# Halbig v. Burwell ruling against Obamacare subsides **URL:** \ **Category:** Great Debates\ **Created:** [July 22, 2014, 2:42pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740 "2014-07-22T14:42:40Z")\ **Posts on this page:** 20\ **Page:** 21
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [November 12, 2014, 1:19am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/401 "2014-11-12T01:19:22Z")
I don’t know if this has been brought up, but it’s news to me about the “intention” behind the statute in question: > [@](#): > > We know that in the late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. And we know that this working group initially decided to follow the text of the law. An early draft of its rule about subsidies explained that they were for “Exchanges established by the State.” > [@](#): > > ``` > Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress’s report—to “senior IRS and Treasury officials.” The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to “Exchanges established by the State” disappeared from the draft rule. > > Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange. > > ``` [http://online.wsj.com/articles/kim-strassel-the-obamacare-irs-nexus-1406244677](http://online.wsj.com/articles/kim-strassel-the-obamacare-irs-nexus-1406244677) Given that before it became a politically charged issue, there was genuine disagreement among policymakers and wonks like Jonathon Cohn and Dr. Gruber about what this part of the law meant, I don’t think intent is a very useful thing to argue in front of SCOTUS. ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [November 12, 2014, 1:50am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/402 "2014-11-12T01:50:19Z")
> [@Richard\_Parker](#): > > Er, no. That text limits 36B. It doesn’t limit the definition of “Exchange.” Ah, an SDMB textual construction issue! I took your phrase “limiting text” to apply to the scope of what you called the “general definition” (as in, “the definition applies generally, unless the definition is curtailed within the context of a particular usage”) whereas you meant “limiting text” to bound to “applied statute-wide” (as in, “this definition shall apply only to sections x, y, z).” Amusing. > [@Richard\_Parker](#): > > You’re wandering into an argument that you haven’t followed from the beginning. If you want to address my position, please start with post #351, and read my subsequent posts. > > The full argument (or at least, this particular argument among several for the government) rests on both the definition of “Exchange” and 42 U.S.C. § 18031(d)(1). So I went and read _King_, and I don’t see anything in it that supports a pro-tax credit plain meaning argument. In fact, the majority’s reasoning said the opposite: > [@](#): > > Simply put, the statute is > ambiguous and subject to at least two different interpretations. The only judicial argument I found supporting a pro-tax credit plain meaning approach was in the _King_ concurring opinion, in language that I find almost self-refuting: > [@](#): > > I am not persuaded and for a simple reason: “[E]stablished > by the State” indeed means established by the state - except > when it does not . . . . [http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf](http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf) So I’m left at the plain meaning stage, and wondering whether there are any pro-tax credit arguments that do not render the phrase “established by a State” either error or surplusage. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 12, 2014, 2:37pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/403 "2014-11-12T14:37:16Z")
> [@bbonden](#): > > So I’m left at the plain meaning stage, and wondering whether there are any pro-tax credit arguments that do not render the phrase “established by a State” either error or surplusage. But you understand why we should not expect to find that argument in the judicial opinions, right? There’s just no need to get there. All the government has to prove is that it is, at worst, ambiguous. If the Court finds that much, it need not decide whether, in fact, the challenger’s reading isn’t even reasonable. I bristled at the suggestion that there is no plain meaning argument because lay people understand that to mean we are ignoring the text or trumping the text with legislative intent or the like. The government is not arguing for those things. So long as you’re not conflating “lack of plain meaning argument” with asserting those propositions, then we’re in satisfactory accord. 🙂 That said, I do think there is an argument that only the government’s reading is reasonable, and the challenger’s reading is not reasonable. To summarize probably too much, the argument looks like this: 1. 42 U.S.C. § 18031(d)(1) says that every Exchange must be “established by a State.” 2. 42 U.S.C. § 300gg-91(d)(21) says the term “Exchange” means “an American Health Benefit Exchange established under section 18031 of this title.” 3. 42 U.S.C. § 18041(c)(1) empowers HHS to create a capital-E Exchange. Therefore… When 26 U.S.C. § 36B(b)(2)(A) refers to “an Exchange established by the State under [18031 of this title],” it is not trying to distinguish some PPACA-established exchanges from others, since under PPACA every Exchange meets that criteria, including ones created by HHS pursuant to 18041(c)(1). That reading of the text is reinforced by other provisions that assume that every Exchange is established by the State, and that every Exchange receives subsidies, including the definition of “qualified persons” and the reporting requirements, among others. None of that argument says anything about legislative intent apart from the words expressed in the statute. And if you accept that argument, then you must find that the challenger’s reading is not reasonable. You may or may not buy each premise of that argument, but it would be false to say there is no argument that only the government’s reading is reasonable. There is such an argument. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2014, 3:13pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/404 "2014-11-12T15:13:50Z")
