Four Little Words That Could Kill Obamacare

Memo to Democrats: Next time read the bill before you sign it.


“Established by the State.” Those four little words could be the undoing of Obamacare.

The Supreme Court has agreed to hear King v. Burwell, a case challenging the government’s authority to subsidize insurance purchased on federal health-care exchanges. In the view of Obamacare’s critics, the question at the heart of the case is simplicity itself: One section of the Affordable Care Act stipulates that insurance subsidies shall be provided in any exchange “established by the State.” Federal exchanges are not established by the state. Therefore, the federal government cannot subsidize policies bought on exchanges in the two-thirds of states that did not set up their own exchange. Washington has been doing just that up to now, thanks to the IRS’ contested interpretation of the law.

If the court agreed with the law’s critics, then millions of Americans would find themselves forcedâ€"by the ACA’s individual mandateâ€"to buy policies they cannot afford. That would be devastating to them and, ultimately, to the ACA.

Obamacare’s defenders hotly contest this reading of the law. They say it is simply a drafting errorâ€"a bit of sloppy wording that should have been tidied up before passage, but wasn’t. They contend Congress clearly intended every eligible citizen to receive subsidies, so it would be the height of judicial activism for the high court to rule otherwise based on a glorified typo.

In support of that view, the law’s defenders have cited both members of Congress and congressional staffers who claim they meant all along for everyone to get subsidies. And they have a powerful ally, at least in theory, in Supreme Court Justice Antonin Scalia. He has written that courts should read laws in a manner that “does least violence to the text,” and that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.” Reading one section of the ACA as making it harder for millions of people to buy coverage, the law’s defenders say, is not harmonious with the rest of the law.

But it is not so easy as all that. If lawmakers pass a law setting the legal speed limit on Highway X at 5 miles an hour, it does no good to point out that they set the limit at 55 everywhere else, and probably meant 55 in this instance too. The correct remedy is not to ignore the plain text of the law, but to fix the mistake. In the case of the ACA, Congress can’t do thatâ€"since Republicans are not about to help Democrats repair a law Republicans want to undermine by any means possible.

What’s more, there is reason to think the four little words might have been included intentionallyâ€"as a way to force states to create their own exchanges, rather than ask the feds to do it for them.

The lesser evidence for that theory is a video of Jonathan Gruber, one of the architects of the ACA (and of Romneycare in Massachusetts before it). In 2012, Gruber told an audience: “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”

When videotape of those remarks surfaced this summer, Gruberâ€"recently caught on tape, twice, calling the American people “stupid”â€"claimed he had simply made a mistake, and had no earthly idea why he had said what he did. Yet this isn’t the only time Gruber has changed his tune on the ACA. At other times, he has said the ACA was an important cost-saver, and that saving money was a “misleading” reason for the law. In any event, it would be rather curious for his mistake in explaining the law to dovetail so neatly with the purported mistake in drafting it.

And, indeed, after Gruber claimed he didn’t mean what he said, a subsequent audiotape surfaced. In it, he said he was “enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange that politicians in their state are costing state residents hundreds of millions and billions of dollars that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threatâ€"is will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits?”

Gruber, of course, is just one person, and not a congressman. So while his comments are telling, they are not (as lawyers would say) dispositive. But the structure of the ACA also suggests the four little words were more than a drafting error.

For one thing, they are actually six little words: “established by the state under 1311”â€"i.e., Section 1311 of the ACA. Section 1311 deals with state-run exchanges. The federally run exchanges are provided for in Section 1321, which stipulates that if a state does not set up its own exchange, the Department of Health and Human Services “shall … establish and operate such Exchange within the State.” The ACA refers twice to exchanges established by the state under 1311, but never to a federal exchange established under 1321.

As Sean Davis wrote in The Federalist (the 21st-Century web magazine, not the 18th-Century papers), “The deliberate creation of a separate section to authorize a separate federal entity is not a drafting error. The repeated and deliberate reference to one section but not another is not a drafting error. The refusal to grant equal authority to two programs authorized by two separate sections is not a drafting error.”

