Did the Septuagenarian Ninja Turtle, Senator Mitch McConnell, disclose collusion between Congress and the U.S. Supreme Court?

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mitch_mcconnell_frown-cropped-proto-custom_2The Septuagenarian Ninja Turtle, Senator Mitch McConnell, in a moment of rare candor, may have disclosed political collusion between the Felonious Five conservative activist justices of the U.S. Supreme Court and the Tea-Publican leaders of Congress.

Greg Sargent of the Washington Post writes, Mitch McConnell: We can’t repeal Obamacare, but Supreme Court may ‘take it down’ instead:

[The] link between the lawsuit and the goal of taking down the law has been drawn tightly by none other than the incoming GOP Senate Majority Leader.

In a very candid moment, Mitch McConnell flatly describes this legal challenge as a substitute means through which an end — repeal — will be accomplished that Republicans failed to accomplish through the political and legislative process.

The moment, which was flagged by a Democrat, comes in an interview that McConnell gave to the Wall Street Journal’s Gerald Seib (see second video). Seib notes that some Republicans have advocated for repeal, and asks: “How do you approach the Affordable Care Act now?” McConnell answers (emphasis added):

“It bears the president’s name. The chances of his signing a full repeal are pretty limited. There are parts of it that are extremely toxic with the American people. The elimination of the 40 hour work week. The individual mandate. The medical device tax. The health insurance tax. I think you could anticipate those kinds of things being voted on in the Senate. Such votes have not been allowed in the past.

“Who may ultimately take it down is the Supreme Court of the United States. I mean there’s a very significant case that will be decided before June on the question of whether the language of the law means what the language of the law says, which is that subsidies are only available for states that set up state exchanges. Many states have not. If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing — that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.”

McConnell suggests the new GOP-controlled Senate will vote to repeal parts of the law, but acknowledges legislative repeal is unlikely to succeed, before stating that there is now a real possibility that instead, the Supreme Court will “take it down,” giving “us” the opportunity of a “mulligan” and a “major do-over of the whole thing.” Even if McConnell is simply describing this as the objective outcome that will result from a SCOTUS decision against the law, it represents a noteworthy level of candor.

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Legal observers have noted that even a purely textual interpretation of the whole law — putting the contested phrase in its broader statutory context — upholds the government’s interpretation of the disputed phrase, and not that of the challengers.

Some, such as Brian Beutler, have argued that read in context, the key phrase unambiguously supports the reading that Congress intended the law to make subsidies available to people in all states. Others have argued that even if the phrase’s meaning in context is merely ambiguous, the court should side with the government.

In this context, McConnell’s new quote takes on particular interest. As law professor Nicholas Bagley notes in his response to the challengers’ claim (.pdf), even if you grant that the challengers’ reading of the phrase is reasonable, the government’s reading of it in context can also be reasonable. Which presents the court with a challenge, as Bagley notes:

Even if you think [the challengers’] claim is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the scope of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they acknowledge that maybe, just maybe, they’re wrong.

That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, [the challengers] deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to Congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

Asked for comment on McConnell’s latest, Bagley told me:

“McConnell confirms here that the litigation is politics by other means. It sounds like McConnell is treating the Supreme Court as another political institution.”

If the independence of the judiciary is seriously in doubt, and the U.S. Supreme Court conservative majority is just an extension of Tea-Publican Party politics in collusion with Tea-Publicans in Congress — something similar occurred during the Gilded Age and well into FDR’s second term — then we have a serious problem on our hands.

The only way to correct such overt political corruption of the U.S. Supreme Court is through impeachment, but the Felonious Five conservative activist justices are protected by large Tea-Publican majorities in Congress who will never impeach them (at least during the next two years).

Joan McCarter at Daily Kos has a different take, noting that Chief Justice Roberts’ legacy is defined by his opinion upholding the Affordable Care Act. After having upheld the Act, would Roberts really now vote to gut the Act based upon a specious legal argument about statutory construction which would require the Court to reject well-established canons of statutory construction and Supreme Court precedents? McConnell: Republicans can’t repeal Obamacare, but the Supreme Court can ‘take it down’:

Sen. Mitch McConnell has copped to the reality that Republicans generally try to keep under wraps: a slim majority of five U.S. Supreme Court Justices has turned the court into basically a political institution aligned with Republicans. The admission came in a speech at the Wall Street Journal CEO Council annual meeting, talking about the prospects for—what else—Obamacare repeal.

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If the court follows its own precedent which says “a reviewing court should not confine itself to examining a particular statutory provision in isolation,” because “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context,” then the plaintiffs, and McConnell, are out of luck. The full context of the law, in fact, is explicit in the intent of the law to make health insurance affordable for all Americans.

The plaintiffs are making the argument that they are just trying to force what the law requires: making states step up to create their own insurance exchanges. McConnell blows that myth out of the water, too. The Supreme Court can “take it down,” he says. That’s not about fixing the law, that’s about killing the law.

That’s been the goal of the conservative activists who brought the Halbig and King cases from the beginning—the destruction of the law. Nothing less. They can’t do it through repeal, so they’ll do it through the Supreme Court. There might be one member of that court majority of five who won’t be too pleased that McConnell has ripped the veneer off of this case and exposed it for the baldly political stunt it is: Chief Justice John Roberts. He does seem to have some concern for his legacy. He might not want that legacy to include being responsible for taking health insurance away from millions of people and gutting the law that is racking up successes and saving lives.

Personally, I don’t think the health of Americans concerns Justice Roberts. His convoluted reasoning making Medicaid expansion voluntary by the states rather than a federal mandate is evidence of his lack of concern for the health of Americans.

If Roberts demonstrates any judicial restraint at all, and that is seriously in doubt, it will be because once rights have been granted, the courts are loath to take them away. It is Roberts’ own legal opinions and his legacy on the Court that motivates him.