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Will John Roberts Decide a 'State' Is Not a 'State'?
CNS News ^ | 7/23/2014 | Terence P. Jeffrey

Posted on 07/23/2014 2:00:14 AM PDT by markomalley

The Supreme Court may soon need to decide whether the federal government can be considered a "state" in our federal republic in the same sense that Iowa, Wyoming and Wisconsin are states.

On the face of it, this question may seem absurd. In fact, given any level of reflection, it is absurd. The federal government is not one of the states.

But this absurd question was at the heart of Halbig v. Burwell, decided this week by the U.S. Court of Appeals for the District of Columbia, and it could soon become a defining issue in American life.

Section 1311 of the Affordable Care Act, the court explained, provided for "each State" to establish an exchange to sell health insurance.

However, the federal government cannot force a state government to create a health insurance exchange.

So, Section 1321 of the ACA empowered the secretary of Health and Human Services to directly create an exchange, under the authority of the federal government, in those states where the state government exercised its right not to create one.

But then the lengthy and complicated law did an interesting thing. It provided that people earning up to 400 percent of the poverty level could get a federal subsidy to buy health insurance — so long as they bought that insurance in an exchange "established by the State under Section 1311."

The law did not extend the federal subsidy to people who make more than 400 percent of the poverty level, or who buy their insurance some place other than in an exchange "established by the State under Section 1311."

For example, the law did not include language providing a federal subsidy to people who bought their insurance in an exchange established by the federal government under Section 1321.

But the actual language of the law proved no obstacle to the Internal Revenue Service. When the IRS wrote the regulation governing the federal subsidies that people can get to buy health insurance under the Affordable Care Act, it simply pretended the law extended subsidies to people buying health insurance on federal exchanges as well as state exchanges.

For advocates of Obamacare, the IRS's expansion of the law turned out to be extremely important. Only 14 states established exchanges under Section 1311. The federal government, using Section 1321, established exchanges in the other 36 states.

Under the Affordable Care Act, the Appeals Court explained this week, the penalty that enforces the individual mandate to buy insurance does not apply if a health insurance plan would cost more than 8 percent of a household's income. Similarly, the provision that penalizes companies that employ more than 50 people if they do not buy insurance for their employees does not apply unless an employee of the company qualifies for the government subsidy to buy insurance in an exchange.

Without the exchanges and their subsidies, far fewer people would be subject to both the individual and employer mandates. Had the IRS not unilaterally extended to the federal exchanges the subsidies that the language of the law only extends to state exchanges, those individuals and businesses would be free of the mandate.

In Halbig v. Burwell, a group of employers and individuals sued the federal government, arguing that the IRS regulation contradicted the plain language of the ACA as passed by Congress and signed by President Barack Obama.

Two members of a three judge panel on the Appeals Court did a very simple thing: They read the law and the IRS regulation. They then determined the regulation did something the law did not authorize: It provided subsidies to people buying insurance on the federal exchanges.

"We reach this conclusion, frankly, with reluctance," wrote Judge Thomas Griffith, who was joined by senior Judge Raymond Randolph.

"At least until states that wish to can set up exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health insurance markets more broadly," he wrote.

"But, high as those stakes are, the principle of legislative supremacy that guides us is higher still," said the judge. "Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges."

In his infamous opinion deciding that the individual mandate was constitutional, Chief Justice John Roberts wrote: "The text of a statute can sometimes have more than one possible meaning."

For Roberts, in that case, the word "shall" in the ACA did not always mean "shall" and the word "penalty" did not always mean "penalty." He led the court in rewriting the law that Congress enacted, so he could claim it was constitutional.

Now, the question for John Roberts may be: Is the federal government sometimes a "state" just like Texas or Rhode Island?


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: exchanges; halbig; johnroberts; obamacare; obamacaresubsidies; scotus; state

1 posted on 07/23/2014 2:00:14 AM PDT by markomalley
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To: markomalley

They’re blackmailing him in some way. Someday it will all come out.


