Obamacare Round 2 vs USSC... Hey lawyers
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I think it presents a good opportunity.
I've long been skeptical that the SCOTUS would gut Obamacare over carelessly drafted language. But the fact that they took up the case without even awaiting the DC Circuit has raised a lot of eyebrows.
Maybe Roberts sees this as a shot at a mulligan. Or maybe not.
I'm still skeptical, personally. But perhaps Republicans, with their new majorities in both houses, might seize this as an opportunity: they can offer to fix the "glitch" at issue before the courts, thus rendering the lawsuit moot, in exchange for major changes to the law.
It might be worth a shot. In fact, with as big a political millstone as Obamacare has been to Democrats, I'm sure they could find plenty of bipartisan support. Of course, the White House might be confident enough that the court wouldn't gut the federal subsidies to just roll the dice on this.
But, if it is an adverse ruling, it'll probably be handled in a way that impresses upon Congress and the Administration to fix this problem in a given period of time -- rather than just violently pulling the plug on the subsidies as the law's supporters fear (or, are at least, trying to get others to fear). If that were to happen, it would strongly strengthen the Republicans' hands to win even bigger concessions than they might get in an effort to short-circuit the matter.
I've long been skeptical that the SCOTUS would gut Obamacare over carelessly drafted language. But the fact that they took up the case without even awaiting the DC Circuit has raised a lot of eyebrows.
Maybe Roberts sees this as a shot at a mulligan. Or maybe not.
I'm still skeptical, personally. But perhaps Republicans, with their new majorities in both houses, might seize this as an opportunity: they can offer to fix the "glitch" at issue before the courts, thus rendering the lawsuit moot, in exchange for major changes to the law.
It might be worth a shot. In fact, with as big a political millstone as Obamacare has been to Democrats, I'm sure they could find plenty of bipartisan support. Of course, the White House might be confident enough that the court wouldn't gut the federal subsidies to just roll the dice on this.
But, if it is an adverse ruling, it'll probably be handled in a way that impresses upon Congress and the Administration to fix this problem in a given period of time -- rather than just violently pulling the plug on the subsidies as the law's supporters fear (or, are at least, trying to get others to fear). If that were to happen, it would strongly strengthen the Republicans' hands to win even bigger concessions than they might get in an effort to short-circuit the matter.
There are three cases
which have been decided on the points in this decision. Two of them have found for the plaintiffs that the statute means what it clearly says i.e. that no subsidies can be based up the exchanges "created" by the federal government in states that opted not to create their own exchanges.
The effect of that is to remove tax liability, employer insurance requirements and subsidies for would be policy owners/purchasers in those 26 states.
The basis for the holding is the language repeatedly used in the act that says ONLY states with their own exchanges can receive subsidies.
If that ruling stands, it damages the entire scheme and invites major rewrite/repeal and rewrite.. There is also diversity of opinion among 3 appellate circuits.
which have been decided on the points in this decision. Two of them have found for the plaintiffs that the statute means what it clearly says i.e. that no subsidies can be based up the exchanges "created" by the federal government in states that opted not to create their own exchanges.
The effect of that is to remove tax liability, employer insurance requirements and subsidies for would be policy owners/purchasers in those 26 states.
The basis for the holding is the language repeatedly used in the act that says ONLY states with their own exchanges can receive subsidies.
If that ruling stands, it damages the entire scheme and invites major rewrite/repeal and rewrite.. There is also diversity of opinion among 3 appellate circuits.
I have a hard time seeing...
...the Supreme Court just violently pulling the plug on an insurance infrastructure that millions of Americans are now relying on for their healthcare -- especially over something that really does appear to just be poor legislative drafting.
I could see them doing one of two things:
1) Finding that it's nothing more than a meaningless glitch that it is not supported by language found elsewhere throughout the law.
or 2) Issuing a ruling which compels Congress and the President to get back together in a certain timeframe and fix the problem.
