D.C. Circuit Court of Appeals Decides IRS Rule Permitting Subsidies for Federal Exchanges Is Not Permitted Under the ACA

[dismal]

That actually refers to the first portion of the analysis.

For a better, ummm... non-quote mined, context of the 4th Circuit ruling.

It is therefore clear
that widely available tax credits are essential
to fulfilling the Act’s primary goals and that
Congress was aware of their importance when drafting the bill.
The IRS Rule advances this understanding by ensuring that
this essential component exists on a sufficiently large scale.
The IRS Rule became all the more important once a significant number
of states indicated their intent to forgo establishing Exchanges.
With only sixteen state-run Exchanges currently in
place, the economic framework supporting the Act would crumble
if the credits were unavailable on federal Exchanges.
Further more, without an exception to the individual mandate,
millions more Americans unable to purchase insurance
without the credits would be forced to pay a penalty that Congress never
envisioned imposing on them.
The IRS Rule avoids both these unforeseen and undesirable
consequences and thereby advances the true purpose and means of the Act.
It is thus entirely sensible that the IRS would enact the
regulations it did, making Chevron deference appropriate.
Confronted with the Act’s ambiguity, the IRS crafted a rule
ensuring the credits’ broad availability and furthering the
goals of the law.
In the face of this permissible construction,we must defer to the IRS Rule.

And can someone explain to the courts there are better ways to create PDFs?!!

It's really quite horrible and embarrassing that they are relying on ex post events to interpret the meaning of a law in opposition to its plain language. Things known ex post were not known at the time of the drafting and could not possibly shape intent.

 

[ksen]

Yeah I don't either but so what! The plain unambiguous and unequivocal text of the law doesn't authorize subsidies for federally established exchanges. To read otherwise is to impose a meaning to be found nowhere in the language of the statute.

The 4th Circuit disagrees with you.

It doesn't make sense to have a meaning and reading of a statute when and where the language of the statute doesn't support any such reading at all.

It also doesn't make sense to have a law designed to provide universal health insurance coverage to not offer subsidies on exchanges created by the federal government on behalf of the states. The states decided how they wanted their exchanges created. Some wanted to do it themselves and some wanted the federal government to do it for them. Big deal.

 

[James Madison]

D.C. Circuit Court of Appeals Decides IRS Rule Permitting Subsidies for Feder...

The 4th Circuit disagrees with you.

It doesn't make sense to have a meaning and reading of a statute when and where the language of the statute doesn't support any such reading at all.

It also doesn't make sense to have a law designed to provide universal health insurance coverage to not offer subsidies on exchanges created by the federal government on behalf of the states. The states decided how they wanted their exchanges created. Some wanted to do it themselves and some wanted the federal government to do it for them. Big deal.

So what if the 4th Circuit disagrees. This isn't a popularity contest of counting circuits or entities in agreement or disagreement.

And so what if the law "doesn't make sense." Congress is permitted to pass bad laws, stupid laws, laws that don't make sense. Indeed Congress has passed bad laws, stupid laws, before and will do so again in the future. There isn't any constitutional requirement the laws passed by Congress be rational, make sense, or constitute as good laws, and article 3 doesn't authorize the federal judiciary with any authority to make a bad law a good law, a stupid law a rational law or a common sense law, much less rectify what is perceived to be a bad law or perceived to be a law which doesn't make sense.

The legislature is authorized to make law, bad, good, rational, irrational, stupid, and otherwise, and the legislature alone is vested with the authority to rectify a stupid law, perceived stupid, irrational law, perceived irrational law, by passing legislation changing the existing law.

This is, after all, how our constitutional government is supposed to work.

 

[Justin Z]

The Constitution doesn't authorize judicial review at all, so that's not a good argument. And ironically your namesake advocated for it in the Federalist Papers yet didn't see fit to fight to get it into the Constitution. Good thing John Marshall interpreted Madison's intent, albeit in a case filed against Madison!