2 posted on 07/23/2014 2:03:46 AM PDT by 2ndDivisionVet (The most dangerous man to any government is the man who is able to think things out for himself.)
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To: markomalley

To paraphrase Bill Clinton, John Roberts may well say “it depends upon what the meaning of ‘by’ is”.

The language of the law is quite clear and unambiguous to any honest person. To those who want to change it, they can simply say the logical equivalent of “inside now means outside” to arrive at their desired end. It’s amazing how far the Republic has fallen.


3 posted on 07/23/2014 2:05:32 AM PDT by House Atreides (ANOTHER CONSERVATIVE REPUBLICAN FOR CHILDERS 2014 .... Don't reward bad GOPe behavior.)
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To: House Atreides

What Republic?


4 posted on 07/23/2014 2:11:18 AM PDT by Bullish (You ever notice that liberalism really just amounts to anti-morality?)
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To: 2ndDivisionVet

Research the background of his children and how he adopted them. There are lots of suspicions there.


5 posted on 07/23/2014 2:21:46 AM PDT by Truth29
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To: Truth29

I’d heard that. What high-ranking official takes such a risk?


6 posted on 07/23/2014 2:27:57 AM PDT by 2ndDivisionVet (The most dangerous man to any government is the man who is able to think things out for himself.)
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To: 2ndDivisionVet

The Obamacare ruling destroyed Roberts for me.

The Left claimed no new taxation was being implemented.

So Robert ignored the right and the left, to create a new tax.

What a maroon!


7 posted on 07/23/2014 2:35:56 AM PDT by DoughtyOne (Think how stupid the average person is, and then realize half of them are stupider than that.)
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To: DoughtyOne
So Robert ignored the right and the left, to create a new tax.

One that originated in the Senate, no less! (Constitutionally, revenue measures must originate in the House.)

8 posted on 07/23/2014 2:47:10 AM PDT by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: Smokin' Joe

Another good point...


9 posted on 07/23/2014 2:58:06 AM PDT by DoughtyOne (Think how stupid the average person is, and then realize half of them are stupider than that.)
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To: All

Obama’s HHS just argued this week that the term “state” allows them to exclude territories (Guam, Puerto Rico, etc.) from the ACA/Obamacare: “The definition of “state” in the Public Health Service Act indicates that the ACA market rules don’t apply to the territories, HHS wrote.” http://www.washingtonpost.com/blogs/wonkblog/wp/2014/07/17/the-administration-just-took-obamacare-away-from-the-territories/


10 posted on 07/23/2014 3:16:40 AM PDT by Drago
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To: 2ndDivisionVet
Most likely his less than legal adoption of his children from Ireland.

Or a gay thing.


11 posted on 07/23/2014 3:55:50 AM PDT by Vaquero (Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: markomalley

Roberts illegally adopted some foreign kids.
Obammy blackmailed the dirt bag in to going along with his schemes.
Roberts along with nearly everyone in D.C. are leaches.


12 posted on 07/23/2014 4:04:18 AM PDT by Joe Boucher ((FUBO) obammy lied and lied and lied)
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To: 2ndDivisionVet
They’re blackmailing him in some way. Someday it will all come out.
It's his adopted children...check it out.
13 posted on 07/23/2014 4:05:45 AM PDT by ThePatriotsFlag ($$$$$$$$ DEFUND OBAMA! $$$$$$$$$)
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To: markomalley

A corporation’s a person and money is speech, so anything’s possible.


14 posted on 07/23/2014 4:40:45 AM PDT by Wolfie
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To: markomalley

See, we had to pass it to find out what’s in it..... /sarc


15 posted on 07/23/2014 4:47:41 AM PDT by cincinnati65
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To: All
Well, clearly the Federal government is "the State", especially to Democrats Is that the same as a state that is a component of the United States? No, but that wouldn't stop them from twisting the language.

