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Supreme Court Ruling – Obamacare Subsidies Stay

Supreme Court Ruling – Obamacare Subsidies Stay

Scalia dissent: Call it SCOTUScare.

My soundbite: “The Supreme Court today rewrote Obamacare in order to save Obamacare. The plain meaning of the term ‘Exchange established by the State’ was contorted to mean established by the State or Federal government. That contortion, Justice Scalia correctly noted in dissent, effectively has turned Obamacare into SCOTUScare.”


Decision just in in King v. Burwell. Here.

In a 6-3 ruling authored by Chief Justice Roberts, the Court held that subsidies are available on the federal exchanges. Those voting in the majority were Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.

Had the court ruled otherwise, it would have put all of Obamacare in jeopardy, since 38 states do not have exchanges and Obamacare is too expensive for most people without a subsidy.

The issue was whether only state-established exchanges could issue tax credits, or whether the federal exchanges could also. Challengers to IRS regulations pointed to the words “established by the State” in the legislation as clear and unambiguous that subsidies were limited to state exchanges.

The Court rejected this assertion:

These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural
sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context. [at 11.]

As he did in upholding an Obamacare constitutional challenge in 2012, Roberts found a way to read the law so as to save the law:

The upshot of all this is that the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.2 [at 12-13]

The Court found Obamacare so “inartfully drafted” that the Court essentially wrote the law for Congress through “statutory interpretation.”

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative
History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one mightexpect of such significant legislation….

Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Utility Air Regulatory Group, 573 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under [Section 18031]” is unambiguous. [at 14-15]

Nowhere in any of the opinions is the term “Gruber” mentioned. Jonathan Gruber, one of the architects of the law, stated on numerous occasions that there was a specific purpose of the language to exclude the federal exchange, so as to pressure states to get subsidies for their citizens by establishing exchanges.

The Court rejected the Gruber view of Congressional intent:

The whole point of that provision is to create a federal fallback in case a State chooses not to establish its own Exchange. Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what
would happen if a State did refuse the deal.

Having found the term “established by the State” ambiguous, the Court read it in a way such as to save Obamacare and prevent a “death spiral” of the law:

Given that the text is ambiguous, we must turn to the broader structure of the Act to determine the meaning of Section 36B. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. [at 15]

Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest
what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939). For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. [at 21]

Roberts and the majority did not want to be the ones to take down Obamacare, and that drove everything:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. [at 21]

Scalia’s dissent, joined by Thomas and Alito, was stinging, and in my opinion correct as to the absurdity of the Court contorting itself to save the law (as Roberts did in the original Obamacare challenge):

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. [at 1]

Scalia points out that the words have a plain meaning:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” …. [at 2, italics in original]

Scalia argued — persuasively — that the overriding goal seems to be saving Obamacare, not exercising normal judicial interpretation of plain language:

“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved. [at 2-3]

Scalia wrote that the majority opinion rewrote the law “with no semblance of shame”:

The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) [at 3]

Scalia then delivered the best line of the day. Looking back over multiple decisions from the Court to rewrite Obamacare in order to save it, Scalia insisted that the law now should be called SCOTUScare:

Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual “shall” maintain insurance or else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. 567 U. S., at ___–___ (principal opinion) (slip op., at 15–45).

The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. 567 U. S., at ___–___ (principal opinion) (slip op., at 45–58). Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere.

We should start calling this law SCOTUScare. [at 20-21, emphasis and hard paragraph breaks added.]

The legacy of this Court, Scalia wrote, will live on just as Obamacare, but in infamy:

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I dissent.

(This post will be updated)


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Words no longer have meaning. This is pandering, pure and simple.

    tkc882 in reply to gasper. | June 25, 2015 at 10:24 am

    This. They might as well pass blank sheets of paper and let the bureaucrats rule.

    donb in reply to gasper. | June 25, 2015 at 11:01 am

    The Exxon standard has now been replaced with the Humpty Dumpty standard!

    When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.

      donb in reply to donb. | June 25, 2015 at 11:11 am

      Excuse me — make that the Chevron standard (not the Exxon standard) for deference to agency interpretation.

      I can’t seem to keep my oil companies straight.

    Nothing I say here has meaning, so sayeth SCOTUS! The Constitution has no meaning, it’s merely a jumble of words that wholly depend on the reader for the meaning. of those words SCOTUS has now pronounced that it is the state, the state is it; Louis 14 would be so proud!

    Up the revolution, except it’s no longer clear what that expression means.

    Oh well, it’s been 240-years, up till now, a good ride, now all for naught! Bloody pity too!

Ol' Jim hisself | June 25, 2015 at 10:17 am

So, laws no longer mean exactly what they say. The administration can change a law any way they want, without the Congress.

In other words, the Constitution is VOID!

    Radegunda in reply to Ol' Jim hisself. | June 25, 2015 at 11:21 am

    The administration can do so IF the majority on the Court likes the administration’s agenda (or is bullied into favoring it). And isn’t it groovy that the administration could put its own allies in place specifically to protect its agenda — including an ally whose previous job was (officially) advocating for the administration’s agenda.

    DaveGinOly in reply to Ol' Jim hisself. | June 25, 2015 at 1:19 pm

    If the words of the law are so vague as to be capable of more than one interpretation, isn’t the law itself then void for vagueness?

So, the greatest fraud, sold on the biggest pack of lies (which continue to this day) ever in the history of the U.S. lives on.

Fine. We’ll just have to kill it.

    Anonamom in reply to Ragspierre. | June 25, 2015 at 10:27 am

    Oh, yeah. Those “republicans” we elected the last go-round were gonna get right on it. Remember?

    Nope. Sorry, rags. We’ve (the collective we, as in “we’re stuck with the uneducated mouth-breathers who will vote for anyone who promises them free sh*t) gone hard left and in the direction of Euro-socialism. And don’t ask us (again, the collective term) to, ya know, think and stuff. Cuz history and thinking about where Europe is heading right now is hard and stuff.

    Oy vey. I’ve said it before, and I’ll say it again: When we lost the academy, we lost the future.It’s going to be a wild ride.

    Perhaps a current action that can keep alive hope for the America we once loved is to support the conservative house group attempting to fight back against Boehner?

Scalia’s dissent: “We should start calling this law SCOTUScare.”