I'll refrain from making any predictions about which of these will happen. But, being that #2 is one distinct possibility and would strengthen the Republicans' hands to overhaul the law, they might want to seize on it as an opportunity to do a less major overhaul to the law, with the administration's blessing, prior to June. Of course, the Administration might be hesitant to do that, what with #1 also being a distinct possibility.
But, as I said, the court's granting cert in advance of the DC Circuit's en banc review (where they were widely expected to side with the administration) has raised some eyebrows among court watchers.
...the Supreme Court just violently pulling the plug on an insurance infrastructure that millions of Americans are now relying on for their healthcare -- especially over something that really does appear to just be poor legislative drafting.
I could see them doing one of two things:
1) Finding that it's nothing more than a meaningless glitch that it is not supported by language found elsewhere throughout the law.
or 2) Issuing a ruling which compels Congress and the President to get back together in a certain timeframe and fix the problem.
I'll refrain from making any predictions about which of these will happen. But, being that #2 is one distinct possibility and would strengthen the Republicans' hands to overhaul the law, they might want to seize on it as an opportunity to do a less major overhaul to the law, with the administration's blessing, prior to June. Of course, the Administration might be hesitant to do that, what with #1 also being a distinct possibility.
But, as I said, the court's granting cert in advance of the DC Circuit's en banc review (where they were widely expected to side with the administration) has raised some eyebrows among court watchers.
I'd rule for the administration on this one
The distinction between a state exchange and a federal exchange is not nearly so neat and tidy as you'd expect. There are other examples where the law conflates the two. (Don't ask me about this now but I did look into this point months ago when the various circuit courts of appeal were looking at it.) That distinction seems only important for the front end of the law and how the exchanges are set up. The back end and how the exchanges operate doesn't seem to have any mustard behind the distinction. It is terrible drafting in any event.
The distinction between a state exchange and a federal exchange is not nearly so neat and tidy as you'd expect. There are other examples where the law conflates the two. (Don't ask me about this now but I did look into this point months ago when the various circuit courts of appeal were looking at it.) That distinction seems only important for the front end of the law and how the exchanges are set up. The back end and how the exchanges operate doesn't seem to have any mustard behind the distinction. It is terrible drafting in any event.
This law keeps getting worse by the day...
we found out yesterday that DHS finally got the website up for self insured groups to go to to pay their "fee" (tax) for the ACA. The fee is $65 per belly button and it must be paid by Monday (gave them a lot of time get it paid a whole week) or they will have more "fee" (fines/taxes) to pay. It is a complete mess. Oh what makes it even more fun is that they have to pay a general fund tax to the US Treasury but they never told anyone how to pay the treasury tax yet. Good news for them that isn't due until Jan 15th lucky them. I am sure they will release that info on Jan 8th giving them a week to pay it.
This whole thing is a mess and leaves the employers asking WHATS NEXT. It leaves our agency wondering will we have a job in a few years with all this crap they keep throwing at us.
we found out yesterday that DHS finally got the website up for self insured groups to go to to pay their "fee" (tax) for the ACA. The fee is $65 per belly button and it must be paid by Monday (gave them a lot of time get it paid a whole week) or they will have more "fee" (fines/taxes) to pay. It is a complete mess. Oh what makes it even more fun is that they have to pay a general fund tax to the US Treasury but they never told anyone how to pay the treasury tax yet. Good news for them that isn't due until Jan 15th lucky them. I am sure they will release that info on Jan 8th giving them a week to pay it.
This whole thing is a mess and leaves the employers asking WHATS NEXT. It leaves our agency wondering will we have a job in a few years with all this crap they keep throwing at us.
ITs going to be... Edit to add link to SCOTUS Blog
a case decided on the language of the statute. The statute provides for subsidies only through "exchanges established by the state". That of course does not mean exchanges established within the state by the federal government. The quoted term is repeated 9 times in the statute. How can language be tortured to allow subsidies through exchanges established by the federal government with that language in the law? The most recent appellate case - the one on its way up - almost laughs at the feds arguments.
