King v. Burwell – place bets gentlemen

Before oral arguments even begin this morning, I’m going to go way the hell out on a limb and predict the final outcome.

It will be 5-4 in favor of the government.   Either (i) Roberts will write the opinion of the Court, joined by Breyer, Ginsburg, Kagan and Sotomayor, or (ii) there will be no majority opinion, with Alito, Kennedy, Scalia and Thomas on one side, Breyer, Ginsburg, Kagan and Sotomayor on the other, and Roberts siding with the government but writing only for himself.  There is a slight possibility that Kennedy would join a majority opinion, leaving Roberts free to hang with the boys, but I’m counting on him to flake out with a literalist approach to the statutory language.

I take it as a given that Chevron deference to agency interpretation is a dead letter with the Court’s right wing, at least when the agency is the IRS and a Democrat is in the White House.  But the more interesting discussion – which I expect to dominate today’s argument – is around Constitutional federalism and the Pennhurst doctrine, basically the idea that if Congress is going to place conditions on States’ entitlement to federal funding, it had better do so clearly and unambiguously, sort of like an “actual notice” requirement.  Whatever else those four words in 26 U.S.C. § 36B may mean to a committed textualist, no one can seriously claim that Section 36B put States on Pennhurst-worthy notice that they would lose Obamacare subsidies if they didn’t set up their own exchanges.  But since Alito, Scalia and Thomas have given up on being serious, that is probably what they will in fact claim.

Again assuming that Kennedy joins the nihilists, I think Roberts will use Pennhurst to thread the needle, prevent a humanitarian disaster and, once again, be the lonely steward of the Court’s reputation.  His one-man opinion will uphold the IRS regulations, essentially by saying that if the IRS had instead withheld Obamacare subsidies from states that didn’t set up their own exchanges, it would have violated principles of Constitutional federalism under Pennhurst.  The four liberal Justices may join Roberts’ opinion (making it an opinion of the Court), but I think it’s at least as likely that they will write their own opinion, basically on Chevron or general “don’t waste my time with this nonsense” grounds.  The main reason I think that may happen is because Roberts will go a little too far with his Pennhurst logic in an attempt to snatch a conservative victory from the jaws of Obamacare defeat, and try to sneak in a brand new way for States to challenge federal mandates.  (That federalism stuff is dangerous, I tell you.)  So Roberts will be on his own, much as he was with his taxing power argument in NFIB v. Sebelius.

Well.  Now I’m feeling exposed.  Still, I hope I’m right.  All this nifty argumentation aside, if the challengers win this one, with full knowledge of how many people will die as a direct result, they’re not just vandals – they’re terrorists.