So long, Separation of Powers. It’s all cronies, all the time. It’s sickening.

This is taxation without representation. How dare they decide, all on their own, to take your and my hard earned money and hand it out to who they favor at the moment?

“‘When *I* use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.'”

Our Constitution, Through The Looking-Glass

The court is stacked with liberals. These are the kind of decisions you can expect to see from now on, especially since Roberts is out of the closet and is no longer pretending to be a conservative. And the rule of law……..

Still, quite a nice win for the newly-embiggened Free Stuff Army.


Once entitlements start they never stop I’m sure we got many obscure New Deal entitlements ( especially in agriculture) and welfare that have long outlived usefulness and reason

The last shred of legitimacy exits the system.

Why do I have the slightest moral obligation to cooperate with a legal system where written law has no meaning?

Henry Hawkins | June 25, 2015 at 10:40 am

The next guy who tells me we must elect a GOP president because of possible Supreme Court vacancy appointments gets knocked on his ass. Thank you, George Bush, for Chief Justice John Roberts. His appointment has made all the difference.

    Anonamom in reply to Henry Hawkins. | June 25, 2015 at 10:57 am

    So true. And, lucky us, we may have the opportunity to vote for another “conservative” Bush. SMH.

      Henry Hawkins in reply to Anonamom. | June 25, 2015 at 11:03 am

      The GOP establishment doesn’t even pretend anymore. They’re Democrat moderates. They fight GOP conservatives ten times harder than they fight the Obama adminstration.

    NC Mountain Girl in reply to Henry Hawkins. | June 25, 2015 at 12:52 pm

    I seem to recall that Roberts was not Bush’s first choice. The conservative pundit class, most of whom have never run anything other than their mouths and who never get held accountable for their often appalling judgment, insisted that only Ivy League educated members of the DC establishment be considered.

    The Court is not the least diverse it has ever been in terms of education and career path.

      At least Bush 43 was forced to get Samuel Alito’s appointment correct. Harriet Miers would have been a disaster on the Court (however she may well have STILL been preferable to John Roberts the Traitor).

What’s the big deal? We had to reprint dictionaries to redefine the word penalty to mean tax. We can reprint them again to redefine the word state to mean federal. They’re just words. Sooner or later we’ll redefine theft to mean redistribution, and murder to mean

In 2012, Chief Justice John Roberts cast the deciding vote for the Supreme Court’s ruling that ObamaCare was a legal tax. Conservatives were beyond stunned. Roberts’ decision was a narrow, weaving, legal mess, unlike the clear, assured opinions he usually wrote. What the heck happened? Some people posited that he had brain damage from a fall he’d taken some years before. Others sourly said that he’d fallen prey to what’s called Greenhouse Syndrome – the Supreme Court justices’ desperate need to feel the love from The New York Times’ former Supreme Court reporter, Linda Greenhouse.

But what in the world could Obama have on Chief Justice Roberts? The man is pure as driven snow, for goodness sakes. He has a lovely wife, two picture-perfect little blond children, and universal adulation from anyone who had ever associated with him, either personally or professionally.

Chief Justice Roberts and his wife adopted two blond haired children in 2000. Roberts has never talked about the circumstances of their adoption, which is perfectly understandable, given the privacy such a personal transaction deserves. To the extent it’s mentioned, they’re said to have been adopted from a Latin American country – something inconsistent with their Nordic coloring.

Perhaps the Obama administration finished what The New York Times started in 2005, when Roberts was nominated to the Supreme Court –unsealing the private adoption papers for Roberts’ children.

The only information currently known about the adoption is that it was a private adoption, meaning that it was done without an agency. Instead, the birth parents and the adoptive parents arrange it on their own. Despite the vague reference to Latin America, given the children’s appearance, it’s entirely possible they came from Ireland.

If Obama’s dirty tricks team was able to use the government’s might and power – just as the IRS is doing – to find out the details of the adoption proceedings for Roberts’ children it might have given them a tremendous amount of power over Roberts.

Irish law bars both private adoptions and adoptions that take children out of Ireland.

The regime has Roberts by the balls because he smuggled his children into the country illegally.

    The regime has Roberts by the balls because he smuggled his children into the country illegally.

    That’s an awfully bold claim to make.

      platypus in reply to Amy in FL. | June 25, 2015 at 11:07 am

      So what? Exactly where is the line that shall not be crossed? I sure can’t see it any more, plus it’ll probably move by the time I do see it.

      How long does it take for a dead republic to stop twitching?

        So what? Exactly where is the line that shall not be crossed?

        Don’t slander peoples’ families, maybe?

        Or are you going to be all right with it when Democrats come out with foul smears against Ted Cruz’s or Scott Walker’s families?

        NC Mountain Girl in reply to platypus. | June 25, 2015 at 12:58 pm

        Let me quote a very dead old white man.

        The best revenge is not to be like your enemy.
        Marcus Aurelius, Meditations

          No. The best revenge is to WIN. If absorbing the tactics and actions of my enemy is what is required to WIN, that is what I shall do.

          The days when militia or unincorporated forces could dispose a leader for blatant abuse of office are far, far behind us. The only chance of armed insurrection is if a schism develops in the military, which, let’s be honest, none of us would likely survive.

          The only remaining avenue is to destroy our enemies using what tactics they have honed and shown to be effective, and we have been “too honorable” to use, while they have eviscerated us.

          Alinsky’s Rule’s For Radicals Rule #4: “Make the enemy live up to its own book of rules.” Rule #12: Pick the target, freeze it, personalize it, and polarize it.” Cut off the support network and isolate the target from sympathy. Go after people and not institutions; people hurt faster than institutions.

      Rick in reply to Amy in FL. | June 25, 2015 at 11:09 am

      It is a bold claim, but it is more logical and coherent than Roberts’ obamacare decisions.

    JohnC in reply to JohnC. | June 25, 2015 at 10:57 am

    Oh yeah.

    They’re from Latin America.

    No doubt about it.

      Okay, so if you, and every other anonymous blogger from the foetid fever-swamps of conspiracy-land, know for an incontrovertible fact that Chief Justice Roberts “smuggled his children into the country illegally,” how can it still be blackmail material?

        clintack in reply to Amy in FL. | June 25, 2015 at 11:25 am

        Not saying I believe any of this… but if it were all true, it wouldn’t be blackmail, it would be extortion.

