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Halbig Is an Opportunity for Supreme Court To Rededicate Itself to Rule of Law

Comment

True, the Halbig case, if it makes its way to the Supreme Court, will present an opportunity for Chief Justice John Roberts to redeem himself from his abominably activist salvation of Obamacare. But more important, it will be an opportunity for the high court to reaffirm this nation's commitment to the rule of law.

In Halbig v. Burwell, the D.C. Circuit Court of Appeals held that under the Affordable Care Act federal health insurance subsidies are available for policies purchased only on state exchanges and not those purchased on the federal exchange.

If the Supreme Court takes the case, it will also have a rich opportunity to slap down the out-of-control, politicized Internal Revenue Service. Under this administration, the IRS has behaved as though it were a super-legislature with authority not just to promulgate regulations beyond its narrowly prescribed statutory power, but also to change laws wholesale in order to serve the administration's policy ends.

A proper wrist slapping of the IRS might well send a long overdue message to all federal administrative agencies — take the renegade EPA, for example — that they don't have carte blanche to do whatever they decide to do.

The ACA provides for the establishment of state exchanges through which consumers can purchase health insurance. The law did not make the establishment of such exchanges mandatory, and only 14 of the 50 states did so.

The law, in a separate section, also provides for the establishment of a federal exchange through which consumers can purchase health insurance in the event their state opts not to establish an exchange.

That's just half the story. President Obama and his Obamacare architects wanted subsidies (in the form of tax credits) to be provided to people who purchase Obamacare policies. The subsidies would shift the cost of the policy from the individual to the government — thus, the proverbial "free health care."

Here's where it gets tricky. The law says the "subsidy" is available only for policies purchased through the state exchanges and not the federal exchange. Honest readers of the law and of the political considerations behind the relevant provisions must concede that the law was carefully drafted with this distinction in mind. There was a deliberate intent to make the subsidies available only for purchases through the state exchanges.

There are two salient sets of facts that make this clear. The first is the unambiguous statutory language. The law provides for subsidies to those who purchase policies from an "exchange established by the state." There is no mistaking the plain meaning of those words.

Moreover, despite multiple sections and subsections dealing with these subsidies, there is no hint that Congress intended to have them apply to policies purchased from the federal exchange.

Legally, the question should end there because it is a generally recognized rule of statutory interpretation that statutes shall first be interpreted according to the plain meaning of the statutory language. Unfortunately for the administration, if you go further and apply other rules of statutory interpretation, such as that a statute should be read as a harmonious whole, you get the same result.

There is another interpretive rule with which all statutory draftsmen and contract lawyers are intimately familiar. If the statute or a contract specifically includes language in one section but omits it in another, it is presumed to have done so intentionally.

For example, if I draft a contract to provide that the company will reimburse my client for airplane travel expenses and mention no other type of travel, I understand that my client will not be reimbursed for automobile or train travel. When Congress expressly provided for subsidies for state exchange policies and did not include such a provision for federal exchange policies - even though there were separate sections covering the federal exchange — it is presumed they meant that the government would not subsidize federal exchange policies.

The second salient fact is that if we examine congressional intent beyond the words of the statute we will find that the too-clever-by-half Obama administration had a specific reason not to subsidize policies purchased through the federal exchange. They wanted to use financial coercion to incentivize states to set up exchanges.

Again, unhappily for the administration, it used this exact kind of coercion with Medicaid under the statute, providing that states that don't adopt the law's standards for Medicaid eligibility will be denied federal Medicaid funding. Even worse, we have "smoking gun" evidence from one of the administration's Obamacare gurus, Jonathan Gruber, who stated that if a state doesn't set up an exchange, its citizens won't get their tax credits.

But when 36 states thumbed their noses at Obamacare by not establishing exchanges, the autocratic IRS, on its own initiative, issued a regulation in August 2011 making the subsidies apply to policies purchased on federal exchanges.

The Supreme Court must reaffirm its commitment to the Constitution and the rule of law by affirming Halbig, making a firm statement that the law is not merely a tool for ideologically obsessed statists to twist at their capricious discretion to achieve their political ends.

