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March 09, 2015


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John Jacob

42 U.S. Code § 18041(c) - State flexibility in operation and enforcement of Exchanges - and related requirements clearly says - "the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate **such** Exchange within the State and the Secretary shall take such actions as are necessary to **implement such other requirements.**"

I don't know how much clearer the statute needs to get. Just because some Republican judges find it politically convenient to read four words in complete isolation doesn't mean the statue is unclear. Can't we just be adults and agree that members of the Supreme Court routinely engage in motivated reasoning?

Yes, it will be fascinating to see what reasoning SC justices use to support their predetermined positions.

My $.02

"The phrase is clear - just as a fish is a tangible object, an exchange created by the federal government is not one created by a state."

Yeah, pretty much what JJ said. The statute authorizing the creation of a federal exchange specifically says that if a state fails to create an exchange under Section 1311, the HHS secretary will establish "such Exchange" on its behalf. "Exchange" is defined to be a state-established exchange. The use of the term "such" preceding it in Section 1321 makes it at least ambiguous -- and arguably unambiguous in the government's favor -- that 1321 exchanges are deemed to be 1311 exchanges for purposes of the ACA.

I understand it can be counterintuitive that a federally-operated exchange under Section 1321 could be deemed to be an "Exchange established by a state under Section 1311," but that's what the statute says, or at least it could be interpreted to say depending on how you view "such." Sorry.


It seems to be an academic exercise at best to pretend that there is something to be gleaned from how a justice ruled in Yates and how he will rule in King. The Court continues to fall further into politically-based / outcome determinative rulings and further from reasoned and consistent legal reasoning. I guess it might be fun to try and draw insight from Yates as it applies to King, but it is far from convincing that there is anything to be learned about a justice's approach to the law. King is politics pure and simple. Perhaps Yates is too. Maybe that's the lesson.

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