Branches have checks. These aren't three separate soup cans whose domains never touch. The branches are far better represented as Venn diagrams that impinge upon each other's authority by design.

 

[James Madison]

The Constitution doesn't authorize judicial review at all, so that's not a good argument. And ironically your namesake advocated for it in the Federalist Papers yet didn't see fit to fight to get it into the Constitution. Good thing John Marshall interpreted Madison's intent, albeit in a case filed against Madison!

Branches have checks. These aren't three separate soup cans whose domains never touch. The branches are far better represented as Venn diagrams that impinge upon each other's authority by design.

We aren't discussing judicial review. Whether judicial review is or isn't in article three doesn't refute a thing I said. I focused upon what the Constitution didn't require of Congress and you chose to focus upon whether the constitution permitted some branch of government to exercise some precise conduct, the two aren't parallel. So while it is possible is I didn't make a good argument, it isn't because of your non-parallel example.

Furthermore, the U.S. Constitution vests the lawmaking power with one branch only, the legislative branch, and to no other branch of government. This includes the power to change the law by passing another law. Judicial review is much more easily and reasonably defensible based on the language of article three than the conduct of the judiciary having the authority to rectify or fix bad laws, perceived bad laws, stupid laws, or perceived stupid laws as no language in article three reasonably allows this power. This in combination with article one vesting to Congress the power of making laws presents a very good argument, a reasonable argument, a textual argument Congress and Congress alone can fix bad laws, stupid laws.

And, if I recall correctly, Madison didn't advocate for judicial review in the Federalist Papers, rather this was Hamilton. And, from what I recall, Hamilton devoted one essay to the subject and this essay is not some explicit and unambiguous advocacy for judicial review.

Furthermore, unless I'm mistaken, CJ Marshall didn't engage in any investigative "intent" of James Madison in the case of Marbury v. Madison, where CJ Marshall concluded the federal courts have the power of judicial review. Rather, CJ Marshall devoted a lot of ink to examining the plain text of article 3 and making logical inferences derived from the plain text and consistent with the plain text of article 3.

Your soup can analogy isn't parallel to the constitution's design of 3 separate branches of government, with each branch vested with specific powers the other branches cannot exercise. This isn't some logical reasoning undergraduate class making use of Venn Diagrams to show logical relations by overlapping sections such that the shaded overlapping areas have some logical connection relationship. The text of the U.S. Constitution created 3 distinct and separate branches of government with each branch having its own powers to exercise to the exclusion of the other branches, and this is how the checks and balances operate.

 

[Loren Pechtel]

As to the statute, it reads "by the state", not "by the states", so it could conceivably be interpreted to any government established exchanges, be they state or federal, due to different meanings of the word  state.

Yeah--"by the State" refers to government authority, not what type of territory.

 

[Loren Pechtel]

There isn't much, really. The contrarian 4th Circuit main opinion said the ACA was ambiguous on the issue and deferred to the agency interpretation

It goes further than that. Such as I explained. The DC Circuit Court is trying to out do Bush v Gore and Hobby Lobby v Sanity.

Quibble here: The Hobby Lobby decision was legally right even though it's an abomination. The real problem is the Religious Freedom Restoration Act. Scrap that garbage and the Hobby Lobby decision goes away.

 

[dismal]

As to the statute, it reads "by the state", not "by the states", so it could conceivably be interpreted to any government established exchanges, be they state or federal, due to different meanings of the word  state.

Yeah--"by the State" refers to government authority, not what type of territory.

This is not even the governments argument. As has already been discussed in the thread.

Because it's obviously bullcrap.

 

[Justin Z]

We aren't discussing judicial review. Whether judicial review is or isn't in article three doesn't refute a thing I said. I focused upon what the Constitution didn't require of Congress and you chose to focus upon whether the constitution permitted some branch of government to exercise some precise conduct, the two aren't parallel. So while it is possible is I didn't make a good argument, it isn't because of your non-parallel example.

