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[ivysaur12]

Ben Nuckols ‏@APBenNuckols 2m2 minutes ago
Chris Van Hollen makes it official in email to supporters: He's running for @SenatorBarb seat. More to come from @APBrianWitte.

This is going to be a contentious primary for sure.

 

[Oblivion]

Also, one of the articles said the SC will make a decision by Friday (though it may not be issued publicly for several months). Do big SC cases really only last a few days? I thought they went on for weeks?

 

[ivysaur12]

Also, one of the articles said the SC will make a decision by Friday (though it may not be issued publicly for several months). Do big SC cases really only last a few days? I thought they went on for weeks?

They'll do an initial vote in conference, and then the most senior judge (or CJ if he's in the majority) will assign who writes the opinion. At this point, there is still some back and forth on trying to get judges to switch sides (which is people's theory about the original Obamacare vote), but then the majority writes their opinion. That's really what takes a while.

 

[Black Mamba]

Also, one of the articles said the SC will make a decision by Friday (though it may not be issued publicly for several months). Do big SC cases really only last a few days? I thought they went on for weeks?

Typically, they discuss the case in conference and they make their decisions. If Roberts is on the winning side, he'll determine who writes the Opinion. If he's not, generally the most senior Justice on the winning side makes the decision.

The Justice (mostly aides) write the Opinion and then sends it around to which other Justices respond either through concurrences, dissents, or whatever. This is why you see Opinions or Concurrences address Dissents directly at times.

Now, a Justice could change their opinion based on the case post conference back and forth, and I'm sure it has in the past. But Justices generally make their decision in the Conference of the case. Truthfully, the Justices have their mind made up well before Oral Argument (probably when they decide to take a case or at least read the briefs).

Nothing is official til an Opinion is released and things can change prior. Hell, Opinions are even changed years after they are given, and yes this at times has a tangible effect.

edit: yes, they'll ask each other questions trying to switch their position all the time after Conference.

 

[NYCmetsfan]

Also, one of the articles said the SC will make a decision by Friday (though it may not be issued publicly for several months). Do big SC cases really only last a few days? I thought they went on for weeks?

Toobin's books talk a lot about the behind the scenes stuff. They're not text books and prone to speculation but its a good background for understanding how the court works

This is going to be a contentious primary for sure.

He's going after money now

He's not as progressive as others and I'd like to see more women/minorities in the senate but he doesn't have a bad record from a cursory glance

Van Hollen has been endorsed by the Brady Campaign to Prevent Gun Violence,[27] a group which campaigns for more government regulation of guns.[28] Van Hollen received a 0% from the Gun Owners of America (GOA) in 2006.[29] In September 2008, Van Hollen voted against repealing portions of the D.C. Firearm Ban.[30]

Van Hollen also supports animal rights groups such as The Humane Society, the Society for Animal Protective Legislation (SAPL), Big Cat Rescue (BCR), and Defenders of Wildlife Action Fund, all who gave him a 100% approval rating.[29] Van Hollen also received endorsement from the Humane Society Legislative Fund (HSLF) in 2010.[31] Although he supports animal rights groups, Van Hollen is not a supporter of organizations which aim to protect the rights of sportsmen who are animal owners, and received an approval rating of 0% from the Sportsmen's and Animal Owners' Voting Alliance (SAOVA).[29]

Van Hollen received a 0% rating for the Citizens Against Government Waste (CAGW), and the National Taxpayers Union (NTU), in 2010.[29] Both these organizations advocate for lower taxes.[32][33] In 2006, Van Hollen received a 100% rating from Citizens for Tax Justice (CTJ), a group that calls for higher taxes on the wealthy.[34] Van Hollen does not support eliminating the federal estate tax.[29][35]

and gaf will like this

In July 2006, Van Hollen urged the Bush administration to support a ceasefire supported by a peacekeeping force that would end the Israeli-Lebanon War. He was heavily criticized by the Jewish and pro-Israel community, a large part of his constituency. According to the Washington Jewish Week, Van Hollen clarified but did not retract his position.[19]

 

[Crisco]

I guess it all depends on how deep the conservative zealotry runs on the court. These are the same dudes that decided political corruption wasn't a thing so there was no need for campaign finance law. So they are clearly capable of supporting irrational conclusions for ideological goals. I just think this one goes a bridge too far, even for them.