ON EDIT - Here's a link to an article from SCOTUS Blog on 7 myths of the case.
This post was edited on 11/12 9:58 AM by Ladoga
This post was edited on 11/12 9:59 AM by Ladoga
Myths
a case decided on the language of the statute. The statute provides for subsidies only through "exchanges established by the state". That of course does not mean exchanges established within the state by the federal government. The quoted term is repeated 9 times in the statute. How can language be tortured to allow subsidies through exchanges established by the federal government with that language in the law? The most recent appellate case - the one on its way up - almost laughs at the feds arguments.
ON EDIT - Here's a link to an article from SCOTUS Blog on 7 myths of the case.
This post was edited on 11/12 9:58 AM by Ladoga
This post was edited on 11/12 9:59 AM by Ladoga
Myths
Profoundly silly; deeply dishonest
As is often the case, it's necessary to get down in the weeds a bit to understand what's actually going on here. The place to start is Chevron v. NRDC (1984) ("probably the most frequently cited case in American administrative law"), where the Supreme Court articulated the standard for judicial review of administrative regulations. The Court held that if a statute can be read in more than one way, then the regulation will be upheld if the agency's interpretation is among the plausible alternatives. It doesn't have to be the "right" interpretation, or even the best interpretation, it just has to be a reasonable interpretation. A regulation will be denied such "administrative deference" only if the agency has failed to interpret the statute in the one and only one way in which it can reasonably be interpreted.
So, to prevail the challengers must establish that no reasonable person could read the ACA in any way other than the way they read it. If there's any ambiguity about it, the courts must accept any reasonable interpretation by the agency. Needless to say, this is a very deferential standard.
The challengers' argument turns on a provision of the ACA directing subsidies should be based on the price of insurance on an "Exchange established by the State". Since exchanges established by the federal government aren't "established by the State," they argue, there can't be any subsidies on the federally-established exchanges. This seems plausible, if you don't think about it very much, but the challengers are engaged in bad textualism. They base their argument on just four words from a complex statute that (we were frequently reminded) arose from a 2,000-page bill. This runs squarely into Justice Scalia's admonition that "no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts."
If you really want to get into the weeds of statutory interpretation, go here, but here's an executive summary:
There's only one kind of "exchange" in the ACA. It's a defined term -- "Exchange" with a capital "E". If a state fails to set up an "Exchange", then the federal government must set up "such Exchange" on behalf of that state. No matter whether the state sets up the "Exchange" or the federal government sets up "such Exchange" for the state, there's only one kind of "Exchange" in the ACA. If you read the ACA to establish two kinds of exchanges -- contrary to the capital "E" statutory definition -- then various other provisions of the ACA become meaningless, incoherent, or impossible to implement, as described in the pieces I linked above. This isn't a case posing sincere textualists against those asking the Court to rewrite the law. It's a case in which phony textualists are ignoring what the law plainly says.
Opponents of the ACA have had great fun with some ill-considered comments by John Gruber, who was a leading proponent of the ACA. But at the time nobody thought the law meant what the challengers now claims it can only mean:
This post was edited on 11/12 11:45 AM by Rockfish1
As is often the case, it's necessary to get down in the weeds a bit to understand what's actually going on here. The place to start is Chevron v. NRDC (1984) ("probably the most frequently cited case in American administrative law"), where the Supreme Court articulated the standard for judicial review of administrative regulations. The Court held that if a statute can be read in more than one way, then the regulation will be upheld if the agency's interpretation is among the plausible alternatives. It doesn't have to be the "right" interpretation, or even the best interpretation, it just has to be a reasonable interpretation. A regulation will be denied such "administrative deference" only if the agency has failed to interpret the statute in the one and only one way in which it can reasonably be interpreted.
So, to prevail the challengers must establish that no reasonable person could read the ACA in any way other than the way they read it. If there's any ambiguity about it, the courts must accept any reasonable interpretation by the agency. Needless to say, this is a very deferential standard.
