What a Twisted Web We Weave
""The lawsuits' architects claim that Obamacare authorizes the federal government to help people pay for private insurance only in those states that have taken it upon themselves to reorganize and operate new insurance markets. The basis for that claim is some ambiguous language in one key section of the law. The law's supporters, including just about everybody who worked on the legislation or followed its journey through Congress, say that's nonsense—the ambiguity is merely a drafting error, the kind that happens all the time in complex legislation. The law's supporters also point to prevailing legal doctrine, under which courts defer to executive agencies when legal language is ambiguous. ""
"Legal doctrine" above leads to the following:
""1) Administrative Law 101: The administration doesn't need to prove intent, just ambiguity
Lost in the back-and-forth about what Congress did or didn't intend is a key fact: the administration doesn't actually need to prove intent to defeat this Obamacare challenge.
Sure, the White House is trying to prove intent. Their primary argument is that a plain-text reading of the law suggests that federal and state exchanges are understood as perfectly equivalent. When Section 1321 of the Affordable Care Act directs the HHS secretary to establish "such Exchange" if a state doesn't create their own, "such Exchange" is understood to be "an Exchange established by the State under 1311".
But they have a fallback argument, too: If you don't agree with them on the plain-text reading, you should at least believe that the text at issue is ambiguous when read within the context of the entire statute. Under a legal doctrine called Chevron deference, ambiguous statutory language is punted to the agency implementing the law. It's a legal tie, but the tie goes to the government.
What is "Chevron deference" :
""Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases.
Under the Supreme Court's ruling in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), United States federal courts have the authority to judicially review the statutes enacted by Congress, and declare a statute invalid if it violates theConstitution. But the Constitution sets no express limits on how much federal authority can be delegated to a government agency. Rather, limits on the authority granted to a federal agency occur within the statutes enacted by Congress
The Court, in an opinion by Justice John Paul Stevens, upheld the EPA's interpretation. A two-part analysis was born from the Chevron decision (called the "Chevron two-step test"), where a reviewing court determines:
(1) "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."
"If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,
(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).""
In the case under consideration, rule 1. Applies. Not taken in context, the law is clear. Context may not be considered. The defenders of ObamaCare would have us believe that if the precise combination states not setting up an exchange and the federal government having set up an exchange, the law is ambiguous. If this is so, all law is ambiguous. You can't include all hypotheticals, thus leaving all control to the bureaucrats.
Consider also that this is new and untested
Also, Article 1, section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The constitution trumps convention. Being wrong in 1984, does not bind us to be forever wrong.
Legislation which delegates lawmaking to the executive, is unconstitutional, whether the supreme court holds that or not.