King v. Burwell: Was That What You Said Last Time You Were Here?

Justice Kagan nailed it when she noted that Michael Carvin, on behalf of Petitioners in King v. Burwell, was singing a different tune when she noted that at his last visit he had maintained (on behalf of a different client and in another case called NFIB v. Sebelius) that the insurance Exchanges cannot operate as Congress intended without subsidies. After a little uneasy laughter, he recouped to maintain that Congress intended all the benefits of Exchanges even without subsidies, even though conceding that one of the wonders of subsidy-less exchanges is that they might have nothing for sale and no buyers to purchase inside them. 

Michael Carvin sounded like he had the certainty of his convictions that Congress intended it all to unfold like this but Justices Kagan, Sotomayor, and Ginsburg (seriatum) sounded skeptical. Certainly a foolish consistency may be the hobgoblin of a little mind but a complete reversal of narrative on how insurance markets work takes  appalling ignorance of how health insurance markets work or some guile or, now that I think of it, maybe both.

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