The challengers' argument turns on a provision of the ACA directing subsidies should be based on the price of insurance on an "Exchange established by the State". Since exchanges established by the federal government aren't "established by the State," they argue, there can't be any subsidies on the federally-established exchanges. This seems plausible, if you don't think about it very much, but the challengers are engaged in bad textualism. They base their argument on just four words from a complex statute that (we were frequently reminded) arose from a 2,000-page bill. This runs squarely into Justice Scalia's admonition that "no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts."
If you really want to get into the weeds of statutory interpretation, go here, but here's an executive summary:
There's only one kind of "exchange" in the ACA. It's a defined term -- "Exchange" with a capital "E". If a state fails to set up an "Exchange", then the federal government must set up "such Exchange" on behalf of that state. No matter whether the state sets up the "Exchange" or the federal government sets up "such Exchange" for the state, there's only one kind of "Exchange" in the ACA. If you read the ACA to establish two kinds of exchanges -- contrary to the capital "E" statutory definition -- then various other provisions of the ACA become meaningless, incoherent, or impossible to implement, as described in the pieces I linked above. This isn't a case posing sincere textualists against those asking the Court to rewrite the law. It's a case in which phony textualists are ignoring what the law plainly says.
Opponents of the ACA have had great fun with some ill-considered comments by John Gruber, who was a leading proponent of the ACA. But at the time nobody thought the law meant what the challengers now claims it can only mean:
And when I say "nobody", I specifically include the very lawyers who are bringing this new challenge and the four dissenters in the 2012 case:
Jon Chait has appropriately ridiculed the challengers' disingenuous arguments by reference to an episode of "Seinfeld" in which George Costanza plays Trivial Pursuit with "the bubble boy". The bubble boy gets a history question that would decide the game: Who invaded Spain in the 8th century? "The Moors," responds the bubble boy. "The Moors invaded Spain." But the card has a typo. "Nope," says Costanza. "The card says 'Moops'." This was a laugh line on Seinfeld, but Costanza's absurd insistence the "the Moops" invaded Spain is more defensible than the challengers' claim that there can't be any subsidies on the "Exchanges" that the feds set up on behalf of the states. Costanza had just one word one a card, while they must pretend that the ACA consists of only four words.
This post was edited on 11/12 11:45 AM by Rockfish1
Gruber: The King of all Kinsleyan Gaffers
Not only has he been caught making comments lending credence to the plaintiffs' case in this matter, he's now been caught twice calling American voters stupid.....and championing opacity in policymaking so as to pass laws that wouldn't pass if people actually understood them.
Natch, he's saying now that he misspoke in off-the-cuff remarks, yada, yada. But I don't buy that for a second. These were pretty well fleshed out thoughts -- particularly the comments he made about transparency, CBO scoring, his exchange with Kerry, etc.
We should at least give the guy points for being honest -- if even only after-the-fact.
Not only has he been caught making comments lending credence to the plaintiffs' case in this matter, he's now been caught twice calling American voters stupid.....and championing opacity in policymaking so as to pass laws that wouldn't pass if people actually understood them.
Natch, he's saying now that he misspoke in off-the-cuff remarks, yada, yada. But I don't buy that for a second. These were pretty well fleshed out thoughts -- particularly the comments he made about transparency, CBO scoring, his exchange with Kerry, etc.
We should at least give the guy points for being honest -- if even only after-the-fact.
I've made my thoughts known elsewhere.
Maybe you missed the couple comments I've already made on this matter. But they aren't terribly hard to find.
I've been meaning to make a comment on Gruber today. And your post seemed like as good a springboard to that as any.
I saw where somebody -- I forget who, but they were supportive of Obamacare -- has taken to calling Gruber "The ACA's Digital Menace." I can only imagine the facepalms in the West Wing as these videos are aired.
Maybe you missed the couple comments I've already made on this matter. But they aren't terribly hard to find.
I've been meaning to make a comment on Gruber today. And your post seemed like as good a springboard to that as any.