You miss the point, which is that a power not specifically delegated in the Constitution is accepted to be given to the judiciary and the reason for that is because it makes sense when inferred from the totality of the law in question (the Constitution). Just as inferring states with federally controlled exchanges would receive subsidies also makes sense.

Furthermore, the U.S. Constitution vests the lawmaking power with one branch only, the legislative branch, and to no other branch of government.

That the veto power exists is all that's necessary to remind you of to demonstrate that as completely false.

And, if I recall correctly, Madison didn't advocate for judicial review in the Federalist Papers, rather this was Hamilton. And, from what I recall, Hamilton devoted one essay to the subject and this essay is not some explicit and unambiguous advocacy for judicial review.

Furthermore, unless I'm mistaken, CJ Marshall didn't engage in any investigative "intent" of James Madison in the case of Marbury v. Madison, where CJ Marshall concluded the federal courts have the power of judicial review. Rather, CJ Marshall devoted a lot of ink to examining the plain text of article 3 and making logical inferences derived from the plain text and consistent with the plain text of article 3.

You may be right about Hamilton, but either way, the opinion in Marbury v. Madison makes no subtle allusion to the text--it's pretty explicit. I don't agree Marshall actually made a serious review of Article III, but if you think he did, he was engaging in exactly what you're chastising the Fourth Circuit for doing today.

Your soup can analogy isn't parallel to the constitution's design of 3 separate branches of government, with each branch vested with specific powers the other branches cannot exercise. This isn't some logical reasoning undergraduate class making use of Venn Diagrams to show logical relations by overlapping sections such that the shaded overlapping areas have some logical connection relationship. The text of the U.S. Constitution created 3 distinct and separate branches of government with each branch having its own powers to exercise to the exclusion of the other branches, and this is how the checks and balances operate.

Heh, the fact that I learned Constitutional Law from one of the most preeminent scholars in the country, three other long-tenured professors, and a sitting Arizona Supreme Court Justice, makes your implication about an undergraduate logic class silly, in addition to being inappropriate on its face.

As discussed above, the branches impinge on each other. By definition they cannot possess entirely distinct powers if they don't check each other. They each have to have a sliver of the others' power or a check is impossible. Executive vetoes Legislative, Cudiciary throws out bad laws enacted by Legislative with Executive's consent, seats in the Judicial branch are appointed by Executive with advice/consent of Legislative. Pretending they're entirely distinct is not compatible with the idea of checks and balances at all.

Edited to add: Oh, and let's not forget Admin law, i.e. the Executive flat out making law itself with the Legislative's permission.

 

[James Madison]

You miss the point, which is that a power not specifically delegated in the Constitution is accepted to be given to the judiciary and the reason for that is because it makes sense when inferred from the totality of the law in question (the Constitution). Just as inferring states with federally controlled exchanges would receive subsidies also makes sense.

Furthermore, the U.S. Constitution vests the lawmaking power with one branch only, the legislative branch, and to no other branch of government.

That the veto power exists is all that's necessary to remind you of to demonstrate that as completely false.

And, if I recall correctly, Madison didn't advocate for judicial review in the Federalist Papers, rather this was Hamilton. And, from what I recall, Hamilton devoted one essay to the subject and this essay is not some explicit and unambiguous advocacy for judicial review.

Furthermore, unless I'm mistaken, CJ Marshall didn't engage in any investigative "intent" of James Madison in the case of Marbury v. Madison, where CJ Marshall concluded the federal courts have the power of judicial review. Rather, CJ Marshall devoted a lot of ink to examining the plain text of article 3 and making logical inferences derived from the plain text and consistent with the plain text of article 3.

You may be right about Hamilton, but either way, the opinion in Marbury v. Madison makes no subtle allusion to the text--it's pretty explicit. I don't agree Marshall actually made a serious review of Article III, but if you think he did, he was engaging in exactly what you're chastising the Fourth Circuit for doing today.