 

[NYCmetsfan]

I guess it all depends on how deep the conservative zealotry runs on the court. These are the same dudes that decided political corruption wasn't a thing so there was no need for campaign finance law. So they are clearly capable of supporting irrational conclusions for ideological goals. I just think this one goes a bridge too far, even for them.

This was pointed out but the fact alito was hypothesizing that they could strike them down but stay it till December shows how aware they are of how much this would screw up the nations health care system.

I would just prefer they rule as narrowly as possible and don't invoke that coersin doctrine because that's setting the court up for lots and lots of challenges for pretty much any federal law.

Congress has continually used money to force changes in states because the enumerated powers aren't as strong.

With the court closing the commerce front in the ACA case and now trying to limit the power of the purse to effect change in state capitals its a dangerous and worrying roll back of the post new deal precedents. Its the most pressing thing on the court for me, that and their use of the first amendment and money is speech doctrine to roll back union rights.

I don't think people realize how conservative and precedent setting this court is.

That's why getting the court back is so important. Even with kagan and breyer siding with some of these precedents they are much more likely to be make exceptions and roll back some of worse decisions.

 

[ivysaur12]

I really think it'll come down to Donna Edwards from the left and Van Hollen from more of a moderate stance. My guess is that Van Hollen will win, but you never know. And the Baltimore mayor Stephanie Rawlings-Blake could throw a wrench in everything.

 

[Wilsongt]

The Benghazi Boner returns. Joy. The GOP are literally creaming their pants right now

 

[NeoXChaos]

This Hillary Clinton email thing could last a while.

 

[PhoenixDark]

This Hillary Clinton email thing could last a while.

Of course it will. One of Biden's supporters said it perfectly: it'll be a death by 1000 cuts.

 

[SenorArdilla]

Did something new pop up?

 

[Poodlestrike]

This Hillary Clinton email thing could last a while.

Nah. It'll be over by June.

 

[Amir0x]

I love e-mails. *yawn*.

Unless they find something juicy in these e-mails, it's so much hot air. They should have revealed this closer to the actual election season to be big impact otherwise.

 

[Poodlestrike]

I love e-mails. *yawn*.

Unless they find something juicy in these e-mails, it's so much hot air. They should have revealed this closer to the actual election season to be big impact otherwise.

Wasn't that... rather the point? I thought that this was the result of Hillary's own internal investigation, trying to get this over with before it could impact the election.

 

[Metaphoreus]

Of course it will. One of Biden's supporters said it perfectly: it'll be a death by 1000 cuts.

I'm sorry, did you say "Biden's supporters"? That's a thing?

 

[Aaron Strife]

I'm sure the media will have plenty more to talk about this summer than Hillary's emails.

That is, the full constitutionality of Obamacare and gay marriage.

 

[Amir0x]

Wasn't that... rather the point? I thought that this was the result of Hillary's own internal investigation, trying to get this over with before it could impact the election.

The point is there's so many people licking their lips and wringing their wrists about this already, and there's no reason for it. It's not going to do damage and Hillary is smart here.

 

[HylianTom]

I'm sure the media will have plenty more to talk about this summer than Hillary's emails.

That is, the full constitutionality of Obamacare and gay marriage.

Yup. Marriage is going to be the gift that keeps on giving. We can be pretty confident that this won't end tidily in June. GOP candidates will continue to tiptoe and dodge, lest they turn off voters under a certain age, voters for whom this is a significant "gateway issue."

Meanwhile, Dr Carson has made a decision on this, it seems..

Ben Carson: I’m not going to talk about gay marriage any more

“I also believe that our Constitution protects everybody, regardless of their beliefs, and that includes people who are gay,” Mr. Carson continued. “I have no problem with them doing whatever they want to do. I’m just not willing to change the definition of marriage for anybody, because once you do that, you have to change it for everyone else who comes along. Why would we want to do that? We have something that’s worked for thousands of years to create a nurturing environment for raising children. And I think that’s where we ought to leave it.”

