Keep calm and karaoke!

Via Cosmo Orbüs.

There's a certain amount of outfreaking (German: Ausfreakung) going on in the Tubes over today's ruling by a three-judge panel of the DC Circuit Federal Court of Appeals that Affordable Care insurance clients can't get their premium subsidies in the 36 states whose Republican governors and/or legislators refused to set up a state exchange, because the law doesn't mention doing subsidies for the big federal exchange that these citizens are forced by their stupid rulers to use instead. "Omigod," I'm hearing, "they're going to murder Obamacare!"

I'm not buying it. Only a couple of hours later another ruling came down from a different panel and in the opposite direction (same link as above):

The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”

Pay careful attention to that wording, because we'll come back to it.

There's more than one case out there still to come, and full courts to rule on them after the panels rule, and the Supreme Court, and I'd be an idiot to say I know how it's going to come out, but what the hell, everybody knows I'm an idiot already.

The thing is, there was yet another Federal Obamacare ruling today that nobody so far seems to be citing in this connection, in the matter of Johnson v. U.S. Office of Personnel Management, where Senator Ron Johnson (R-Kochland) was suing the government for its pernicious insistence on making

members of Congress and their staffs eligible for employer-subsidized health insurance through either a designated small business exchange or the Federal Employees Health Benefits Program (FEHBP) in direct contradiction of a provision of the ACA that requires that members of Congress and their staffs purchase their insurance on the individual exchanges set up under the ACA.

I've said it before on the subject of Senators Vitter and Grassley, and I'll say it again about Johnson, that I can't understand why these guys (a) hate their staffs so much that they can't bear to see them get a deal on their health insurance and (b) aren't afraid said staffers will one day publicly pants them in a scene that would work in a film with Reese Witherspoon.*

*Faithful DC readers, you know who you are, would you please spread this concept around? Because I really want it to happen. Preferably not to Grassley, who's pretty elderly, and indeed probably too old to learn from the experience, but either of the other guys, and of course if it's Vitter you can really be creative.

Oldie but goodie from Down With Tyranny.

Anyway, District Judge William Griesbach dismissed the suit yesterday on the issue of standing, writing:

there is no “case” or “controversy” over which the courts have jurisdiction. For the judiciary to intervene under these circumstances would violate the same principle Plaintiffs seek to vindicate in their own lawsuit with far less opportunity for correction by either the other branches or the people. For all of these reasons, the dispute must be left to the “Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). “It is not our job to protect the people from the consequences of their political choices.” Id.

Now, the big subsidy cases we're talking about don't have standing issues, exactly. The plaintiffs are not bigtime Senators being dicks to their employees but smalltime businessmen claiming that the requirement to buy health insurance, even with subsidies, will break their banks:

The lawsuit in Washington was filed by several people, supported by conservative and libertarian organizations, in states that use the federal exchange: Tennessee, Texas, Virginia and West Virginia. They objected to being required to buy insurance, even with subsidies to help defray the cost.

One of the plaintiffs, David Klemencic, who has a retail carpet store in Ellenboro, W.Va., said: “If I have to start paying out for health insurance, it will put me out of business. As Americans, we should be able to make our own decisions in matters like this.”

Then again that's a pretty weird kind of standing: "Please don't give me these illegal subsidies, Your Honor, because I still won't be able to afford it. Make me not able to afford the sticker price instead!" The conservative and libertarian backers are, of course, what the cases are really about: another attempt to exploit a minor weakness in the way the bill was written to destroy the entire thing.

No, what's really interesting in the Griesbach opinion is the fact that he cites there, on the standing issue, of all things, Chief Justice Roberts's opinion in National Federation of Independent Businesses v. Sebelius, the case in which Roberts sided with the Court's liberals to hold that fining citizens for failure to purchase health insurance was legal because it was a tax—in which Justice Roberts wasn't talking about standing, but about the general need for the judiciary not to go poking too deeply into the adjudication of disputes between the legislative and executive branches.

And then the other thing is how both the cases deal with the problem of executive regulators trying to set things up so that the law does what the Congress wanted it to do but was unable to achieve in the writing of the bill; in the Johnson case rectifying the idiocy of the Grassley Amendment which left staffers (and Representatives and Senators as well, but they being multimillionaires didn't care) in the position of being forced to buy Exchange policies without subsidies (for which the main text of the bill disqualified them since their employer, Congress, is not a small business, having more than 50 employees), and in the other the stupidity of the Republican governors which put the citizens of 36 states in need of subsidies the law didn't provide for.

Thus the Griesbach opinion shares with today's Virginia ruling and the Roberts opinion of 2012 a kind of weary feeling that if Congress can't do its job and the Presidency is ready, in its concept of what it takes to faithfully execute, to fill in the gap and make those decisions, then the Judiciary doesn't need to butt in. If they do something wrong let the voters deal with it.

One other salient point before I get to my punch line: that Money is involved in Obamacare cases in a way it isn't in issues of political spending or Net neutrality or what have you. There's a lot of money for insurance companies and hospital corporations and Pharma in the ACA going according to plan.

That's why we can't have single-payer, in fact. Those guys really can, and will if they feel like it, destroy the law; so it is written to give them some of that legendary "skin in the game" (as was the Hillarycare program in 1993, but this one is more skillful) and keep them happy. If they get enough profit they'll let us have universal health care. The Republicans are now literally too crazy to understand this, most of them, and want to kill it regardless, but the courts get it.

And that is why, when the matter of Mr. Klemencic (Croatian name, I think) and his magic carpet store gets to the Supreme Court, if it does, and if Justice Kennedy can't figure out a way to line his peculiar principles up with the liberals, Roberts will do it himself, as he did in 2012, with some ridiculous argument that pleases nobody but keeps the ACA alive.  And like the 2012 decision, and the Virginia opinion quoted above, it's going to have something to do with the IRS and its discretion to make the rules. You heard it here first, unless somebody else got it out while I was cooking dinner, the bastards.

From the Game of Thrones Unofficial Cookbook.