Your soup can analogy isn't parallel to the constitution's design of 3 separate branches of government, with each branch vested with specific powers the other branches cannot exercise. This isn't some logical reasoning undergraduate class making use of Venn Diagrams to show logical relations by overlapping sections such that the shaded overlapping areas have some logical connection relationship. The text of the U.S. Constitution created 3 distinct and separate branches of government with each branch having its own powers to exercise to the exclusion of the other branches, and this is how the checks and balances operate.

Heh, the fact that I learned Constitutional Law from one of the most preeminent scholars in the country, three other long-tenured professors, and a sitting Arizona Supreme Court Justice, makes your implication about an undergraduate logic class silly, in addition to being inappropriate on its face.

As discussed above, the branches impinge on each other. By definition they cannot possess entirely distinct powers if they don't check each other. They each have to have a sliver of the others' power or a check is impossible. Executive vetoes Legislative, Cudiciary throws out bad laws enacted by Legislative with Executive's consent, seats in the Judicial branch are appointed by Executive with advice/consent of Legislative. Pretending they're entirely distinct is not compatible with the idea of checks and balances at all.

Edited to add: Oh, and let's not forget Admin law, i.e. the Executive flat out making law itself with the Legislative's permission.

You miss the point, which is that a power not specifically delegated in the Constitution is accepted to be given to the judiciary and the reason for that is because it makes sense when inferred from the totality of the law in question (the Constitution).

You must be thinking of the Zimbabwe constitution, or the Russian constitution, or the constitution of Pakistan because your statement of above sure as hell isn't what the U.S. Constitution says. Any power not delegated in the U.S. Constitution is a power reserved to the states, and not the judiciary.

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.​

This is ConLaw 101 man! Even first year law school students know any power not delegated to federal government in the U.S. Constitution is a power reserved to the states, as opposed to a power "given to the judiciary." As a matter of fact, your statement is completely unknown in the legal field. I know of no opinion, federal or state, no law review article, no judicial canon, rule of statutory construction, nothing which the judiciary is this sponge for powers not delegated in the U.S. Constitution. You quite simply do not know what you are talking about.

That the veto power exists is all that's necessary to remind you of to demonstrate that as completely false.

Incorrect. The veto power of tule president does not refute or show as false my statement of, "Furthermore, the U.S. Constitution vests the lawmaking power with one branch only, the legislative branch, and to no other branch of government. The veto power is not a lawmaking power.

You may be right about Hamilton

I am right about Hamilton.

he opinion in Marbury v. Madison makes no subtle allusion to the text--it's pretty explicit. I don't agree Marshall actually made a serious review of Article III, but if you think he did, he was engaging in exactly what you're chastising the Fourth Circuit for doing today.

Absolute non-sense. The 4th Circuit applied a deferential standard of judicial review under the Chevron test when analyzing the IRS rule in relation to the statute. Justice Marshall didn't know what the hell the Chevron test was in 1801 or the early 1800s as it didn't exist until the 20th century and he sure as hell couldn't have applied it, and didn't apply something he didn't know to exist at the time of Marbury v. Madison. CJ Marshall and the 4th Circuit engaged in two different kinds of analysis.

Furthermore, as I stated previously, any comparison between the decision of Marbury v. Madison and the 4th Circuit Court of Appeals decision is problematic, precisely and exactly because CJ Marshall devoted a lot of ink to examining the plain text of article 3 and making logical inferences derived from the plain text and consistent with the plain text of article 3. The same cannot be said of the 4th Circuit Court of Appeals decision, or at least it cannot be said with a straight face. The two opinions are not the same.

Heh, the fact that I learned Constitutional Law from one of the most preeminent scholars in the country, three other long-tenured professors, and a sitting Arizona Supreme Court Justice, makes your implication about an undergraduate logic class silly, in addition to being inappropriate on its face.

