Judiciary

Supreme Court Strikes Down EPA Pollution Rules

The Guardian: “The US supreme court struck down new rules for America’s biggest air polluters on Monday, dealing a blow to the Obama administration’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.”

“The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its new carbon pollution rules.”

Vox: “The mercury rule will stay into effect for the time being, but the EPA will need to reconsider it in the months ahead, taking costs more fully into account. In his opinion, Scalia remanded the decision back to the DC Circuit Court with this guidance: ‘EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.'”

“Now, we will have to see whether the DC Circuit Court simply orders the EPA to carry out additional analyses — or decides to strike down the rule altogether. Even if the rule does get struck down, however, the practical impact on mercury pollution may be relatively limited.”

Has the Supreme Court Become Another Political Institution?

Megan Garber in the Atlantic argues that the Supreme Court “has reached a new nadir of partisan rancor. The Justices didn’t simply disagree on the outcomes of cases; they disagreed on the cases’ moral premises. They disagreed on their own roles in deciding what those premises might be. They descended, as a body, into a kind of judicial chaos, throwing up their hands beneath their heavy robes.”

Justice Scalia’s “characteristically avuncular dissents … are evidence of anger; they’re also evidence, more worryingly, of a new kind of nihilism that has creeped into the Court. They’re evidence that partisanship, contra Roberts’ early and perhaps naive hopes, hasn’t been expunged from the Court. That partisanship has, instead, infiltrated it.

“And, though Scalia is the most prominent and arguably the most media-savvy of SCOTUS’s scorn-hurlers, he is by no means alone in his scorched-earth approach.”

“That opinions and dissents are now operating at the heights of moral messaging and the depths of ad-hominem attack is a relatively recent phenomenon—one that has a metaphor, if not a full analogue, in the bitter divides that have become so familiar in other branches of government. SCOTUS is acting like Congress.”

Obamacare Ruling Round-up

New York Times Editorial Board: “The case challenging the law, King v. Burwell, was always an ideological farce dressed in a specious legal argument, and the court should never have taken review of it to begin with.”

“Thursday’s decision was a powerful defense of the law, stronger than observers might have expected from this court.”

Linda Greenhouse: “Justice Scalia derided the majority opinion as a ‘defense of the indefensible.’ But what would be truly indefensible, I believe the chief justice and Justice Kennedy came to understand, was the Supreme Court itself, if it bought a cynically manufactured and meritless argument and thus came to be perceived as a partisan tool.”

“This whole exercise was unnecessary, the outcome too close for comfort. But there is cause for celebration in a disaster narrowly averted — for the country and the court, which is to say, for us all.”

Ezra Klein: “In the aggregate, there’s a case to be made that the Roberts Court, in general, is coming to liberal decisions more often than was expected … But in this case, even if liberals are happy with the Obamacare decision and conservatives are upset about it, deferring to Congress’s clear intent is supposed to be the way conservative judges rule.”

Theda Skocpol and Lawrence Jacobs: “This new Supreme Court decision, rejecting an ultraright challenge to the nationwide subsidies that allow lower-middle-income Americans to buy affordable private health insurance on state-level exchanges established by the federal government, will speed the already remarkable implementation of health reform. And that progress has been truly rapid by historical standards.”

SCOTUS Opinion Leaves No Room for Doubt

Greg Sargent: Chief Justice Roberts’ “opinion may have precluded any future efforts by a Republican president to use executive discretion to cancel the subsidies for the millions of people on the federal exchange. This option might have been left open if the ruling had been written differently.”

The opinion “ultimately did not base its conclusion on ‘Chevron deference,’ i.e., the idea that Courts should defer to the discretion exercised by an agency (in this case the IRS) when interpreting seemingly confusing or self-contradictory statutes.”

“The court held that it would not presume that Congress implicitly intended to defer such a central decision to the agency. As such, the Court’s task was to determine the ‘correct’ reading of the disputed phrase.”

“A strong six member majority of the court is coalescing around this very clean argument,’ [Yale Law School Professor Abbe Gluck said].  ‘That sends a strong signal to people who politically oppose the law that the court understands the law and is not going to tolerate more of this frivolous litigation that tries to destroy the statute by distorting it.’”

GOP Reaction to Obamacare Ruling? Relief

Vox: “Amid a flurry of official statements declaring shock, outrage, and disappointment after the Supreme Court upheld the Affordable Care Act’s federal insurance subsidies Thursday, Republicans quietly confided they were feeling something else, too: relief.”

“So even though Chief Justice John Roberts wrote another opinion upholding the health-care law, the conservative actually did Republicans a favor. The 6-3 ruling spares House and Senate GOP leaders from having to act. And it liberates Republican primary contenders from having to talk about subsidies. Instead, Republicans can return to the safe ground of ‘repeal and replace’ Obamacare rhetoric rather than having to go down the far riskier road to action.”

A lot of Republicans “weren’t looking forward to spending the rest of this Congress talking about how to put Obama’s law back together. It would have been a messy process, with no guarantee that they could get a plan through either or both chambers. And, of course, there’s little chance that they could have found common ground with Obama to sign their fix.”

“That is, they were facing a whole lot of work with little likelihood of having anything to show for it at the end of the process — other than yet another highly charged political battle over the same law.”

Supreme Court Upholds Obamacare Subsidies

New York Times: “The Supreme Court ruled on Thursday that President Obama’s health care law may provide nationwide tax subsidies to help poor and middle-class people buy health insurance.”

“Chief Justice John G. Roberts Jr. wrote the majority opinion in the 6-to-3 decision. The court’s three most conservative members — Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented.”

“Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.”

“’In this instance,’ he wrote, ‘the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.’

“’Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,’ he added. “’f at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.’”

Jonathan Cohn: “The decision is a major defeat for conservatives, who have been trying to wipe Obamacare off the books ever since its enactment in 2010. The sweeping reform law, a key component of President Barack Obama’s legacy, now appears to be secure at least through the 2016 elections. Its fate beyond that will depend on who becomes president next year — and whether Republicans in Congress are willing to keep fighting for repeal.”

GOP Governors Walk Political Tightrope With Obamacare Subsidies Case

Politico: “If the Supreme Court rules against Obamacare subsidies, the four governors running for president will face a harsh choice: Let tens of thousands of people get kicked off their health plans, or try to create a state exchange and lose credibility with a virulently anti-Obamacare Republican primary base.”

“Louisiana’s Bobby Jindal, Wisconsin’s Scott Walker, New Jersey’s Chris Christie and Ohio’s John Kasich all refused to set up Obamacare exchanges, as did most other GOP governors. Their states would be directly affected if the court rules that the health law’s subsidies can go only to people living in states that did establish the new online Obamacare markets.”

“They can say it’s a Washington problem. But if gridlocked Washington can’t fix it, they’d be stuck with no good answers for their own citizens losing coverage — other than trying to deflect blame to President Barack Obama and Obamacare.”

“Or they could undertake the politically and economically challenging task of trying to create a state exchange, after shunning them a few years ago. But that would put them in the difficult position of fixing a law they’ve vowed to repeal; doing anything that looks like salvaging the Affordable Care Act is not going to go over well with GOP primary voters.”

Most Oppose Lower Court Ruling on Obamacare Subsidies

Washington Post: According to the latest YouGov.com poll, “even on an issue such as Obamacare, Republicans are not all that excited about the court upsetting a legislative action, even one with which they disagree: ‘Americans tend to oppose (40%) rather than support (26%) the lower court’s ruling that subsidies cannot be provided, but 34% are not sure either way, and only 33% of Americans actually say that they have been following the news of the threat to federal exchange subsidies. Most Democrats (54%) oppose the ruling to end these subsidies, while independents tend to oppose (38%) rather than support (24%) ending them. 38% of Republicans support this ruling, but 37% aren’t sure and 24% oppose the ruling.’”

“That is a remarkably low number of Republicans who support a court order dumping the federal exchange subsidies. Republicans would be wise not to engage in too much chest-beating over court evisceration of Obamacare, and to rather take this as an opportunity to assure Americans who have relied on the exchanges that they will not be left in the lurch. Moreover, they’d be smart to advance their own, conservative alternatives to Obamacare.”

Who Will Clean Up the Supreme Court’s Obamacare Mess?

Vox:  “The Supreme Court could rule against the Affordable Care Act in the next few days, creating a huge mess for millions of Obamacare enrollees, with premiums more than doubling and many dropping coverage.”

“Of any actors, the White House would have the strongest motivation to patch the health-care law back together in the event of a the Supreme Court ruling Obamacare subsidies illegal. It has said again and again that it cannot keep subsidies flowing if the case comes out against Obamacare.”

middle-ground

“The White House does have one possible way to fix Obamacare: signing off on a one-sentence bill that would tweak Obamacare to make clear that all 50 states ought to receive subsidies.”

“‘Congress could fix this whole thing with a one-sentence provision,’ President Obama said at a recent press conference.”

“The problem is that Republicans’ demand, so far, has been repealing other big parts of Obamacare in return for extending subsidies — and that creates whole new messes in the insurance markets.”

But: “When you try to repeal Obamacare and maintain the law’s subsidies, it turns out you end up with some very bizarre policy outcomes that are not good for the individual insurance market.”

Most Impacted By an Obamacare SCOTUS Ruling Live in GOP Districts

Jonathan Cohn: “A new report suggests the impact [of the Supreme Court Obamacare subsidies case] would fall disproportionately on their own constituents, rather than those in Democratic districts — by a margin of 2-to-1.”

“The research comes from FamiliesUSA … The report’s subject is the potential geographic impact of King v. Burwell, the lawsuit that the court heard in March and on which it is likely to rule by the end of the month.”

“Using Affordable Care Act enrollment data from the Department of Health and Human Services, the organization has estimated the number of people in each congressional district who would lose their tax credits from a court decision against the law.”

“The results? Some 4.2 million of those who would lose tax credits live in congressional districts with Republican representatives, the FamiliesUSA researchers said. Just 2.1 million live in Democratic districts.”

“It’s not at all surprising that Republican districts would have more affected people, since the states where officials wanted nothing to do with Obamacare tend to have more conservative voters. Those are also the states where Republican lawmakers have been able to draw district lines in ways that boost their numbers in Congress. But the ratio of Republican to Democratic voters in these states isn’t anywhere near 2-to-1.”

Majority Wants Congress to Keep Obamacare Subsidies

L.A. Times: “Nearly two-thirds of Americans want Congress to ensure that residents in every state can receive insurance subsidies though the Affordable Care Act, according to a new national poll conducted as the Supreme Court prepares to decide a legal challenge that could strip away the subsidies in more than 30 states.”

“Asked whether lawmakers should pass a law ‘so that people in all states can be eligible for financial help,’ just one-quarter of those surveyed said no, according to the poll by the nonprofit Kaiser Family Foundation.”

Figure 7

“State action is preferred even by Republicans, who favor a state marketplace over no action, 44% to 42%, despite the fact that the health law remains deeply unpopular with the GOP. Nearly 70% of Republicans view it unfavorably.”