Saturday, December 7

How do you know what a law means if it doesn't *say* that?

It's funny to watch liberals, Democrats and "progressives"--having passed Obamacare by using some of the most bizarre parliamentary tricks known to humans--now screaming that since "it's the law!" conservatives should stop trying to repeal or otherwise nullify it.

The latest round of the fight is no exception:  After the Supreme Court's unbelievable decision upholding the constitutionality of the thing--ruling that the "individual mandate" is simultaneously a tax and not a tax, depending on what constitutional prohibition the government is trying to get around--governors of several states sued to invalidate the law based on yet another of its sketchy provisions.

It's the one that says people are eligible for federal subsidies--the device that gives free or almost-free health insurance to the poor--when they enroll in health care coverage "through an Exchange established by the State."  Plaintiffs claim this language clearly did not envision paying subsidies to people who got their insurance through exchanges run by the federal government.

Of course during the debate on the bill it didn't occur to any Democrat in congress that more than one or two states would choose not to create an "exchange."  (What the hell do they think is being "exchanged," anyway?)  So no Dem thought to worry about whether the law would pay subsidies to those not in a state exchange. 

Well either that or no one in congress read the fucking bill before they voted on it, which I suspect is a lot more likely.

In any case, it's now left to our amazingly political court system to decide what congressional Democrats meant. 

"That's easy--we'll rule that it means whatever you Democrats need it to mean--just like we did before with the 'Is it a tax or a penalty' problem."

You think I'm being facetious but I'm not, because when it comes to interpreting a law or a contract, judges  have an almost-unlimited number of legal rationalizations available to support whatever outcome they like.  If they want to support the clear language of a law they cite the "four corners of the document" justification.  By contrast, if they want to support some meaning that's not mentioned anywhere in a statute they claim "implied intent," "reading the legislation as a whole," "emanations" and "penumbras."  (Yes, those are actual quotes from Supreme Court opinions.)

Now consider that a known legislative trick used by majorities to expand controversial laws is to write them with deliberately vague provisions, confident that the courts will interpret the ambiguities in an expansive way at some later date.  Hmm....
In the case of Obamacare the courts--which the Dems have carefully packed with liberal judges--are overwhelmingly likely to take the same tack as the Supreme Court, and rule in favor of Obama's position.  This is made even more likely due to the unmistakeable signal from that court that it was willing to jump through all manner of legal hoops to consider it constitutional.  Any judges who ignore this clear signal will be inviting a reversal.

For those unfamiliar with the appellate system, for a lower court to have its opinion reversed is equivalent to being slapped down.  It takes a very unusual judge to vote for a decision he knows is likely to be reversed.  Which is why it doesn't happen very often.

(Just so we're clear:  Judges make decisions every week that end up being reversed later by a higher court, but they rarely have a reason to think their decision will be reversed.)


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