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Obamacare May be Squashed by a Strict Reading of the Law
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Summary: The legal theory called textualism offers some surprising obstacles for Obamacare that could balk its progress if not squashing it.


Will the Affordable Care Act be finally squashed by a textually literalistic reading of the law? Certainly epic efforts have gone towards killing the Affordable Health Care act, with the Supreme Court weighing in. The law is of course ambitious, aiming to change not only healthcare for U.S. citizens, but also how all businesses handle health care. Yet despite these efforts, President Barack Obama’s vision for the plan has been steadily realized. It now faces a legal theory known as textualism, promoted by U.S. Supreme Court Justice Antonin Scalia, who has long stressed the necessity of interpreting the law by the exact text, and not by context — and this to avoid bias.

The text in question, the Affordable Care Act, states that healthcare subsidies are to be made available through exchanges “established by the State.” Many states didn’t create such online healthcare exchanges, leading Obama to set up a federal exchange at However, the law didn’t say this could be handled at the federal level.

This leads to the U.S. Court of Appeals for the D.C. Circuit to rule in a 2-1 decision last July that the Affordable Care Act subsidies are now invalid in the 36 states that relied on the federal government’s exchange.

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“As a textualist, Justice Scalia totally rejects reliance on legislative history or legislative intent,” wrote Claremont McKenna College Professor Ralph A. Rossum in his The Textualist Jurisprudents of Justice Scalia essay, as reported by Reuters. “He invariably criticizes his colleagues for turning to committee reports, or even floor debates, to ascertain what a law means…[and instead] interprets the text alone and nothing else. The law should be understood to mean what it says, and say what it means.”

Does this mean that Obamacare is being balked by a technicality, or that textualism represents justice? Why would we disavow the palpable intent of lawmakers by narrowly focusing only on the exact words by which the law was framed? Scalia once explained that by going outside the exact text of the law, “judges will mistake their own predilections for the law.”

Though many people claim that as Obamacare, so called, was voted for when Obama was elected into office, and that his ambitious vision should have a chance on its own merits, others would put obstacles at every step of the law’s enactment. Whether this counts as balking the project over technicalities, or by executing justice in the best possible manner, may depend on one’s philosophy about law, if not his own “predilections for the law.”



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