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 ...
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.
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?
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.
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:
http://www.freerepublic.com/focus/news/3183830/posts?page=10#10
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?