SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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evilweasel: Aug 24, 2002

Rygar201 posted:

Forgive the possibly basic bitch question, but can the Court punt on standing if the issue is brought up in Amicus briefs?

Yes. Without standing they cannot decide the case. Even if both parties insist they have standing, the Court must determine for itself that they have standing if it has any reason to doubt it. However if they were concerned they'd have told the parties to brief the issue and possibly appointed someone to argue they did not have standing.

# ? Mar 4, 2015 16:39

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# ? Jun 1, 2024 02:38

Mitt Romney: Nov 9, 2005; dumb and bad

evilweasel posted:

A court is required to inquire into the standing of the litigants before it if it has any doubts that they have standing, even if it's not raised by either party. That said, I doubt they'll do that as well as nobody's interested in prolonging this.

They want a decision on the merits. Gives them certainty either way about what to do.

Why do they want a decision on the merits? Because it would come back in another lawsuit anyway if they were ruled to have no standing?

# ? Mar 4, 2015 16:45

evilweasel: Aug 24, 2002

Mitt Romney posted:

Why do they want a decision on the merits? Because it would come back in another lawsuit anyway if they were ruled to have no standing?

Yes. If the decision is going to come down against Obamacare, better that they know now and can try to work on it than another year of uncertainty. Someone has standing, and if these four don't the conservative lawyers pushing this will find them.

# ? Mar 4, 2015 16:47

FlamingLiberal: Jan 18, 2009; Would you like to play a game?

I'm wondering if the government argument that there is no fallback plan if the challenge wins will have any influence here. 8 or so million people will lose their health insurance, which will also destabilize the insurance market as a whole and cause significant economic damage.

Of course knowing this court they will just say 'oh, Congress can just fix it' and do it anyway a la the VRA decision. This with them knowing full well that Congress will not fix it.

# ? Mar 4, 2015 16:47

Rygar201: Jan 26, 2011; I AM A TERRIBLE PIECE OF SHIT.

Please Condescend to me like this again.

Oh yeah condescend to me ALL DAY condescend daddy.

evilweasel posted:

Yes. Without standing they cannot decide the case. Even if both parties insist they have standing, the Court must determine for itself that they have standing if it has any reason to doubt it. However if they were concerned they'd have told the parties to brief the issue and possibly appointed someone to argue they did not have standing.

What happens if the Court just rules regardless of the standing? There is literally no recourse, correct?

# ? Mar 4, 2015 16:48

mdemone: Mar 14, 2001

If they gut the ACA I'm peacing outta this country.

Functionally how would things proceed if Scalia et al. win? Federal exchanges slowly become more and more expensive as rate of signup slows to zero? What if people keep signing up at a low rate, regardless of subsidy status? Is that not enough to keep out of a cost-inflation spiral?

# ? Mar 4, 2015 16:48

evilweasel: Aug 24, 2002

FlamingLiberal posted:

I'm wondering if the government argument that there is no fallback plan if the challenge wins will have any influence here. 8 or so million people will lose their health insurance, which will also destabilize the insurance market as a whole and cause significant economic damage.

Of course knowing this court they will just say 'oh, Congress can just fix it' and do it anyway a la the VRA decision. This with them knowing full well that Congress will not fix it.

That argument is being made precisely because they think it will have an influence on Roberts - he caved last time for less compelling reasons. There's a lot of things the White House can and probably will do if the decision comes down against them but they've got no interest in talking about it now and making it easier for Roberts to justify ruling against the law to himself.

Rygar201 posted:

What happens if the Court just rules regardless of the standing? There is literally no recourse, correct?

Correct.

# ? Mar 4, 2015 16:49

evilweasel: Aug 24, 2002

quote:

Liberals lead line in questioning of Petitioner in King, but Kennedy asks important question about disrupting federal state balance.

Counsel for the petitioners � who are seeking to invalidate subsidies in states with federal exchanges � faced tough questioning from the more liberal Justices in the first 20 minutes of today�s argument. In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it. Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges � likening this to an unconstitutional form of federal coercion. While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.

http://www.scotusblog.com/2015/03/first-mid-argument-update-king-v-burwell/

This is good news: what Kennedy is referencing here is the Medicare decision where they basically said forcing states to chose between expanded medicare and no medicare was unconstitutional coercion of the states. No guarantee he votes correctly, but if the conservatives lose Kennedy there's no chance they prevail so him being in the mix is a good sign.