I saw where somebody -- I forget who, but they were supportive of Obamacare -- has taken to calling Gruber "The ACA's Digital Menace." I can only imagine the facepalms in the West Wing as these videos are aired.
Swell
If you have anything useful to say in response to the specific points I've raised I'd be interested in hearing about them, but the lame response you actually posted, supplemented by hand waving about unspecified other things you've posted elsewhere, isn't a serious response to anything I posted.
If you have anything useful to say in response to the specific points I've raised I'd be interested in hearing about them, but the lame response you actually posted, supplemented by hand waving about unspecified other things you've posted elsewhere, isn't a serious response to anything I posted.
you left out a number of key facts
The most important is the fact that 26 USC 36B states:
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of-
[1] of the Patient Protection and Affordable Care Act
Section 1311 deals solely with Exchanges set up by States. Federal Exchanges are set up under an entirely difference section of the ACA.
This case is hardly one that is "profoundly silly" or "dishonest." Even the 4th Circuit said it was a very close case. In fact, I dare say your characterization of the case is approaching the very thing you decry.
For anyone looking for an alternative view: http://www.scotusblog.com/2014/11/symposium-seven-myths-about-king-v-burwell/
The most important is the fact that 26 USC 36B states:
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of-
[1] of the Patient Protection and Affordable Care Act
Section 1311 deals solely with Exchanges set up by States. Federal Exchanges are set up under an entirely difference section of the ACA.
This case is hardly one that is "profoundly silly" or "dishonest." Even the 4th Circuit said it was a very close case. In fact, I dare say your characterization of the case is approaching the very thing you decry.
For anyone looking for an alternative view: http://www.scotusblog.com/2014/11/symposium-seven-myths-about-king-v-burwell/
Sounds familiar.
Maybe I'll just respond to everything you write by saying "It sounds to me like you've got nothing beyond 'government=good'" and let it go at that. Plus, I have to admit that it's kind of fun to mess with you when you breathlessly flip out about something like this.
No, as I said, I've already made my thoughts on the lawsuit itself known in this thread. If you'd prefer I keep my posts mocking Jonathan "Voters are Stupid" Gruber somewhere other than responses to your posts (even if it's a post where you bring the guy up -- as you did here), I'll gladly comply.
Maybe I'll just respond to everything you write by saying "It sounds to me like you've got nothing beyond 'government=good'" and let it go at that. Plus, I have to admit that it's kind of fun to mess with you when you breathlessly flip out about something like this.
No, as I said, I've already made my thoughts on the lawsuit itself known in this thread. If you'd prefer I keep my posts mocking Jonathan "Voters are Stupid" Gruber somewhere other than responses to your posts (even if it's a post where you bring the guy up -- as you did here), I'll gladly comply.
I agree that the statute is sloppy
But there is only one kind of "Exchange" in the ACA, regardless of where that "Exchange" is addressed in the Act. It's a defined term, and it means the same thing everywhere in the Act. And once again, I have only to establish that it's plausible to read the law this way -- in the way that everyone contemporaneously understood it. The challengers must establish that both they and the four dissenters in 2012 unreasonably read the law in precisely the same way that everyone else must have unreasonably read it. They must establish that the Moops invaded Spain.
But there is only one kind of "Exchange" in the ACA, regardless of where that "Exchange" is addressed in the Act. It's a defined term, and it means the same thing everywhere in the Act. And once again, I have only to establish that it's plausible to read the law this way -- in the way that everyone contemporaneously understood it. The challengers must establish that both they and the four dissenters in 2012 unreasonably read the law in precisely the same way that everyone else must have unreasonably read it. They must establish that the Moops invaded Spain.
Re: I agree that the statute is sloppy
But the dissenters in 2012 were never addressing the issue at hand, only that the statute relied on the subsidies for those purchasing on exchanges. That doesn't mean they admitted that the subsidies could be given for any kind of exchange--state or federal.
