March 12, 2015

DAVID RIVKIN & ELIZABETH PRICE FOLEY: The Federalism Fallacy in King v. Burwell: A new interpretation claims to protect the states, but would actually hurt them. “Particularly notable is this: In every single instance where the Supreme Court has invoked the clear statement rule, it has been to prevent Congress from using its enumerated powers in a manner that harms the states as states. The clear statement rule is utterly inapplicable, however, when Congress uses its power directly on citizens. And in the Affordable Care Act, when Congress exercises its taxing power to grant (or revoke) tax subsidies to individuals, that power operates directly on individuals, not on states. This is an extremely important distinction.”

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