What happens when the phrase in Obamacare “enrolled in through an Exchange established by the State under 1311” is interpreted to not mean ‘the state’, as in you know, the states? but rather, by ‘the state’: as in, the state created under the United States of America?
We can throw out the entire guarantee of the Republican form of government under section 4 of the Constitution. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
The ‘union’ is NOT ‘the state. It is what a union is (as in Federal Union), not what ‘a state’ is (in the Republican form of government). But to define ‘the state’ as being anything other than a sovereign political entity, of which we have some 50 of them ( unless you ask the President who thinks territories are states too ) is to ignore what a union is: “the state of being united.”
With ‘state’ as a noun; “a politically unified people occupying a definite territory”; [often a nation, BUT NOT under our Constitution] little minded Progressives become very confused. As an adjective; “made, maintained, or chartered by or under the authority of one of the commonwealths that make up a federal union” even Progressives can understand the political subdivision known as ‘a state’.
Shall ‘the State’ refer to the various states making up the guaranteed Union; or shall ‘the state’ refer to the entity otherwise known as ‘the Union’ but henceforth to be known as ‘the State’?
Progressives have wanted that change since the beginning of their switch of title from Communist to Progressive. They want the country to be the state, eliminating each individual state and making one nation made up of insignificant parts. The 10th Amendment dies in that process. Even though, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” should solve the entire question of what ‘the State’ means. It clearly defines the United States is NOT one of ‘the States, therefore a ‘state’ cannot be the United States. Some would argue that the 10th Amendment has been so ignored it might as well be considered repealed. But it is still there and cannot be ignored for its separation of definitions.
But what if Kennedy or for that matter the ever unpredictable Roberts lose their minds for a brief period and somehow decide the country is ‘the State’?
In Texas v. White, 74 U.S. 700 (1869) the United States Supreme Court simply made up law out of thin air. (It isn’t a new trend!) But the reasoning of it prohibits Kennedy or Roberts or any other Justice from having a momentary insanity moment and allowing Obamacare’s subsidies to remain for non-state exchanges. That case decided a bond sale issue but most importantly it decided that no state could ever leave the Union.
Chief Justice Salmon Chase wrote for the majority in reasoning that the Articles of Confederation formed a perpetual Union. Since the Union was perpetual, an indissoluble political body as he saw it, then “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.” Never mind he said this after a revolution was fought to separate the states and at the time there were 33 states in ‘the Union’ of which 11 split away. No one asked any other states of those eleven could split away. Had someone asked, could the north have given permission to the south to take a hike? According to Chase, yes they could have. Consent of the States would only have taken a majority. 17. If 6 states had agreed Chase would have split his indissoluble union apart.
Nowhere in the Constitution is the question of leaving the union addressed. So Chase and his court made it up. It can be therefore unmade. But NOT if the ‘state’ is the Union. That act alone renders the various ‘states’ merely subjects of ‘the State’.
From the Syllabus of Texas v. White; read #5 and # 7 very carefully:
1. The word “State” describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country, or territorial region, inhabited by such a community; not unfrequently, it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government.
2. In the Constitution, the term “State” most frequently expresses the combined idea, just noticed, of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries and organised under a government sanctioned and limited by a written constitution, and established by the consent of the governed.
3. But the term is also used to express the idea of a people or political community, as distinguished from the government. In this sense, it is used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.
4. The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.”
5. But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. On the contrary, it may be not unreasonably said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.
6. When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
7. Considered as transactions under the Constitution, the ordinance of secession, adopted by the convention, and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give [p701] effect to that ordinance, were absolutely null. They were utterly without operation in law. The State did not cease to be a State, nor her citizens to be citizens of the Union.
Where the Civil War was a battle for and against the right of ‘a state’ to leave the Union (notwithstanding the causes that created that condition); King v. Burwell is a battle for whether the Union is ‘the State’.
King v. Burwell is already decided: “The State did not cease to be a State, nor her citizens to be citizens of the Union.” “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. ‘The State’ is NOT ‘The Union’.
If the Supreme Court rules otherwise: Texas should have the right to leave the Union with the agreement of a majority of the other states, or at least bring the issue back before the Supreme Court (directly filed) citing King v. Burwell as proof that since the most important ruling in Texas v. White has been overturned, then so is the notion of an indissoluble Union.