He added: “I simply have decided I’m not going to really talk about that issue anymore, because every time I gain momentum, the liberal press says, ‘let’s talk about gay rights.’ I’m just not going to fall for that anymore.”

http://www.washingtontimes.com/news/2015/mar/4/ben-carson-im-not-going-to-talk-about-gay-m/

 

[Fenderputty]

Meanwhile, Dr Carson has made a decision on this, it seems..


http://www.washingtontimes.com/news/2015/mar/4/ben-carson-im-not-going-to-talk-about-gay-m/

These primaries will be quite the spectacle.

 

[Abinash117]

Hilary's emails is going to overshadowed by other stuff. A big reason some people will continue to talk about it is because its political and its some dirt; kinda like Benghazi.

How was the biggest chance of winning minority voters, including if Jeb doesn't get the nominee ?

 

[thepotatoman]

This was pointed out but the fact alito was hypothesizing that they could strike them down but stay it till December shows how aware they are of how much this would screw up the nations health care system.

I would just prefer they rule as narrowly as possible and don't invoke that coersin doctrine because that's setting the court up for lots and lots of challenges for pretty much any federal law.

Congress has continually used money to force changes in states because the enumerated powers aren't as strong.

With the court closing the commerce front in the ACA case and now trying to limit the power of the purse to effect change in state capitals its a dangerous and worrying roll back of the post new deal precedents. Its the most pressing thing on the court for me, that and their use of the first amendment and money is speech doctrine to roll back union rights.

I don't think people realize how conservative and precedent setting this court is.

That's why getting the court back is so important. Even with kagan and breyer siding with some of these precedents they are much more likely to be make exceptions and roll back some of worse decisions.

Roberts could easily pull a "this decision should not be considered as precedence" like he's done plenty of times before.

 

[PhoenixDark]

Dat victim persecution complex. Gay marriage is a big issue right now, of course candidates are being asked about it. There's lots of action in the courts, the Supreme Court is getting geared up to address it, etc. Why wouldn't he expect to be asked it?

The more logical takeaway: he cannot operate outside of the conservative media bubble, just like Palin. Once he's taken out of that bubble he flops. He gave a simplistic, stupid answer about a complex issue and got lampooned. Dude is a fucking clown...

 

[ivysaur12]

This Hillary Clinton email thing could last a while.

I find it distressing, but it's not really getting much traction outside of politico circles, so, shrug emoticon.

 

[NYCmetsfan]

Hilary's emails is going to overshadowed by other stuff. A big reason some people will continue to talk about it is because its political and its some dirt; kinda like Benghazi.

How was the biggest chance of winning minority voters, including if Jeb doesn't get the nominee ?

The media will continue it because they feel they're the victims of some clintonian conspiracy against them. Its a way for them to cheer themselves standing up for transparency, 4th estate and all that jazz.

I don't see anyone else really caring unless there is anything in the emails.

 

[SenorArdilla]

Technically speaking, haven't they already gone through all her emails?

 

[thepotatoman]

Is there a conservative middle ground that allows Kennedy to keep his states rights and still allow the other conservatives to nip away at the ACA?

Something like "if states specifically ask for the Feds to do the exchange for them, they'll be covered, if states don't want subsidies so that as many of their citizens aren't forced into the mandate as possible, then the law as written doesn't force those states to take it".

 

[NeoXChaos]

1. DId Hillary violate regulations?

2. Even liberals on MSNBC like chris matthews and lawrence O Donnell are ragging on these "regulations" crap. I know it was really stupid for her to do this but they are attacking people who are defending Hillary. "Well if it was a republican, you wouldnt be defending this".

3. She needs to bury this next month and tell the truth. There wont be an easy answer and explanation sadly.

 

[Diablos]

I'm confused by Kennedy's words. At first he takes a good swing at King's argument but then lands in a different place later on by basically saying the IRS has way too much power in being able to give out subsidies just because they can. So he basically is walking a really fine line and almost contradicting himself; on one hand he seems to imply King really thinks Congress intended for a state to enter a 'death spiral' if they didn't have their own exchange which is silly; on the other he basically scolds the IRS for giving out subsidies in those states, implying they have too much power in this regard. I don't understand. It's like he wants to be everyone's friend which could just mean he's thumbing his nose at today's oral arguments and not giving any real indication as to how he actually will rule.