I couldn't careless for your accolades, I am skeptical of them based on your remarks in this thread but I digress. Your resume isn't impressive to me and it certainly does not demonstrate you are correct. In fact, you've been wrong about many things so far in this thread, such as Madison advocating for judicial review in the Federalist Papers (false), CJ Marshal relying upon Madison's intent for judicial review in the case of Marbury v. Madison (false, CJ Marshall did no such thing in the decision), "a power not specifically delegated in the Constitution is accepted to be given to the judiciary" (false), and so forth. Your educational background sure as hell did not preclude you from making these erroneous remarks.

As discussed above, the branches impinge on each other.

According to you and Venn Diagrams. However, it is more appropriate to analyze what the Constitution says and the U.S. Constitution creates three, separate, and distinct branches of government with their own exclusive powers to exercise. No other branch of government may constitutionally exercise a power given to the other branch.

By definition they cannot possess entirely distinct powers if they don't check each other.

Venn Diagram definition right? Well, the U.S. Constitution says A.) They can possess distinct powers and B.) Possessing the distinct powers is the check on each other.

Yes, Congress' exclusive "power of the purse" is a check on executive authority. Congress' exclusive power to raise and promote armed forces is a check on the executive's power to engage those forces in combat or control them, direct them, etcetera. Congress power to make and pass laws is a check on the executive and judicial branch, as Congress can pass a law overturning a judicial opinion interpreting a federal statute or administrative rule, or overturn an executive order or revoke any executive authority taken under a statute by passing a subsequent law denying the executive this authority to act in some particular manner under the federal law. The judicial branch has the authority to assess the constitutionality of the conduct of the other two branches of government, and this is a check on their power and authority. Congress can check the judicial branch by removing inferior federal courts (i.e. removing all district and federal courts, redraw their boundaries, change the number of judges sitting on the bench, etcetera).

it is because the three branches possess distinct powers that they are able to "check each other."

They each have to have a sliver of the others' power or a check is impossible.

No, they do not, but rather it is the fact they have separate and distinct powers to exercise which operates as the "check".

Executive vetoes Legislative

The presidential veto is not a "sliver of the others' power" and it is not an example of a "sliver of the other's power." The presidential veto is not a lawmaking power, indeed it is not a "sliver of" the legislative power or the powers given to Congress to make and pass laws. So this is not an example of one branch having a "sliver of the others' power."

Pretending they're entirely distinct is not compatible with the idea of checks and balances at all.

To the contrary, you referenced powers distinctly given to a branch of government, as opposed to "shared." It is the fact the powers are distinct and separated among the separate branches of government which permits the idea of checks and balances.

 

[maxparrish]

That actually refers to the first portion of the analysis.

For a better, ummm... non-quote mined, context of the 4th Circuit ruling.

It is therefore clear
that widely available tax credits are essential
to fulfilling the Act’s primary goals and that
Congress was aware of their importance when drafting the bill. ...

Apparently the 4th circuit is making the following claims regarding the law maker (Congress) and the power of the executive branch to 'rewrite' it without a vote of Congress:

a) The 2000 page law is ambiguous, even though the plain text is clear.
b) The IRS has a true understanding of the policy intentions behind the law and 'advances' (fixes) the law by ignoring the plain text and making up its own rules to supersede the text.
c) If the law were not "fixed" by the IRS the Act would "crumble".
d) If the law were not "fixed" by the IRS 'millions' more would have to pay a penalty not intended by Congress.

In short, the IRS fixes Congress failure to foresee undesirable consequences, "helping" Congress make proper statutory law by reconstructing it.

Legal gymnastics aside, this should not be an issue. Congress makes the law, the executive branch enforces it. It is not the duty or within the power of the executive branch to repeatedly ignore plain and unambiguous text in order to 'advance' a legislative Act's 'true' goals. And were the text truly ambiguous, rather than inventing a meaning the executive branch (and the courts) ought to return it to Congress for clarification - its their law, not that of the IRS.

