Linda Greenhouse, writing in her regular column for the New York Times about the U.S. Supreme Court, suggests that the latest challenge to Obamacare may also fail before the justices because they would have to upend traditional ways of interpreting federal statutes in order to find for the challengers. At issue is "the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to 'an exchange established by a state,' seemingly to the exclusion of the federally established exchanges." A coalition of Democratic and Republican attorneys general argued in a brief that, finding that tax subsidies are only available on state-run exchanges, would surprise states with "'a dramatic hidden consequence of their exchange election.”' There is much Supreme Court precedent that Congress must give "'clear notice'" to states of the consequences of their choices in federal law, Greenhouse said, and a narrow reading of the exchange language in Obamacare would undermine that.
Lawyer and Legal Journalist
