Is this a frivolous challenge to the Affordable Care Act? Ofer Raban says it is –
…one provision of the ACA provides that “Each State shall…establish an American Health Benefit Exchange” — thereby implying that states must establish such exchanges. It is not surprising, therefore, that the provision extending health insurance subsidies for low income households speaks of insurance purchased on exchanges “established by the state[s].”
However, other provisions of the ACA declare that it is up to the states whether to establish a health care exchange and that if a state chooses not to establish one, the federal government would establish a federally operated substitute.
Raban states that “relentless Republican opposition” resulted in only 16 states establishing exchanges on their own, while the other 34 states went with a federal exchange. He continues –
The frivolous claim in the case is simple: Since the language in the subsidies provision refers to insurance purchased on exchanges “established by the state[s],” the government is precluded — so goes the claim — from giving those subsidies to those who purchased their insurance on the federally operated exchanges that came to substitute for those state-exchanges that were never established.
This statutory interpretation makes no sense. As one federal judge put it: This “literal reading of the [statute] renders the entire Congressional scheme nonsensical.” The ACA stretches over 900 pages, and contains hundreds of provisions which, as often happens, are not always perfectly consistent. (I already mentioned the provision that seems to require state-established exchanges, and the other that makes it optional.) When faced with such inconsistencies, judges are supposed to effectuate statutes in a sensible manner. But the main argument in the case does not appeal to any good sense. Instead, it appeals to a theory of legal interpretation that abjures good sense in favor of textual literalism: This is the text, they say, and that is all that matters — even if the ensuing result is an “odd” one.
Raban calls this “interpretative fundamentalism” and writes that the Supreme Court “recently read the Federal Bankruptcy Code in a nonliteral way, after determining that the literal reading ‘would produce senseless results that we do not think Congress intended.'”
It is not the job of judges to engage in guesswork about what legislators “intended.” It’s their job to examine the law as written. If a literal reading of a law seems nonsensical, then it’s because the law as written is nonsensical. Raban admitted as much himself in mentioning the the conflicting provisions.
Trying to “effectuate statutes” to arrive at a “sensible” conclusion instead of an “odd” one undermines equality before the law. Not only is the law not applied equally – different results for different people – but each and every judge will have a different idea of how to apply it. What one judge deems good sense, another might consider unfair or harmful.
Also note this passage – “These subsidies are the heart of the ACA: Without them, millions of people would not be able to afford health insurance and would be exempt from purchasing it. And this, in turn, would deprive insurers of the broad-based participation that makes it financially feasible to forbid them to deny coverage or charge higher premiums of sick or high-risk individuals.” Insurers are no longer allowed to decide who they do or don’t want to do business with, and citizens are no longer allowed to decide which commercial transactions they do or don’t want to engage in. Welcome to 2015, comrades.
This is not some HuffPo blogger or one of the Vox guys. The credit at the end of the column read “Ofer Raban teaches constitutional and criminal law at the University of Oregon School of Law.”
I feel sorry for kids everywhere in the USA today.
From here –
I hated Mondays enough when I was in school, but I hated, hated, HATED the first Monday back after the Christmas break.
2014 was an epic kaleidoscope of surrealism, one that I thought would be difficult to equal, if not top.
It’s been said that whatever happens on New Year’s Day sets the tone for the entire year. In that case, 2015 is gearing up to make 2014 look positively mundane and boring.
Found this just today via Ace of Spades – A Sensual Painting of Such Erotic Power as to Spark a Sexual Epilepsy in the Boner Lobe of the Brain
Oddly enough for something so… I don’t have words for it, I don’t think the words exist… it’s actually work safe. That said, click at your own risk.
… and we will begin again. Happy 2015!
It feels like I’m living in the future.
Nothing changes this New Year’s Day, because I haven’t found a better song –
Now the comments will fill up with songs about New Year’s Day.
2014 has been an incredible year. Hope you all have a great New Year’s Eve and a wonderful 2015.
There is a man who wears red and lives at the North Pole who, one Christmas Eve, delivers presents to children all around the world.
No, not that guy…
From this comic, where Superman teamed up with Santa Claus to stop the villainous Toyman from corrupting children with his evil toys.
The best part is when Supes, of all fictional people, doesn’t believe in Santa. At least Santa shows up on the NORAD tracker.
BONUS: Had to post this pic from the ’40s just for fun.
The ever-tireless Wdydfae has assembled quite the list of Christmas music over at his place.
Still, I really should post something here, and since there was one song I didn’t see over there… have some Pomplamoose.
P.S. Forgot to add that Wdydfae has posted irrefutable proof that Santa Claus is Odin.
“He’s probably the smartest guy ever to become President.” – historian Michael Beschloss
For no other reason than it amuses me. From here –
BARACK OBAMA MET WITH THE QUEEN OF ENGLAND.
He asked her, “Your Majesty, how do you run such an efficient government? Are there any tips you can give me?”
“Well,” said the Queen, “the most important thing is to surround yourself with intelligent people.”
Obama frowned, and then asked, “But how do I know the people around are really intelligent?”
The Queen took a sip of tea. “Oh, that’s easy; you just ask them to answer an intelligent riddle.”
The Queen pushed a button on her intercom. “Please send David Cameron in here, would you?”
Cameron walked into the room and said, “Yes, Your Majesty?”
The Queen smiled and said, “Answer me this please, David. Your mother and father have a child. It is not your brother and it is not your sister. Who is it?”
Without pausing for a moment, Cameron answered, “That would be me.”
“Yes! Very good,” said the Queen.
Obama went back home to ask Joe Biden the same question. “Joe, answer this for me. Your mother and your father have a child. It’s not your brother and it’s not your sister. Who is it?”
“I’m not sure,” said Biden. “Let me get back to you on that one.” He went to his advisers and asked everyone, but none could give him an answer.
Finally, Biden ran in to Sarah Palin out eating one night. Biden asked, “Sarah, can you answer this for me? Your mother and father have a child and it’s not your brother or your sister. Who is it?”
Sarah Palin answered right back, “That’s easy, it’s me!”
Biden smiled, and said, “Thanks!” Then, he went back to speak with Obama.
“Say, I did some research and I have the answer to that riddle. It’s Sarah Palin!”
Obama got up, stomped over to Biden, and angrily yelled into his face, “No! You idiot! It’s David Cameron!”