Skip to comments.On Halbig and Statutory Interpretation
Posted on 07/25/2014 1:10:37 AM PDT by SteveH
When Congress wanted to use a shorthand for exchange, it did just that and said exchange. The established by the State modifier was added at the Committee stage, and then again afterwards before final passage in the Senate. Adding it in was unnecessary unless it had some purpose such as to distinguish exchanges established by the State from those established by HHS as required by Section 1321. Even if, as some argue, a Section 1321 federal exchange can stand in the place of a section 1311 exchange, the former is still not an exchange established by the State, as Judge Griffith explains in his Halbig opinion.
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I recall there being some contemporaneous discussion about how being able to give their citizens discounts would be an incentive for the states to operate their own exchanges. I think the original intent was to pressure the states into operating an exchange by telling them their citizens would have to bear the full cost of the premiums if they didn’t.
Pardon me if my cynicism is showing but I have come to the conclusion that these matters are decided long before these issues are pleaded before any court when the judges and justices are appointed and consented to. The politicization of our court system has accelerated year-by-year and we can look back on milestones such as Robert Bork and Clarence Thomas and the squelching of filibuster to understand the harsh reality of that truth.
If one wants to depart from naïveté and live in a world of reality, I suggest we abandon faith in this bootless quest for a fair and balanced judiciary under the current system which has been rigged for so many years in favor of the left and unite with other conservatives on an Article V solution.
“established by the state” occurs 15 times throughout the PPACA Act. Each time it limits some kind of requirement or benefit (e.g. CHIP payments —Children’s Health Insurance Program).
It’s use is intentional as a conditional clause in the sections where it appears.
If the slippery slope of focusing the court on the originators intent of a passage (instead of the actual words in a document) in a law doesn’t get the job done, then lets erase long-standing definitions of words and replace it with what makes our agenda move forward.
Talk about moving the goal posts. This is replacing the goal posts altogether so a flea can score a TD.
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