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The web presence of Quest Collaborative Law and attorney Christopher L. Seaton, Esq.  All sorts of fun lies herein.  

King v. Burwell: The Supremes Speak on Obamacare again.

King v. Burwell was released today.  Many people are happy with it.  Many are not.  

In a 6-3 decision, the Justices voted to uphold the subsidies provided by the Affordable Care Act and use their abilities to say "Our job is to say what the law is, not create new laws through our actions."  They even cited to Marbury v. Madison in the opinion.  

Color me unimpressed.  This is a decision that essentially said "Look, you guys have seriously written a terrible law here, and we know because you forced us to pour over the damn thing for ages.  Now we know that you want this, and the American public wants this, so we'll keep things the way they are for now, but it's probably going to get worse on you if you have this thing on the books, and you need to clean it up.  I'm tired of doing it for you."  Roberts made a good point--the creation of the PPACA was done to better health insurance, not destroy it, and every person who espouses the mantle of "progressivism" is pleased with the utterance of those words.  One site that uses a great deal of vapid clickbait even said this statement "absolutely devastated the arguments against Obamacare."  (Spoiler alert: No it didn't.)  In getting to the point he made, though, the Chief Justice went through some extensive wordsmithing and legal gymnastics to reach the end result necessary, and if you read the opinion it's pretty clear he's stretching thin the justification for keeping the subsidies.  In doing so, yes--he said what the law meant and didn't make a new law--it's just that the rationale by making the word "State" mean "State and Federal" is going to have some serious repercussions down the line I don't think many of the armchair lawyer squad understand.  

Scalia read his dissent from the bench.  As I have come to expect from Scalia, when he speaks he reveals his love of words.  This is a man who has studied the meanings of words, and when he cannot study them enough, he decides to look for other sources that study the words he's studied.  And Scalia, in his usual manner, poignantly noted the death of actual meaning in the law: 

"Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Oh how true indeed.  If we can engage in a bit of "jiggery-pokery" to make something that which it is not, then we've managed to eviscerate the English language.  While your argument that "words are relative to context, time and place" sounds nice when engaging in sophistry with your neighbor on Facebook, it doesn't fly in the law.  We have to have very clear meanings of words, defined in ways the average person not wearing a black robe can understand them, then we have no real way for the average person to claim an understanding of what is expected of them, and we don't have a way to engage those with power over our lives and liberties when the time comes for us to use those "rights" we all claim to know and love.  

Words mean things, and just because the High Court decided to engage in an amazing turn of gymnastics over saving a law that could have been declared void for vagueness doesn't change that. 

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