Ron Pollack, executive director of Families USA, an advocacy group supporting the health care law, said he views the case as "frivolous," but he nonetheless says it is "Obamacare opponents' last and most far-fetched stand to destroy the Affordable Care Act." Pollack said he thinks the plaintiffs' reading of the law is wrong because Congress created a national program and lawmakers wanted Americans to have access to subsidized health insurance regardless of where they live.
That's b.s. in its purest form. You cannot
look at Congressional intent behind a statute unless the statute is unclear or ambiguous on its face.
Here is the operative statutory language under discussion, namely, section 18031(d)(1) of title 42:
(1) In general
An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
There cannot be any ambiguity about that whatsoever. The term "shall" is, generally speaking, a mandatory term; that is, it must be followed under all circumstances. The definition of the term "State" for this purpos is also very clear: it means only "each of the several States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands." Section 18111 (enacted as part of Obamacare) provides:
Unless specifically provided for otherwise, the definitions contained in section 300gg–91 of this title shall apply with respect to this title.
Here, "title" means Title 42 of the US Code.
Section 300gg-91 of Title 42 of the US Code, in subsection (d)(14) provides:
The term “State” means each of the several States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.
That is about as unambiguous as it gets. (I'll put aside for now the apparently circular definition there; i.e., that the term "State" means "each of the several States"). There cannot be any mistake about what Congress meant when it defined the term "State" and that meaning does not include the federal government. Buttressing this argument is the fact that Congress expressly included within that term several entities that are not actually states in common parlance; e.g., Puerto Rico, which is a federal territory; this matters because it clearly demonstrates that only the enumerated non-state entities are to be included within the definition of "State" for the purposes of sec. 18031(d)(1); the inference being that because Congress expressly included certain non-state entities, it necessarily intended to exclude all other non-state entities, which includes the federal government as such. (the relevant canon of construction is, in its latin form, "expressio unius est exclusio alterius").
So, it necessarily follows that as a matter of statutory construction, the term "State" does not include the federal government.
However, a wit might reply, the phrase "established by a State" should be read to include entities that are established for, or on behalf of, a State; i.e., the word "by" should be read to include the meanings "for" and "on behalf of". Under that premise, the phrase can then be read to mean "established by, for, or on behalf of, a State."
However, that premise falls when the plain English meaning of the word is examined and, in particular, when the use of the terms "by", "for" and "on behalf of" are examined in the ACA itself.
First, the dictionary meaning of "by" in this context is that of a preposition identifying the agent performing an action (Oxford Dictionaries definition
). However, the online Merriam-Webster definition
also includes "on behalf of."
That might mean we've got an ambiguity here, but before we can have recourse to a chain of inferences drawn from someone's characterization of Congress' intent in enacting the ACA, we have to see if the usage of these terms in the statute elucidates the matter; after all, if Congress uses the same term in a consistent manner, then it must have intended to use that same term in the same way.
A quick search through the text of the ACA itself demonstrates that Congress used the terms "for", "by" and "on behalf of" separately and not interchangeably; the terms appear both on their own and in the following compound forms: "for or on behalf of" and "by or on behalf of". That is almost damning evidence that when Congress intends to use both the meaning of "by" - identification of the agent - and the meaning of "on behalf of" it does so using the compound form; if it didn't, if "by" always included the meanings "for" and "on behalf of" then those two latter terms would be what courts call "mere surplusage" - words that don't add anything to the meaning of the text in which they're used.
Again, there cannot be any ambiguity in the meaning of the word "by" - its sole meaning in this context is as a preposition identifying the agent performing an action.
So, in the phrase "established by a State", the action is establishing, the plain meaning of which is "creating or making or bringing into existence" and the agent doing the creating, making, or bringing into existence is "a State" as identified by the word "by", and "State" means a constituent state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.
Therefore, the language of section 18031(d)(1) can only
be read as the exclusive definition of the term "Exchange" as meaning only a governmental agency or nonprofit entity created through the actions of one of the 50 states, D.C., P.R., USVI, Guam, American Samoa, or the Northern Mariana Islands.
It cannot mean anything else because the clear, unambiguous language of the statute itself provides that and only that.