Maybe the issue will hinge on the specificity of Section 1311 versus 1321. There's no ambiguity in the numbers.

Do the Courts ever presume typos?

16 posted on 07/23/2014 4:57:42 AM PDT by Pearls Before Swine
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To: Pearls Before Swine

Isn’t the word in question “states”? That would eliminate the alleged ambiguity


17 posted on 07/23/2014 5:01:08 AM PDT by bert ((K.E.; N.P.; GOPc.;+12 ..... Obama is public enemy #1)
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To: markomalley

I’ve been suspicious of Roberts and Alito since Bush appointed them..

Bush made Obama possible.. and the Bush’s have always been One Worlders.. ALL of them..
AND stealth democrats..


18 posted on 07/23/2014 5:03:24 AM PDT by hosepipe (This propaganda has been edited to include some fully orbed hyperbole..)
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To: markomalley; mickie; pax_et_bonum; Maine Mariner; flaglady47
I'm so tired of the excuses made on behalf of John Roberts for his despicable decision....excuses that he was blackmailed...or that he's gay....or whatever.

I afford him NO excuses. To me, his decision was purposeful...and was engendered by an obvious legal and moral failing in his character....nothing more, nothing less.

He made a choice....and it was just plain wrong...and harmful to the nation (HIS nation, also)....in a myriad of injurious ways as we are seeing every day.

He, and he alone, is at fault...and he, alone, bears the responsibility and the censure.

Leni

19 posted on 07/23/2014 5:03:36 AM PDT by MinuteGal
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To: markomalley

There are quite a few people, left and right, who are calling the language of the bill a “mistake” (on the left, they think of it as a simple “typo” and on the right, there’s some glee over “finding out what’s in it after it’s passed”).

That’s incorrect. It was intentional, and done on purpose to get the CBO scoring of the bill’s 10-year cost to be less than the arbitrary target of $1 trillion. The thinking at the time was that they’d pass the bill within the limits they publicly proclaimed, and then “fix” the “errors” after the fact when no one was paying attention to the price tag.

But something funny happened on the way to that result - the Democrats lost their filibuster-proof majority in the Senate and now could no longer make any changes to the version the Senate passed, but couldn’t pass any “fix” bills that would follow.

Now, of course, the left is clamoring for what the left always does: to demand that the court impose through fiat what they were unable to do via legislation.


20 posted on 07/23/2014 5:10:09 AM PDT by kevkrom (I'm not an unreasonable man... well, actually, I am. But hear me out anyway.)
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To: markomalley

How can the federal government, empowered as the central government, also be a state which does not carry such authority? Because IF the feds can be considered states, then the states can by the same logic (or lack there of) exorcise the same authority as the federal government.


21 posted on 07/23/2014 5:11:58 AM PDT by nomad
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To: bert
Isn’t the word in question “states”? That would eliminate the alleged ambiguity

Good point. Then "it's just a typo" becomes a possible argument. They'd have to go back to some of the floor debate to divine the intent of Congress (when really it's the intent of the staffers and the outside leftist organizations who wrote the law).

22 posted on 07/23/2014 5:12:25 AM PDT by Pearls Before Swine
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To: Wolfie
A corporation’s a person and money is speech, so anything’s possible.

A corporation is nothing more than a group of people banding together for common purpose and legal protections.

Money is an essential part of free speech in that freedom of the press to print what you want is irrelevant if the government can prevent you from buying the printing press in the first place.

23 posted on 07/23/2014 5:12:44 AM PDT by kevkrom (I'm not an unreasonable man... well, actually, I am. But hear me out anyway.)
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To: kevkrom

(on the left, they think of it as a simple “typo” and on the right, there’s some glee over “finding out what’s in it after it’s passed”).
*********************************
They both see it as bread and circuses ,, a tug of war that can go on forever ... all the while their subjects remain bound and are too stupid to see that they’re being played by both sides.