        Toe the party line or we’ll extradite your children to Ireland and you’ll never see them again.

        JohnC in reply to Amy in FL. | June 25, 2015 at 11:54 am

        Oh, I have no idea if it’s true or not.
        But I consider it a possibility.

      icarus57 in reply to JohnC. | June 25, 2015 at 11:40 am

      I did not know Sweden was in Latin America. 🙂

        SRaher in reply to icarus57. | June 25, 2015 at 1:55 pm

        The geography textbooks are so “inartfully drafted” that we can consider the term “Latin America” to include Sweden.

    bvw in reply to JohnC. | June 25, 2015 at 11:55 am

    You see what appears to be a puppet and assume strings and a puppeteer. Yet men as souls are always free, and oppressed only by the fleeting whimsy. Roberts alone stands responsible for his decision and his logic, no puppeteer. And with Roberts there were many Judges and law degrees aplenty. The powerful and the feral both love and respect arbitrariness in wielding power.

    Scalia assumes a scholars mantle, yet his philosophy of law and interpretation is flawed — he hangs on the shallow rotted pegs of the meaning of words. Words change. Ideals, that is the ideations. do not. Words are a poor vessel for holding the ideals. Ideals require not just individual commitment but that of a whole culture’s. The legal culture in the US turned too far away from ideals and more to practical power, Scalia, I wonder, may have formulated his theories in that milieu of the ideal-ignorant. Scalia’d be better to rehang his theories of law on the original intent, and not just the meaning of words. And then to, on the theory of the Creator’s Natural Law. But he himself regarded stare decisis too highly over that Law.

      Radegunda in reply to bvw. | June 25, 2015 at 2:27 pm

      “Scalia’d be better to rehang his theories of law on the original intent, and not just the meaning of words.”

      As if this particular Court would give any more deference to “original intent” than it does to the clear contemporary meaning of words.

      This was not a question of what someone long ago meant by a word that may be used differently today, or a word that is actually ambiguous. The word at issue has a precise meaning in statute. The Court majority simply decided that the statute ought to have been phrased differently to achieve a certain result.

      Beyond the law’s language, the clearest statement of “original intent” is Jonathan Gruber’s unambiguous statements that citizens of states that don’t set up exchanges do not get subsidies, and that the law was so designed for a purpose.

      The Court majority chose to disregard both the clear, contemporary meaning of a word and clear statements of original intent, in favor of ex post facto statements of intent made when that purpose didn’t work out as expected. The Court as much as admits that its decision was guided by the political result it prefers.

      Which judicial theory Scalia employs would seem to be inconsequential when the Court itself hardly even pretends to be following judicial rather than political principle.

      (This is a non-lawyer’s perspective, as lawyers on this board may already have discerned.)

        bvw in reply to Radegunda. | June 25, 2015 at 5:58 pm

        If legal words and legal terms are only known and knowable to lawyers America is then beyond redemption for it has wholly lost its original moorings. THAT a word or legal term is defined in a statute is itself a vile bastardization of good law. Scalia hangs his theory of laws on poor moorings, Roberts and the Sotomayers have defeated it handily. Not only as Mr. claim made the word a god, he also is a fan of law by statute replacing common law.

        That is VERY un-American.

    MouseTheLuckyDog in reply to JohnC. | June 25, 2015 at 1:26 pm

    I don’t know if these children are Irish. ( Don’t remember many blond Irish, more redheads. )

    I would say that I would not be surprised that children adopted privately contain some degree of legal ambiguity. I would be more surprised that the adoption does not.

    So whatever it is, Obama used the Presidency to find it out and he blackmailed Roberts. Now let us assume we get the right president.
    He can find out all that stuff. The right president will also have to be willing to use it. It’s also much more powerful, if it can be shown that Roberts was extorted, it taints Roberts and it sets asides all the decisions in that time. Can you say Democrats quaking in their boots?

    That makes this election really, really important. not the general election, but the primary.

    I see that the US is approaching some critical point. I don’t know what that critical point is exactly or how it will manifest itself, but something is going to happen.

    I say

Unfortunately, conservatives can’t even use this and similar SCOTUS decisions as reasons to vote GOP in November ’16, as both Robers and Kennedy are GOP nominees.

Just buy plenty of guns and ammo, guns and ammo, and wait for the day of reckoning.

An Article V Convention of States is the only possible solution.

    bvw in reply to Paul. | June 25, 2015 at 11:44 am

    There are many solutions, and also only one. The one is the natural course of history. The others are of men and full of inventiveness, good spirit and perversion. Hang in there, the tide is slow but on the side of sanity.

The rule of law is all that stands between civilization and anarchy.

Aside, as this ruling appears harmless on it’s face, it is yet another precedent that takes us further away from the Constitution, making it unrecognizable and irrelevant.

    Oh, this ruling is far, FAR from harmless. The SCOTUS has just said, in so many words “Legislation means that we get the outcome we want, regardless of the reasoning that laws were passed.”

    Let’s say the SCOTUS decided tomorrow to change its jurisprudence on firearms. They could easily say “well, Congress DOESN’T have the power to limit CDC funding to prevent CDC research on “gun violence” or to set up a “National Permit System” to own any and all guns.

    Poof: That simple and your “right” to own a firearm becomes subject to the whim of a bureaucrat, who will likely be openly hostile to your ownership thereof. No due process, no takings compensation, no nothing, just “turn in your gun, you’re not allowed to have it because you comment on Legal Insurrection and we think that makes you dangerous.”

    This ruling opens the door to the SCOTUS ignoring clear, unambiguous language, created and drafted with specific purpose to cause the STATES to behave in a particular manner for a particular benefit (subsidies to their citizens). When it became obvious that the States were going to balk, they have now stated that clearly written language, read IN CONTEXT, means the exact and complete opposite of what the law literally says.

Our founders had a beautiful vision…

Perhaps it’s time to remove fidelity and honor from our dictionaries.

I’ve always thought that this suit was iffy at best.

Yes the words as written mean that the a Federal exchange is different from a State exchange but the actual intent was really not in doubt. Regardless of what they intended when they wrote it to use the provision to extort the States into setting up an exchange.

With only that single sentence and the ambiguity of what was meant by State (seems everyone is trying to forget that State can mean either political subunits of a Union such as The United States or as indicating the general name of the political unit governing a country as in L’etat c’est moi said by Louis the XIV) then it is fair to say that it also meant the State also known as the Federal Government.

