http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/sotomayor_saved_obamacare_she_may_have_convinced_kennedy_and_roberts_in.html
In a dispatch on King v. Burwell, the closely watched Obamacare challenge, NPR’s Nina Totenberg observed that the plaintiffs’ attorney, Michael Carvin, argued before the Supreme Court with “red-faced passion.” Indeed, Justice Sonia Sotomayor hadn’t even finished the preamble to her first question when Carvin interrupted her to finish an earlier thought. He then caught himself and apologized, at which point Sotomayor tempered him: “Take a breath.”
Carvin needed that moment, because Sotomayor was about to ask a bombshell question about federalism, a subject that later dominated a key portion of the hearing. In setting it up, she said she was “concerned” by Carvin’s reading of the Affordable Care Act—in essence, that Congress wrote it so that only states with their own insurance exchanges receive federal subsidies. The problem with that reading, Sotomayor noted, is that lawmakers gave states a “choice”: set up exchanges of your own, or let the federal government do it for you via healthcare.gov.
That choice is not at issue in King. The dual system of federal and state exchanges is a feature of the law. And to Sotomayor, this choice cannot be squared with Carvin’s interpretation that tax subsidies are available only to people participating in state-run exchanges. That’s a constitutional problem. “If we read it the way you’re saying,” she said, “then we’re going to read the statute as intruding on the federal-state relationship, because then the states are going to be coerced into establishing their own exchanges.”
That’s the bombshell. Because if Carvin is correct and a state chooses not to set up its own exchange—and thus loses federal subsidies—Sotomayor said, “we’re going to have the death spiral that this system was created to avoid.” And she went on to list the parade of horribles that would follow from this so-called choice, including destabilized insurance markets and skyrocketing premiums. “Tell me how that is not coercive in an unconstitutional way?” Sotomayor asked.
take a moment........."BOOYAH", i am lovin' this lady, from the first time i heard congress had written the law i knew there was some sort of hidden loophole that would allow them to dismantle the lifesaver of millions of Americans. what puzzled me was the 56 attempts to do through congress were they not sure they could pull that loophole out of a hat or were they justengaging in their usual overreaching?
Seizing on that principle, Sotomayor continued, “We said [in Bond] that it is a primary statutory command that we read a statute in a way where we don’t impinge on the basic federal-state relationship.”
Those words must have been music to Kennedy’s ears because he later ran with them and pressed Carvin in his pensive, considered style: “It seems to me that under your argument, perhaps you will prevail in the plain words of the statute; there's a Seizing on that principle, Sotomayor continued, “We said [in Bond] that it is a primary statutory command that we read a statute in a way where we don’t impinge on the basic federal-state relationship.”
i see her being Chief Justice one day soon God Bless her and her wisdom.
