Upholding King, or how to shout down the "established by the State" idiots
Every pundit I've read about King is fixated on the term "established by the State" in the tax code, and was used in the original Halbig decision in the DC Circuit to strip away tax credits on federal exchanges. A reading of the law is tricky, since it legally defines an Exchange as an "entity established by the State" then goes on to tell the Secretary to set up exchanges for states that don't do it. I think that's ambiguous, apparently others think differently.
But there's another argument that flown largely under the radar except for one article that appeared a few days ago. Just as the wingnuts who are fixated on the term "established by the State" as their way to bring the whole law down, I think we should start promoting ad nauseum at every blog, comment section or elsewhere idiots post their sophisticated legal knowledge that this means Obamacare must end, the following text:
"if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”
If you need some more evidence, this quote also is juicy:
"though Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with postacceptance or ‘retroactive’ conditions"
In other words, if Congress had wanted the states that used an Exchange established by the Secretary not to receive tax credits it should have said so in no uncertain terms.
These excerpts were borrowed from a ruling referred to as Pennhurst and come directly from (wait for it)................
NFIB vs Sibelius (the 2012 Obamacare case). And guess who wrote those excerpts? Yep, John Roberts.
Roberts is certainly conservative, but one of his beliefs (as exposed in NFIB and elsewhere) is that Congress should not go around bullying states and would like to see them held in check, especially when it comes to withholding monies. And if there were ever a case of "surprising States" this would be it. I have a hunch that this argument at the end of the day will be the one Roberts resorts to since
A) it renders the whole entire "established by the State" fixation moot and avoids the perception that the court took an ambiguous statute and used it to push their own agenda
B) it keeps the Supreme Court's reputation from becoming (even more) tarnished by millions of people who would be in grave danger of losing insurance and thus cause pushback and unintended consequences, and
C) further allow Roberts' love of restricting Congress' power.
At first I thought John Roberts was not one of the 4 votes to hear the case but if this is going to be the instrument he uses to uphold King then I think he was undoubtedly one of the 4 votes and may have even gone out of his way to push for it.
I could be dead wrong about all of this but it does make sense, it's the one scenario that allows a win-win for Roberts and others on the Court. It could also explain why they wanted to hear King, not because they thought the decision was wrong but rather was right but for the wrong reasons. Roberts' opinion discussing this can be found starting at p. 48 of NFIB.