There will still be weeping and gnashing of teeth over this as if it’s the end of the world.

What’s actually worse is the idea that segregation can be ascribed to someone or group who is not actively trying to segregate.

This is ridiculous as there are plenty of instances where segregation is going on that is out of the control of those thought to be in control.

Now they can be sued. Which means that proactive steps will have to be taken to prevent segregation even if it’s not purposeful. This will lead to some twisted and unfair practices. That WILL violate peoples rights.

    (seems everyone is trying to forget that State can mean either political subunits of a Union such as The United States or as indicating the general name of the political unit governing a country as in L’etat c’est moi said by Louis the XIV)

    Except that the term was specifically defined within the Obamacare legislation itself. Their definition of an exchange established by the State explicitly includes those established by the District of Colombia and US Territories, but neglected to include those established by the Federal government on behalf of a recalcitrant State.

    (d) STATE —In this title, the term ‘‘State’’ means each of the 50 States and the District of Columbia.

    So yes, maybe they they oopsed, but it’s not for the Court to fix their mistake. Or it shouldn’t be, anyway.

      DaveGinOly in reply to Amy in FL. | June 25, 2015 at 1:43 pm

      Thanks for pointing that out. In law, a definition that includes certain terms excludes others; I don’t see “United States” in this definition. If some object that it’s not necessary because it’s understood, please peruse a few other federal statutes, in which you will find definitions of the term “United States” that don’t include the “50 States,” and within the same codes, you will find other definitions (usually preceded with something like ‘for the purposes of this section, the term “United States” includes…’) that do include the 50 States. This should be sufficient to show that Congress can define the terms used in legislation as it sees fit. But having done so, those terms should no longer be subject to “interpretation,” because Congress has already dictated their interpretation.

    Radegunda in reply to jakee308. | June 25, 2015 at 11:45 am

    “seems everyone is trying to forget that ….” — i.e. “everyone else is too stupid to understand what I do.”

    When people use “everyone” in this sloppy and self-serving way, it usually means they haven’t been paying attention to what many people have already said, and they have an inflated sense of themselves.

    In fact, the ruling acknowledges that “State” and “Federal” mean different things, and explains that the justices are pretending “in this instance” that the law’s authors really intended to say “State or Federal” when the law clearly says “State” period.

I’m waiting for SCOTUS to invalidate two terms … maybe we’ll have the “black messiah” in power for life.

Now, we just have 0bamaCare and 0bamaPhones. We need 0bamaCars, 0bamaHomes, 0bamaBooze, 0bamaDrugs, 0bamaSex …

Midwest Rhino | June 25, 2015 at 11:15 am

So The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

But now we have precedent, so “reserved to the States” really means, States OR the federal powers. So Obamacare, Common Core, Police Departments, statues of Robt E Lee or Jesus on public property … all these decisions belong to the federal government, if the states make the “wrong” decision and are not submissive to the dictator.

And prepare for a housing project in your gated community, disparate impact also seems to have passed muster.

I’m ashamed that Ginsburg is a Cornell alum [Class of ’54 as I recall]. Maybe she slipped and hurt her head on Libe Slope … that might explain it.

Everybody quit you’re whining and pay up. Resistance is futile.

I can not wait for Karma to kick in and it will.

Henry Hawkins | June 25, 2015 at 11:35 am

Collective sigh from the GOP establishment:

“Thank GOD! We have an excuse to do nothing about Obamacare. Now we can focus on doing nothing about immigration!”

Robert’s logic of law informs every “incorporation” of the Bill of Rights. With the exception of the first, which is carefully worded to apply to only Congressional statue, every Right in the BoR was from the start applicable to every State. What makes Obamacare and EVERY long bill intolerable under sane law is far more simple. The law in America must by interpretable by every literate man and woman.

Was a nice country for a while. I’m sad for my grandchildren. They’ll never know.

PackerBronco | June 25, 2015 at 12:05 pm

The result of this ruling is to replace the Rule of Law with the Aspiration of Law. Since it’s called “The Affordable Care Act” any interpretation must be based on the desire of the framers to make care “affordable.”

Which leads to all matters of absurdity. For example, if Gruber’s stated intentions had played out and states HAD been successfully coerced into setting up exchanges, then Roberts would have argued that interpreting the statue as allowing for federal subsidies was incorrect since it would have undermined the goal of getting the states on board. In other words, the interpretation is not based on what the law says, but on the law’s goal.

This has frightening consequences. It gives amazing leeway to the state. As long as the court believes that the state is acting with good intentions and towards the fundamental goal of the law, Roberts and his 5 buddies believe that the state is free to interpret the law as it chooses. Even to the extent that it could interpret the same statue in completely opposite ways.

But if the ultimate result of the “Affordable Care Act” is to make healthcare unaffordable, then what? I guess we don’t have to pass a new law do we? Or repeal the old one either. Anything the administration wants to do to make healthcare “affordable” can now be folded into the ACA under the unlimited power granted to them for statutory interpretation under the assumption they are acting for our benefit.

    The State *already* had the grant of that arbitrary and uncheckable power, Viz Hamburger’s ‘Is Administrative Law Unlawful?’

Supreme Court may have upheld THIS law. But the power to make and execute an overriding law still lays with a term-limited Congress and the Executive office.

Don’t give up, America.

    MattMusson in reply to Aucturian. | June 25, 2015 at 1:51 pm

    The Law is whatever the Executive Branch says it is. Period.

    creeper in reply to Aucturian. | June 25, 2015 at 2:17 pm

    Oh, take off the rose-colored glasses. If Republicans had any interest in tossing that law they’d have done it in January.

    I suppose next you’re going to urge us to VOTE! Save your keystrokes. We’ve seen where voting gets us.

    rokiloki in reply to Aucturian. | June 25, 2015 at 4:11 pm

    Politicians have discovered they can maintain a collective tyranny over common people by working together to keep themselves empowered. We need to clean house – get rid of all current members of Congress and Senate. Even then, it might take decades to undo the damage done by this Administration. Unfortunately, a large portion of voters are hopelessly ignorant of current affairs, they support the agenda, or they just don’t care.