I also don't trust Kennedy, and for those thinking he could be the deciding vote joining the liberals, how could a man who previously voted to trash the entire law now defend it? We can't forget that. His judgment could be clouded by a broader view which is that he thinks the ACA is bad policy -- period.

As for Roberts being quiet, that might not be good. He was far more vocal last time and it was for good reason as he was pretty sensitive to the way he ruled. He seems to not care which can mean a lot of different things.

And Scalia now more than ever confirmed he is a hater who gives zero fucks. He said and basically acknowledged in the past that Congress had a backup plan in the ACA for when states didn't set up exchanges/provide subsidies. It was a different case, yes, but he understood that much. Now he's backpedaling and acting like that never happened and actually had the audacity to think this Congress would come up with a viable alternative, let alone PASS any alternative, interjecting typical right-wing blowhard talking points as of late into his musings. I really wish this unethical fucker would just get off the court already.

 

[Crisco]

Is there a conservative middle ground that allows Kennedy to keep his states rights and still allow the other conservatives to nip away at the ACA?

Something like "if states specifically ask for the Feds to do the exchange for them, they'll be covered, if states don't want subsidies so that as many of their citizens aren't forced into the mandate as possible, then the law as written doesn't force those states to take it".

But that's what's already going to happen if the FFE subsidies are struck down. HHS will make "establishing an Exchange" as simple as forwarding to healthcare.gov and the only states left without subsidies will be red ones who explicitly don't want them.

 

[Diablos]

But that's what's already going to happen if the FFE subsidies are struck down. HHS will make "establishing an Exchange" as simple as forwarding to healthcare.gov and the only states left without subsidies will be red ones who explicitly don't want them.

...I sincerely doubt this and it would be challenged to death even if you are right.

If they interpret it to mean an exchange established by the state, and ONLY by the state, can receive subsidies... then that can't mean a state posts a hyperlink to a federal government website as a means to call it something they established.

 

[thepotatoman]

I'm confused by Kennedy's words. At first he takes a good swing at King's argument but then lands in a different place later on by basically saying the IRS has way too much power in being able to give out subsidies just because they can. So he basically is walking a really fine line and almost contradicting himself; on one hand he seems to imply King really thinks Congress intended for a state to enter a 'death spiral' if they didn't have their own exchange which is silly; on the other he basically scolds the IRS for giving out subsidies in those states, implying they have too much power in this regard. I don't understand.

I also don't trust Kennedy, and for those thinking he could be the deciding vote joining the liberals, how could a man who previously voted to trash the entire law now defend it? We can't forget that. His judgment could be clouded by a broader view which is that he thinks the ACA is bad policy -- period.

As for Roberts being quiet, that might not be a good thing. He was far more vocal last time and it was for good reason as he was pretty sensitive to the way he ruled. He seems to not care which can mean a lot of different things.

And Scalia now more than ever confirmed he is a hater who gives zero fucks. He said and basically acknowledged in the past that Congress had a backup plan in the ACA for when states didn't set up exchanges/provide subsidies. It was a different case, yes, but he understood that much. Now he's backpedaling and acting like that never happened and actually had the audacity to think this Congress would come up with a viable alternative, let alone pass ANY alternative.

Yeah, it seems clear that Kennedy thinks King has the right reading, and it's clear that he's worried about state coercion, but I wouldn't be surprised if even he doesn't know how he can digest those two facts together yet. I suppose that's part of the point of having oral arguments.

In his NFIB decent, he wrote "to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.", so it seems like he wouldn't want to simply rewrite the law to make it constitutional. It's just so weird to think about what an unconstitutional ruling would even mean here since "unconstitutionally coercive" is so unprecedented outside of NFIB.

There's also this tidbit from Kennedy today about this issue:

"I think the Court and the counsel for both sides should confront the proposition that your argument raises a serious constitutional question. Now, I'm not sure that the government would agree with that, but­­ it is in the background of­­ how we interpret this statute."