Perhaps most tellingly, the government itself has not argued that Congress goofed when it wrote those four (or six) little words. It contends that the language of Section 1321 really means HHS is acting in place of the stateâ€"that, in creating an exchange, it actually becomes the state. Therefore, an exchange established by HHS is, literally, an exchange established by a state. Orwell would be impressed.

On the other hand, Abbe Gluck (writing on Scotusblog) makes a compelling point in the other direction: According to Section 1321(f), the only people who can buy insurance on an exchange are “qualified individuals.” Who is a qualified individual? A person who “resides in the State that established the Exchange.” If those who are challenging the law are correct, this would mean that, by definition, federal exchanges can never have any customers.

Surely Congress could not have intended that. Then again, what Congress intended might matter less than what it actually didâ€"no matter how nonsensical.

When everything shakes out, the best case that can reasonably be made for giving subsidies to everyone is the case made by the 4th Circuit, when it found the law ambiguous. And when a law is ambiguous, judicial restraint suggests the courts should defer to the interpretation of the agency administering the law.

In other words, if Obamcare survives this challenge, it will do so only because it was so poorly written. And that draws attention to a broader point about the ACA: It’s a gawdawful lawâ€"whose implementation has been gawdawful as well.

Its individual mandate forcing people to buy insurance is a grotesque and unprecedented expansion of government power. Furthermore, the Supreme Court ratified that expansion only by embracing yet another contradiction. It did so when it decided the fine for not buying insurance is not a tax (in order to get around the Anti-Injunction Act) but also is a tax (in order not to rule against it outright). And yet that tax, supporters insist, does not raise revenueâ€"because if it did raise revenue, then it would be unconstitutional again, since all bills for raising revenue must originate in the House while the ACA originated in the Senate.

Memo to Congress: Things like this tend to happen when you pass immensely complex legislation without even bothering to read it.

NEXT: IRS Blows Millions of Dollars on Failed Effort to Chase Tax Scofflaws

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  1. Can subsidies be a penaltax?

    /Justice Roberts

    1. Personally, I have no faith in him whatsoever to do right by the American people. He seems to be fully dedicated the principle that Top Men should be allowed to do pretty much whatever they want to.

      Maybe I’ll be pleasantly surprised, but I doubt it.

      1. Roberts wants to leave a legacy, no matter how disastrous it is to those of us here on the ground.

        1. Can’t we just cast him in bronze?

          1. How about casting him inside of bronze? Sort of like Jimmy Hoffa’s legacy!

      2. I’m thinking there may be some merit to the conspiracy theories about the administration blackmailing him based upon some dirt the NSA dug up.

        1. It could even be true that he knew this would destroy the Democrats, but there’s no way I’m buying that.

          Sometimes I start to think that Obama is a Republican plant. I mean there’s no way that any elected Republican could ever do the amount of damage to the Democrats that Obama has done and he’s apparently just getting warmed up.

          1. No. He is a super secret, libertarian/anarchist, double agent! Also, he’s from outer space!

            1. +1 Reptillians

            2. This must be the Libertarian Moment that I keep reading about.

          2. Wow! Someone found a ladder tall enough to climb out of the liberal celebrity sinkhole. A “Republican plant”. Tee hee!

        2. I think he is terrified the country will no longer respect the court and thought striking down Obamacare would make the court seem too partisan.

          1. Because there are actually very many people who don’t think the court is partisan?


              1. SOYLENT GREEN IS PEOPLE!

                1. That would be a great corporate slogan
                  MONSANTO IS PEOPLE!

              2. SOYLENT GREEN IS PEOPLE!

                1. pretty sure mcdonalds is people too but they’re delicious

                  1. PETA:

                    People Eating Tasty Anarchists!

