Avoiding constitutional avoidance – The Washington Post

Thus, if any justice thinks the coercion of states is a serious constitutional problem, the best way to “avoid” it is to limit subsidies to exchanges “established by the state,” and then invite states who feel coerced to choose to bring a coercion challenge in the future. Should such a challenge be brought, the Court could at that time find the community-rating and guaranteed-issue regulations (which are not now before the Court) to be unconstitutionally coercive in states that decide not to establish exchanges (and assess the severability consequences of that invalidation).

What the Court should not do  is decide the case on an issue without the benefit of full briefing and argument.

What the Court should not do is rewrite one part of a statute to avoid the “coercion” that is allegedly cause by unambiguous parts of the law that are not presently before the Court.

What the Court should not do is refuse to enforce the ACA as written to uphold an IRS regulation that is contrary to the meaning of the ACA in context to redress the onerous consequences of other clear and unambiguous provisions of the ACA.

via Avoiding constitutional avoidance – The Washington Post.

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