SCOTUS Gets Another Bite of the Apple

The U.S. Supreme Court (SCOTUS) has accepted a case in which it will decide whether a word commonly used in the U. S. really means what it is usually accepted to mean.

The SCOTUS decision will be important to the continuation of The Affordable Care Act (Obamacare), and while very important politically to Obamacare, it is far more important to the question of the expansion of the Court’s ability to interpret the English language.

This decision will be a crapshoot because Congress has passed laws that clearly violate the specific wording – see the First, Second and 10th Amendments.

The question this time is the meaning of the words, “established by the state.”

Now you may believe that you know what that means, but politicians – who are usually attorneys – always want to argue what the meaning of “is” is.

Section 36B of the IRS Code, which was established by the Obamacare bill, says that tax credits for those who otherwise qualify, is only for those who participate in exchanges “established by the state.”

But 36 states never established an exchange! The federal government then established exchanges for the states as a fallback position, but was the exchange then “established by the state”?

The IRS promptly issued regulations saying that federally run exchanges can substitute for state-run exchanges.

Because two different appeals courts have disagreed on what the subject wording means (no surprise there – they are attorneys), the Supremes get the opportunity to weigh in on the subject. They too are all attorneys, but there is no requirement that they be attorneys. (All have been attorneys, but not all graduated from a law school or even attended one. But that’s another story.)

The 4th Circuit said yes, the Feds could substitute for states, but the D.C. Circuit said the Feds could not substitute for states. This is more than just an exercise in English, because if SCOTUS rules with the D.C. Circuit, and the words mean what you probably think they mean, Obamacare is severely crippled, possibly crippled, possibly fatally crippled.

As you might guess, there is more to the story than just a ruling by the D.C. Circuit having ruled that “state” actually means state. That ruling was made by a three-judge panel, so first the Obama administration appealed to the entire appeals panel, then slow-walked the appeal hoping to win by default, but the litigants went directly to the Supremes hoping to get a hearing, and they did.

With the new Republican majorities in both the House and Senate, Obamacare will be modified in several ways unless the President becomes the obstructionist he has accused the Republicans of being. A SCOTUS ruling upholding the D.C. opinion that “established by the state” actually means established by the state, may eventually prove fatal. A lot will depend on Justice Roberts, and since the Justices DO read the morning paper, how offended he may personally be by the videos of Jonathan Gruber.

At the very least, this case will establish which Justices can read. It may also, almost incidentally, put another nail in the coffin that is Obamacare, a very unpopular piece of legislation that contributed heavily to the rout of Democrats in the recent election.

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One Response

  1. It’s confusing to me, but then I don’t pretend to be a trained attorney. The United States (as represented by the Federal Government) is also “the state”. I don’t see why “established by the state” couldn’t mean either by an individual state, or by the United States. I suppose it all comes down to how narrow or broadly they decide to define the phrase.

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