Congress passed it, the President signed it. If they want amend it, rather than use the IRS as a faux "fix it without Congress" legislature, they ought to return to Congress.

It's the correct thing to do in a democracy, no?

 

[dismal]

It is not the duty or within the power of the executive branch to repeatedly ignore plain and unambiguous text in order to 'advance' a legislative Act's 'true' goals. And were the text truly ambiguous, rather than inventing a meaning the executive branch (and the courts) ought to return it to Congress for clarification - its their law, not that of the IRS.

Yes, I think this is where some people are getting lost (assuming they are not simply insincere apologist hacks...)

The law not only has an overarching intent (let's get a lot of people some health insurance) but a specific means of doing it (let's hand out credits on exchanges established by states).

The IRS/government/courts can not lean on the overarching intent to legally justify ways of doing it (and expending funds) that the law does not authorize.

The "intent" question is not about the overarching intent of the law but the intent congress had when they drafted this specific means of doing it. There is simply no evidence that the intent was to draft a law that allowed credits on federal exchanges. Moreover, judges who were not in the back rooms when the horsetrading was going on and the drafting was being done are generally incapable of assessing what intent people may have had. Thus they must default the plain language of the text.

Or not, if they are partisan hacks who don't give a shit about the rule of law.

 

[ksen]

There is simply no evidence that the intent was to draft a law that allowed credits on federal exchanges.

You mean no evidence other than the sworn amicus brief filed by those that crafted and passed the legislation and that the withholding of tax subsidies was never used as a stick to convince unwilling states to create their own exchanges instead of relying on the federal government to do it.

Other than that you're right.

 

[ksen]

Jimmy, this is just another example of Emperor Obama clearly defying the will of congress. Don't you remember all those press conferences members of congress had when subsidies were being worked out for federal exchanges saying they never meant for purchasers through the federal exchanges to get the subsidies?

Yeah, neither do I.

However I am sure you recall former house and majority leader Pelosi explaining to the hoi polloi that they had to pass the law in order to discover what was in it.

lol, yeah and now we're finding out that the intent was for all exchange participants to get subsidies if their income qualified them for subsidies.

 

[Achwienichtig]

[YOUTUBE]http://www.youtube.com/watch?v=JZtdES7FciI[/YOUTUBE]

I guess the lawyers in robes are reading it for us now.

 

[Jimmy Higgins]

There is simply no evidence that the intent was to draft a law that allowed credits on federal exchanges.

You mean no evidence other than the sworn amicus brief filed by those that crafted and passed the legislation and that the withholding of tax subsidies was never used as a stick to convince unwilling states to create their own exchanges instead of relying on the federal government to do it.

Other than that you're right.

What I don't understand is how the tax credit could be a stick to begin with. If you wanted to carrot on the stick the red states, you'd have to give the States the money, not tax credits to the citizens. No way in heck would a red state look at Democrats giving subsidies to their red folk as a carrot on a stick!

 

[Jimmy Higgins]

It is not the duty or within the power of the executive branch to repeatedly ignore plain and unambiguous text in order to 'advance' a legislative Act's 'true' goals. And were the text truly ambiguous, rather than inventing a meaning the executive branch (and the courts) ought to return it to Congress for clarification - its their law, not that of the IRS.

Yes, I think this is where some people are getting lost (assuming they are not simply insincere apologist hacks...)

I know what you mean. I mean look at what you said.

I don't really doubt they intended to throw about subsidies to everyone.

Yet, even when you know that, you still seem to want to argue against it. Do your partisan goggles come with lenses that aren't so dark? That may help you.

 

[dismal]

Yes, I think this is where some people are getting lost (assuming they are not simply insincere apologist hacks...)

I know what you mean. I mean look at what you said.

I don't really doubt they intended to throw about subsidies to everyone.

