We always tell you that people in positions of power are reading Ricochet. Here’s some proof.
Earlier today, a federal judge in Oklahoma ruled against the Obama Administration’s contention that it is within its rights to dole out Obamacare subsidies in states that haven’t set up their own insurance exchanges (despite the fact that the plain language of the statute seems to say otherwise). This is an especially relevant case given that many legal observers expect the D.C. Circuit’s previous ruling against the Administration on this matter to be overturned when the court rehears the case en banc. In other words, the decision out of Oklahoma could set up the circuit split that sends this case to the Supreme Court. And the opinion quotes this site.
On pages 14 and 15 of his opinion, Judge Ronald A. White includes a lengthy quotation from this piece that Richard Epstein wrote here in July. The relevant excerpt:
These long and learned opinions should not obscure the fact that at the root of the case is a simple question: Do the words an “exchange established by a State” cover an exchange that is established by the federal government “on behalf of a state”? To the unpracticed eye, the two propositions are not synonyms, but opposites. When I do something on behalf of myself, it is quite a different thing from someone else doing it on my behalf. The first case involves self-control. The second involves a change of actors. It is not, moreover, that the federal government establishes the exchange on behalf of a state that has authorized the action, under which case normal principles of agency law would apply. Quite the opposite: the federal government decides to act because the state has refused to put the program into place. It is hard to see, as a textual matter, why the two situations should be regarded as identical when the political forces at work in them are so different.
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