David Limbaugh is a writer, author and attorney. His latest book, "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel," will be released Sept. 8. Follow him on Twitter @davidlimbaugh and his website at www.davidlimbaugh.com. To read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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Sir;... Of all the rotten balony we try to fatten our sandwich with; the rule of law is the Rottenest... What exactly is the rule of law that anyone should want it... Have you ever been to a courthouse where law was working and people were not??? Have you ever seen a society were law was working, and people were not??? The law is an abstraction of moral truth,.. It is written and administered by people, and at every step of the way people are writing themselves, and their own personalities into the narrative...If those who write the law are no more than dogs of the rich they work for, the law will be no better than the dogs that write it...Your problem, little man, is the fact that invariably the law is pushed to the point where it loses all respect...When the poor jsutify cheating on their income tax, or exceeding the speed limit they only do as they percieve the rich to be doing...
In our history we have the example given to us by Justice Taney of the Supreme Court... He was perhaps the man most responsible for the American Civil War simply because he empowered property privilage at the moment when its contradiction of human rights and democracy was becoming apparent to the entire North...Through most of the history of the Taney Court, it practiced a great deal of restraint in order to allow the other departments of the government to work... In the example of states seizing Sovereign Indian Lands, he refused to allow the Court to be drawn into a political conflict that might damage the prestige of the Court... And yet; with Dred Scott, he laid the prestige of the court on the line, thinking to still the waters of national conflict with a drip of oil... I don't have to tell you how that turned out, but the fact that so many on the right would turn our clocks back to that day, and have black men dragging plows accross America does not bode well for us...
The Court is only one aspect of the law, but when the law does not work it is an ass, and when law is not working and idiots demand more unrespected law, they are an ass...In short; the law is a form of relationship, and you must see the formality to it all... When the law no longer serves our national interest, and our national relationship; then you will soon find that the people are the law, and they do not stand on formality...You people have said pull yourself up by your boot straps so often that you forget how impossible it is... Law does not hover in respectability by itself... Law earns the respect of the people in society when it serves their purposes and needs... When people in the law, invested in the business of law, turn it to their own purpose and against the national purpose as has so often been done, the form loses respect, and begins to die... People carry guns in my state... It means they have little sense that the law will protect them or deliver justice to them when they are injured... It is but a small step to their realization that they are the law and they can trash the expensive system for enforcing law, and enforce their own law as they see fit...
There are many people who will argue that whole groups of people are lawless, and if not lawless are living in immorality... We are certainly demoralized, but when law ceases to be moral, and instead supports private interests against the public interest, then we all become demoralized... If you think the blacks in particular are immoral, you must then ask when law or established morality has come to their rescue... When they were slaves, their slavery was entirely legal... When a slave escaped, his owner could appeal to the federal legal system to take up the hew and cry, and run him to tree... That black man had no protection from anyone, and legally, no one could stop his murder in hot blood or cold... We see what murderers these slave owners were by the number of northerners they killed to keep their institution... Even when the North objected to slavery, it was not in defense of the human rights of the slave, but was the defense of their own rights because in competition with slaves they would have been reduced to slavery... What the rich wanted in regard to our American slaves has been achieved by the use of foreign slaves, and in this fashion we have been run off of our land, and become powerless wage slaves in every state and city...
If I may explain your problem, your mental problem, and your historical problem, it is Rule... We say rule of law especially when we are trying to supplant some native law of some other people with our own version of law... We say majority rule to justify every attack on the people under cover of a majority gerrymandered into existence... Your problem is that rule is not democracy, and when the people have tried to assert their democratic power, they have been time and again rebuffed by the court citing constitutional privilages... How much of the government is responsive in any respect to democracy???...The president is chosen by an electoral college... The Senate is grossly undemocratic with some Senators representing far more thousands of miles than people... The house should be democratic, but the parties conspired to fix the number of representative which was supposed to grow with the population... The parties gerrymander district to deliver and never mind how many people are denied a fair hearing in government... Just look at the way the republican party marched in lock step on the issue of national health care, and you will see these parties loyal only to their own aims and existence...The court is our most undemocratic department of government, and what they are serving everyday beoming more of a dead letter having the respect of no one... Do you think you will be able to maintain your rule of law for any amount of time when it is so clear that it costs too much and injures too many people while helping but a fraction??? Why do you think the rich who cannot afford to pay taxes can afford to spend so much to buy our elected officials??? The want us ruled by law... They do not want us to be able to self govern and practice democracy...
Rule is still rule, and law without the consent of the people is mere coercion...You know 90% of the people do not need law in the least... They are moral and their morality keeps them peaceful... But if we struggle to enforce law, and it is our biggest expense by far, and if in addition, we go broke keeping a military in the field to do no more than enforce our law abroad then we are really reaching the point of an entire breakdown of the system...
On the news it was reported that our governor supports the private contractor who supplemented the prison diet with maggots... Add to this problem the fact that 80 individuals were banned from employment in the prison system for life for some serious breach of faith... From his perspective, he is right to support an economy that costs the people as much but feeds profit rather than humanitarian rehabilitation...If these criminals are returned to society little improved but only older; where is the advantage to the citizens???... Show me where the law that allows these rich to grow fat on human suffering is printed... It is not in the ten commandments I am sure...If it is necessary that people suffer for their crimes it should be an issue we all suffer together... If punishment is worth the money, we should spend the money, and be done with it... Whether we are talking about the brutality of the sytem teaching brutality to inmates; of the complete failure of law to achieve any moral ends, enough is enough... To allow people to profit on suffering is an invitation to abuse...To encourage a general lawlessness by the example of the rich who are free of the law unless they desire to use law to their profit is very risky, but they see their chances and they take them...
Thanks... Sweeney
Comment: #1
Posted by: James A, Sweeney
Tue Jul 29, 2014 8:15 PM
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