This is the crux of the Justice Department's argument, and [CAC Senior Counsel Simon] Lazarus said it's the stronger one: Essentially, not to concede that Congress wrote something, intentionally or not, that looks like it limits subsidies to state-run exchanges. What Congress wrote, he argues, is the entire ACA, and focusing the analysis at that level makes it less important to figure out whether "established by the State" was a mistake and whether it's one the courts can correct. "The Affordable Care Act has significant textual provisions that collide directly with the opponents' interpretation," he said.
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"This is an important case for the court," says Brianne Gorod, appellate counsel at the liberal Constitutional Accountability Center. "The Roberts Court has often ignored the realities of the workplace to privilege employers over their female employees."
"The institutional interests of the Court are stronger at this point [than in 2012] because the law is now in place and providing health coverage for millions of Americans who didn't have it when the first challenge was heard," said Doug Kendall, the president of the Constitutional Accountability Center, a progressive group helping with the legal defense of Obamacare. "If Chief Justice Roberts wanted to strike down this law he would have been smarter to do it before it went into effect than he would be in 2015."
Chief Justice Rehnquist, writing for the court, gave a nod in a footnote to the “strong dissent” Scalia and Bork put up in the D.C. Circuit cases Raines effectively overruled. Scalia joined the 7-2 majority. Simon Lazarus, senior counsel to the Constitutional Accountability Center, said that should be the end of the matter. “The courts,” Lazarus said, “have over and over made it clear that anyone in order to get into federal court to make a claim has to show a particularized injury to yourself as distinguished from a general alleged injury to the body politic as a whole.”
The idea of a “glitch” in the ACA should not be so readily repeated. Instead, it should be handled as a crafty piece of conservative spin.
CAC's Elizabeth Wydra joined Bill O'Reilly on The O'Reilly Factor to discuss expected executive action by President Obama on immigration. "You've got the Constitution wrong," Wydra said, "and you're also wrong about the Supreme Court. Just two years ago the conservative Roberts court affirmed that the Obama administration has broad discretion when it comes to instituting deportation proceedings."
CAC Chief Counsel Elizabeth Wydra discusses the latest legal challenge to the Affordable Care Act.
For all the uncertainty surrounding the 2016 campaign, this much is already clear: The Supreme Court will be at the center of that election in a way rarely seen in our nation’s history. Between June 2015 and June 2016, the court is likely to issue rulings on marriage equality, health care, abortion, and voting rights, all of which will be chewed over endlessly by both parties’ presidential candidates. Meanwhile, with four justices in or approaching their 80s, the court’s future will itself be up for grabs. It’s no exaggeration to say that the Supreme Court will be 2016’s most consequential issue, and that the party that makes the best case for what the court should be will be on its way to victory.
Elizabeth Wydra, Chief Counsel for the Constitutional Accountability Center, said, "Simply because a majority of people vote to ban same sex marriage does not mean they can ignore the guarantees and requirements of the Constitution." Wydra is among those who believe same sex couples have a "fundamental right" to marriage, based on the Equal Protection Clause found in the 14th Amendment. She remains cautiously optimistic that a majority of the Justices will agree.
"I'd hope and expect Sen. Reid would move as aggressively as he can, given the limits of the lame duck session, to fill as many vacancies as possible," said Doug Kendall, president of the liberal Constitutional Accountability Center.
Doug Kendall, president of the Constitutional Accountability Center, which represents members of Congress involved in passage of the act as amicus in King and Halbig, said: "We are disappointed that at least four justices decided to hear this case despite the lack of a circuit split and while this issue is still being actively litigated in the lower courts, but we remain very confident that the court will ultimately find that both the text of the ACA and the intentions of Congress mandate a ruling for the federal government
There is no “will of the majority” exception to the Constitution. Unfortunately, the opinion by U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton upholding the discriminatory marriage laws of Michigan, Ohio, Kentucky and Tennessee attempted to create one, exalting majority will over the Constitution’s promise of liberty and equality. Sutton’s opinion is chock full of legal errors, but its most basic is a faulty understanding of majority rule and federalism. The Constitution protects equal rights for all, and gives to the courts the job of preventing oppression of minorities at the hands of the majority. Leaving constitutional safeguards to the voters would place our most precious constitutional guarantees in jeopardy and subject to the whim of majority rule.