Discussion of King v. Burwell and NFIB v. Sebelius in Wikileaks Trove

October 14th, 2016

Zerohedge highlights two Obamacare-related emails from the Wikileaks trove.

The first was sent on June 2, 2015 by Neera Tanden (President of the Center for American Progress and Clinton Adviser) to Jake Sullivan (Clinton foreign policy adviser), Jennifer Palmieri (Clinton’s communications director), and John Podesta (chairman of Clinton’s campaign).

The message, with the subject line “King v. Burwell,” reads:

It is most likely that this decision has already been made by the Court, but on the off chance that history is repeating itself, then it’s possible they are still deciding (last time, seems like Roberts went from striking the mandate to supporting it in the weeks before). As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.

In this case, I’m not arguing that Hillary spend a lot of time attacking the Court. I do think it would be very helpful to all of our interest in a decision affirm the law, for Roberts and perhaps Kennedy to see negative political consequences to ruling against the government.

Therefore, I think it would be helpful to have a story on how progressives and Hillary would make the Supreme Court an election issue. (which would be a ready argument for liberals) if the Court rules agains the government. It’s not that you wish that happens. But that would be a necessary consequence of a negative decision . . . the Court itself would become a hugely important political issue.

At CAP [Center for American Progress] Action, we can get that story started. But kinda rests on you guys to make it stick.


Jennifer Palmieri replied, copying Brian Fallon (Clinton’s press secretary) and Christina (no last name provided):

Adding Brian Fallon and Christina.

She [Clinton] has already been making this an issue. Not sure how in depth you are suggesting but seems like this should be manageable.


None of this should come as a surprise. In both Unprecedented and Unraveled, I provided a detailed analysis of President Obama’s comments after NFIB and King were argued. Tanden is exactly right to describe Obama’s comments in 2012 as “throwing down the gauntlet” and a “warning” to the Court. No doubt, after the Chief’s vote, liberals and conservatives think that Obama’s comments were “vital to scaring Roberts off.” Whether Tanden is right or not is immaterial. (I conclude in the book that it didn’t work, but there are different opinions here). The left thinks it worked. And if it worked once, they think it will work again. Liberal repeated the same playbook, hoping to show Roberts and Kennedy the “negative political consequences to ruling against the government.”

Perhaps Roberts still thinks his actions preserved the reputation of the Court. Maybe that’s true for the general public. In Time, Don Verrilli praised Roberts’s “wise stewardship” of the “resilient institution.” But make no mistake of how the left views him behind closed doors: The highest echelons of the Democratic party now seem him as a pawn that can be cowed to rule in their favor with the right messaging.