          2. I’m pretty sure he was more terrified of the attacks of the entire progressive movement who would have been enraged beyond belief that they had actually gotten what they wanted, thought it was done, and then had it snatched away by the Court. Can you imagine what that would have been like?

            That doesn’t change the fact that he’s a pussy scumbag.

            1. That too. He just didn’t have the balls to stand up to the outrage.

              1. He needs to develop a taste for delicious Prog tears.

                1. One taste of that salty goodness and you’re hooked.

            2. It would not have surprised me if, had the Court ruled against Obamacare, progressives called for the wholesale dismantling and reconstruction of the court in a form more amenable to their goals. I have no idea what that would have looked like, but does anyone here think it wouldn’t have been seriously talked about?

              1. Once upon a time, Obama might have been able to seriously threaten court-packing or the like, kind of like he once vaguely frightened RKBA people with his fascist populism.

                It’s hard to see how he ever really had the political juice to get something like that through post-Tea Party, but it would’ve been enough to pressure Roberts and maybe others into reversing course. He wouldn’t be the first Justice Roberts to roll over for a Progressive Democrat demagogue executive.

                All that’s moot, naturally, as Roberts is an even bigger pussy and more politically minded actor than even Obama.

              2. Or attempted to pack the Court, like FDR’s despicable threats to do so in the 30’s when they kept rejecting his patently unconstitutional progressivism.

        3. sarcasmic|11.17.14 @ 12:12PM|#

          I’m thinking there may be some merit to the conspiracy theories about the administration blackmailing him based upon some dirt the NSA dug up.”

          Me thinks he’s gay.

          He was a middle aged man who had never been married until he got the whisper in his ear that he was in line for the Supremes.

          He then went out and married a gazillionaire whom I believe is quite a bit older than he is.

          Other theories say that there are irregularities in the adoption soon after the late in life marriage.

    2. As ever, most commentators are missing the real point here.

      Certain ObamaCare employer penalties are triggered by having one of your employees get a tax credit through the exchanges.

      If this lawsuit is successful, employers in the federal exchange states will be immunized against that penalty.

      If at least one full-time employee receives a premium tax credit because coverage is either unaffordable or does not cover 60 percent of total costs, the employer must pay the lesser of $3,000 for each of those employees receiving a credit or $750 for each of their full-time employees total.


      1. Explain to me how these assclowns thought this would do anything but destroy full time employment for all but the upper middle and upper class?

        1. Obviously you lack a Gruber-level superbrain.

          1. Gruber’s thinking looked to be, “Yeah, it’ll probably do that, but people will have health insurance.”

  2. I would think the Supreme Court ruling that it is a tax combined with the fact that it did not originate in the House should be enough to kill it.

    1. Only in a nation of laws.

      1. Yet still Rule of Man.

        1. Dr. Zaius was right about us. He was right.

          1. I hate every ape I see, from chimpan-A to chimpan-Z…

            1. If I ever went into politics, one of my pet causes would be to insert “Beware the Beast called Man” into the Preamble of the Constitution.

              1. Didn’t hamilton say something similar?

                1. There are many who appreciate the future wisdom of that dear old orangutan.

          2. Dr. Zaius Dr. Zaius
            Rock me Dr. Zaius

    2. +1 Quantum Politics

  3. If the court agreed with the law’s critics, then millions of Americans would find themselves forced?by the ACA’s individual mandate?to buy policies they cannot afford. That would be devastating to them and, ultimately, to the ACA.

    Which is JohnnyRob and the majority will reverse-engineer a way to uphold the IRS interpretation.

  4. The true believers are already spinning this. They argue that “state” could mean any polity. Never mind that the ACA defines “state.” As for whatever Gruber said, well, article doubleplusungood refs unperson revise fullwise upsub antefiling.

    1. Is Gruber still out there flapping his gums? I thought we paid him $400K to fuck off.

      1. They need to just turn this guy loose on national teevee. Put him on every talk show, every news program, everywhere.

      2. Actually, he “consulted” for several states (MN,WI, CO and more) and received about 400k from each one.

        Mr. Gruber has gotten rich off the backs of stupid Americans.

