When I first heard about the King v Burwell the first thought that came to my mind wasn’t its impact on the GOP congress, the electoral impact in the GOP primary, the confirmation of Justice Roberts status as “Old Yellowstain” or even the orgasmic nonsense that is all over CNN & MSNBC over the law.

What went into my mind was a night in south Boston when I was appearing on a podcast for the very first time appearing with Ali Akbar on the 73wire the night before the Scott Brown Election.

We were discussing Obamacare and Scott Brown’s role when something happened that has stuck with me ever since. Ali said how Brown would as the 60th vote block Obamacare and continued saying…

“…and if it passes, we will repeal it”

Not being involved in a political campaign nor being intimately familiar with how they operated but being well studied in how laws are passed and the difficulty in repealing laws I looked at him with some surprise saying nonchalantly .”

“No we won’t.”

I will never forget the look on Ali’s face. It was as if he had been not wearing pants and I suddenly had pointed it out to the entire listening audience.

However while the look was telling what happened next was more so, he immediately changed the subject as if what I had said was a throw away line of no importance whatsoever.

In hindsight, I understand what he did, this race was all about turnout and the last thing their campaign needed was any suggestion that had the slighted potential to keep people home.

But the real point is this. Ali knew that once Obamacare passed the battle was pretty much done.

We will keep fighting and we should keep fighting, but even if we win the White House I see little chance of repealing Obamacare, the best we will likely get is a president that does one of two things.

1. Gives the entire nation an Obamacare exemption

2. Removes every single exemption from every liberal group that got one.

It is the later rather than the former that has the best chance of causing this law to die.

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By Steve Eggleston

Unless you’ve been in a cave the last 2 days, you know that the Supreme Court once again rewrote what Justice Antonin Scalia has taken to calling SCOTUSCare to judicially extend tax subsidies for purchasing health insurance to the poor and middle class purchasing insurance on federally-established insurance exchanges. Much has been made over said subsidies, with the Congressional Republicans preemtively saying that had the letter of the law been applied and said subsidies on the federally-established exchanges been struck down, they would rush in to “temporarily” allow those subsidies to happen through 2017.

However, the case itself was never about the subsidies themselves, but rather the penalt…er…taxes that those subsidies allowed to be applied. Indeed, both the majority opinion written by Chief Justice John Roberts and the dissent written by Scalia admit that it is all about the tax, and in Roberts’ case, preserving what he transformed from a penalty to a tax.

As Scalia points out, the phrase “Exchange established by the State” appears innumerable times throughout the law. Indeed, it expressly defined the word “State” as “each of the 50 States and the District of Columbia”.

The goal of limiting the subsidies to those in states where the state set up the exchange rather than the federal government was to put political pressure on the states to be the proverbial bagmen for the federal government by offloading the cost of the exchanges from the federal government to the states. That the Democrats failed in their attempt to blackmail the states into becoming their bagmen (a wise fiscal decision, as those states that set up, or tried to set up, their own exchanges are finding to their peril) is not something for the IRS, or six Lawgivers-In-Black, to “correct”, especially when the Republicans said that they would do the “correcting” on at least a temporary basis.

The elimination of said subsidies in states with federally-established exchanges would, in a plain-text reading of the law, also eliminate the threat of the individual non-insurance tax for every couple, virtually every multi-member family, and most single people making between 100% and 400% of the poverty level in those states as the cost of the second-cheapest “silver” insurance plan would rise to above 8% of their income. Similarly, the two types of employer non-insurance tax are predicated on at least one “full-time” employee (that is, one who worked at least 130 hours in a given month) getting subsidized coverage, with the elimination of the subsidy eliminating the liability of those employers operating solely in those states.

Roberts, in defending his 2012 declaration that the individual tax is indeed a tax, admits that result would cause great financial harm to the overall SCOTUSCare scheme. Again, the role of a judge, even a Supreme Court Chief Justice, is not to save the other branches of federal government from bad financial bets through judicial rewrites of law, especially since Congressional Republicans vowed to do just that.

I guess we could count ourselves “fortunate” that my darker prediction of Roberts and his fellow Lawgivers-In-Black finding a way to keep the taxes fully-intact while striking down the subsidies didn’t happen. On the other hand, given the Congressional Republicans were going to fully-cave (though supposedly temporarily) on the issue of subsidies, I doubt that allowing them to keep the fig leaf of Kabuki Theatre Opposition will much matter. It will simply take a bit longer for them to do the expansion of SCOTUSCare that they previously did for Social Security (thrice) and Medicare.

I saw this tweet from the University of Colorado English Department this evening:

I didn’t realize today was Orwell’s birthday but the irony of that quote is astounding considering Justice Robert’s Old Yellowstain’s words here:

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.

and this other Orwell quote on language:

Political language… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

applies here as well

Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act.

  I think these examples confirm the truth of Justice Scalia’s dissent and confirms this tweet of mine in response to the Colorado English Department acknowledgement of Orwell:

I think George Orwell’s birthday deserves recognition but I suspect it would have been better for the country if they just sent flowers.

Update:  An old question answered:

Of course they could both be true depending of how she defined “diabolical”.

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I certainly can’t put what this decision means better than this:

The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.


And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

America you now live in a country where any contract you have, any agreement you sign any deed you hold means nothing. America you willingly did this to yourself, and you will deserve the new normal that you will now have to live with.  May you be happy with the choice you have made

I’ll give Jesus Christ the last word:

Let your ‘Yes’ mean ‘Yes,’ and your ‘No’ mean ‘No.’ Anything more is from the evil one.

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