Also Chevron deference only goes so far. A reasonable interpretation of a statute does not mean an agency can completely ignore literal language based on a conclusion that Congress screwed up the text and we know what they really meant to say. You only get to deference if the statute is silent or ambiguous on the issue in question. Clearly, the statute is no silent on the question. So in the end the case boils down to whether or not there is any ambiguity in what the statute says.
But the dissenters in 2012 were never addressing the issue at hand, only that the statute relied on the subsidies for those purchasing on exchanges. That doesn't mean they admitted that the subsidies could be given for any kind of exchange--state or federal.
Also Chevron deference only goes so far. A reasonable interpretation of a statute does not mean an agency can completely ignore literal language based on a conclusion that Congress screwed up the text and we know what they really meant to say. You only get to deference if the statute is silent or ambiguous on the issue in question. Clearly, the statute is no silent on the question. So in the end the case boils down to whether or not there is any ambiguity in what the statute says.
Let me emphasize this
There's a reason I started with Chevron. I'm assessing the merits of the challengers' arguments not in the abstract, but in light of the extremely deferential legal standard. Unless the Supremes overrule Chevron, this ought to be an easy case.
I don't need to establish that the way everyone contemporaneously understood the law is the only way it could reasonably be understood. I just have to establish that it was reasonable to read the law this way. The challengers must establish that it can only be read in a way that no one contemporaneously read it.
There's a reason I started with Chevron. I'm assessing the merits of the challengers' arguments not in the abstract, but in light of the extremely deferential legal standard. Unless the Supremes overrule Chevron, this ought to be an easy case.
I don't need to establish that the way everyone contemporaneously understood the law is the only way it could reasonably be understood. I just have to establish that it was reasonable to read the law this way. The challengers must establish that it can only be read in a way that no one contemporaneously read it.
This isn't a case of textualism versus intent
I argue that the agency's interpretation can easily be derived from the text itself, so long as the textual analysis isn't improperly confined to just four words. I agree that the 2012 case didn't turn on this issue, but the language from that case shows that both the challengers and the dissenters in fact read the law just like everyone else did. The challengers have belatedly fastened upon an argument that it ought to be read differently, but how can they argue that their new reading is the only possible reading when they undeniably read it the same way everyone else did two years ago?
I argue that the agency's interpretation can easily be derived from the text itself, so long as the textual analysis isn't improperly confined to just four words. I agree that the 2012 case didn't turn on this issue, but the language from that case shows that both the challengers and the dissenters in fact read the law just like everyone else did. The challengers have belatedly fastened upon an argument that it ought to be read differently, but how can they argue that their new reading is the only possible reading when they undeniably read it the same way everyone else did two years ago?
I think you're kind of putting the cart before the horse
Congress spoke on the issue, and all the challengers need to show is that there is nothing ambiguous in the section in question. If the Court decides that it's not ambiguous, then it never gets to whether or not the IRS's interpretation was reasonable.
I think it's a very close call as to whether or not the section in question is ambiguous on its face. And remember, Chevron deference is not supposed to fix a statute that people now think is screwed up. That's up to Congress to do that.
Congress spoke on the issue, and all the challengers need to show is that there is nothing ambiguous in the section in question. If the Court decides that it's not ambiguous, then it never gets to whether or not the IRS's interpretation was reasonable.
I think it's a very close call as to whether or not the section in question is ambiguous on its face. And remember, Chevron deference is not supposed to fix a statute that people now think is screwed up. That's up to Congress to do that.
Which is why...
...I think it might be shrewd of Boehner and McConnell to use this as an opportunity to win some changes to the ACA (I know the medical device tax is a top priority -- but surely they can come up with plenty of others).
If it happens preemptively, the Republicans have a weaker hand and the administration may gamble that SCOTUS isn't going to rule adversely. But, if SCOTUS does rule adversely and implores Congress to fix the language, it strengthens the Republicans' hand immensely. They'd be able to name their price in that scenario.