        1. Yes he has. But, you can’t pay out that kind of money without paper (email) trails. My guess is that the FOIA request are about to start flying. I wonder how many hard drive crashes we are about to see from the government agencies that he did business with.

        2. If I’m a Repub legislator in those states, Ima wanna have a hearing where Mr. Gruber is put under oath.

        3. Wouldn’t be the first, or the last, to be able to honestly make that claim.

  5. OT and not for the squeamish.

    MMA fighter gets punched in ear. Ear explodes.

    Here’s a pic of the hole where her ear should be.


    And here’s the vid of blood exploding into the air.


    1. I watched that fight card Saturday night. The doctor stopped it because they were afraid her ear was going to come off.

      1. This is why you should drain your cauliflower ear instead of letting it just harden.

        Pop goes the weasel till the weasel goes pop.

        1. This is why you should drain your cauliflower ear instead of letting it just harden.

          Yup. A lot of grapplers see cauliflower ears as a badge of achievement or something, and won’t protect their ears when training or get them treated. Which I always thought was fucking stupid.

          1. or something

            In MMA, it screams “Hey, I have a tendency to put my head where it doesn’t belong!”

          2. I see one or two guys wearing headgear in jiu-jitsu. Yes they look goofy, but it’s better than letting your ear get ground into the mat until the cartilage breaks.

            1. I always crack up at the headgear guys at the BJJ tourneys. I didn’t wear a helmet on a bike when I was a kid, and I’m not gonna wear that crap when I grapple.

              Surprisingly, my big ears have been only slightly damaged over the years, as opposed to those of most of our gym’s guys who have been around a while.

      2. Good call by the doctor when faced with an ear drum.

    2. Does his exchange plan cover the injury? Or is ot worker’s comp?

    3. So how do the feminazis approach this? How can they try to stop the women fighters without being sexist? And how can they not stop it and not be against senseless violence?

      Feminazis: We have to stop these women fighting!

      Anyone: Sexists! You’re saying that women are not equal to men!

      Feminazis: We have to let these women fight because they’re equal to men!

      Anyone: You hate women and want their ears to explode!

      It’s time to go on the offensive against these leftist harpies and ridicule them to scorn.

      1. Easy, they are against the whole sport. Becuase it makes them feel unsafe, and FYTW.

    4. Whew, they weren’t playing football so I don’t have to get morally outraged by this post.

  6. If those who are challenging the law are correct, this would mean that, by definition, federal exchanges can never have any customers.

    Surely Congress could not have intended that. Then again, what Congress intended might matter less than what it actually did?no matter how nonsensical.

    That is exactly what they intended and writing it the way they did makes perfect sense. They didn’t want to have to set up any federal exchanges. They wanted the states to do it. So they wrote it in a way they thought would make it impossible for the states to refuse. All that has happened here is that the states have called their bluff.

    I don’t understand why that is so hard for people who are not just hacks to understand.

    1. Because they are all hacks. Even when they were passing this law I remember this being a key fact that the left was pushing as a plus, this wasn’t some secret provision it was a key part of the law.

      1. I remember that too.

        1. The people who came away looking the worst out of this administration has to be the press. I mean they have surpassed the most fevered dreams of the most ardent Rush Limbaugh listener in their unwillingness to point out a single negative thing regarding this admin. It’s pretty incredible when you think about it.

          1. I just hope the country remembers that going forward instead of letting them get away with it.

            1. I think most people understand it, even plenty of liberals will admit to it. The first rule of propaganda is to never believe your own.

          2. I think that Chrissy Poo Matthews has shown signs of turning against them. Although his more masculine side-kick more than makes up for the lost amount of ass kissing.

          3. The people who came away looking the worst out of this administration has to be the press.

            Duh, why do you think Obama wants to control the internets now?