> [@Richard\_Parker](#): > > But you understand why we should not expect to find that argument in the judicial opinions, right? There’s just no need to get there. All the government has to prove is that it is, at worst, ambiguous. If the Court finds that much, it need not decide whether, in fact, the challenger’s reading isn’t even reasonable. I bristled at the suggestion that there is no plain meaning argument because lay people understand that to mean we are ignoring the text or trumping the text with legislative intent or the like. The government is not arguing for those things. So long as you’re not conflating “lack of plain meaning argument” with asserting those propositions, then we’re in satisfactory accord. 🙂 > > That said, I do think there is an argument that only the government’s reading is reasonable, and the challenger’s reading is not reasonable. As noted previously, what you’re effectively saying is that various courts deliberately and gratuitously contradicted a reasonable argument that supported their own ruling, all because there was “no need” for it. That seems very dubious, to put it mildly. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 12, 2014, 3:19pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/405 "2014-11-12T15:19:40Z")
Perhaps if your reading of what I say seems so obviously dubious, you should stop to ask yourself whether you’re misreading it, or perhaps ask me some question to clarify my position. Instead, it seems like you just want to score some rhetorical cheap shots, which is why I ignored the first one. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2014, 3:22pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/406 "2014-11-12T15:22:37Z")
“Rhetorical”, yes. “Cheap shot”, no. It’s a valid point, like it or not. You can respond or ignore at your discretion. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [November 12, 2014, 3:54pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/407 "2014-11-12T15:54:34Z")
Every judge in the two Appeals Court panels that have ruled on this matter rejected the Administration’s argument at _[Chevron](http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.)_ step one, that the plain meaning of the words of the statute mean what the Administration says they mean. Every single judge, even those who ultimately ruled in the Administration’s favor on other grounds, rejected the Administration’s argument on this point. The notion that the plain language meaning of “established by the State under section 1311” clearly include exchanges established by the Secretary of HHS under 1321 is a dead argument. Indeed the DC Circuit ruling (since set aside) concluded at Chevron step one that the plain language meaning of those words expressed Congress’ intent to deny subsidies to federally run exchanges. After Chevron step one both the DC Circuit and the Fourth Circuit then considered Congressional intent. IANAL, but is this some step 1.5 now? And again all of the reviewing Appeals Court judges rejected the notion that Congressional intent was clear. Every single one of them including those who ultimately ruled in the Administraton’s favor. But since that time the much vaunted statements of Jonathan Gruber have come to light. At least twice he stated that, precisely on point, and what was the primary the counter-argument to the Administration’s position. And the [twice or more made](http://dailycaller.com/2014/11/11/yet-another-video-emerges-of-obamacare-architect-calling-americans-stupid-video/) “the American people are too stupid to understand the difference” [statements](http://www.washingtonpost.com/blogs/post-politics/wp/2014/11/11/obamacare-consultant-under-fire-for-stupidity-of-the-american-voter-comment/)about getting Obamacare passed have done no favors, even if not strictly on point. Gruber is not some random guy off the street. He is the guy that made the [economic model](http://www.forbes.com/sites/aroy/2012/09/25/jonathan-grubers-new-analysis-of-obamacare-and-romneys-health-reform-plan/) that _[amici](http://theincidentaleconomist.com/wordpress/wp-content/uploads/2014/11/Halbig-amicus-brief-49-econ-scholars.pdf)_ (pdf link) briefs in support of the Administration in Halbig and [King](http://www.cato.org/sites/cato.org/files/documents/economics_scholars_king_amicus.pdf) (pdf link) are citing. He is the [guy the Administration hired](http://www.nytimes.com/2012/03/29/business/jonathan-gruber-health-cares-mr-mandate.html?pagewanted=all&_r=0). He was integral to the design of the PPACA. And he [handed a powerful Congressional intent argument to the appellants](http://www.breitbart.com/InstaBlog/2014/11/11/How-Jonathan-Gruber-Went-from-Hero-to-Goat-in-Court-Filings) in _King_. He might as well have sent it gift wrapped with a little bow on top. So the Administration, to win the day, needs to get past Chevron step one. And then they need to get past the Congressional intent. Only then does the reasonableness of the agency’s interpretation come into play. That is what saved the Administration’s argument in the Fourth Circuit. I wouldn’t count on it again. I think this is looking so bad for the Administration that it may be worse than a 5-4 split. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 12, 2014, 3:55pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/408 "2014-11-12T15:55:23Z")