    Democracies, even a republic like America, have a limited life span once the clueless citizens discover they can vote for free stuff at the expense of the working class. Once that happens, the democracy collapses.

    Prepare to greet your socialist overlords.

    mariner in reply to Aucturian. | June 25, 2015 at 5:17 pm

    It no longer matters what law the Congress or any state legislature passes.

    The Supreme Court will find some excuse to rule the way Obama wants.

    tasharina1 in reply to Aucturian. | June 25, 2015 at 9:25 pm

    I just read that the SCOTUS wasn’t granted the power of judicial review by the Constitution, that they just started doing it and no one stopped them. Here is the information

    That must be why they keep saying they only do what they are doing with the trust of the public, because the Constitution says that any power to review laws to see if they are constitutional belongs to the states and to the people

With this ruling we now know how they will vote on gay marriage.

    persecutor in reply to daradara. | June 25, 2015 at 2:02 pm

    We also know how they would rule if Rachel Dolezal ever asked them to decide if she’s black or white.

    Gremlin1974 in reply to daradara. | June 25, 2015 at 7:05 pm

    Not so fast, predictions like that have a tendency to be wrong. I find it interesting that the SSM Decision wasn’t released today.

“But the state of the English law at the date of our emigration, constituted the system adopted here. We may doubt, therefore, the propriety of quoting in our courts English authorities subsequent to that adoption; still more, the admission of authorities posterior to the Declaration of Independence, or rather to the accession of that King, whose reign, ab initio, was the very tissue of wrongs which rendered the Declaration at length necessary. The reason or it had inception at least as far back as the commencement of his reign. This relation to the beginning of his reign, would add the advantage of getting us rid of all Mansfield’s innovations, or civilizations of the common law. For however I admit the superiority of the civil over the common law code, as a system of perfect justice, yet an incorporation of the two would be like Nebuchadnezzar’s image of metals and clay, a thing without cohesion of parts. The only natural improvement of the common law, is through its homogeneous ally, the chancery, in which new principles are to be examined, concocted and digested. But when, by repeated decisions and modifications, they are rendered pure and certain, they should be transferred by statute to the courts of common law, and placed within the pale of juries. The exclusion from the courts of the malign influence of all authorities after the Georgium sidus became ascendant, would uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted more than all others, to the degeneracy of legal science. A student finds there a smattering of everything, and his indolence easily persuades him that if he understands that book, he is master of the whole body of the law. The distinction between these, and those who have drawn their stores from the deep and rich mines of Coke and Littleton, seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyers to these ephemeral insects of the law.” — Thomas Jefferson. Quoted by Wiarren Thockmorton in an essay at

The fix longterm my in the kind of generalized breakdown of the State [sic] and the rise of men like Edward Coke, followed then by another civil war like that of England’s. (Not like ours). Then a rediscovery of the Founders Intent, with the core issues of slavery and Dominion settled, one outlawed the other clearly incorporated.

I was thinking we really need a conservative president to be elected in 2016 because of supreme court appointments, but what difference does it make?

    Henry Hawkins in reply to maxmillion. | June 25, 2015 at 12:35 pm

    A conservative president would not make such appointments. A GOP estabishment,/i> president would and has made such appointments that support Democrat politics.

    Vote for a conservative GOP candidate, but not for the next dead fish candidate they’ll likely line up (Bush).

    Matt_SE in reply to maxmillion. | June 25, 2015 at 3:07 pm

    Because 3 of the justices dissented, and eviscerated the liars in the majority. THAT’S what difference it makes.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”

(Through the Looking Glass, Chapter 6)

Am I the only one who sees the irony that this comes out as the left tries to wipe out the history of the confederacy?

    Andy in reply to Andy. | June 25, 2015 at 12:51 pm

    History is an infinite loop my friends. Unlike the public school system, if you don’t learn the lesson you repeat it forever or until you do.

The 6 idiots just validated the insane statement “it depends on what the meaning of is is”

I fully expected SCOTUS to uphold the ACA. This was the outcome I foresaw as soon as I heard they were taking it up again.

It’s no surprise: This is what happens when the Supreme Court — rather than viewing the challenged law with a critical eye and interpreting the language in the light most favorable to the Constitution, individual rights, and justice — views the challenge with suspicion and interprets the language in the light most favorable to the challenged law.

In this day and age, “It passed through Congress, therefore it’s probably Constitutional” is not a valid argument, any more than “If the President does it, it’s not illegal,” or “If King George decrees it, it must be fair.”

Midwest Rhino | June 25, 2015 at 1:10 pm

Can Roberts et al. rewrite the law to conform to the aspiration of lowering my policy $2500, instead of raising it $2500?

Could they rewrite it so it does not subsidize illegals, as promised?

If they can rewrite it to keep it alive, while they are writing law, couldn’t they remove the Obama/bureaucrat rewrites that break every promise made to the people?

Of course they won’t but … the words mean nothing.

I can now view all three branches of the federal government the same — corrupt!

My grandchildren will ask why we let this happen.

    DaveGinOly in reply to TX-rifraph. | June 25, 2015 at 1:54 pm

    I saw the coming collapse of this nation decades ago. It’s one of several reasons I intentionally avoided having children. I simply didn’t want to be responsible for bringing people (or their descendants) into the coming, steaming, pile I could see on the horizon.

O has cohorts on the Court who willingly betray America in his name.

Illegal administration.
Illegal congress
Illegal court.

We don’t need no stinking flag.

Not A Member of Any Organized Political | June 25, 2015 at 1:45 pm

The “Supreme Tort” er.. court, commits another tort!

MaggotAtBroadAndWall | June 25, 2015 at 1:55 pm

We now have a system in which the executive branch feels free to ignore the will of the legislative branch, and a judiciary that is unwilling to check the executive branch power.

Just as the Romans lost their republic, so have we. We have our own version of Julius Caesar whose power can only be checked by a Brutus.

    It’s been a long time coming, but the Republic was doomed with the ratification of the 17th Amendment. Since the States lost their representation (as nominally sovereign geopolitical entities) in the Senate, there has been no check on federal/centralized authority save the courts, and now we see that they are (probably) irredeemably corrupt.

      Which is why even after a Convention of the States, the National Government would ignore it, sparking a “rump” national government and a civil war. More of probability at this point. Even more likely is a general failure of the bureaucracy in Washington, over the next three generations. Or something else. History is history and a guide but the future defied much predictions. Excepting only the general prediction of human follies and brief periods of calm and briefer ones of moral heroism.

