Just because American influence has vanished abroad and American sovereignty has been surrendered at the southern border doesn't mean that back in Washington all the old Obama scandals aren't still rumbling on, delightfully unspoilt by progress.
For example, the latest Obamacare exemption has just been proclaimed by King Barack's Lord Privy Seal of Approval: Residents of American territories (Guam, the US Virgin Islands, etc) have been graciously released by His Majesty from compliance with the law. That's another four-and-a-half million or so people in the express lane to Exemptistan. I was just getting up to speed on this when the latest court decision on Obamacare came down. And I was just getting up to speed on that when another Obamacare decision came down.
Earlier today the District of Columbia Circuit Court announced that the federal health-care "exchange" was illegal on the grounds that Congress had only legislated for state health-care "exchanges". For non-American readers, I suppose I should make an effort at explaining what an "exchange" is, but Lord Almighty, it's a pain. A year ago, "exchange" was something to do with stocks or taking that purple sweater back to the store after Christmas. But by the fall it was the latest exciting jargon-barnacle to encrust to the hulk of American health care: "co-pay", "HSA", "Cobra", "donut hole", etc, etc - and now "exchange". Here's how the District of Columbia Circuit Court explains it:
Section 36B of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act (ACA or the Act), makes tax credits available as a form of subsidy to individuals who purchase health insurance through marketplaces—known as "American Health Benefit Exchanges," or "Exchanges" for short—that are "established by the State under section 1311" of the Act. 26 U.S.C. § 36B(c)(2)(A)(i). On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d).
The idea was that you'd go to your state "exchange", sign up for Obamacare, and avail yourself of the generously subsidized health insurance. Unfortunately, most states declined to create exchanges, so the federal government set up one of its own, which, in Obamacare terms, is where the main action is.
That's the first problem. The law makes no provision for the federal government to do any such thing. So the DC Circuit Court, taking the language "established by the State" to mean what it says, struck down the federal exchange. Which means that Americans in 36 states will be losing their subsidies.
Or not. The White House immediately announced that, while it's always fascinating to hear what these fellows in black robes have to say, they're going to carry on full steam doing what they want. King Barack's press secretary Josh Earnest:
You don't need a fancy legal degree to understand that Congress intended for every eligible American to have access to health care credits.
No, sir. And you don't need no fancy judgin' diploma to decide what laws mean and which ones you're gonna follow. "How many divisions has the Pope?" sneered Stalin. "How many divisions has the DC Circuit Court?" sneers Obama.
Be that as it may, a couple of hours later Mr Earnest got a bit of jurisprudential support for his position. The Fourth Circuit also ruled on the question of the federal exchange subsidies, and reached the opposite conclusion of the DC Circuit. It decided that the phrase "established by the State" was "ambiguous". The word "State" might mean "state" in the sense of New Hampshire or Idaho, or it might mean "state of mind", as in whatever King Barack happens to be in favor of on a Tuesday morning. Whatever.
Under the two-step "Chevron" formula, if you find the language "ambiguous", you then move to the second stage and defer to the administrative agency unless its interpretation is totally loony. In this case, the agency the Fourth Circuit is deferring to is the IRS, which is currently explaining with a straight face that not only was Lois Lerner's hard drive destroyed but all her friends she's been emailing with also had their hard drives crash and then recycled. Including her tech guy. What are the odds? At any rate, the Fourth Circuit decided to stand on the principle of general deference to an administrative agency of impeccable integrity and unimpeachable ethics.
How to explain these two different Circuit Court decisions? Are they from different ends of the country and thus perhaps different legal cultures? Why, yes. The DC Circuit is in the District of Columbia, and the Fourth Circuit is way over the fruited plain in Virginia and Maryland.
So now the question may go to the full panel of the DC Circuit, which Harry Reid's post-nuclear Senate has stacked with favorably disposed Democrats. Or it may go to the Supreme Court, and we'll all get to watch John Roberts twist himself into a pretzel all over again. One thing's clear: without the federal exchange, Obamacare as we know it is dead. On the other hand, it's entirely unclear whether whatever replaces it will be better or worse or just more complicated and expensive and tortured, which is generally the way to bet with 21st century American government.
As to Mr Earnest's point on "what Congress intended", who can say? No Congressman who voted for the bill read it. Presumably, some legislator's staffer wrote that actual line about "established by the State". If we could locate him among the vast entourages of the Emirs of Incumbistan, we could ask him what his "intention" was. Until then, calibrating the competing degrees of deference to a corrupt bureaucracy, a contemptuous executive, a politicized judiciary and a feckless hack legislature brings to mind Samuel Johnson's line about arguing the precedence of a louse and a flea, with a tick and a cockroach thrown in.
I have a slender connection to these Circuit cases in that the plaintiffs were represented by Michael Carvin, counsel for National Review, my co-defendants in the Mann vs Steyn et al upcoming trial of the century, and amicus briefs were filed by Andrew Grossman, counsel for my other co-defendants Rand Simberg and Competitive Enterprise Institute. Small world, eh? And I confess a sneaking admiration for the strategy here. Obama is re-legislating his monstrous affront to "law" on a piecemeal basis, so, if you're an Obamacare opponent, why not adopt the same technique and pick away at it piecemeal? If he stays Paragraph 873(b), you sue over 928(f). If he exempts small businesses in Guam from 1,349(h), you go to court over faith-based non-profit spousal coverage in 2,651(l). On the eve of the centenary of the Great War, we're re-enacting it in the hellish trenches of Obama's Great Law.
In March 2010, almost four-and-a-half years ago, when the Democrats were attempting to pass Obamacare by the parliamentary legerdemain of "deeming" an unpassed bill to have passed, I wrote:
Whatever is "deemed" to have passed in the next few days doesn't end the debate but begins it. If you're sick of talking about health care, move to Tahiti, because in the U.S. we're going to be talking about it until the end of time, or at least until the Iranians nuke Cleveland.
And so it has proved - in part because in a post-constitutional, post-legal America the law of the land is whatever King Barack "deems" it to be. Welcome to the American Deem. "Health care reform" reform, now and forever.