Of course, the biggest obstacle to them seizing this opportunity probably won't be the president or Congressional Democrats -- but the TP contingent for whom the only acceptable change to Obamacare would be wholesale repeal.
...I think it might be shrewd of Boehner and McConnell to use this as an opportunity to win some changes to the ACA (I know the medical device tax is a top priority -- but surely they can come up with plenty of others).
If it happens preemptively, the Republicans have a weaker hand and the administration may gamble that SCOTUS isn't going to rule adversely. But, if SCOTUS does rule adversely and implores Congress to fix the language, it strengthens the Republicans' hand immensely. They'd be able to name their price in that scenario.
Of course, the biggest obstacle to them seizing this opportunity probably won't be the president or Congressional Democrats -- but the TP contingent for whom the only acceptable change to Obamacare would be wholesale repeal.
I don't agree that it's a close case
I've expressly made the textual argument: (1) "Exchange" is a defined term that means the same thing everywhere it's used; and (2) the challengers' claim that "Exchange" doesn't include all "Exchanges" does violence to other provisions of the Act. I'd add that it makes no logical sense to infer from mere sloppy drafting that Congress in intended to produce potentially catastrophic consequences at odds with the Act's expressed purposes.
As you undoubtedly understand, sloppy drafting is commonplace. This is no basis for a reviewing court to mulishly insist on an absurd outcome. And for emphasis: a decision that subsidies are unavailable on federally-created exchanges would be an absurd outcome. That's not what anyone expected, and both states and individuals have acted in reliance on the contrary understanding that everyone shared. It would be reckless, irresponsible, and bizarre for the Court now to conclude that the law can only be understood in a way that no one understood it.
I've expressly made the textual argument: (1) "Exchange" is a defined term that means the same thing everywhere it's used; and (2) the challengers' claim that "Exchange" doesn't include all "Exchanges" does violence to other provisions of the Act. I'd add that it makes no logical sense to infer from mere sloppy drafting that Congress in intended to produce potentially catastrophic consequences at odds with the Act's expressed purposes.
As you undoubtedly understand, sloppy drafting is commonplace. This is no basis for a reviewing court to mulishly insist on an absurd outcome. And for emphasis: a decision that subsidies are unavailable on federally-created exchanges would be an absurd outcome. That's not what anyone expected, and both states and individuals have acted in reliance on the contrary understanding that everyone shared. It would be reckless, irresponsible, and bizarre for the Court now to conclude that the law can only be understood in a way that no one understood it.
Yeah. But...
...that's not really the kind of thing one "scrambles" to do. And, besides, the outcome of the 2014 elections probably makes this even less likely -- particularly if the ACA has just been thrown to the ropes in the courts.
I really don't think the court will side with the plaintiffs here. But, if it does, I have to imagine they'd do it in a way that gave Congress and the Administration time to work out a fix. And, if that happens, Republicans are going to be in an extraordinarily strong position to overhaul the law.
If they choose to use the court's consideration as an opportunity to bargain between January and June, they'd have a weaker hand. But with the uncertainty of the outcome of the suit, both sides might be willing to deal beforehand to avoid having to wait and find out.
...that's not really the kind of thing one "scrambles" to do. And, besides, the outcome of the 2014 elections probably makes this even less likely -- particularly if the ACA has just been thrown to the ropes in the courts.
I really don't think the court will side with the plaintiffs here. But, if it does, I have to imagine they'd do it in a way that gave Congress and the Administration time to work out a fix. And, if that happens, Republicans are going to be in an extraordinarily strong position to overhaul the law.
If they choose to use the court's consideration as an opportunity to bargain between January and June, they'd have a weaker hand. But with the uncertainty of the outcome of the suit, both sides might be willing to deal beforehand to avoid having to wait and find out.