    2. There are hacks, and there are true believers. Both ignore facts that contradict the orthodoxy, although for different reasons.

    3. So they wrote it in a way they thought would make it impossible for the states to refuse… why that is so hard for people who are not just hacks to understand.

      Especially since Gruber clearly explained it.. over and over again.. to whoever was listening*.

      *deserves a Robert Smigel TV Funhouse clip of Gruber explaining his scheme to cab drivers, waiters, random passersby, dogs.

  7. I hope every one of those justices feel like Jonathan Gruber was talking about them. The ones that voted in favor of Obamacare, that is.

    1. they’re too stupid to make the connection, just like Gruber said.

    2. They won’t, sage. They won’t. They’re the exalted ones, they can’t be stupid. Look how powerful they are! Is that stupid?

      1. Your face is stupid.

        1. Your mom is stupid!

          1. Your mom is a giver!

            1. Your mom is a receiver.

              1. Your mom is a Switch!

              2. I’d like to meet these stupid whoremoms.

              3. Actually, his mom is a dude.

                1. Damnit, you ruined it for me.

  8. It would be nice to think the Supremes will decide this case based on strictluy legal principles.

    It would also be nice for me to be able to drive a fuel-efficient car powered by unicorn farts.

    In reality, it will probably come down to whether Roberts wants to pull Obama’s chestnuts out of the fire again. The last time, Roberts probably thought he was being a Judicial Statesman by crafting a justification for the law and thus Keeping the Court Above Politics, as the totally nonpolitical working-the-ref editorials in liberal journals urged him to do.

    Maybe Roberts won’t want to get fooled again. But there’s no telling what his lust for Judicial Statesman status will do to him.

    1. I totally agree. I think that fact that Obama and this act are so unpopular makes it more like Roberts won’t save him this time.

      Remember when he affirmed Obmacare Roberts said something to the effect of “its not our job to save you from bad laws”. He is more likely than people think to take that same tact here and apply the law as written and leave it to Congress and Obama to work it out and fix it.

      1. Give a guy a robe and gavel, surround him with people who bow before him and call him “Your Honor,” empower him to imprison those who disrespect him, bombard him with flattering articles about how only he can Save the Country, and the guy tends to get a swelled head. Why should he confine himself to routine duties of legal interpretation, like some junior associate at Dewey, Cheatham and Howe, when he can ascend into the Empyrean and become a glorious lawgiver like Solon, Justinian, Confucius and Moses (whose images, by the way, look down from the Supreme Court building itself)?

        1. Look at all the fapping material the architects put in the Court building:

          “Too often, visitors do not see the corresponding pediment and columns on the east side. Here the sculpture group is by Hermon A. MacNeil, and the marble figures represent great lawgivers, Moses, Confucius, and Solon, flanked by symbolic groups representing Means of Enforcing the Law, Tempering Justice with Mercy, Settlement of Disputes Between States, and Maritime and other functions of the Supreme Court. The architrave bears the legend: “Justice the Guardian of Liberty.”

          “The monumental bronze doors at the top of the front steps weighs six and one-half tons each and slide into a wall recess when opened. The door panels, sculpted by John Donnelly, Jr., depict historic scenes in the development of law: the trial scene from the shield of Achilles, as described in the Iliad; a Roman praetor publishing an edict; Julian and a pupil; Justinian publishing the Corpus Juris; King John sealing the Magna Carta; the Chancellor publishing the first Statute of Westminster; Lord Coke barring King James from sitting as a Judge; and Chief Justice Marshall and Justice Story.”


          And Roberts is supposed to descent from these exalted realms and focus on picayune disputes over the technical meanings of words?

      2. and yes, it actually Roberts job to save us from bad laws. Jeezus I would love to give the man a good thrashin’

        1. No. It is Roberts’ job to save us from unconstitutional laws. Whether they are good or bad should have nothing to do with it.