24 posted on 07/23/2014 5:25:28 AM PDT by Neidermeyer
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To: markomalley
What's really absurd is that Americans are allowing a bunch of people in black robes to make up law as they go along.

Most of these above-us-alls were installed by other above-us-alls.

And when a pack of black robes can overturn the will of a state's voters, what they say no longer matters to me.
25 posted on 07/23/2014 5:27:17 AM PDT by novemberslady
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To: markomalley

The adminitration will request that the full court vote on it. The administration will be upheld since Democrats appointed most of the judged. It’ll be appealed to the Supreme Court. The Supreme Court will decide not to hear it.


26 posted on 07/23/2014 5:33:37 AM PDT by DoodleDawg
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To: kevkrom

As I said...anything is possible.


27 posted on 07/23/2014 5:39:09 AM PDT by Wolfie
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To: markomalley

"It is not our job to protect the people from the consequences of their political choices."

--- SCOTUS Chief Justice John Roberts
28 posted on 07/23/2014 5:41:09 AM PDT by Bratch
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To: markomalley

This is why I refer to it as 0bamaRobertsCare.

0bama created it but Roberts sanctioned it. Roberts should get equal billing and equal blame for 0bamaRobertsCare.


29 posted on 07/23/2014 8:20:55 AM PDT by citizen (There is always free government cheese in the mouse trap.....https://twitter.com/kracker0)
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To: 2ndDivisionVet

A blackmail victim who remain silent and does the bidding of the blackmailer is every bit as guilty as the blackmailer.


30 posted on 07/23/2014 8:22:52 AM PDT by citizen (There is always free government cheese in the mouse trap.....https://twitter.com/kracker0)
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To: MinuteGal

Every time someone does something they don’t agree with they talk of threats, blackmail, etc.
I’m with you. I don’t think it’s required when they just have no compass. Maybe that is hard for some people to accept so they make up excuses.
To me everything is as it seems.....not a conspiracy.


31 posted on 07/23/2014 8:55:45 AM PDT by sheana
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To: sheana; X-spurt

We were talking yesterday about the Origination Clause and Roberts waiting for it - and standing - to work its way through the courts and back to him.


32 posted on 07/23/2014 9:02:19 AM PDT by txhurl (2014: Stunned Voters do Stunning Things!)
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To: markomalley

Roberts will rule that the Federal Government is a state since it has a State Department.


33 posted on 07/23/2014 9:05:19 AM PDT by N. Theknow (Kennedys-Can't drive, can't ski, can't fly, can't skipper a boat-But they know what's best for you.)
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To: txhurl

I don’t think Roberts is waiting for anything. It is what it is. He believes in it. He could have shot it down the first time instead of bending his logic into a pretzel to support it.


34 posted on 07/23/2014 9:08:26 AM PDT by sheana
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To: sheana

The only thing Roberts believes in is himself.

He is being blackmailed.


35 posted on 07/23/2014 9:10:09 AM PDT by ConservativeMan55 (In America, we don't do pin pricks. But sometimes we elect them.)
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To: sheana

I dunno.... he causes botch of zero’s swearing in multiple times... declares SCOTUS isn’t responsible to fix idiot voters’ mistakes..


36 posted on 07/23/2014 9:12:55 AM PDT by txhurl (2014: Stunned Voters do Stunning Things!)
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To: Drago

Public Health Service Act of 1944.

If relevant context of termss used in ACA extends past the ACA to other acts, then by the ssame logic a “State” must mean a State as defined in all those other acts.

Hopefully Halbig plaintiffs can have some fun and quote this in their upcoming appellate filings...


37 posted on 07/24/2014 11:30:35 AM PDT by SteveH (First they ignore you. Then they laugh at you. Then they fight you. Then you win.)
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To: markomalley

The Fed is not a state. It exists because the states allow it to exist.


38 posted on 07/25/2014 9:05:14 AM PDT by rfreedom4u (Your feelings don't trump my free speech!)
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