Skip to comments.The prophetic words of John Roberts
Posted on 07/24/2014 9:01:11 AM PDT by Starman417
Today EJ Dionne wrote an article long on whining and short on logic about the conflicting decisions regarding Obamacare:
By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.
Strayed from impartiality? Say what? Then Dionne jumps off the cliff:
The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court's 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn't exist.
No, sir. It is NOT activism to insist the law be respected as written. It is ACTIVISM to interpret it otherwise. The law is very clear, and this is highly likely to get to the Supreme Court.
And now let me summon the prophetic words of John Roberts.
(Excerpt) Read more at floppingaces.net...
Which one of the Dionne Quints was EJ?
Did she get her diaper changed often enough?
Yes. It IS activism. This article ignores a fundamental tenant of judicial review ... simply put, you ignore typos. You read the Statute in it’s entirety. You defer to the Executive branches interpretation.
These are such fundamental tenants that a Con Law student gets it. This is not me talking or supporting ODimwit Care, this is just basic. SO basic. SO easy.
Now while I would love to see ODimwit Care take a well deserved bath, these judges did us NO favors. It is such a ridiculous decision that what does it do? Motivate the Dims.
No. You don’t interpret a law exactly as written. You interpret a law so it makes sense. The way it is interpreted by the 4th Cir panel makes no sense. It’s a “gotcha” analysis.
Anyway, I’m as unhappy with the law as anyone, but as they say ... with friends like these ...
I prefer to think that for an instant it has showed some moral clarity, for change.
“Daffy Duck” Dionne is a radical nut. He is uninformed, unreasonable and unintelligible.
That would be pretty much every article EJ Dionne has ever written.
Are you criticizing the 4th Cir or the DC Cir? Either way, the law was written that way on purpose to pressure the states to set up exchanges and to shift the costs so the AFA could be "deficit neutral".
I don’t disagree with you. I’d say this, there’s what contracts (or laws) say, and there is the intent of the contract or the law. That’s the way I’ve always seen courts rule on contracts. What it says or what the intent of the parties was. I think either way this fails for obama. I think the intent was for the states to all set up exchanges. The dims really thought the people would just demand their states all participate and it didn’t happen.
I agree. The intent of the law was clearly that the states would setup exchanges. It was intended to “make” or provide incentive for them to do so.
Did you know that the exclusion of states without their own exchanges is a feature, not a bug?
The law was written as it is to provide a carrot/stick to the states to create their own exchanges. It was discussed at the time and this is what they came up with. The rats basically said, If you don't create a state exchange, you don't get the federal bucks.
So now the judiciary is supposed to ignore that actual intent of Congress when they wrote it in deference to the big picture concept of cheap medical care?
Traitor Roberts still rewrote the law all by his self.
The law is unworkable in states that did not opt for expanded Medicaid, with or without the subsidies.
Most of the states that opted for the federal exchanges, also turned down expanded Medicaid. Without expanded Medicaid, the federal subsidies are unworkable. They would leave a huge gap of people in the middle, who would have to pay the full, high rate for Obamacare coverage. The Feds cannot force states to expand Medicaid coverage. Therefore, the law collapses under its own weight.
Be still my beating heart...
That’s funny. I didn’t see any articles by EJ Dionne whining about judicial activism when it comes to gay marriage.
Well, there were a few states that opted for he expanded Medicaid at the last minute, that could keep the law going for a while longer, but unless some court orders states to expand Medicaid, the government subsidies are unworkable.
The best way to get a bad law repealed is to enforce it strictly. ~ Abraham Lincoln
“By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality.”
Oh, so when the decision goes in YOUR favor THEN it’s impartial................got it.
What an asshat.
Whatever happened to “hey, obamacare is the law get over it”.
I must disagree. The principal supporters and drafters of the ACA would have favored single payer, but they quite simply did not have the votes in Congress for a complete federal takeover; that is why we do not have single payer right now. They also recognized that they could not straightforwardly force the states to set up exchanges, because such a federal mandate on the sovereign states would be clearly unconstitutional There were also Democratic Senators, IIRC led by Ben Nelson, who explicitly preferred retention of a robust state role, and the ACA's state-centric exchange model was a deliberate accommodation of this faction (at a time when every vote counted). For all these reasons, the drafters created an OPTION for the states to create exchanges, and -- hoping to make this the preferred choice by most or all of the states -- created the differential treatment of subsidies as an incentive (or bribe).
In other words, the provision that subsidies are available ONLY in exchanges created by a state was a perfectly deliberate ploy. It was, essentially, a baited trap. The ACA backers were astonished when two thirds of the states did not take the bait, and they have been trying to wriggle out of their own handiwork ever since.
The 4th Circuit opinion is appallingly bad. In saying that it would overlook the clear language of the text and interpret the law more broadly, to reflect the imputed intent of the Congress, is to simply suppress the legislative history. It is true that the core backers of the ACA preferred single payer and, short of single payer, a universal system of mandatory exchanges. But those options DID NOT command sufficient support in Congress at the time. When the 4th Circuit nonetheless asserts that this was Congress' "intent," it is misrepresenting the record.
The intent of the Congress is what the Congress as a whole chooses to enact. It is often the case that a majority of the majority might prefer to go further, but it is also very often the case that the majority of the majority is a minority of the whole, and has to compromise to move forward. What the 4th Circuit has done is to assert that the view of the majority of the majority is the intent of the whole. That is an utter falsity. Whether our judicial system retains the integrity to make this distinction is the question of the hour.
To argue intent is disegenuous considering even the speaker admitidly knew not what was contained in the bill.
I don’t see how the courts could order the expansion of Medicaid because it is a state administered program and the federal subsidy for the expansion is due to expire in two years,
I have not been able to find any information on how the Feds are treating the the subsidies for people in the gap between the UN expanded Medicaid and the federal subsidies. Are they simply providing full subsidy for these people? If so, the Feds cannot simply withdraw the subsidies when the fed portion of the expanded Medicaid expires because, it is not Medicaid.
The speaker didn’t know, but someone wrote it. I’d guess when it comes right down to it, the speaker knew what was in it.... regardless of what she told the Press while trying to get it passed.
Also fundamental of judicial review is the separation of powers model. The separation of powers model should trump interpretation because the text itself is not ambiguous and the executive interpretation is diametrically opposed to the text. Letting the exective get away with interpreting legislative black as white or vice versa sets a very bad precedent. Not to mention that the Obama Administration is inconsistent in its own interpretation of the term “state” as used in the ACA if it holds in Halbig that the State means the federal government; see here:
so according to the Obama administration, black is deemed to be white in defiance of the plain text of the law, except when the administration deems black to be black. Or to be more precise, the IRS can hold that black is white while HHS can hold that black is black, and the courts should agree with the executive on both, and furthermore, establish that as case law precedent... hmm, what could possibly go wrong?
In the summer of 2010, IRS officials began working on rules to implement the PPACAs premium-assistance tax credits. Like the statute itself, early drafts of their regulations reflected the requirement that tax-credit recipients must be enrolled in health insurance through an Exchange established by the State under section 1311.
~Newt Gingrich, 2012
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