"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Tuesday, June 02, 2015

Does Upholding Dewsnup in Caulkett Mean Obamacare Will Be Saved by the U.S. Supreme Court?

In the just issued bankruptcy case of Caulkett v. Bank of America, the U.S. Supreme Court has decided not to carve an otherwise possible exception to the "Dewsnup rule".

Stephen J. Lubben at the New York Times "DealBook" in his article about the Caulkett case summarizes the 1992 Supreme Court decision in Dewsnup v. Timm as follows:

"The court said it was “not convinced that Congress intended to depart from the pre-code rule that liens pass through bankruptcy unaffected.” That is, the court decided to follow the rule under the old 1898 Bankruptcy Act despite seemingly different language in the revised 1978 bankruptcy code."

The entire similar issue in the Obamacare case soon to be decided by SCOTUS turns on disputed language in the health law where the legislative record is such that the Supreme Court could hardly be convinced that Congress intended the IRS result that Obamacare opponents advance in their statutory interpretation, even if the language of Congress were badly drafted and might suggest that adverse result if one took the language simply on its face without looking at Congressional intention.

If the intent of Congress is found to be determinative, then Obamacare should find itself upheld, though the Supremes may send some critical comments in the direction of Capitol Hill regarding better legislative drafting.