Where’s the Orkin man when you need him?

July 23rd, 2014

Or perhaps a big can of Raid might do the job.

The idea was that you’d go to your state “exchange”, sign up for Obamacare, and avail yourself of the generously subsidized health insurance. Unfortunately, most states declined to create exchanges, so the federal government set up one of its own, which, in Obamacare terms, is where the main action is.

That’s the first problem. The law makes no provision for the federal government to do any such thing. So the DC Circuit Court, taking the language “established by the State” to mean what it says, struck down the federal exchange. Which means that Americans in 36 states will be losing their subsidies.

Or not. The White House immediately announced that, while it’s always fascinating to hear what these fellows in black robes have to say, they’re going to carry on full steam doing what they want.

The Fourth Circuit also ruled on the question of the federal exchange subsidies, and reached the opposite conclusion of the DC Circuit. It decided that the phrase “established by the State” was “ambiguous”. The word “State” might mean “state” in the sense of New Hampshire or Idaho, or it might mean “state of mind”, as in whatever King Barack happens to be in favor of on a Tuesday morning. Whatever.

Under the two-step “Chevron” formula, if you find the language “ambiguous”, you then move to the second stage and defer to the administrative agency unless its interpretation is totally loony. In this case, the agency the Fourth Circuit is deferring to is the IRS, which is currently explaining with a straight face that not only was Lois Lerner’s hard drive destroyed but all her friends she’s been emailing with also had their hard drives crash and then recycled. Including her tech guy. What are the odds? At any rate, the Fourth Circuit decided to stand on the principle of general deference to an administrative agency of impeccable integrity and unimpeachable ethics.

So now the question may go to the full panel of the DC Circuit, which Harry Reid’s post-nuclear Senate has stacked with favorably disposed Democrats. Or it may go to the Supreme Court, and we’ll all get to watch John Roberts twist himself into a pretzel all over again. One thing’s clear: without the federal exchange, Obamacare as we know it is dead. On the other hand, it’s entirely unclear whether whatever replaces it will be better or worse or just more complicated and expensive and tortured, which is generally the way to bet with 21st century American government.

As to Mr Earnest’s point on “what Congress intended”, who can say? No Congressman who voted for the bill read it. Presumably, some legislator’s staffer wrote that actual line about “established by the State”. If we could locate him among the vast entourages of the Emirs of Incumbistan, we could ask him what his “intention” was. Until then, calibrating the competing degrees of deference to a corrupt bureaucracy, a contemptuous executive, a politicized judiciary and a feckless hack legislature brings to mind Samuel Johnson’s line about arguing the precedence of a louse and a flea, with a tick and a cockroach thrown in.

Far as I’m concerned, it all amounts to a squalid nest of crawly things, all of which ought to be crushed underfoot.

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  1. July 23rd, 2014 at 16:36 | #1
    The argument about "what Congress intended" would be fatuous even if Congress had read the bill. The law is what's written in its text, not someone's "intent." What if the majority of Congressmen had a quite different intent from what Mr. Earnest and the other carpers would like us to believe? What if that could be demonstrated in a definitive fashion? Would they fall back to some other specious nonsense?

    (And why am I sitting here typing all these rhetorical questions?)

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