# ? Mar 4, 2015 16:52

Rygar201: Jan 26, 2011; I AM A TERRIBLE PIECE OF SHIT.

Please Condescend to me like this again.

Oh yeah condescend to me ALL DAY condescend daddy.

My understanding is that blue States and non insane Red ones will form state exchanges or simply declare the federal one to be their state exchange, thus further turning the ACA into an even greater transfer from red States to blue ones despite Congress's original intention.

# ? Mar 4, 2015 16:55

evilweasel: Aug 24, 2002

Justice Ginsburg is inquiring about standing, Breyer actually mentioning the correct answer (that the statute defines all exchanges as created by a state), but Kagan forcing the petitioners to admit context matters:

quote:

Petitioners in King focus very heavily on the text, which they say only provides subsidies to states that set up their own exchanges under the literal terms. After Justice Ginsburg asked about standing, Justice Breyer opened the merits questioning whether that�s even true based on the way the statute defines exchanges (namely, as state-created entities) and then directs the federal government to establish �such an exchange� when the state fails to do so. But much of the early questioning was dominated by a real-life hypothetical from Justice Kagan, suggesting that petitioner�s reading does not accord with everyday usage.

She offered (something like) the following example: Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A�s memo, and then I tell law clerk C to write such memo if law clerk A is too busy. And imagine that happens � law clerk A is too busy, so law clerk C writes it. Should law clerk B edit it? The answer seemed obvious: of course, and Justice Kagan all but told petitioner�s counsel (and her clerks) that they would be fired if they didn�t do their job under those circumstances. In response, petitioner�s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance. But that seemed to play into Justice Kagan�s hand, who made clear that this was her point � that in understanding this text, the context obviously mattered.

That turn to context seemed unprofitable initially for petitioners. Many Justices, including Justice Breyer, Justice Sotomayor, and Justice Kennedy expressed skepticism that the statute would function as intended, in a reasonable fashion, and even constitutionally if petitioners� reading were accepted.

# ? Mar 4, 2015 16:59

mdemone: Mar 14, 2001

Rygar201 posted:

My understanding is that blue States and non insane Red ones will form state exchanges or simply declare the federal one to be their state exchange, thus further turning the ACA into an even greater transfer from red States to blue ones despite Congress's original intention.

Coercion! Non-aggression principle! Third thing!

# ? Mar 4, 2015 16:59

Deteriorata: Feb 6, 2005

Kennedy seems to be firmly against the plaintiffs and their specious argument from all I've read of the oral arguments.

# ? Mar 4, 2015 17:07

evilweasel: Aug 24, 2002

Kennedy is reiterating his concern that the petitioner's argument is unconstitionally coercive:

quote:

Third update: Kennedy raises a critical question for the petitioners.

In the midst of a discussion of context and the consequences of petitioners� reading, Justice Kennedy raised a question that will surely receive a lot of scrutiny in the coming discussion of the case. He pointed out that, under petitioners� reading, the federal government would be all but forcing states to create their own exchanges. That�s true not just for the headline reason covered by this case � that their citizens would be denied benefits � but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular state. For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein. Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. Justice Scalia attempted to respond on petitioners� behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a �serious unconstitutional problem.�

I dislike this argument as I am completely OK with coercing states but that horse has already bolted so I'll take it.

Scalia, of course, is using every bit of his lich powers to try to come up with a valid argument for killing the subsidies.

# ? Mar 4, 2015 17:08

Fried Chicken: Jan 9, 2011; Don't fry me, I'm no chicken!

Deteriorata posted:

Kennedy seems to be firmly against the plaintiffs and their specious argument from all I've read of the oral arguments.

Really? The statement about them being correct on plain reading seemed very supportive to me.

# ? Mar 4, 2015 17:09

evilweasel: Aug 24, 2002

Fried Chicken posted:

Really? The statement about them being correct on plain reading seemed very supportive to me.

