From several states' attorneys-general, including those of red states, an amicus brief (p. 28):
Quote:
Under Petitioners’ interpretation, the provision barring federal subsidies in FFE States is buried in two sub-subsections of 26 U.S.C. § 36B. The phrase “an Exchange established by the State under [§] 1311” appears in the provision describing part of the calculation of an individual tax credit (§ 36B(b)(2)(A)), and again in the definition of “coverage month” (§ 36B(c)(2)(A)). Petitioners infer from that usage that Congress intended to deny tax credits to citizens in FFE States in order to pressure States to build their own Exchanges.
But those isolated phrases fail Pennhurst’s clear-notice test. For starters, Congress does not “hide elephants in mouseholes.”91 It is unreasonable to expect State officials to have found clear notice of Congress’s supposed threat in obscure subsubsections of the tax code pertaining to the calculation of an individual’s tax credit.
http://www.americanbar.org/content/dam/ ... eckdam.pdfBasically, they argue that under the
Pennhurst precedent, if Congress intends to require the states to do something or face consequences, it must state so in the law clearly and unambiguously. It basically needs to put a big fat warning in the law saying, "If a state does not do x, then the state (or citizens of the state) will NOT receive y." The warning needs to be completely explicit and prominently stated.
The "exchange established by a state" does not meet the
Pennhurst requirement of setting up a carrot and a stick for the states, because it's buried in a couple subsections; in fact, there is evidence from many legislators and even Republican Congressmen that they did not think that Congress was making such a warning to the state, showing that the warning wasn't
big and
fat enough to count under
Pennhurst.
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"You have a responsibility to consider all sides of a problem and a responsibility to make a judgment and a responsibility to care for all involved." --Ian Danskin
18 Feb 2015, 10:42 pm