Suppose Congress were to pass a law that offers special tax breaks for Kenyans. And said “For the purposes of this law, ‘Kenyan’ means anyone born in Kenya, or in Hawaii on August 4, 1961”. Obama could reasonably expect that the law affects him directly, as he qualifies under the second part. And he would be right. But outside of that law, Obama is not a Kenyan, nor does the law make him a Kenyan. One could not say that Congress has decided that Obama is not eligible to be President, since he is a Kenyan. Because the wording is relevant only within the definitions of this law, and \*nowhere else. \* Now, suppose someone were to demand that the law be changed, or thrown out, because it disqualifies Obama’s presidency, That would be a “reasonable” argument in the general, common sense use we ordinary mortals depend upon. But the court should deny any such action, on the grounds that no such action is required, it is not necessary that the court intervene, because the designation of Obama as a Kenyan is only relevant within the confines of that law. The motto above door of the Inferno of Legal Sophistry reads “Abandon Common Sense, All Ye Who Enter”. Within the structures of everyday life, wherein sensible rules apply, your objections are, well, “sensible”. And valuable. But you shouldn’t try to take them with you when you enter the Valley of the Damned. Wihin my regnant capacity as Queen of Romania, I declare **Richard Parker** to be correct. Tremble and obey! Makes my head hurt, but he’s right. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 12, 2014, 4:32pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/409 "2014-11-12T16:32:22Z")
Our good friends over at ThinkProgress have offered a \*\*A Non-Lawyer’s Guide To The Latest Supreme Court Case Attacking Obamacare \*\* [http://thinkprogress.org/justice/2014/11/12/3591081/a-simple-non-lawyers-guide-to-the-latest-supreme-court-case-attacking-obamacare/](http://thinkprogress.org/justice/2014/11/12/3591081/a-simple-non-lawyers-guide-to-the-latest-supreme-court-case-attacking-obamacare/) Check it out. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2014, 4:56pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/410 "2014-11-12T16:56:44Z")
Also check out a contrary view at: [http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/12/the-test-to-textualism-in-king-v-burwell-a-reply-to-abbe-gluck/](http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/12/the-test-to-textualism-in-king-v-burwell-a-reply-to-abbe-gluck/) ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [November 12, 2014, 5:27pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/411 "2014-11-12T17:27:08Z")
> [@elucidator](#): > > Our good friends over at ThinkProgress have offered a \*\*A Non-Lawyer’s Guide To The Latest Supreme Court Case Attacking Obamacare > \*\* > > [http://thinkprogress.org/justice/2014/11/12/3591081/a-simple-non-lawyers-guide-to-the-latest-supreme-court-case-attacking-obamacare/](http://thinkprogress.org/justice/2014/11/12/3591081/a-simple-non-lawyers-guide-to-the-latest-supreme-court-case-attacking-obamacare/) > > Check it out. As is so often the case, use of the word “clearly” [in this case, by ThinkProgress] flags that the author is dissembling. No one argues that the statute defines “Exchange established by the State.” The question is whether and how the act defines “Exchange,” and whether the phrase “established by the State,” as used in the tax-credit section, limits that definition. Among his other arguments, **Richard Parker** , for example, has argued that HHS stands in the shoes of the States for the purposes of creating exchanges, and that federal exchanges therefore should be understood as within the scope of the tax-credit provision. ( **Richard Parker** , please correct me if I am misstating your argument.) A distillation of the contrary position is that if all exchanges are Exchanges “established by the State,” then why are the extra four words necessary? Rules of construction, which favor parsimony, mean that the words must have meaning - and that “established by the State” therefore stands in contradistinction to the alternative, “established by the Secretary.” This is far from sophistry - this is how legislatures draft laws, how courts read them - and how the public understands its rights and responsibilities. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [November 12, 2014, 5:41pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/412 "2014-11-12T17:41:38Z")
I just have to shake my head at the lengths that Republicans will go to to ensure that the people of the states they run remain miserable and neglected. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [November 12, 2014, 8:32pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/413 "2014-11-12T20:32:02Z")
“Freedom!” ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [November 12, 2014, 10:12pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/414 "2014-11-12T22:12:00Z")
So it seems to ThinkProgress push is on claiming that the term Exchange is definitional and thus an equivalence must be drawn between exchanges established by the state and those established by the Secretary of HHS. Wishful thinking. The PPACA (full [pdf text](http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf) here) does have several sections in which terms are defined. Sec 1304 defines the terms GROUP MARKET, INDIVIDUAL MARKET, LARGE AND SMALL GROUP MARKETS, LARGE EMPLOYER, SMALL EMPLOYER, SECRETARY, and STATE. What is not defined there? EXCHANGE. All manner of other terms are defined within the PPACA in other clearly delineated sections labelled as a definition. Seriously, there are a HUGE number of definition sections. What is not defined in such a way for the PPACA? The term EXCHANGE. Rather the reference **Richard Parker** cites above as the definition for EXCHANGE is actually a line amending another law, the Public Health Service Act (42 U.S.C. 300gg–91(d)), to include the term Exchange. And he left something out. The full quoted reference for that section is: > [@](#): > > (b) DEFINITIONS.