My read of this (purely from the SCOTUSBlog reports) is that while he might think that reading is reasonable he really, really doesn't like the consequences. And with this argument he has a basis to say that while that reading is reasonable it would lead to unconstitutional results and so we must use the reading of the phrase that does not produce unconstitutional results.

It's certainly not a guarantee he'll vote to uphold the subsidies but he is more up for grabs than expected from his previous ruling.

# ? Mar 4, 2015 17:12

mdemone: Mar 14, 2001

Debate & Discussion � SCOTUS Thread OT 2015: Justice Scalia attempted to respond on petitioners� behalf

Edit: yes! yes! I'd like to thank the academy!

# ? Mar 4, 2015 17:14

evilweasel: Aug 24, 2002

Roberts has asked no questions so nobody really knows how he's leaning yet, except he seemed skeptical of Ginsburg's standing question.

# ? Mar 4, 2015 17:14

Green Crayons: Apr 2, 2009

Kennedy loves himself some state sovereigns.

# ? Mar 4, 2015 17:14

evilweasel: Aug 24, 2002

quote:

Continued updates on Oral Arguments in King v. Burwell
I stepped out of the room approximately 5 minutes into the Solicitor General�s argument. Here�s what happened since Eric�s last update.

The Justices focused their questioning for the remainder of Michael Carvin�s argument for the petitioners on whether his interpretation of the statute had put an �elephant in a mousehole,� i.e., whether it would have made any sense for Congress to put such an important condition for receiving subsidies inside a technical formula for calculating the amount of the subsidy. Justices Ginsburg and Kagan focused on this point. Carvin parried that if one was looking for information about who should get a tax credit (the form of the subsidy at issue), then the natural place to look would be in the tax code, and not in the title of the U.S. code relating to public health and exchanges. That didn�t sit well with Justice Kagan, who tested the argument against Carvin�s other claim, which is that Congress was trying to create an incentive for states; in Justice Kagan�s view, the states would look to the provisions relating to establishing exchanges, and not to the technical coverage formula, to decide whether to set one up. Thus, if Congress was trying to create incentives for states, it would put those incentives in the place where they would look. Justice Alito jumped in to help Carvin, saying that if a state was looking for information about tax credits, it would look to the tax code.

Carvin�s argument closed with a long question from Justice Breyer about the supposed anomalies that his interpretation would create with the statute. I�ll discuss those in more detail in an update shortly.

When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin�s representation that there is standing, thus suggesting her desire to reach the merits.

# ? Mar 4, 2015 17:16

1337JiveTurkey: Feb 17, 2005

evilweasel posted:

My read of this (purely from the SCOTUSBlog reports) is that while he might think that reading is reasonable he really, really doesn't like the consequences. And with this argument he has a basis to say that while that reading is reasonable it would lead to unconstitutional results and so we must use the reading of the phrase that does not produce unconstitutional results.

It's certainly not a guarantee he'll vote to uphold the subsidies but he is more up for grabs than expected from his previous ruling.

Or he could go full hack and say that's the only possible reading and it produces unconstitutional results so the statute as a whole is unconstitutional.

# ? Mar 4, 2015 17:17

Green Crayons: Apr 2, 2009

"a long question from Justice Breyer"

As if there's any other kind.

# ? Mar 4, 2015 17:17

Fried Chicken: Jan 9, 2011; Don't fry me, I'm no chicken!

evilweasel posted:

My read of this (purely from the SCOTUSBlog reports) is that while he might think that reading is reasonable he really, really doesn't like the consequences. And with this argument he has a basis to say that while that reading is reasonable it would lead to unconstitutional results and so we must use the reading of the phrase that does not produce unconstitutional results.

It's certainly not a guarantee he'll vote to uphold the subsidies but he is more up for grabs than expected from his previous ruling.

Well I'm going from David Ingram's live stream, so I suppose I lacked a larger context that SCOTUSBlog provided.