        Matt_SE in reply to bvw. | June 25, 2015 at 3:10 pm

        Civil war it is, then. Shouldn’t be too hard, since we’re facing cowards.

        DaveGinOly in reply to bvw. | June 25, 2015 at 3:38 pm

        I don’t believe there will be a civil war, but that the Union will simply dissolve. As Eric Cartman says, “Screw you guys, I’m going home.” What will the federal government do with States that do nothing but ignore it? What will it do with States that bind together to form and declare new confederacies? Stamp it’s feet? Cry? Lincoln wouldn’t have been able to prosecute a war save for the Confederate’s intemperate first shots – it was only those shots that galvanized public opinion to support a war. Otherwise some form of negotiated settlement would have become necessary (although at the time, ideas for negotiated settlements had been rejected and Confederate offers to pay for the insular federal possession within their boundaries were also rebuffed).

        The United States will go out not with a bang, but a whimper. This is not necessarily a bad or ignominious thing. The few of the Founders expected the country they established to survive even one hundred years. Arguably, it didn’t – the Civil War resulted in the formation of a country that was the same in name only. The 17th Amendment merely put a nail in the coffin of a Republic that was already dead, many of its principles having already been sacrificed in the name of “union.”

          MattMusson in reply to DaveGinOly. | June 25, 2015 at 4:31 pm

          One day the Soviet Union just fell apart. The next day – everyone pretended they saw it coming.

          Even the What-used-to-be-theUSSR is pushing for Texas to secede. They will, the national government will become “rump”, it’s faithlessness to the Constitution will become undeniable. Then it will be a power game, between a national government with an incompetent military by then full of Bruces and Ellens and a State or five with a adept State Guard. Ike at Little-Rock inverted. Especially when one of those states will be Virginia.

          Albeit the forgoing was speculative fiction.

        Did you know that Vladimir Putin is supports TX separatists?

DINORightMarie | June 25, 2015 at 2:09 pm

How can we get rid of these hideous SCOTUS justices?!

Impeachment has never been done against a justice, has it? Maybe it’s time……….starting with Roberts. Then Kagan (who should have recused herself BOTH times).

“Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.”

If this is true, then why were State exchanges created at all? Wouldn’t the easiest way to avoid calamities have been to establish only a federal exchange? Wouldn’t that also have been less expensive? The very idea that both federal and State exchanges could be established strongly suggests Congress intended them to be different from each other in some way, otherwise the State exchanges are merely expensive and needless duplicates.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

This presupposes that in aiming at a worthwhile objective, Congress can’t:

1. Write legislation that’s fatally flawed for practical, and not constitutional, reasons; or
2. Do something unconstitutional.

If Congress intentionally built a mortal flaw into a piece of legislation, it would be within the purview of Congress to fix it, not within the authority of SCOTUS to interpret in such a manner as to ignore the flaw.

And Chief “Justice” John Roberts retains his moniker:

“Chief Justice John Roberts the Traitor.”

SCOTUScare (Obamacare, PPACA) will be a blight upon his term as Chief Justice. His prop-up of a law merely prolongs the inevitable decline of the Managed Health Care system.

Watch: I will bet money that within 2 years, three or more of the major Health Management Organizations fold or otherwise leave the market.

Further, Scalia has it right: this decision will be used to hammer any and all legislative actions as a “well, that’s what they WROTE, but it’s not what they MEANT to write, so SCOTUS should rewrite it for them.” That ALONE will flood the Federal Courts with challenges to any unpopular law to the unwashed masses of the Free Stuff Army.

All that is left is to hope that the “experience rating” of the HMO’s gets so high, and they have to raise premiums so much that the system actually DOES collapse under its own weight.

    Scalia is wrong and has been wrong in his theorizing restricting originalist construction to words alone. The words are meaningless, in a way, if the ogival ideals and original intent is missed. Scalia has a phobia about chasing down intent, a phobia absent Coke and the Founders.

      Radegunda in reply to bvw. | June 25, 2015 at 3:53 pm

      Jonathan Gruber said repeatedly and unambiguously (and with smug boastfulness) that the original intent was to compel states to set up exchanges by denying subsidies in states without exchanges.

      All the statements of “intent” made AFTER 38 states surprised the Dems by not setting up exchanges are not reflective of “original intent.”

      And there’s no deep mystery about what “the State” means in a recent statute where “State” and “Federal Government” are repeatedly used to mean different things. “Exchanges established by the State” is used seven times pertaining to subsidies. It stretches credulity well beyond the breaking point to argue that the law’s drafters intended to say “exchanges by the State or the Federal Government” in every one of those instances.

      But if you think “words are meaningless” — even very clear words — then it hardly matters what any statute, or anything else, actually says. Everything means what you want it to mean.

      And that was the principle employed by the Court majority.

        bvw in reply to Radegunda. | June 25, 2015 at 4:50 pm


        Men keep to ideals.
        Cultures are ruled per the Creator’s Intent.

        Gruber is Gruber. The Intent of Obamacare was aways clear: to impose a centralized Administrative State Bureaucracy over all healthcare issues. Roberts, whatever his motive, honored that intent. Scalia honors meaningless words. Look, Scalia himself has spoken of the distention he makes, and finds that it is the only logical distinction to be applied, in that the definition of the words at the time of statute passing is sole guide not the legislative intent. Not the culture’s intent. That is Godless of Scalia. And push has shoved him and his hollow theory over. He can still learn, even a Gruber can still learn.

        Can an Obama learn?

          Radegunda in reply to bvw. | June 25, 2015 at 8:45 pm

          That isn’t what Roberts said. He said: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” That isn’t the same thing as “impos[ing] a centralized Administrative State Bureaucracy over all healthcare issues.” So you much assume that Roberts flat-out lied about what he sees as the purpose of the law. And I’m willing to believe that he did.

        Sammy Finkelman in reply to Radegunda. | June 25, 2015 at 6:00 pm

        What Jonathan gruber said was not the truth.

        The truth is, the legislation, as drafted in the office of the Senate Majority leader was not written so as to work.

        It was designed to get a lower CBO budget score, while not alerting other members of Congress as to why.

        The law assumed all states would establish exchanges, but did nothing to even pretend to try to force them to do so.

