William Levin is a graduate of Yale Law School, former clerk on the D.C. Circuit Court of Appeals and former special assistant in the Department of Justice, Office of Legal Counsel. He writes to comment on developments related to the Supreme Court’s pending decision in King v. Burwell on the legality of Obamacare subsidies provided via exchanges established by the federal government. Bill assumes that the Supreme Court will get the case right; it’s not impossible. On the merits, it’s not a close case. Bill’s analysis of the forces arrayed is of interest regardless of the outcome:
Steven Hayward correctly spotlights the panic on the left as King v. Burwell enters its final phase, adroitly terming it working the refs. Others call it battlespace preparation. In all cases, it is establishing the Narrative, which in the case of King v. Burwell is dedicated to the simple proposition that ending Obamacare subsidies will hurt the poor, even resulting in public epidemics and possible deaths. The move is a concession that the case is legally hopeless and it is on to politics.
This makes for a worthwhile moment to pause, because the case is like a control in a science experiment. We can view in slow motion the steps in the game book.
First, delegitimize the law. This is by now the basic requirement of the Obama era, seen in full force in the unauthorized delays in Obamacare implementation and most recently, immigration amnesty by executive decree. In King, Jeffrey Toobin seeks the most ridiculous incarnation by claiming at this late date that plaintiffs lack standing. Not a single court accepted this argument in the court cases below, nor is the government even arguing the point to the Supreme Court. The explanation is not difficult to find.
Plaintiffs are from Virginia, where only the federal exchange operates. They do not want to participate in Obamacare and, due to low income, would properly be exempt from the ACA individual mandate to buy compliant insurance. But due to the subsidy, their cost of healthcare falls below the exemption line, set at 8 percent of disposable income, and they must either purchase unwanted insurance or pay a penalty. Both outcomes constitute a financial injury specifically and directly owing to the IRS regulations in dispute.
And yet here is Toobin farcically arguing that this clearcut case of standing is part and parcel of the conservative effort to thwart worthy liberal challenges to government actions, from the environment to welfare rights. Not surprisingly, Toobin fails to mention the real culprit in standing abuse represented by cases such as Massachusetts v. EPA, where petitioners sought to compel promulgation of new car standards based on greenhouse gas emissions.
There a true difficulty existed in finding a party who was specifically harmed. Under Supreme Court jurisprudence, since the founding of the Republic, no such party existed. Yet five justices found a novel solution, in two parts.
They articulated a doctrine, without textual language or precedent, that Massachusetts is not subject to the same showing of harm as all other litigants heretofore in federal court. And they accepted the following claim of causation and redress as not speculative: new cars emit carbon dioxide and other emissions; these new car emissions contribute to global warming (80 percent originating outside the U.S.); but no matter how small the total contribution to world emissions (tiny), or how complex the causal path (utterly unproven), it is reasonable to conclude that in the absence of new car standards, the specific harm Massachusetts will suffer is a loss of coastal land, redressable by issuance of the proper new car standards (hilarious and unproven).
And no one is supposed to notice when such a rule conveniently applies for global warming, but not, according to liberals, when it comes time to challenge Obama’s immigration amnesty in federal court, or as in King, when specifically injured plaintiffs file suit in the ordinary course to protect their rights.
This gives rise to a subpart of the playbook. Even if it is logically, legally and practically inconsistent, scream bloody murder like Toobin whenever you lose, or break the law apart, as in the EPA case, if it serves your immediate aims. Much the same dynamic is at work in the Democratic use of the Senate filibuster, tyranny one day, majority rule the next.
Second, ignore the facts. Obamacare was passed in 2010. The IRS regulations creating a subsidy for the federal exchanges were promulgated in 2012. Had the IRS not intervened, the law would have worked as intended. States would have been pressured to establish exchanges so that its citizens would receive subsidies. But by passing the regulations, the IRS eliminated the pressure on the states and in due course 36 declined to set up an exchange.
In a normal world, the guilty party would be the IRS for interfering with a federal statute by offering a false promise. Instead, we will get a steady stream of stories that simply assume a world of horrible injustice. The heroic tale of a successful challenge by low-income plaintiffs to restore the law as written will have to wait for a suitable, politically correct cause, preferably dramatized on Scandal.
Third, create victims. At least 33 amici briefs have been filed on behalf of the government’s position. For the most part, they are unapologetic policy briefs that do not even pretend to consider the legal issue of an unauthorized subsidy. The identity of the filing parties gives a sense of the field day in the offing for the modern lobby state.
Aside from the obvious briefs from insurers and hospitals, consider the range of special pleadings, including, just to name a few, the American Academy of Pediatrics (always the children), AARP (or the elderly), Jewish Alliance for Law and Social Action (religious minorities), Professors of Health Law and Constitutional Law (the benefits of tenure), American Cancer Society (the sick), AFL-CIO (union employees), Asian American Advancing Justice (okay Asians specifically), Bipartisan Economic Scholars (not just for law faculty), Eskridge, Ferejohn, Fried, Manheim, Strauss (okay, specially self-regarding law professors), and, just to round out the list, Former Government Officials (seriously).
Fourth, make it easy for the press. The amici are dripping with the material needed for the leads in the days following the King decision ending federal subsidies. For a random heading setting the tone of the debate, see the brief from the Harvard Law School Center for Health Law and Policy Innovation arguing that “Reversal of the judgment below would deprive millions of recently insured Americans of new-found access to health insurance, seriously threaten health outcomes, and undermine the nation’s ability to address epidemics and other public health threats.”
It matters not that the allegations have no relationship to the law passed by Congress, the legal controversy committed for review by the Supreme Court or the continuing harm done by the government itself to workable alternatives. Nor to be missed are the amici briefs as self-serving calls for interviews by the press, led by prominent lawyers and institutions, with throngs ready to help on background, and the full resource of notes listed in the citations of sources. Petitioner amici briefs offer the same, but except in rare occasions, their services will be duly ignored as partisan.
President Obama likes to pride himself on his faux news realism that if it bleeds it leads. In truth, the adage has been permanently updated. If someone of prominence or reputation, or more simply an unnamed administration insider, says it bleeds, or could have bled, or should have bled, so long as the cause is just, it leads.
They don’t call it the Narrative for nothing.