# ? Mar 4, 2015 17:19

WhiskeyJuvenile: Feb 15, 2002; by Nyc_Tattoo

evilweasel posted:

http://www.scotusblog.com/2015/03/first-mid-argument-update-king-v-burwell/

This is good news: what Kennedy is referencing here is the Medicare decision where they basically said forcing states to chose between expanded medicare and no medicare was unconstitutional coercion of the states. No guarantee he votes correctly, but if the conservatives lose Kennedy there's no chance they prevail so him being in the mix is a good sign.

That's literally the most infuriating thing about this: even under the bullshit neo-confederate theory that invalidated the Medicare expansion in the first place, this lawsuit has no loving legs

# ? Mar 4, 2015 17:22

Rygar201: Jan 26, 2011; I AM A TERRIBLE PIECE OF SHIT.

Please Condescend to me like this again.

Oh yeah condescend to me ALL DAY condescend daddy.

Is it right for the SCOTUS and the administration to just gloss over the standing issue?

# ? Mar 4, 2015 17:24

Green Crayons: Apr 2, 2009

Yes.

# ? Mar 4, 2015 17:26

Rygar201: Jan 26, 2011; I AM A TERRIBLE PIECE OF SHIT.

Please Condescend to me like this again.

Oh yeah condescend to me ALL DAY condescend daddy.

Green Crayons posted:

Yes.

Could you explain why? From what Evilweasel is saying, they may not have been legally able to take this case

# ? Mar 4, 2015 17:29

evilweasel: Aug 24, 2002

Rygar201 posted:

Could you explain why? From what Evilweasel is saying, they may not have been legally able to take this case

From the sound of it they have no factual proof anyone lacks standing. It's not the Administrations job to find the facts here for standing and it's not their job to raise it, and the Supreme Court seems to be saying nobody has given them a fact that shows there isn't standing. On those grounds it's not absurd the Supreme Court declines to bounce them, but it will be very awkward if it turns out none did pay the penalty.

# ? Mar 4, 2015 17:31

FlamingLiberal: Jan 18, 2009; Would you like to play a game?

Yes, because they probably believe they have a better defense on the merits (which is true).

# ? Mar 4, 2015 17:35

evilweasel: Aug 24, 2002

scalia still has the memory of a goldfish for statements he's made that are not currently useful for his partisan political beliefs:

quote:

Second update (11:33 AM) : The broad outlines of the government�s merits argument, and Justice Scalia�s first reaction

After the Solicitor General briefly discussed the standing issue, he outlined the government�s two broad arguments on the merits. The first is that the government�s interpretation of the statute, which makes subsidies available on exchanges created by both the states and HHS, is the best way to give meaning to all the words of the statute. The second point is that the government�s reading �is compelled by� the structure and design of the statute�specifically that it was designed to ensure state flexibility in setting up exchanges, to avert death spirals, and to provide affordable care for all. He argued that in light of these goals, Congress simply could not have intended for the statute to function as intended.

That provoked an immediate and sharp response from Justice Scalia, who said that �of course� Congress could have enacted a statute that functions the way petitioners describe. Justice Scalia then engaged the Solicitor General in a back and forth about whether statutes can ever be written in less-than-optimal ways, and about whether they can ever be nonsensical. The argument implicit in the questioning was that even if Congress wanted to enact a law that works, it doesn�t mean that it actually did so. In that sense, Justice Scalia seemed to be drawing an even harder line than the petitioners.

At that point I left the room to come talk to you all. Justice Scalia�s questions are very interesting in light of recent statements he�s made reiterating that statutes should be read as a whole. Of course, the government urges such a reading in this case, arguing that a holistic reading supports its view of the subsidy provisions, but the petitioners make whole-statute arguments as well even as they emphasize the particular words in Section 36B that support their argument most clearly.

We�ll have more updates once the argument is done. The buzzer just sounded, so stay tuned

# ? Mar 4, 2015 17:44

Green Crayons: Apr 2, 2009

Regarding standing:

Standing is a legal issue tied specifically to the facts, as established in the record, relating to any given party.

An appellate court is bound by the factual record before them, which consists of documents put before the lower courts that convey the facts of the case. This record is what establishes the factual universe of the case on appeal to SCOTUS. An appellate court does not get to look to "real life" when deciding a case, that is, to facts found outside of this record.

