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tv   Washington This Week  CSPAN  September 29, 2014 4:00am-4:26am EDT

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according to how it was done. so people are trying to enforce it against an irs regulation. there is a provision that the subsidies provided for our available for planned purchase quoted as an exchange established by the state under section 1311 of the act. and they did not establish this in 46 states, but many of them wanted to make sure the subsidies were available nationwide and not really in the minority of the states. so they interpreted it. going back to our question of agencies interpreting the statutes and what we we they have, they interpreted in a way that is somewhat a mismatch in a set in exchange it would also
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include exchanges established by the federal government. in case they didn't establish us, the federal government did so instead. what we have in these cases is we have a group of individuals who sued and argued in violation of the law and in this case the implications are not only that the people and the states were not good subsidies but millions of people in the states will also not be subject to the individual employer mandate as a result of the subsidies being unavailable. some numbers i have seen about 5 million people if the irs is incorrect and about 5 million people were there to get
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subsidies and 57 million people would not be subject to the employer mandate. and so there is a huge implication for a lot of people in the majority of the states involved. what we have seen in these two cases is the fastest circuits but probably in american history. the morning of july 20 i can, the dc circuit was an improper interpretation by brs. and by early afternoon the fourth circuit has held contingency for the well but it was fine and it was okay in the irs has the authority to do that. that's normally a number one thing that the supreme court is looking for is that they have this right there and they wasted no time in filing their petition instead of the normal 90 days, they turned around and nine days and then it could have almost been considered by this first conference but because the government was given a 30 day
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extension, it was considered maybe in october and possibly very early november by the courts. in the meantime, the government asked them to take this case so that the possibility that the court with a 74 majority, if they vote as many have predicted, kind of a long party lines and they will overturn the decision of the panel and the race this. the question is whether the court will even take this case given the fact that this is in question and i think that a lot of arguments as to why they would thus consider cases that are major in question when there is not a circuit split and it's also a good argument that even if there is a split at the time that the case is argued, there's a good chance that there will be some point down the road. these 30 some states are intended and circuits until all of the circuits have decided the
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issue and it will still be a question causing huge uncertainty for everyone who wants to buy insurance and all of the employees in the state are not sure whether they need to offer it would their employees, making it possible for them to continue not offering health care have to fire people who make it impossible or impossible for them to before the health care. and for the states themselves know how to be regulating. so it is a major issue and we will have to see. this is another case that could push back on the chevron deference. there is question because doesn't even apply here because the erez is implementing a health care loss and it may be a tax. it may not be attacks. these villages are not coming we might get into that question. whether that statute is ambiguous and whether that interpretation is reasonable. there is that and it's also putting really well and to the theme of the growth of federal government and the growth of the
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administrative state and pushing back the courts in some of these constitutional limits on government and in particular on the constitutional side with the issues that we have had with this president having less respect for the separation of power on his own authority by the constitution, as far as he got his phone and his pen. he is taking a less serious viewed in some would think that he should and i think the courts have definitely pushback on that. historically in the last couple of terms. and so we have seen that the solicitor general's office has had a pretty dismal success rate and this may play into it. the second set of cases is the marriage case. and this is even harder because there are a slew of circuits that is on monday's conference per the fourth circuit, the seventh circuit, they all have multiple cases that have petitions out there and there are also decisions that can come
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without any point in the fifth circuit and ninth circuit and one challenge is that there is not actually a split right now. in those cases it is a split. and in this case there is not a split. all the circuits consider the issue have looked at it in the same way and they have all overturned areas state laws and constitutional amendments that limit marriage to a man and a woman and the laws, finding it that way in many cases. so how the court will take the cases is hard to predict. we had just as ginsberg said, that we would kind of wait for the sixth circuit to figure out what they're going to do and figure out what will happen. she was suggesting why rush into these cases and we will wait until one occurs and i think it's reasonable to think that there may be one. in which case they considered
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for different state laws with michigan and ohio and tennessee. in favor of upholding those lost and that will create the first witness issue and there's also the fifth circuit which is seen in one of upholding the state laws and that has not been scheduled for oral arguments out of texas. we had one in louisiana that was one of the rare district cases. i think it's a lot of very complicating things with vehicle issues in terms of problems in the various cases. some of them, like the fourth circuit case in virginia. actively supporting the law, coming up with questions much like the supreme court taste face when you defend the
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law and whether they are allowed to petition for appeal, it is the seventh circuit case in the 10th circuit case out of utah that is called many of the western and there are so many interested in supporting the laws and we have interesting companies and combinations and we have a clear question of licensing.
