I keep reading the following speculation involving Supreme Court Justice Anthony Kennedy’s potential vote in the current Obamacare case before the court:
Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. <Business Insider, link>
The idea here is that Kennedy will reject the plaintiff’s argument that ACA subsidies cannot be paid to citizens of states in which those states have not launched a healthcare exchange, and will do so because he finds this strong-arming by the federal government to be repugnant in our system of federalism (respect for the sovereignty of individual states).
Well, Anthony Kennedy, I’ve got two pieces of information for you that you might find helpful to consider.
The first is that Jonathan Gruber, the Obamacare architect hired by Barack Obama to design Obamacare, made it very clear — crystal clear in fact — that the ACA intentionally withholds subsidy money from states that fail to create health insurance exchanges. In other words, the federal government strong-arming of states was pre-meditated and purposeful.
Here is the Gruber quote, which makes the case for the plaintiffs in King vs Burwell <Fox News, link>:
if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at state here in setting up these Exchanges.
That’s it in a nutshell, and yet right now the federal government (Obama regime) is in fact paying subsidies to citizens in states without an exchange, in direct violation of Obama’s own law (hence the lawsuit).
Justice Kennedy may not like this mechanism in the ACA law, but this would be no reason to rule against the plaintiffs in this case because doing so would not alter the language of the law he objects to.
The second is that Ronald Reagan himself once signed into a law a piece of legislation that strong-armed the states — in his case, forcing them into raising the minimum drinking age:
President Reagan, appealing for cooperation in ending the ”crazy quilt of different states’ drinking laws,” today signed legislation that would deny some Federal highway funds to states that keep their drinking age under 21. <New York Times, link, emphasis added>
Hey Justice Kennedy, doesn’t this sound an awful lot like Obama’s “Affordable Care Act” mechanism that compels states to launch their own health exchanges?
Of course it does — it is the same concept of the federal government withholding money unless each of the states complies with the federal government’s wishes.
Reagan apparently had a hard time making this move, but he did it anyway given what he felt was the national priority of reducing traffic deaths related to teenage drunk driving (kids would cross state lines to drink, and then drive home drunk, a phenomenon that rose up because adjacent states sometimes had different drinking age requirements from each other).
The bill that was approved by Congress would penalize states that failed to enact a minimum drinking age of 21 years and reward states with mandatory sentencing for drunken drivers. Although it passed with overwhelming support on Capitol Hill, even some of those supporting the measure said privately that it was coercive.
So, Justice Kennedy, sometimes the federal government infringes on states rights, and the ACA is one of those times.
But you can’t strike down the ACA over this issue because the ACA is not on trial (oh how I wish it were!!).
You can, however, rule in favor of the plaintiffs and strike down the subsidies given the crystal clear language in the ACA regarding such subsidies. To do so would not be to “give a reading” against states rights, it would be to uphold the clear language of the law itself.