Yet, even when you know that, you still seem to want to argue against it. Do your partisan goggles come with lenses that aren't so dark? That may help you.

Really weak post Jimmy. I have explained my position in some detail and yet you cherry pick and quote mine it so you can imagine it is not what I have said it is.

 

[James Madison]

Yes, I think this is where some people are getting lost (assuming they are not simply insincere apologist hacks...)

I know what you mean. I mean look at what you said.

I don't really doubt they intended to throw about subsidies to everyone.

Yet, even when you know that, you still seem to want to argue against it. Do your partisan goggles come with lenses that aren't so dark? That may help you.

The pivotal language from the statute is as follows:

" [e]ach Stateshall, not later than January 1, 2014, establish an American Health Benefit Exchange."

Each State that elects...

Failure To Establish Exchange or Implement Requirements.--
(1) In general.--If--
(A) a State is not an electing State under subsection (b); or
the Secretary determines, on or before January 1, 2013, that an
electing State-- (i) will not have any required Exchange operational by January 1, 2014; or
(ii) has not taken the actions the Secretary determines necessary to implement--...
the Secretary shall (directly or through agreement with a not-
for-profit entity) establish and operate such Exchange within the State​

Emphasis mine.

First, it is important to observe the word "State" is capitalized and is preceded, in some places, with the word "each." This is important because this is a clear reference to the individual 50 states of the United States.

Now, the statutory language regarding exchanges established by the state reads as "Each State shall...establish an American Health Benefit Exchange," with subsequent language in the statute making clear the state may elect to establish an exchange with the language under section 1321 reading "Each State that elects..." to establish an exchange. (The is a constitutional reason for the change from "shall" to "elects".) Once again, this language is a clear reference to the states in their individual capacity. So, we have a clear understanding the law discusses State established exchanges.

Now, does the statute have a contingency plan in the event the State or States choose not to establish an exchange? Yes. What does this part of the statute say? I posted it above but repost again in italics. "[t]he Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State."

Who is doing the establishing of the exchange in the event the State does not establish an exchange? Is it the "State"? No, it is "the Secretary". The "Secretary" is not the "State." The statute treats them as different entities, different subjects, and we know this because in one section of the statute the "State" (capital "S") is used and elsewhere the word "Secretary" (capital "S") is used. The "Secretary" establishing an exchange is not the same as or identical to the "State" establishing an exchange. The Secretary is one entity, a federal entity, and the State is a separate entity. If one entity, the State, fails to do X, then the Secretary will do X.

It is important to note, the statute does not contain the languge of, "The Secretary established exchanges for the State, and operated within the State, shall constitute as a State exchange." No such language exists in the statute. None. The statute discusses the "State" establishing exchanges, and in the event the "State" does not establish an exchange then the "Secretary" establishes an exchange.

In addition, the language of "establish and operate such Exchange within the State" is pivotal. The exchange is to be established by the Secretary "within" the State and the Secretary is to "operate" the exchange "within the State." The State isn't establishing or operating the exchange. Rather, the "Secretary" is establishing and operating the exchange. The State, under the law, has no operating control over the exchange established by the Secretary. Furthermore, the exchange is created and operated "within" the State. The word "within" gives the location and nothing more, the word "within" doesn't suggest the exchange is the State exchange. Given the fact the State does not have operational control over the exchange created by the "Secretary", the exchange is established by the "Secretary" and the exchange is merely, and nothing more, located "within" the State, it is inconceivable to think an exchange established and operated by the "Secretary" is a "State" exchange.

Quite simply, this isn't ambiguity, as the 4th Circuit said. This isn't ambiguous at all.

 

[dismal]

Quite simply, this isn't ambiguity, as the 4th Circuit said. This isn't ambiguous at all.

I think it's obvious to all that is just the straw they grasped at to avoid a practically unpleasant and politically undesirable outcome.

The scary thing to me is how many people are OK with this because it helps their team. Next time the rule of law gets trampled it may be the other team doing it.