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Replying to the ACA Troofers

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The government’s reply to the ACA troofers has been submitted, and as you would expect it’s devastating. Section I should be sufficient in itself — it is clear simply reading the statute properly that exchanges established by HHS are “exchanges established by the State” as the statute defines them. I’ll have more later, but a couple choice excerpts. First, I like this from the section refuting the “Moops invaded Spain” argument:

Petitioners do not deny that their interpretation of Section 36B would thwart the operation of the Act’s central provisions in States with federally facilitated Exchanges. Instead, they reverse-engineer a description of the Act’s design and history to fit their misreading of Section 36B. Petitioners insist that Congress intentionally threatened to impose a dysfunctional regime on the States in order to pressure them to establish Exchanges for themselves, and that Congress assumed that every State would comply. That notion is baseless.

First, it was well understood when the Act was passed that some States would not establish Exchanges for themselves. The very fact that the Act provides for federally-facilitated Exchanges demonstrates that “Congress thought that some States might decline * * * to participate in the operation of an exchange.” NFIB v. Sebelius, (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

Nicely done! I also like the conclusion of the argument summary:

Petitioners invoke “judicial fidelity to the rule of law and well-established interpretive principles.” But it is petitioners, not the government, who seek to rewrite the Act. Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual crossreferences, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law. It subverts the rule of law by denying appropriate respect to the choices Congress has made in the exercise of its democratically accountable authority.

So true.

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