What constitutional question does the government's side have to confront regarding their reading of the law?

 

[Metaphoreus]

But that's what's already going to happen if the FFE subsidies are struck down. HHS will make "establishing an Exchange" as simple as forwarding to healthcare.gov and the only states left without subsidies will be red ones who explicitly don't want them.

Unlikely. Remember that 1311(d)(1) requires an Exchange to be a "governmental agency or nonprofit entity that is established by the State." HHS is neither.

 

[Black Mamba]

Unlikely. Remember that 1311(d)(1) requires an Exchange to be a "governmental agency or nonprofit entity that is established by the State." HHS is neither.

What does "established" mean, then? Because California's Exchange was set up by private contractors, so does that mean it isn't allowed? the State didn't physically do it.

Or can the State contract the HHS to do it for them?

 

[Diablos]

What constitutional question does the government's side have to confront regarding their reading of the law?

It's like he's playing nice, trying to show respect to both sides of the argument which is why I scratch my head when people are saying the government 'won' today if only by a nanometer. At best he was being completely neutral and evasive...

I really wanna know why Roberts was so fucking quiet.

 

[Aaron Strife]

The impression I'm getting from a lot of SCOTUS commenters is that Kennedy's tone seemed to be better for the government, but obviously it's still up in the air.

I think 6-3 or 5-4 in favor of Obamacare seems likely.

 

[Black Mamba]

It's like he's playing nice, trying to show respect to both sides of the argument which is why I scratch my head when people are saying the government 'won' today if only by a nanometer. At best he was being completely neutral and evasive...

I really wanna know why Roberts was so fucking quiet.

Roberts is so aware of the politicization of this case so he stayed quiet.

As for Kennedy, I think his qualms were legit. Kennedy is very pro federalism, hence the coercism issue. At the same time, Kennedy doesn't like the Chevron ruling and wants to get rid of it. I'm not sure why, but apparently he is (and this was established before the ACA case).

Kennedy tends to hold federalism above most things, so that's why people feel like he is leaning towards the Respondents.

 

[Diablos]

Roberts is so aware of the politicization of this case so he stayed quiet.

As for Kennedy, I think his qualms were legit. Kennedy is very pro federalism, hence the coercism issue. At the same time, Kennedy doesn't like the Chevron ruling and wants to get rid of it. I'm not sure why, but apparently he is (and this was established before the ACA case).

Kennedy tends to hold federalism above most things, so that's why people feel like he is leaning towards the Respondents.

Now wait a sec. If he hates Chevron ruling and wants to do away with it, and the best argument we can make in meeting people like him halfway is to abide by a Chevron type of ruling... how can we really think this man will side with the liberal sect of the court?
Because best case for Kennedy is basically saying "welp, I disagree but we have to assume Congress had the best of intentions, can't be sending those states into an insurance death spiral!" To Kennedy that would be de facto Chevron I would think.

Thinking about it that way it's Roberts or nothing.

Roberts is either aware of the politicization of this case or has already made up his mind and wants nothing to do with oral argument. The latter of which is very concerning. Who was the creepy rich troll from Kato or some institute who basically said this case is Roberts' chance to 'repent' for his ultimate sin of saving the ACA in the previous case?

 

[NYCmetsfan]

Now wait a sec. If he hates Chevron ruling and wants to do away with it, and the best argument we can make in meeting people like him halfway is to abide by a Chevron type of ruling... how can we really think this man will side with the liberal sect of the court?

because he wouldn't rely on the chevron ruling, he'd follow the coercion doctrine

 

[thepotatoman]

It's like he's playing nice, trying to show respect to both sides of the argument which is why I scratch my head when people are saying the government 'won' today if only by a nanometer. At best he was being completely neutral and evasive...

I really wanna know why Roberts was so fucking quiet.

Yeah, I get that feeling too from Kennedy. Not nearly the slam dunk people are making it out to be there.

I've seen Robert's one comment about the broadness of the law gets analized two ways, either that he's playing to his pro executive power of the reagan days, and might let the executive branch decide, or he's referring to how overbroad major questions can't be left to agency interpretation, and might go with congress's "interpretation" the plaintiff puts out.