        The drop dead date waa sometime in 2012 or 2013, because the alw authroiuzed the secretary of HHS to create exchanges for the state – not a mave healthcare.goc by the way.

        Giving Congress until late in 2012 or early 2013 to fix this.

          Sammy Finkelman in reply to Sammy Finkelman. | June 25, 2015 at 6:05 pm

          A paragraph above should be:

          The drop dead date waa sometime in 2012 or 2013, because the law authorized the Secretary of HHS to create exchanges, or contract for exchanges for a state that did not write one –not a massive by the way – but not to operate them.

          Harry Reid and company assumed that the actual writing of the exchange software would not be a big problem.

          Radegunda in reply to Sammy Finkelman. | June 25, 2015 at 8:27 pm

          The law still says what it says: “Exchanges established by the States” — not “… the States or the Federal Government.” Gruber explained very clearly why it was written that way, and why subsidies were intended to be NOT available on the federal exchange.

          You haven’t nullified what the law says, nor Gruber’s explanation of the purpose and implications of its phrasing.

        DaveGinOly in reply to Radegunda. | June 25, 2015 at 7:52 pm

        As many of you know, when Congress writes legislation, it defines the terms used in it. The definition includes certain meanings, while excluding others not included within the definition.

        From Obamacare –
        (d) STATE —In this title, the term ‘‘State’’ means each of the 50 States and the District of Columbia.
        (Thanks to Amy in Fl for posting this earlier.)

        Note what is included in the term – the 50 Union member States and the District of Columbia. Note, just as importantly, what is excluded from the term – the federal government, Congress, and the United States of America (along with the US Virgin Islands, Guam, Puerto Rico, Canada, France, Great Britain, Somalia, Pakistan, etc.). (When Congress wants to include protectorates and territories, it names them within the definition. This is easy to see in other statutes in which Congress has done exactly that.)

        How could SCOTUS ignore Congress’ own definition of the term “STATE” as used in the ACA? How can a redefinition of the term by SCOTUS be considered superior to the work of Congress in making this definition, and how does this definition not represent the purest form of “intent” with respect to the meaning of the word?

          Radegunda in reply to DaveGinOly. | June 25, 2015 at 8:33 pm

          How can they …?
          Because who’s going to stop them? And because it’s the result desired by editorial writers and various other opinion-makers across the country.

          You didn’t expect a decision made on the basis of rational clarity and or ethical integrity, did you?

    DaveGinOly in reply to Chuck Skinner. | June 25, 2015 at 7:33 pm

    I’d like to see Gun Owners of America (the NRA is too wussie) go to the courts now and claim that short-barreled rifles shouldn’t be National Firearms Act Class III items. It is my understanding that the NFA was sent back to committee at one time for the removal of language dealing with handguns and SBRs. The committee duly removed the “handgun” language, but neglected to remove the “SBR” language, resulting in the unintended categorization of SBRs as Class III firearms. If this is true, it was plainly the intent of Congress to remove the SBR language, and, upon voting for the act, Congress assumed that the SBR language had been duly removed. It was never the intent of Congress to make SBRs Class III firearms. Surely, if SCOTUS can remedy one mistaken act of Congress in order to bring it into alignment with congressional intent, it can do so with other similarly mistaken acts.

Here’s a jaw-dropper from Scalia’s dissent:
‘Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.'”

In other words, because legislation with massive significance for the lives of (almost) every American was drafted in a casual and sloppy manner, the Supreme Court must therefore go through all possible contortions of judicial reasoning and of the English language in order to keep that law hanging over us.

Where in the Constitution does it say that the central authority can force citizens to buy a commodity of any type, and if the citizen fails to purchase that commodity be subject to the force of violence (IRS)?

This is the beginning of the end of our way of government. The dam has been breeched and lawlessness has become the norm from the lowest person in the shadows in the back alley of the ghetto to the chief justice of the highest court in the land. It is perverse, it is complete and it is thorough. And we are done.

With the beginning of the “selection” of Obama, I feared the constitutional republic was merely a show piece of a country…

One thing after another, one crisis after another and illegal act after illegal act…

USA sure doesn’t seem like a lawful republic any more.

Kick them all out of Washington and put in ALL NEW citizen representatives… <== I believe this worked before.

*sigh* I'm sad

Sammy Finkelman | June 25, 2015 at 5:51 pm

The Court found Obamacare so “inartfully drafted”

No, it was very artfully drafted, , but the pklaintiffs did not explain it.

It was artfully drafted in the office of the senate Majority Leader so as to cause the Congressional Budget Office to score it for less than what it would actually cost.

Yes, the court is correct, the law as written created a
train wreck.

But this was no accident. Harry reid and company created a train wreck on purpose and not even
because they wanted to give themselves an opening to amend the bill later.

They wanted to offload the costs of operating these exchanges onto the states. There was really no other reason for creating them, the rumor that Senator Ben Nelson of Nebraska wanted them notwithstanding.

This would save the federal government a little bit of money
– maybe only a paltry few billion, but you know, a billion here, and billion there, and pretty soon you are talking about real money.

More seriously, the Obama Administration was really stuck on keeping the estimated net costs of the bill over ten years under $1 trillion.

So they budgeted $0 extra dollars for administrative costs to the federal government for operating any exchanges (and I think only a paltry $1 billion for all administrative expenses)

They also told the Congressional Budget Office to assume all people in the 50 states and DC would be eligible for the subsidies (because if they had not done that too many people would have spotted what was going on. And the bill would not have passed if anybody had thought there was a real possibility of people in some states not being
eligible for the subsidies, so they had to include the full value of them in the estimate – but not the administrative costs.

But if they had said that the federal government would actually operate an exchange, the CBO probably would have insisted that some money be budgeted for it.)

They did nothing to actually attempt to force states to establish exchanges. That also would have caused a problem in passing the bill.

They just assumed away the problem of getting the states to establish exchanges.

Not due to an oversight, but on purpose. It was budgetary gimmickry.

They intended to fix this in the next Congress, by which time the increase in estimated costs would not matter, but they lost control of the House of Representatives in the 2010 election.

    Radegunda in reply to Sammy Finkelman. | June 25, 2015 at 8:36 pm

    “inartfully drafted” — and here I thought laws were supposed to be drafted with clarity and precision, not artfulness.

      tasharina1 in reply to Radegunda. | June 25, 2015 at 9:32 pm

      Pelosi explained how they do it when she said “we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” So, that explains it all.

