King v. Burwell and State’s Rights

At Politico Magazine, Yale law professor Abbe Gluck does an admirable job of summing up the case against the plaintiffs in King v. Burwell from the perspective of the states, for whom conservatives, and particularly judicial conservatives, so often express such tender solicitude. Here’s her argument in a sentence:

In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

This argument may or may not have an influence on, or find reflection in, SCOTUS’ decision. But don’t expect the conservatives praying for the plaintiffs to win to read it and say, “Oh, I get it! Never mind.”

Truth is most conservatives value “state’s rights” or “federalism” only when it does not conflict with their more important ideological values, such as capitalism or their idea of Divine Law. This is why they mostly support federal constitutional amendments to override state prerogatives on cultural issues like abortion and same-sex marriage, and when in a position to do so, support federal preemption of state laws and regulations that annoy or inconvenience corporations. Indeed, one example is almost invariably included in those Obamacare “replacement” proposals Republicans say they’d pursue if King goes their way: “interstate health insurance sales,” which is a nice way of saying a preemption of state health insurance regulations so that insurers can race to the bottom-feeding state that lets them do whatever the hell they want.

Republicans are not alone in disregarding their alleged principles when they like or dislike the results flowing from a judicial decision. But then again, Democrats don’t pretend to have some monopoly on fidelity to the Constitution.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.