          1. agreed – that’s what I meant by bad.

      3. He is more likely than people think to take that same tact here and apply the law as written and leave it to Congress and Obama to work it out and fix it.

        John, I want to believe you so badly on this. My gut feeling is he pusses out though.

        1. I think there is a chance. But who knows what he will do.

  9. The subsidy is a part of the Penaltax.


  10. By the way, I’m on twitter way more than here, which is rare. Follow me, bitches: @SageCommander

      1. You’re missing out. We could use a guy like you.

        1. Re: Sage,

          You’re missing out. We could use a guy like you.

          Come on. Why don’t you take a look around. You know what’s about to happen, what they’re up against.

  11. I also bet that if Roberts happens to grow some balls the Republicans will still manage to fuck this up.

    1. Hey, it’s in their platform. See, “Fucking up,” right after “Farm Policy” and “Foreign Affairs”

      1. Kinda thought those were more like bullet points under Fucking up. Example!

        Republican Party National rules & regulations for membership:
        Article 1: Fucking up
        ? Farm Policy
        ? Foreign Affairs
        ? Aborshun

    2. I really don’t care. That is their problem. I just want to see the law read as written.

      1. Living Constitution, Living Law… I mean, at this point, what difference does it make?


        1. Can we play poker with my Living Rules?

      2. Yeah, that’s totally your motivation. Textualism and definitely not blind partisanship.

        Except textualism as defined by its premier supporter Antonin Scalia would require ruling against the plaintiffs. The plan text of the law–the whole law–contradicts their claim. Textualism explicitly doesn’t mean ignoring context when it’s convenient (not that Scalia practices what he preaches).

        1. That the authors never intended to have to implement that provision does not mean that was not how they intended it to work. It is not the Court’s job to save the Dems from their too clever by half political strategy.

  12. Let’s say the Court sends it back to Congress to write a law clarifying the “ambiguity.” The GOP majorities refuse to do so. And the Democrats now have more “teabagging rethuglican haters of the poor and deniers of health care” ammunition to us in 2016. This damned “bloody shirt” is going to be waved for the next few decades.

    1. Except they can instead vote on repealing the law and saying “See? Democrats just want to tax you to death.”

      Say what you want, -nobody- (in the 53%) likes taxes. I know, slim majority.

    2. How ’bout this…

      1. Court sends law back to be “fixed”.

      2. (R) congress says, “OK! At a time of fragile economic recovery, we can’t expect people to be forced into expensive plans without any subsidy.”

      3. (R) congress removes individual mandate from law.

      4. There! Fixed it REAL good! Nature takes its course.

      Of course, this relies on Robert’s decision, and then Congress not fumbling the ball.

    3. The left will always find someone’s blood to smear on a shirt they can then wave.

      1. Yes, regardless of the lengths they have to go to in acquiring that blood.

  13. My buddy’s step-aunt makes $89 every hour on the laptop . She has been without work for 8 months but last month her check was $14034 just working on the laptop for a few hours. check out here. ???? http://www.jobsfish.com

  14. I don’t think you are giving Roberts appropriate credit for a purely Machiavellian play. He knew the law was unpopular and a clusterf*ck, but that Obama and the Dems owned it entirely. By switching his vote, he (a) got all nine justices to agree that the commerce clause does not allow Congress to require people to engage in commerce, which is the first meaningful restraint on that power since the New Deal; (b) set up later challenges on the constitutionality of the tax; and (c) made the Dems live with this law politically until the voters wised up and decimated their ranks. In 2012, we voters proved Gruber right by re-electing Mr. Obama, but once the Republicans stopped running idiots like Christine O’Donell, they took a solid majority of the Senate, have taken complete control of the House, and used the backdrop of national politics to end the political careers of countless Dems at the state level. In baseball language, this decimated their farm teams. All-in-all a nice piece of judicial jujitsu.