Sammy Finkelman | June 25, 2015 at 5:55 pm

This is not the first and only time Congress has created train wreck legislation.

There’s been a lot of it in the last decade or so.

Just think of it:

We have had tax cuts expire that nobody at all intended to let expire.

We have had Medicare payments cut to doctors, that nobody intended to ever actually go into force.

We have had provisions for the Alternative Minimum
Tax that nobody intended ever to go into effect.

And so was the lack of any provision to actually ensure that states would establish exchanges.

Several times a year now sometimes we have train wrecks coming. The expiration of appropriations, necessitating a government shutdown or a continuing resolution. Debt ceiling limits.. Expiring provisions of all other kinds of laws. The Patriot Act. Trade negotiating authority.

Sometimes they are thinbgs that could ecpire, and sometimes they are abvsolute train wrecks if they do expire.

Congress creates train wrecks all the time. Maybe the Supreme Court should have told them to stop. They might outsmart themselves.

But the Suprenme Court didn’t unerstand and was not told this was written the eway it was on purpose

That was the problem with the plaintiffs.

‘WE SHOULD START CALLING THIS LAW SCOTUSCARE,’ and 20 Other Epic Scalia Burns. Now with extra helpings of “pure applesauce” and “interpretive jiggery-pokery!” (via Insty)

I will not comply.

Gremlin1974 | June 25, 2015 at 7:07 pm

I hope at least that we have now come to the point to where everyone can agree that Roberts is now officially a member of the liberal wing of the court, or at least is no longer a member of the conservative wing.

Henry Hawkins | June 25, 2015 at 7:47 pm

Americans need to understand that the enemy is not the Democrats – there is no secret to want they want. The enemy is the GOP, which appointed two of the ‘conservative’ SC justices among the six, which knowingly lied to GOP voters about what they’d do if we voted them a majority in the Senate too, and who’ve done nothing but help Obama just about any way they can.

Roberts has just turned the Supreme Court into a joke. He just proved that the SCOTUS is meaningless by taking political sides and rewriting laws, instead of determining their constitutionality. The SCOTUS is now unconstitutional since it is operating outside of it’s constitutional powers and has become a tool of the Executive Branch.

This is worth reading, at The Volokh Conspiracy:
“Let’s recall why the Affordable Care Act is so messed up”

It’s got an excerpt from law professor David E. Bernstein’s upcoming book “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law” that sounds really good — I hope they’re planning on publishing it in Kindle format!

Of course, in “recalling why the Affordable Care Act is so messed up”, our own LI blog archives would provide a comprehensive lesson as well. Maybe the next big book out should be by Professor Jacobson!

filiusdextris | June 25, 2015 at 11:30 pm

Scalia, with his “neutral law of general applicability” (Smith, 1990) standard of the Free Exercise Clause threw away his right to criticize others for failing to go by the plain meaning. Where in “Congress shall make no law prohibiting the Free Exercise [of religion]” does allowance for a neutral infraction show up? Yet now, in states without a RFRA, Scalia’s fiction of “Congress shall make no law *intentionally* prohibiting the Free Exercise” takes away our freedoms. Strict scrutiny was just fine, tyvm.

I want to preface this by saying I hoped with all my might that we could get a ruling to destroy this mess of a law. My question is when referring to the constitution, we always say it is important to keep in mind the founders intent when writing it. Therefore the words must be interpreted with their writer’s intent in mind. Such as the second amendment. Well regulated and militia must be interpreted to mean what the founders meant when they wrote it. Am I off base, or couldn’t the same logic be used to argue the way the court argued; in that O’s intent mattered when writing the aca? I know his actual intent was to coerce the states, but I suppose it could be argued that he had good intentions, so therfore his intent was to provide subsidies to those who couldn’t afford their premiums?

    tasharina1 in reply to Stngray713. | June 26, 2015 at 3:30 am

    His intend was to coerce states to do what he wanted them to do, that is not a good intent. Plus, he didn’t want to appear to be forcing states to do his bidding, so he threatened to punish them if they didn’t. Threats and bullying are not a good intent. See, if he had put in the bill that all states have to set up state exchanges, he would have come up against the Federal Government forcing the states to do something. So, this was also a deceitful ploy, which backfired, which also is not a good intent. All of his intents, which I have seen, have not been good because they are about him using deceit and threats, then going around the Constitution, Congress and breaking laws, to get what he wants. This is how an Imperial President operates. If you have to cheat and lie and break laws to do something, then whatever outcome you desire, no matter how good you think it will be, will always end up being bad.

    The Constitution tells us what we can’t do. If they had meant for people to own guns, only if they are in a militia, it would have said that. So, the meaning is quite clear. In order for states to have militias, the people have to have the right to bear arms. Obviously they wanted to have a reason to give all people this right, without coming out and saying for defense from the government. Believe me, if it was possible to interpret it as making guns illegal, for private ownership, the liberals would have done that already and not have to go around the Constitution and laws and trickery to make it difficult to get a gun and ammunition.

Anyone remember when John Roberts said this when upholding the mandate?

” The chief justice went out of his way several times to portray the court as a neutral arbiter of the facts, adjudicating matters of law, not passing judgment on the wisdom of the health-care legislation.

“Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them,” Roberts said. “It is not our job to protect the people from the consequences of their political choices.” (Washington Post, June 28, 2012)

Bait and Switch: Compare Chief Justice John Roberts’ opinion in King v. Burwell to his confirmation hearing testimony:
“When I became a lawyer, the proclamation they read for the graduates were — they referred to the law as the wise restraints that make men free. And judges are the same way. We don’t turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law. They are constrained when they do that. They are constrained by the words that you choose to enact into a law — in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply. And that cabining of their discretion — that’s what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped. And then their job is interpreting the law. It is not making the law.” – Testimony of Justice John Roberts at his confirmation hearing before the U.S. Senate Committee on the Judiciary, September 13, 2005 [emphasis added]

How do they get it wrong so many times: Kelo Vs. New London, Obamacare both times, “Gay marriage” rights?

And yet get it right in DC vs. Heller and Horne vs. USDA?

Do they play darts in the backroom and decide by a toss how to vote? Seems that way.