...other parts of the Act sharply distinguish between the establishment of an Exchange by a State and the establishment of an Exchange by the Federal Government. The States' authority to set up Exchanges comes from one provision...the [HHS] Secretary's authority comes from an entirely different provision.... Funding for States to establish Exchanges comes from one part of the law...funding for the Secretary to establish Exchanges comes from an entirely different part of the law.... Provisions such as these destroy any pretense that a federal Exchange is in some sense also established by a State.So Scalia describes the Court's majority decision as, beyond giving words bizarre meanings, it leaves the limiting phrase "by the State" with no operative effect at all. Which is a problem, because the lawmakers used the phrase more than once in the PPACA.
Making matters worse, the reader of the whole Act will come across a number of provisions beyond 36B that refer to the establishment of Exchanges by States. Adopting the Court's interpretation means nullifying the term"by the State" not just once, but again and again throughout the act.
....It is bad enough for a court to cross out "by the State" once. But seven times?Then he points out that congress did not merely repeat Exchange established by the State by rote throughout the Act. Au contraire, clause after clause finds two different phrases;
It is common sense that any speaker who says "Exchange" some of the time, but "Exchange established by the State" the rest of time, probably means something by the contrast.All the majority managed to do to overcome common sense, writes Scalia, is to come up with feeble argument after feeble argument to deny the plain English meaning of the words. Describing such as jiggery-pokery.