Abigail Moncrieff, a professor at Boston University School of Law, and Simon Lazarus, senior counsel at the Constitutional Accountability Center, discuss a Supreme Court case to be argued this Wednesday over subsidies in President Obama’s Affordable Care Act. They speak with Michael Best on Bloomberg Radio’s "Bloomberg Law."
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The government denies that Congress hid such a "poison pill" in the ACA, and a number of constitutional experts agree, pointing to a dearth of evidence about what lawmakers were thinking about behind closed doors. A "sheer, cynical fabrication," said Simon Lazarus, senior counsel at the Constitutional Accountability Center, in an email interview with Medscape Medical News.
Independent judges applying straightforward legal principles should easily conclude that the Affordable Care Act provides financial assistance to all Americans who need it, regardless of who administers the insurance marketplace in their state.
When the Supreme Court hears oral arguments in King vs. Burwell next week, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he's leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There's one very good reason to think the chief justice will rule for the government again: He's too good a lawyer to do otherwise.
"They put the text of the statute front and center, and it shows the absurdity of the plaintiffs' argument," said Elizabeth Wydra, attorney for the Constitutional Accountability Center, a liberal group that supports the law. "When [the justices] read the briefs, I think it would be hard for them to rule against the government, even though they may not like the law."
“With the King argument just a week away ... the ACA’s challengers can’t be happy to see the court’s opinions in Yates,” the liberal Constitutional Accountability Center wrote on its blog Wednesday.
The ad wants to make the viewer think that Warren was inveighing against the Clintons when she spoke. But Warren was not, when she said those words, thinking about the Clinton foundation taking oil money at all. In fact, the ad cobbles together Warren quotes from different occasions. For example, the line I quoted above was taken from a September 2013 at an event of the Constitutional Accountability Center about the dangers of Citizens United and other Roberts Court decisions (here’s a video of that; the line comes at 11:28). In other words, she was lambasting the people Rove loves—two of whom, John Roberts and Samuel Alito, he helped elevate to the Court.
"Piece after piece after piece of evidence that they have put forward to try to support their far-fetched interpretation of the statute has fallen apart as we approach oral argument," says Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center. "That's legally relevant, because it demolishes their claim that anyone thought the law works this way at the time."
At the end of the day, what matters is not what President Obama said about the legality of his action; what matters is what the laws and precedents say, and they make clear that his action was lawful. When the Fifth Circuit reviews this week’s immigration decision on appeal, it should vindicate the views of the legal advisors who approved this action, and not the political advisors who presumably told him to say they wouldn’t.
"The court is deciding just about every major question that divides Americans along ideological lines," says Doug Kendall, president of the Constitutional Accountability Center.
An upside-Pinocchio is awarded for an unacknowledged flip-flop on an issue. Ryan, Barrasso and Cornyn appear to qualify. They should simply acknowledge that their understanding of the law has changed, rather than pretend that they knew all along that people living in states on the federal exchange would not qualify for premium subsidies.
"The Supreme Court’s docket in recent terms looks a lot like an outline for a stump speech for a 2016 [presidential] candidate. Immigration, check. Climate, check. Health care, check," Doug Kendall, president of the Constitutional Accountability Center, said in an e-mail. "The court is deciding just about every major question that divides Americans along ideological lines."