I don't know. I'd just like to get a feel for if he thinks the plaintiff's interpretation is any less ridiculous than Kagan's analogy made it out to be.

 

[Black Mamba]

Now wait a sec. If he hates Chevron ruling and wants to do away with it, and the best argument we can make in meeting people like him halfway is to abide by a Chevron type of ruling... how can we really think this man will side with the liberal sect of the court?

Chevron says unambiguous text means the feds decide what to do, essentially. What Kennedy would do without a Chevron ruling is up in the air. I have no idea what happens there.

But the Court won't overturn Chevron here, so Kennedy won't really have anything there to go off of.

He just going to make a sacrifice.

Here's the thing. Kennedy's position in the 2012 ACA case was fine. I have said this before here, but I think the argument against the individual mandate was a very proper Constitutional argument. I honestly believe both arguments had fair points and could have gone either way. It's a fuzzy realm of law where the Constitution is shown to be an outdated document. Kennedy doesn't like federal overreach so hi decision to limit the Spending Clause in that case made sense. However, Kennedy is a pretty practical Justice and I don't think he will side with Petitioners over what essentially is clumsy language at worst. So he's just trying to find a way out without expanding Federal Authority.

Thomas is stuck in the 1800s but he's pretty consistent about it. Scalia is a troll whose opinions contradict one another because he wants to simply impost conservative priciples. But Kennedy is pretty consistent in his beliefs and opinions, even if he's a conservative leaning Justice.

Kennedy loves federalism. Roberts loves deference to the Presidency. In both, this helps the Federal Gov't in this case.

 

[Amir0x]

Man it is so bizarre reading articles about the Mormon Church backing Utah LGBT anti-discrimination bills. I mean they've been saying for the past year now that they're changing stances to trying to be loving to their gay brothers and sisters and now they've backed this bill preventing discrimination except in cases of marriage and religious housing. It's obviously still messed up for the discrimination it still doesn't prevent, but man it does seem like we've started to turn something of a corner since their gross Prop 8 days. I'm trying to figure whether I should be happy at this amount of progress or not, but it's undoubtedly progress of a kind.

 

[Aaron Strife]

Man it is so bizarre reading articles about the Mormon Church backing Utah LGBT anti-discrimination bills. I mean they've been saying for the past year now that they're changing stances to trying to be loving to their gay brothers and sisters and now they've backed this bill preventing discrimination except in cases of marriage and religious housing. It's obviously still messed up for the discrimination it still doesn't prevent, but man it does seem like we've started to turn something of a corner since their gross Prop 8 days. I'm trying to figure whether I should be happy at this amount of progress or not, but it's undoubtedly progress of a kind.

I'm a bit cynical about this kind of issue and I see it more as them trying to save face.

For example it pisses me off whenever you see conservatives claiming they'd be ok with civil unions. Yeah and John Kerry, Tom Daschle, Obama in 2008 etc. etc. got raked across the coals by those same fucking assholes for offering tepid support for civil unions. They've just realized they're on the losing side and trying desperately (and failing) to hold onto any consolation they can.

Also accusing LGBT supporters of being divisive. Some shitty legislator in MN when they held the vote on gay marriage was crying during the debate, accusing Democrats of "dividing" the state by holding the vote at all, which is a lot of fucking nerve for someone who backed the constitutional amendment to ban it. You know, the question that asked voters directly whether they wanted to take away their neighbors' right to marry. Whatever, she lost and she can wallow in her crocodile tears.

 

[HylianTom]

Hillary's tweet this evening:
"I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible."

Posted 15 minutes before midnight on the east coast. I love the timing, lol.

---

And the more I think about the whole "don't gloat" thing regarding the upcoming marriage case, the less magnanimous I feel towards the opposition's feelings (should the court indeed rule in favor of equality). The legislation that's being pushed around the country in reaction to these federal rulings does not help matters one bit.

I'm going to be a bit skeptical towards certain groups for a long time; I see the Mormon Church's headlines and immediately wonder, "hmm. What's the catch?"

