J
JAMESBJOHNSON
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And by giving a shit, I mean having the intellectual curiosity and ability to differentiate between the critical details of what the law says, what it means and whether either of these two elements accurately reflect a law’s proper authority.
Or is it only about whether your ox has been gored? Or in the case of idiot extremists like Eyer, does the mere curtailment of “liberty” common to most any prohibitive law serve as its own self-condemnation.
For example, do the presence of “enumerated powers” and authorities within the Constitution serve to discredit or deny the validity of implied powers as well? Hint: the issue has long ago been decided. From Wiki:
Hamilton’s argument also supports the assertion that the Bill of Rights imply a general right of privacy particularly as reflected in references within the First, Third Fourth and Fifth Amendments.
So where does a general acceptance of the principle of implied powers take us? As T. S. Eliot wrote, “The last temptation is the greatest treason: to do the right deed for the wrong reason.” Is Eliot right or wrong? Does it matter? Does the validity of implied powers exempt its most ardent proponents from an ethical responsibility to be bound by ANY limits by which arguably desirable implications might be rationalized, or does the principle itself argue against such limits?
Similarly, if one of the implied powers of the federal judiciary is the power and responsibility of “judicial review” for the very purpose of ensuring Constitutional harmony of legislative and other governmental acts, must not the judiciary itself be bound by parameters which constrain the scope of that review?
Does anyone here have the ability or DESIRE to discuss today’s Supreme Court decision in that context?
I predicted today’s ruling in this forum just over two weeks ago. http://forum.literotica.com/showpost.php?p=68438699&postcount=2
And earlier today I suggested that the original language of the ACA in attempting to grant tax credits for members of state originated health exchanges while denying them to members of a federal originated exchange was a violation of the Equal Protection Clause of the 14th Amendment. I was less than certain of that position, and, as it turns out, I was wise to hedge my bets. Justice Scalia’s reference to Title 26, Section 35 of the U. S. Code in his dissent to today’s opinion illustrates how states must qualify various health insurance plans in order for taxpayers to receive federal tax credits for premium payments to those plans. Thus, there is precedence for wholly volitional state action resulting in legal disparate treatment of citizens under the federal tax code.
But I’m getting ahead of myself.
While today’s ruling is not at all surprising, there is more than ample reason to be distressed by the substance of it no matter which side of the healthcare debate one happens to take. Although I was initially inclined to support the Court’s opinion as a practical matter, that support has faded dramatically upon reading the majority opinion in detail.
That is because the Court did not in any way dispute that Congress had the power to establish separate tax credit rules for state originated health exchanges while withholding those same tax credits for a health exchange established within a state by the federal government. In fact, Justice Roberts wrote precisely the opposite. “If the statutory language is plain,” he wrote, “we must enforce it according to its terms.”
And yet, the Court found ambiguity in the statutory language of Section 36B of the U. S. Code which nonetheless reserves federal tax credits (aka “premium assistance credit amount”) for those taxpayers and dependents “which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.”
That’s not the worst of it. Having arguably found “ambiguity,” the Court thus armed itself to question Congressional legislative intent. What could Congress possibly have intended in the face of such ambiguous language as “established by the State”?
It is this linguistic gamesmanship that Justice Scalia rightly lampooned in his scathing dissent.
But it gets worse still. Legislative intent is an important element in reviewing statutory construction. It is particularly important with regard to Constitutional provisions made long ago where the full record of public and legislative debate may be less available than it once was. Consider the “necessity of a well-regulated militia” reference in the Second Amendment and the controversy around it which has ensued since its drafting.
Surely, however, it is folly to believe that such intent remains hidden from the Supreme Court with respect to a bill that was signed into law little more than five years ago. And if it was, how might you discern it? Get some Congressmen on the phone or legislative draftsman who was perhaps instrumental in authoring the controversial language in question? Nope.
Ultimately since, as Justice Roberts wrote in his summary, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them” any or all language arguably counterintuitive to that objective was ipso facto, in the Court’s analysis, contrary to Congressional intent. In so doing, the Court looked to the language of the law as passed as the primary source of the solution to a puzzle of its own creation.
This rationale created what should have been an embarrassing attempt by the Court to “have it both ways.” For example, when petitioners argued that Congress was not worried about the effects of withholding tax credits from states with federal exchanges because, in so doing, Congress specifically intended to offer states a deal they could not possibly refuse, Justice Roberts rejected that argument as follows:
In other words, according to the Chief Justice, Congress could not have RATIONALLY INTENDED to include specific language that would have operated to the detriment of the general ACA purpose of “improving health insurance markets” but armed with the knowledge of the inevitability of a federally mandated exchange if states failed to establish one of their own, Congress COULD RATIONALLY INTEND AND DID, IN FACT, include language which they nonetheless knew to be meaningless.
That is the problem with this case. The Court neither ruled as a matter of law nor specific Congressional intent, but rather general legislative purpose, and that is not its proper role. Since that was its obvious objective that purpose would have been far better served and the Court’s reputation much less soiled had it simply refused to hear the case and let the ACA stand as enacted.
Instead, it engaged in an exercise that was neither necessary nor helpful.
In the past SCOTUS ignored the Constitution when 1) West Virginia became a state, and when they approved the illegal ratification of the 14th Amendment. That is, the States repudiated the 14th Amendment and the GOP threw all of them outta the union to have enough votes to pass the amendment. The Supremes said OK.
http://www.constitution.org/14ll/no14th.htm
So Roberts et al didn't get any cherries yesterday.
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