—Section 2791(d) of the Public Health Service Act (42 U.S.C. 300gg–91(d)) is amended by adding at the end the following: > … > ‘‘(21) EXCHANGE.—The term ‘Exchange’ means an American Health Benefit Exchange _ **established under section 1311** _ of the Patient Protection and Affordable Care Act.’’. \*\*\*emphasis \*\*\*added Which brings us full circle. If this is indeed the definition of “Exchange” the Administration wants to point to, it refers to section 1311 which is the section authorizing states to set up exchanges, not the Secretary of HHS. Scalia once penned the line that has since been quoted by the Administration: > [@](#): > > Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes. **WHITMAN, ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY, et al. v. AMERICAN TRUCKING ASSOCIATIONS, INC., et al.** And yet now the Administration’s argument lies in the hope that Congress created a special tortured definition for the term EXCHANGE without ever labeling it as such. And that they did so by sprinkling clues throughout unrelated sections of the text of the PPACA and an amendment to another law. And somehow it reaches that definition by pointing solely to the section authorizing state exchanges. Indeed, there is no elephant in that mousehole. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [November 12, 2014, 10:14pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/415 "2014-11-12T22:14:16Z")
The nice thing about laws is that they can simply be changed. The only reason this is a big deal is because the Democrats used a tiny window of opportunity to pass it. Thing is, that’s not the court’s problem. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 12, 2014, 10:18pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/416 "2014-11-12T22:18:11Z")
> [@Iggy](#): > > Rather the reference **Richard Parker** cites above as the definition for EXCHANGE is actually a line amending another law, the Public Health Service Act (42 U.S.C. 300gg–91(d)), to include the term Exchange. And he left something out. That you characterize my posts this way tells me you did not understand them at all. The part you claim I omitted was in fact the focus of my argument as to that section. And talk about finding elephants in mouseholes. You’re the one who thinks Congress saw fit to deny subsidies to federal exchanges by adding a few words to one of the subsidy calculations buried in the law, instead of the numerous other places you’d expect it to be. Unfortunately, partisanship colors a lot of the legal analysis out there. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 12, 2014, 11:26pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/417 "2014-11-12T23:26:11Z")
> [@jayjay](#): > > I just have to shake my head at the lengths that Republicans will go to to ensure that the people of the states they run remain miserable and neglected. It’s a tough job but someone has to do it! ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 13, 2014, 2:58pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/418 "2014-11-13T14:58:10Z")
> [@bbonden](#): > > As is so often the case, use of the word “clearly” [in this case, by ThinkProgress] flags that the author is dissembling. > > No one argues that the statute defines “Exchange established by the State.” The question is whether and how the act defines “Exchange,” and whether the phrase “established by the State,” as used in the tax-credit section, limits that definition. I don’t actually think that’s a fair setup of the issue. The government argues both that “Exchange” is a defined term, and that every Exchange is required to be established by the State (under (d)(1)). It is the combination of these facts, plus the fact that we know HHS is empowered to create a PPACA-eligible “Exchange,” from which the conclusion follows that the language in 36B is not meant to distinguish some PPACA Exchanges from others. Instead, the language is to distinguish PPACA Exchanges from non-PPACA Exchanges of the kind that existed prior to this legislation. Indeed, for those like \*\*Fotheringay-Phipps \*\*who are persuaded that Congress simply failed to account for the later add-on of the federal option, how would you explain the presence of the qualifier “established by the State”? At that time, there was no federal exchange to distinguish. The obvious answer is that the phrase isn’t there to distinguish federal from state. In short, there’s no doubt that “established by the State” limits the definition. The debate is about how it does so, and for what purpose. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 13, 2014, 3:26pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/419 "2014-11-13T15:26:23Z")
> [@Richard\_Parker](#): > > Unfortunately, partisanship colors a lot of the legal analysis out there. In a sense, perhaps – if “partisanship” refers to a preferred approach to construction. When the ACA’s constitutionality was challenged, I defended it: not because I was a fan of the program or its supporters, of course, but because the power to enact it was clearly one Congress had, at least since Wickard. Here, I take a position because I believe the better interpretive method for courts to use is that Congress is held to the words it passes, and that the courts shouldn’t place themselves in a position to mortar over cracks Congress left in legislation – again, not because I disfavor the program. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 13, 2014, 3:31pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/420 "2014-11-13T15:31:38Z")
The courts aren’t placing themselves in that position. They are perfectly entitled to defer to agency interpretation which already does that (allegedly). They don’t have to, of course, but they can. [Previous page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=20) [Next page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=22)