In this case, the petitioners claim that they do actually have standing. As no factual basis in the record has been established to truly test that claim, SCOTUS on appeal - not operating as a fact-finding court - has no record on which to evaluate that claim. The issue isn't suited to be decided on appeal because the lack of a sufficient factual record means that the standing issue can't be decided.

# ? Mar 4, 2015 17:48

ArmedZombie: Jun 6, 2004

scalia is a hypocrtical piece of poo poo and i hope he has a heart attack today

# ? Mar 4, 2015 17:50

Rebochan: Feb 2, 2006; Take my evolution

ArmZ posted:

scalia is a hypocrtical piece of poo poo and i hope he has a heart attack today

I don't normally grave dance, but I will for that hateful sack of poo poo.

# ? Mar 4, 2015 17:53

Green Crayons: Apr 2, 2009

evilweasel posted:

scalia still has the memory of a goldfish for statements he's made that are not currently useful for his partisan political beliefs:

wait, by "partisan" did you mean "ideology" or

:v:

# ? Mar 4, 2015 17:53

Rygar201: Jan 26, 2011; I AM A TERRIBLE PIECE OF SHIT.

Please Condescend to me like this again.

Oh yeah condescend to me ALL DAY condescend daddy.

Thanks, that helps a lot. I see why that's the way it works, it's just odd to me that this case could theoretically have huge ramifications and the plaintiffs may never have had grounds to sue at all.

^Yeah, I'm waiting to see this start-up again^

# ? Mar 4, 2015 17:53

saintonan: Dec 7, 2009; Fields of glory shine eternal

evilweasel posted:

scalia still has the memory of a goldfish for statements he's made that are not currently useful for his partisan political beliefs:

Is it bad form for the SG to gently point out this hypocrisy in his response? Something along the lines of "Of course, you yourself have recently mentioned how important it is to look at statutes as a whole, and that forms the basis of our argument on this point."

# ? Mar 4, 2015 17:55

mdemone: Mar 14, 2001

ArmZ posted:

scalia is a hypocrtical piece of poo poo and i hope he has a heart attack today

saintonan posted:

Is it bad form for the SG to gently point out this hypocrisy in his response? Something along the lines of "Of course, you yourself have recently mentioned how important it is to look at statutes as a whole, and that forms the basis of our argument on this point."

*drops mic*

*grabs crotch*

*moonwalks out*

# ? Mar 4, 2015 17:55

WhiskeyJuvenile: Feb 15, 2002; by Nyc_Tattoo

evilweasel posted:

scalia still has the memory of a goldfish for statements he's made that are not currently useful for his partisan political beliefs:

The failure of institutional actors to say, non-obliquely, "hey, you're full of poo poo" is partially what's killing America, scotusblog.

# ? Mar 4, 2015 17:55

evilweasel: Aug 24, 2002

saintonan posted:

Is it bad form for the SG to gently point out this hypocrisy in his response? Something along the lines of "Of course, you yourself have recently mentioned how important it is to look at statutes as a whole, and that forms the basis of our argument on this point."

Depends on how it's done. But you're never going to get his vote and you might give him an opening to blather on wasting your time. You'd only do it if you thought it would help you with another justice.

# ? Mar 4, 2015 17:57

hobbesmaster: Jan 28, 2008

saintonan posted:

Is it bad form for the SG to gently point out this hypocrisy in his response? Something along the lines of "Of course, you yourself have recently mentioned how important it is to look at statutes as a whole, and that forms the basis of our argument on this point."

Hopefully RBG will file a concurring judgment that does this like she did with the one liner last term.

# ? Mar 4, 2015 17:58

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# ? Jun 1, 2024 02:38

VitalSigns: Sep 3, 2011

quote:

The argument implicit in the questioning was that even if Congress wanted to enact a law that works, it doesn�t mean that it actually did so. In that sense, Justice Scalia seemed to be drawing an even harder line than the petitioners.

So I see Scalia is adopting the George Costanza test for statute interpretation

# ? Mar 4, 2015 17:59

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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