Tuesday, July 8, 2014


From Patterico, a possibility that the law we could not see coming, may be hoisted by its own petard.
To review from my original post on the matter: The law’s plain language says subsidies are available only when a health plan is purchased on an exchange “established by the state under section 1311.” 34 states refused to establish an exchange, after which the HHS Secretary invoked her authority to set up federal exchanges under a different section: section 1321. Then the IRS promulgated a rule that said exchanges set up by the Secretary under section 1321 were actually exchanges “established by the state under section 1311.”
The plaintiffs in the lawsuit say: “state” does not mean “federal government.” The exchanges established by the HHS Secretary under section 1321 are not “established by the state under section 1311.” Making the point even clearer: a “state” is defined in the ACA as “each of the 50 States and the District of Columbia,” they note, and not the federal government.
The Obama lawyers say: oh, come on. Don’t look at the plain language of that one provision. You gotta look at the whole law and the intent of Congress.
When a cast of thousands write a fiendishly complex bit of evil, one has to accept that room for error is made, and into error space creep the dissenters, and from there, they take it to the courts, and the same people that rejoice as the courts strike down laws enacted by clear pluralities and majorities at referendums are left feeling mightily abused when the same process is used by their enemies.

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