SCOTUS Just Eviscerated Obamacare Opponents - and Ridiculed their English Language Skills

It would seem ordinary under any other set of historical circumstances, but the fierce ideological opposition to the President's crowning achievement in office - the health care law that is now responsible for insuring 17 million additional Americans and dropping the uninsured rate to the lowest in history - has been no less virulent, vicious and cruel than the Tea Party White Supremacist movement's conspiracy theory that President Obama conspired to alter his birth certificate from the womb.

The Supreme Court's decision today upholding subsidies to purchase health insurance in all states' exchanges, regardless of whether such an exchange was established by the state or failing that, by the federal government, was a unambiguous thumping victory for the Obama administration and millions of Americans who depend on that subsidy to be able to afford health insurance for themselves and their children. But it was more than that: it was a devastating blow to Obamacare opponents in which the Court went so far as to mock their language skills.

First, a little "I told you so." All the way back in 2011, I previewed the case and asserted that the opponents who claimed that the law only allows premium tax credits (the subsidies) for only exchanges created by a state authority was about the dumbest argument anyone could make, given the law's express authorization to the HHS to establish "such exchanges" in cases where a state failed to do so. "Such exchanges", I said, would clearly have all the regulations and benefits as any other exchange (i.e. those established by a state authority).

Chief Justice Roberts, writing for the majority, broke down the decision in almost exactly those terms. Roberts returned again and again to the law's language of "such exchanges" established by the federal government, holding finally that (a) those are exchanges under the ACA, (b) that for the purposes of each requirement imposed on the exchanges and the people it serves that the two are substantially the same and that Congress intended them to be so, and (c) that as such, Americans who buy their insurance through the federally run exchanges in cases where states choose not to establish their own are eligible for the same tax credits as provided to those in exchanges established by a state authority.

It is with that first point the majority opinion ridicules - whether deliberately remains unclear - not simply the law's opponents' legal position but their understanding of standard American English. The majority opinion goes to pains to explain the definition of the word "is", err, I mean, "such":

By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”).

Ouch. Such benign whiplash.

If only the whiplash against anti-Obamacare legal torture had stopped or began there. The court does not merely hold that federal and state-run exchanges are legally the same, or that they are substantially the same - although that would have been enough to provide a justification for their ruling. But they go further and establish clearly a principle within the law that even its most ardent proponents had not hoped for: the majority established that the federally-run exchanges in states that chose not to have their own aren't merely similar to exchanges established by a state, but that these are exchanges established by a state - differentiated from state-run ones only in the manner of the establishment. Read carefully:

At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so.

Note the language. The Court does not say that the other 34 states have refused to establish their own exchanges, but that by their inaction, they have elected to have the federal government do it for them.

This is because the law simply does not offer the states an option to not establish an exchange. The majority opinion hints at this too, by noting that the language of the law instructing states to establish those exchanges appears to be a requirement, though Congress then provides them with an alternative solution - which is that if state authorities choose not to do it themselves, the federal government will do it for them. As such, the Court implicitly holds that these states too have established exchanges - not with their affirmative action (no pun intended) but their negative inaction.

It's no wonder the President took a proverbial sharp object and poked his health care critics in the eye in his press conference today. He knows what they know: the battle against Obamacare is over, and Obama won it by a couple of touchdowns.



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