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and i believe it five days after the decision, they all filed for cert. thesene wants to hear cases. the states responded by saying, we won but we stick our case anyway. this is a rush to get -- of who gets to be the case with their name on it. that could also affect how the court views it as well. affect how the court views it as well because everyone is making slightly different arguments and all of those generally are part of this. so in terms of some of the issues, i think they will be similar in either this case or in other. it is an important issue and affecting a large number of
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people. maybe not the 57 million that are affected by the health care mandate, but they are certainly many people. and the court will definitely have to deal with the case eventually. >> chiming in a little bit, taking them one at a time, i don't think the set directly but if the challenge succeeds, it's very hard for the law to be sustained. >> i think having the subsidies unavailable in those states will be a severe blow. not as severe as original commerce clause. >> if there is that fear, how likely is it to understand that the plane taxed is very
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supportive of the views that you laid out? how likely do they want to put a timebomb in section 1311 and one praise? >> i think that, actually, there is contemporaneous evidence that they did know what it was. they didn't think of it as a timebomb because i didn't think they thought they could really go through with not establishing these exchanges. they thought of it as forcing the state to play ball and be part of the exchange going forward. but i do think that at the end of the day what congress intended, you have hundreds of individuals to look at and i think that for the same reason it isn't actually what the court should be looking at.
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and we will not have the irs going back or the supreme court going back and if we were going to maintain the accountability, we don't just throw something on paper. we really need to do the homework upfront. >> sticking with the aca, on either that or the other and none the nonetheless likely to grant us on this important question in this case. >> you are a heck of a group. [laughter] >> don't get me wrong. >> i wrote an op-ed that this
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was pending walking through the dc circuit history and not reviewing cases and it seemed to me that the dc circuit has been a part of this over the last two years and obviously i got that one wrong. but while the debate was going on, we have extraordinary importance. in the administration supporters say that on and on again. ..
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>> i would guess the court won't take the case absence of split. in their mind, they are done with the affordable care act. it was the case of the term not long ago. it was, what we can tell, dramatic and a big, difficult case internally. i suspect they would be eager to jump -- wouldn't be here to jump back into this unless there was a split, which would be the traditional criteria for jumping in. >> with me ask you a counter scenario which is a couple of years ago when they decided the
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last last case there were four justices who are pretty unhappy and pretty eager to take down this love. it only takes four to grant served and those justices might be eager to jam up the chief justice or at least that's one way of thinking about the court but that's probably too cynical. >> even if that cynical view is right which i'm not saying it is, if that view are correct i think if the case is seen as sort of a way of getting back at the chief justice were forcing them to take it on again then presumably they would fall along the same lines they did last time. i think especially if you favor the challenger looks a lot more credible coming from a split than it does if there is no split. >> in addition to the four justices in the individual mandate case there were five
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justices last year who voted against the epa's front-line argument in the clean air act case. they said no some of the greenhouse -- you can't just claim they were the results of a contrary interpretation are absurd and substantially rewrite the statute nor to maintain the program. seems to me they are very strong echoes of that epa case in the health care exchanges case and there are five justices baer and i think was that the other epa case last year were justice ginsburg said the job isn't to promote policies they think would be best but to apply the statute that is written and that works in the case as well? >> that may well tell you something about where they come out on the case and less about whether and when they will take it up. any thoughts on the aca case? let me move to the marriage
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cases which are very likely to be the centerpiece of this term and turn it into whatever else they have taken. if they take same-sex marriage as they are likely to do in the coming weeks that's going to be huge case but let me not get ahead of myself. as kerry pointed out what is her thinking about whether this is the kind of case where the court cares about the circuit bearing in mind it's no small thing for federal judges around the country to be striking down state laws and provisions of state constitutions. is that enough or should they wait for the circuit court? i will start calling up people by name if you don't. >> i will start. i mean it's a very unique posture which is they are not getting any briefs telling them not to take the case.
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i do think when you saw how the california case came out last time and then you see a comment that justice ginsburg has made that cuts across party lines or jurisprudential lines but at the same time they are backed into a corner and i think the undercurrent which may translate into having a state request which are very complicated and causing real difficulties in terms of the lower courts. one judge said i understand the court has demanded that the cases that they are not issued to explain why they are making the case. i think there's an institutional capital here in terms of how can the state request the court to deal with the case? >> i think the importance of this case is so great that they take cases of much less weight just unimportant grounds.