    1. You make some really interesting points and I’d like to see them discussed more. Unfortunately, I think even if what you say is totally true Roberts is being too clever by half. If Progs and Liberals ever take the court a) and b) will not matter. They will ignore it and torture the Constitution to death.

      1. Kind of like you do when you want to ignore ratified treaties/the Supremacy Clause?

        1. What a retarded inapt comparison. You’ve really outdone yourself. Oh, and your statement that I want to ignore The Supremacy Clause is a lie. No surprise.

          1. How so?

            You want the US government to blatantly violate its treaty obligations under the Fourth Geneva Convention (ratified in the US and Canada) if you (or some American citizen like you) feel your rights are potentially threatened. It sounds like you want to torture the Constitution to the point where it cries uncle and gives you permission to pursue brutal scorched earth tactics.

            1. The supremacy of federal law over state law only applies if Congress is acting in pursuance of its constitutionally authorized powers.

              1) I don’t think those treaties are constitutional.

              2) Even if they were, I can just want them repealed.

              I win again.

              1. The Supreme Court has enforced provisions of the Geneva Conventions in cases like Hamdan v. Rumsfeld, so I assume they would disagree. State law also wouldn’t have anything to do with the bombing of civilians. It would have everything to do with the US military and the directives given by the Federal government.

                Can you expound upon how exactly they are unconstitutional?

                Good luck getting them repealed and until they are it would be illegal for the US to scorch the earth because you feel scared.

                1. Where does the Constitution empower the USG to sign such treaties? The Constitution gives the USG the power and duty to defend Americans’ rights. The Geneva Conventions interfere with that….although not enough to prevent the nuking of Nagasaki and Hiroshima, acts that were never found unconstitutional, thank God. In any event, America should immediately pull out of these evil, self-sacrificing covenants. The only moral option for a country acting in self-defence/fighting tyranny is Total Victory, and the Genevas are in the way.

                  1. The Geneva Conventions as we know them today weren’t drafted until 1949, so obviously those acts weren’t found to be illegal at the time.

            2. Cyto has a point, here.

              The Supremacy Clause does not give the federal government an end-around on the rest of the Constitution by setting up treaties as superior to the Constitution.

              We could sign and ratify a treaty outlawing criticism of Muhammed (PBUH), and any attempt to enforce it would be invalid.

              Similarly, we could sign and ratify one of those odious gun control treaties, and they would also be invalid to the extent it “infringed” on the “right to keep and bear arms”.

              1. Except I don’t see how the Geneva Conventions violate the Constitution and neither has the Supreme Court. Can anyone even find legal scholars who claim that the Geneva Conventions violate preexisting Constitutional law? I think this is a very weak case.

                1. I want to know about the quality of the hookers at the Geneva Convention. Is it worth attending? How much is a room? Can I get a discount on airfare?

                  1. discount airfare??…no…..but you do get 1 hour in the “ball pit” for free…..

            3. You want the US government to blatantly violate its treaty obligations under the Fourth Geneva Convention

              If Congress chooses to, it can unilaterally cancel any treaty. Why is that even a question?

              1. You see that ever happening? Also, the Geneva Conventions are customary international law at this point.

    2. I hope you are right. And I think you might be. Whatever you think about the penaltax decision, affirming Obamacare has had devastating effects on the political fortunes of the Democrats.

    3. If Roberts could envision all of that, he is the sooper-genius enemy of Progressivism that the world needs. And while the ACA fiasco may have played into the GOP’s hands at every level other than the federal executive, I don’t recognize in Roberts a masterful chess player who foresaw these events like Palpatine. He’s a political animal first and foremost, which is why he ended up Chief Justice under King Bush I in the first place and maintains relatively friendly relations with King Bush II today.

  15. if the subsidies apply to the federal exchange and trigger an employer tax, isn’t it once again a tax bill that did not originate in the House?

  16. If the court agreed with the law’s critics, then millions of Americans would find themselves forced?by the ACA’s individual mandate?to buy policies they cannot afford. That would be devastating to them and, ultimately, to the ACA.

