will hear oral arguments today in what is probably one of the most straightforward questions of statutory interpretation ever to come before the court.

 

At the heart of King v. Burwell is whether the text of the Affordable Care Act (ACA) means what it says. Specifically, the case hinges on what the word “state” means. Does it mean one of the fifty states, or does it mean the states and the federal government?

Cooperative Versus Competitive Federalism

http://thefederalist.com/2015/03/04/king-v-burwell-reveals-the-threat-of-the-administrative-state/

[Draggingtree]

King vs. Burwell: Fears and Issues

By: davenj1 (Diary) | March 4th, 2015 at 01:38 AM

 

In the previous two articles, I tried to illustrate the complexity of what seems like an open and shut case- one of statutory interpretation based on the clear wording of a law. If the Supreme Court ever wanted to send a shot over the bow of an increasingly activist regulatory agency like the IRS and, by proxy, other agencies, then striking down the tax subsidies for insurance purchased on the federal exchange would be a nice vehicle.

 

One needs to be mindful of a couple of issues. The first is the issue of standing. Under Article III, the federal court system is reserved for cases and controversies where a plaintiff has suffered a harm or injury. Over the years, Supreme Court precedence has expanded the definitions of “cases and controversies.” For example, special interest groups regularly bring lawsuits into federal court to block certain actions or force action on the federal government when they themselves suffered no “harm.”

http://www.redstate.com/diary/davenj1/2015/03/04/king-vs-burwell-fears-issues/

[Draggingtree]

King v. Burwell and Red State Intellectual Honesty

 

With abortion at stake, Arizona acknowledges that the legislature's words matter.

 

By: caseymattox (Diary) | March 4th, 2015 at 12:15 AM

On Wednesday the Supreme Court will hear arguments in King v. Burwell, a case testing whether the Obama Administration can gut key provisions of Obamacare. It’s possible that you haven’t heard the case described this way, but the challengers in the case simply seek to have Obamacare provisions promoting the creation of state-run exchanges through federal tax subsidies for healthcare plans on an exchange “established by the state” applied as written and intended by Congress. If the Supreme Court applies Obamacare as written, it would invalidate the IRS’s illegal extension to federal exchanges of those subsidies and the penalties on employers that accompany them.

 

While the legal question is simple, the stakes are high. One estimate is that insurance premiums for federal exchange participants in 34 states will increase by 256% if the Court enforces Obamacare as written

http://www.redstate.com/diary/caseymattox/2015/03/04/king-v-burwell-red-state-intellectual-honesty/

[Draggingtree]

Amy Howe Editor/Reporter

Posted Wed, March 4th, 2015 4:50 pm

 

Will concern for states’ rights win out in subsidies battle? Today’s argument in Plain English

 

After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg all seemed like solid votes for the federal government, defending the subsidies, while the challengers could clearly count on the votes of Justices Antonin Scalia and Samuel Alito. Chief Justice John Roberts – who three years ago joined the Court’s more liberal Justices to uphold another provision of the Affordable Care Act, requiring everyone to buy health insurance or pay a penalty (it’s a tax!) – kept his cards close to his chest, asking only a few questions that gave no real hint as to how he might vote. But even if it ultimately doesn’t get the Chief Justice’s vote, the government could still win as long as it can pick up just one more vote. And that seemed like at least a possibility, because Justice Anthony Kennedy asked several questions which suggested that he might be leaning more toward the government than the challengers. Let’s talk about today’s argument in Plain English.

http://www.scotusblog.com/2015/03/will-concern-for-states-rights-win-out-in-subsidies-battle-todays-argument-in-plain-english/

[SrWoodchuck]

 

Via TheoSpark

[Draggingtree]

This week’s argument audio

By Oyez Project on Mar 6, 2015 at 2:03 pm

Oyez has posted audio and transcripts from this week’s arguments.

The Court heard arguments this week in:

 

· Ohio v. Clark

· Arizona State Legislature v. Arizona Independent Redistricting Commission

· City of Los Angeles v. Patel

· Davis v. Ayala

· King v. Burwell

http://www.scotusblog.com/2015/03/this-weeks-argument-audio-23/

[Draggingtree]

King vs. Burwell: An Argument Analysis

By: davenj1 (Diary) | March 5th, 2015 at 04:39 PM

Yesterday, the Supreme Court heard oral argument in the case of King vs. Burwell- a case which questioned the federal tax subsidies for those who purchased health insurance in the federal exchange. Generally, it is tough to tell how any Justice will vote on a case from their questioning during oral argument. As I have mentioned in many previous articles, they usually have some idea of where how they will vote based on the written briefs and their own ideologies. However, in this case it became apparent early that the four liberals- Ginsburg, Sotomayor, Kagan and Breyer- will side with the government. At one point, Breyer- focusing on the definition of the word “State exchange-” asked King’s lawyer, “So, what’s the problem?” To him, this seemed clear cut- the definition meant that the if a state failed to set up an exchange, the back up plan was the federal exchange and everything that applied to the hoped-for state exchange applied to the federal exchange, including the federal tax subsidies.

http://www.redstate.com/diary/davenj1/2015/03/05/king-vs-burwell-argument-analysis/

[Draggingtree]

SCOTUS Should Not Apply “Deference” In the Obamacare Case

By: alanjoelny (Diary) | March 7th, 2015 at 07:49 AM

 

During oral arguments of the Burwell Obamacare case before the Supreme Court on Wednesday, a possible resolution seemed to rear its ugly head when Chief Justice Roberts questioned U.S. Solicitor General Donald Verrilli over the contested ambiguity of the application of Obamacare subsidies. Verrilli made the case that the “court should defer to the interpretation of the Internal Revenue Service, which said the tax credits apply nationwide.” This reasoning is absolutely the worst possible solution — but of course not entirely unexpected from the federal government.

 

The idea of “deference” refers “ to “Chevron deference,” “a doctrine mostly unknown beyond the halls of the Capitol and the corridors of the Supreme Court. It refers to a 1984 decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and it is one of the most widely cited cases in law. Boiled down, it says that when a law is ambiguous, judges should defer to the agency designated to implement it so long as the agency’s decision is reasonable.”

http://www.redstate.com/diary/alanjoelny/2015/03/07/scotus-apply-deference-obamacare-case/