TNR’s Brian Beutler makes an important point about the nature of the public arguments being made by the engineers of the plaintiff’s case in King v. Burwell:
[T]o combat the impression that the plaintiffs’ standing problems stem from a legal argument that only appeals to unreliable kooks and zealots, one of the King architects now lays these difficulties at the feet of the IRS. “They don’t want to get audited,” Cato Institute’s Michael Cannon told USA Today, “and this administration has a history of using the IRS for ideological purposes.”
Cannon’s claim, though baseless, is aimed at the right’s collective lizard brain, designed to excuse the case’s public relations problems—which are inherent—as a consequence of the Obama administration’s political thuggery.
That Cannon is defending his case by nodding like a Fox News bobblehead to an unrelated pseudo scandal is not anomalous. In both the media and in their briefs to the Supreme Court, the law’s challengers have papered over weaknesses in their historical and legal arguments with conservative bromides familiar to talk radio consumers, Fox News viewers, and recipients of anti-Obamacare talking points.
I would mention in passing, as I do regularly, that the IRS “scandal” will be with us as long as Obama (or a Democratic successor) is in office precisely because conservatives have successfully conflated the alleged slow-walking of applications for non-profit tax status by political groups with audits and other terrifying enforcement weapons. And once the axiom is planted that the IRS is using such weapons for political reasons, then it becomes an rationalization for all sorts of skullduggery, including the effort to disguise political donors that is the actual impetus for the flood of conservative applications for non-profit tax status. You see how satisfyingly circular this all become: people pouring hundreds of millions of dollars into political ads to promote their business interests or even to buy future legislation can now pretend they are cowering in fear of awakening to the sound of IRS jackboots deployed by the all-powerful Lois Lerner.
Beutler calls the dependence on arguments that only make sense to avid consumers of right-wing agitprop argumentum ad reptilis. It’s too accurate to be all that funny. And it’s increasingly clear the key question in King v. Burwell is how many Supreme Court justices will be exercising their own lizard brains when they decide this case.