    OK, a wacky idea: the Court agrees with critics, so no subsidies in many states. Congress responds by (somehow) removing all mandates for details of insurance coverage: in other words, you may have to buy a policy, but it doesn’t have to cover birth control, it can have a lifetime limit, etc. Suddenly cheap policies become $50/month. Could that work?

    1. No, that couldn’t work, because Obama wouldn’t sign such legislation. He wouldn’t sign it because it would make his corporate and special interest donors very unhappy. For the same reason, no legislation that actually results in cost reductions will get past his desk.

  17. http://www.washingtonpost.com/…..v-burwell/

    Volokh Conspiracy calls out Linda Greenhouse. The VC is the best thing at the WashPost by far.

    Consider the cert petition in Lawrence v. Texas, which did not allege a split or claim an emergency. The Court granted cert even though the petition did not meet the usual criteria for cert. When Greenhouse has written about Lawrence, she hasn’t lamented the cert grant as a “power grab” (naked or otherwise) that ruined her faith in the Supreme Court. Instead she has celebrated what a wonderful moment it was when the Court handed down its opinion.

    1. Ha – if it weren’t for double standards, Greenhouse would have no standards at all.

    2. The VC is the best thing at the WashPost by far.

      Why you make bald-headed civil libertarians cry, Raston Bot? Why?

  18. So if Team Blue gets its wish and laws can be administered based on executive whim and not based on their actual text, does that mean that when Team Red moves into the White House, appoints a new head of HHS and a new head of the IRS, that the administrative interpretation can be changed back? Be careful what you wish for.

  19. my classmate’s step-mother makes $76 hourly on the laptop . She has been out of work for 5 months but last month her pay check was $21931 just working on the laptop for a few hours. visit the website….

    ?????? http://www.payinsider.com

  20. I guess that little tidbit from Botox Nancy saying,”You have to pass the bill to know what’s in it” is going to be the same iceberg that took down the Titanic. We can only hope so!

  21. Deferring to agencies for ambiguous legislation sounds like a bad principle to me, because it diffuses responsibility for bad lawmaking.

    When a law is unclear or ambiguous, SCOTUS should allow the agency to come up with temporary rules, but put a sunset provision on it, requiring Congress to pass a corrected version within 1-2 years.

  22. Why do you think Democrats and Progressives are trying so hard to push the idea of “the intent of Congress” rather than following the letter of the law? Bottomline is they never anticipated a majority of states would tell them to take a flying leap and refuse to set up exchanges. Democrats know the true intent of the law is State, not Federal, control disbursement of subsidies because that is what Ben Nelson of Nebraska insisted on to vote in support of the bill. If that had not been the intent, he would have voted against it and it would have died in the Senate. They are just flat out lying, again.

  23. Dude that makes no sense at all man. None.


  24. Well argued. (Except for the part about the law’s supporters having a “strong ally” in Scalia, that is. He is THE textualist on the Court; to suggest that somehow he’ll look past the plain language of the statute to save it based fuzzy “Congressional intent” completely ignores his entire career. Author totally dropped the ball on that point.)

    I hate to be dramatic, but if a majority of the Supremes were to look past what the ACA actually says and holds that we are, instead, governed by what the government NOW says it really *intended* (as if there were even any such thing as “Congressional intent”), well, that’s pretty much the end of the rule of law in this country. Let’s face it, it’s already on life-support.

    1. Yeah, I was going to make the same point. Scalia is a textualist. No way he goes along with this.

  25. “And when a law is ambiguous, judicial restraint suggests the courts should defer to the interpretation of the agency administering the law.”

    What? Judicial restraint means that when the Congress writes gibberish, the agency enforcing the gibberish can do anything it wants?

    That’s not restraint, that’s simply abdication. The first duty of the court is that laws should be law, and not gibberish. Striked down all gibberish until Congress can get it right.

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