 

[Chichikov]

Today I learned that there's a trail of tears defense force on GAF.
So that's something.

 

[Metaphoreus]

I'm confused by Kennedy's words. At first he takes a good swing at King's argument but then lands in a different place later on by basically saying the IRS has way too much power in being able to give out subsidies just because they can.

Kennedy's questions ultimately boiled down to the following two: (1) How should I interpret the text? (2) If the challengers are right about the text, is the scheme they describe unconstitutionally coercive?

The Chevron analysis fits into question (1). Remember that Chevron tasks courts with asking two further questions, which I'll paraphrase: (a) Is the statute ambiguous on the relevant point? (b) If so, is the agency rule based on a reasonable interpretation of the statute? If, as an initial matter, Kennedy thinks the statute is ambiguous, but one of the reasonable readings would raise constitutional doubts, then he might say that the statute is actually unambiguous in favor of the other reasonable reading. Kennedy's questions about whether the challengers' reading would be coercive fit in here, as well as in question (2). But if he concludes in (a) that the statute really is ambiguous, and that he can't avoid that ambiguity, then he'll move on to (b). (Some of Kennedy's comments about the text indicate that he doesn't view the government's reading as a reasonable one, so the doctrine of constitutional avoidance may not even come into play for him.)

Question (b) is where Kennedy's questions concerning the magnitude of the discretion purportedly left to the IRS come in. As a consequence, even if he gets to Chevron step two (i.e., question (b)), he might say that the IRS rule is not entitled to deference because Congress would not have delegated so great a power through an ambiguous term. (By the way, Verrilli refers on page 76 to a "learned treatise that described" the rule that tax credits must be clearly stated "as a false notion." He's referring to Scalia and Garner's Reading Law, with which you are all surely familiar by now.)

Question (2) probably won't play into the case if it doesn't do so in Kennedy's thinking about question (a). This is because question (2) is not part of the questions presented in the case, and the issue has not been fully briefed. In fact, neither the government nor the challengers are willing to endorse the theory in this case. So, unless question (2) causes Kennedy to interpret (a) in favor of the government, I think he'd kick the can down the road, waiting for a state to challenge the program on the basis that it's coercive.

There's also this tidbit from Kennedy today about this issue:

"I think the Court and the counsel for both sides should confront the proposition that your argument raises a serious constitutional question. Now, I'm not sure that the government would agree with that, but­­ it is in the backgrou nd of­­ how we interpret this statute."

What constitutional question does the government's side have to confront regarding their reading of the law?

I don't think that's what Kennedy's saying. I think he's saying the challengers' reading raises a "serious Constitutional question," and both parties need to address that. Verrilli does address it by saying, in essence, "If that causes you to interpret the statute my way rather than the challengers' way, then more power to you. But I'd never concede you're right about it."

What does "established" mean, then? Because California's Exchange was set up by private contractors, so does that mean it isn't allowed? the State didn't physically do it.

Or can the State contract the HHS to do it for them?

An Exchange isn't the website, but the organization tasked with maintaining the website (among other duties). An Exchange can contract with an "eligible entity" to "carry out 1 or more responsibilities of the Exchange" under 1311(f)(3), but "eligible entity" is defined in such a way as to exclude HHS.

Speaking of California, California Government Code sec. 100500 demonstrates how a state "establishes" an Exchange:

There is in state government the California Health Benefit Exchange, an independent public entity not affiliated with an agency or department, which shall be known as the Exchange. The Exchange shall be governed by an executive board consisting of five members who are residents of California. Of the members of the board, two shall be appointed by the Governor, one shall be appointed by the Senate Committee on Rules, and one shall be appointed by the Speaker of the Assembly. The Secretary of California Health and Human Services or his or her designee shall serve as a voting, ex officio member of the board.

 

[gcubed]

Well, good news is Christie can't keep his nose clean for 2 days.

Settling a multibillion lawsuit for 250 million dollars

 

[NYCmetsfan]

Today I learned that there's a trail of tears defense force on GAF.
So that's something.

what?

 

[B-Dubs]

what?

Look in Ami's Andrew Jackson thread.

 

[Chichikov]

what?