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i think they will take this ca case, one of these cases. >> one other factor that got talked a lot about my marriage cases were up a couple of years ago even justice ginsburg kept on talking about the aftermath of roe v. wade and the way that the courts took that case and her description and went taking a step-by-step view went broad on the case and as a result has served for you -- heard for years of pushback and people marching on the capital every year. it is totally transformed the way we look at judicial. i think in some ways the courts may be able to avoid looking at issue but that's something the court is concerned about an part of the reason she was suggesting maybe you want to wait as long as we can before getting involved in this case. the challenge as will pointed out is that we do have almost a
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fever of lower court decisions rushing as fast as they can to overstate -- overturn every state law that they can find so what did the supreme court gets involved or not you certainly have courts that get involved so you still have the case of courts overriding democratically-elected positions in the law. it may be possible for the court to involve such a complicated issue. >> i wonder what justice kennedy's thinking is this place out. the supreme court preview pane panels. [inaudible] but in the marriage cases it's especially so. the president is the windsor case and that justice kennedy wrote in a wrote about liberty and state authority and federal and it wasn't clear to anybody at the time where he was going
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with this. what we have seen in the aftermath is a lot of federal courts focus on the diversion of liberty with really much less care for state power and federalism. maybe justice kennedy is happy to watch this all play out in on the other hand maybe he's looking for an opportunity to clarify what he previously wrote. >> it is the case though is met that justice kennedy is the author of all three major decisions and likely it will be his legacy. it would be a little bit surprising if you would take a turn now when the polling numbers and the court in so much of the nation is moving in one direction or do you disagree? >> i'm not going to make any money betting on what justice kennedy is going to do that justice kennedy has written a lot in his career about federalism. he's written a lot in his career but individual liberty liberty. oftentimes it seems for him in rome as a means to the end of liberty. it's not quite clear how it's
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going to play out and i think he takes these two lines of justice kennedy's thoughts and pits one against the other. i think it's going to be fascinating. >> there's a recent poll showing support for same-sex marriage has dropped and whether it's a blip i don't know but you could wonder if it's a little bit about the comes back to you people who feel like the courts are jumping and usurping territory that should be worked out in the political and social spheres. maybe him making the decision would undermine it being viewed as a positive legacy or would at least create the conflict. i don't know if justice kennedy wants to make that but if he wanted to he probably would have made a last time. >> you are quite right. >> the core issue that came before the courts last year not
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the doma case, it was plain as day that justice kennedy didn't want the case to be beforehand and did not want to grant search and was delighted to see it go away. i don't think anyone predicted that windsor would be perceived as it has been with everyone focusing on one of the two theories in the case, the liberty theory and whether the court wants to or not does seem and i think this is probably something like consensus that is going to be hard for them avoid getting into it. so let me ask one more general question that i will turn to your questions. at the end of the last term it was hard to write the newspaper term wrap-up story partly because reporters like conflict and there were substantial conflict at the end of the term in hobby lobby and harris versus but it was also a term that had an extraordinary amount of unanimity. the largest in the modern era, about two-thirds of the cases
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were decided unanimously. not all of them unanimous on the rationale but many of them. and i'm wondering whether there are thoughts here about whether that's testimony to the court trying to get together whether it's testimony to the chief justice playing a role in getting the court together or whether it's the nation of the docket on some of the statutory cases we have been talking about which may be areas in which the justices are less apt to disagree? >> adam i will take the dash we have only seen the trend over one term and there's nothing specific about the term that would have suggested an overall broader shift. the personnel of the court are going to change within a year or
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two probably or at least for five years and so my guess is that it's just a one term events, and maybe a two-term event that we are not going to enter new period of unanimity at the supreme court. >> i tend to agree with one caveat which is i do think the chief justice avoidance is in major cases has led to more unanimity than we otherwise made scene. justice kennedy has been with him on most of those in most of the court has come with them. if you look at northwest austin in other cases of that kind for the court was on the brink of a major constitutional ruling and step back and everyone close to round the statutory question. i do think that's part of what's going on. >> i'm in broad agreement on a method of statutory interpretation that will cause at least some subversion to make interpretation cases.


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