Terrific: Kennedy Seems to Be Leaning Towards Adopting the Government's Position on Obamacare, Because If He Doesn't, He'll Be Forced to Strike the Whole Law Down as Unconstitutional

The law was written to coerce states into setting up their own exchanges. The threat/inducement was that if you set up your own exchange, your citizens got federal subsidies; if not, then not.

If you don't believe me, you can ask the Architect of Obamacare, Jonathan Gruber.

I mean, you once could have asked him. Now he lies about it, but no one prosecutes him, because The Caste makes its own rules and protects those who break the law to advance Caste goals.

But there is a doctrine of constitutional law which states that a law which would presume to coerce states into action -- which would order them to act, with penalties imposed if they don't -- are a violation of the federalist principle and thus are facially unconstitutional.

There was a lot of talk about this during the last go-round on Obamacare, with various judges noting that Obamacare presumed to take away all Medicaid subsidies for states which refused to expand Medicaid per Obamacare's dictates, that would constitute "coercion," and that would invalidate the act.

I think what they did there, if I remember right, was to strike down that business about losing all subsidies, while, of course, keeping the bulk of the law intact.

Well, in the current case, if you read the law as written -- rather than the Dream Logic manner of reading our chief fantasist Obama urges upon us -- then it is quite coercive indeed as regards subsidies. And that would make that provision unconstituitional.

So what then? Well, I think then Kennedy's preferred reading would be to strike down that line -- that is, read that line out of Obamacare -- and otherwise retain Obamacare as currently implemented.

So, the idea is that Obamacare was drafted so egregiously that it's unconstitutional, but none will dare call it unconstitutional, so instead Kennedy will rewrite the law to achieve conformity with the Constitution, thus delivering President El Jefe Maxima everything he wants from his Enabling Act.

So we've got that going for us.

posted by Ace at 05:12 PM

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