Imagine you’re the administrator of a computer network and you just received a message from the “powers that be” that you must install an “update” to the operating system software on your network. Without it, you are told that the operating system will no longer run properly. Installing updates is part of the cooperative, system software agreement that you swore to uphold. Your organization’s founders signed this agreement, many moons ago, when they decided to become a member of the network.You download the software, called “Exchange,” and you open it. Immediately, you are presented with a choice. You can “customize” the Exchange software settings, making the Exchange “your own.” Or, you can decide to wait or “refuse” to do anything. But if you do, you are warned that a default Exchange will automatically install on your network after a certain date, if you haven’t installed it yourself by that date.
So, you have a choice to make. You know that you can prevent the default Exchange from being installed in your system if you choose to customize the Exchange software, making the Exchange “your own.” If you fail to do this you know that you are choosing to install the Exchange pursuant a default process coded into the tacitly agreed-upon update procedure.
So what do you do? It is your choice to make, and only your choice. The creators of the program cannot make this choice for you. They lack the authority. But you have that authority. After all, you are the network administrator.
This is precisely the dilemma our States faced under the Affordable Care Act.
The “update” was the institution of healthcare Exchanges. Its creators, i.e., the “powers that be,” the federal government. The “network” and the “cooperative agreement,” the federal-state relationship under the Constitution of the United States. The network administrators, the States and their governors. The choice, state-created or default, federal healthcare Exchanges.
It was up to the States to decide how healthcare Exchanges would be established in their states. In making their choice, the States knowingly brought healthcare Exchanges into existence within their states, by initiation or default. The federal government not only lacked the authority to override their choice, the Secretary of HHS was required to abide by it and to ensure that it materialized into the required Exchange authorized by the Act. The Secretary merely facilitated, i.e., made possible, each State's choice.
This is why all healthcare Exchanges are arguably “established by the State[s]” and why, therefore, tax credits should be available to all eligible individuals in all States, regardless of whether the States chose to take the initiative and “make” the Exchanges themselves or chose the default settings and let the federal government set up the Exchanges for them.
This is the essence of the argument I made in my amicus brief.
Maurice F. Baggiano, Esq., amicus in support of the government. President, lawOnTapp, LLC.