Ha! apparently someone else already thought of my idea
From linked article:
A state could establish an exchange and appoint a state-incorporated entity to oversee and manage it. That state-incorporated entity could then contract with Healthcare.gov to operate the exchange. On the ground, nothing would change. But tax credits would be available where they weren't before.
http://www.motherjones.com/politics/2014/11/supreme-court-just-took-case-could-gut-obamacare-heres-how-states-can-save-it
From linked article:
A state could establish an exchange and appoint a state-incorporated entity to oversee and manage it. That state-incorporated entity could then contract with Healthcare.gov to operate the exchange. On the ground, nothing would change. But tax credits would be available where they weren't before.
http://www.motherjones.com/politics/2014/11/supreme-court-just-took-case-could-gut-obamacare-heres-how-states-can-save-it
The odd thing about that
Is that there's only a split based on the now-vacated decision by the DC Circuit's three-judge panel. Everyone expects en banc review to produce a result harmonious with the 4th Circuit's decision upholding the subsidies, which would eliminate any split. It's very unusual for the Supremes to grant cert. while a case is awaiting en banc review.
Is that there's only a split based on the now-vacated decision by the DC Circuit's three-judge panel. Everyone expects en banc review to produce a result harmonious with the 4th Circuit's decision upholding the subsidies, which would eliminate any split. It's very unusual for the Supremes to grant cert. while a case is awaiting en banc review.
Do you know of any other
cases pending before another circuit court? Aren't there 10 or 11 circuit courts? Maybe the USSC just thought it would save some time if they ruled on it in case someone brought a case to another circuit court and they ruled against the subsidies. Thanks for the other long response....interesting even if I didn't understand all of it.
cases pending before another circuit court? Aren't there 10 or 11 circuit courts? Maybe the USSC just thought it would save some time if they ruled on it in case someone brought a case to another circuit court and they ruled against the subsidies. Thanks for the other long response....interesting even if I didn't understand all of it.
This is an area of jurisprudence that is still open, isn't it?
As far as I am aware, the Court has spent far less time exploring the intricacies of Chevron Step One than they have with Step Two. This could be a good case for further illumination on how to judge when something is "clear."
goat
As far as I am aware, the Court has spent far less time exploring the intricacies of Chevron Step One than they have with Step Two. This could be a good case for further illumination on how to judge when something is "clear."
goat
Having said so . . .
While it's very unusual for the Court to accept a case in these circumstances, it's certainly within its power to do so.
As you know, while it takes five justices to decide a case, it takes only four votes to grant cert. While we don't know who cast the four votes here, people like me are concerned that this is the four dissenters from 2012 taking another shot at the hated Obamacare. If so, they presumably wouldn't have reached out to take the case unless they thought they had a fifth vote to strike down the subsidies. This is all speculative, of course, but it's notable that the Court has leapt into the fray without awaiting the DC Circuit's en banc decision, just as the challengers had asked it to do.
While it's very unusual for the Court to accept a case in these circumstances, it's certainly within its power to do so.
As you know, while it takes five justices to decide a case, it takes only four votes to grant cert. While we don't know who cast the four votes here, people like me are concerned that this is the four dissenters from 2012 taking another shot at the hated Obamacare. If so, they presumably wouldn't have reached out to take the case unless they thought they had a fifth vote to strike down the subsidies. This is all speculative, of course, but it's notable that the Court has leapt into the fray without awaiting the DC Circuit's en banc decision, just as the challengers had asked it to do.
I know
I probably ask some dumb questions about stuff like this but it's always been interesting to me how it all works so please forgive me when I ask the dumb questions. I know that I've read several places that when the USSC decided to hear the case it raised some eye brows in lots of places.
I probably ask some dumb questions about stuff like this but it's always been interesting to me how it all works so please forgive me when I ask the dumb questions. I know that I've read several places that when the USSC decided to hear the case it raised some eye brows in lots of places.
Not that they decided to hear it.
But that they did so before the DC Circuit's en banc review of its 3-judge panel. Apparently, that's very unusual and court-watchers are trying to ascribe meaning to it.
But that they did so before the DC Circuit's en banc review of its 3-judge panel. Apparently, that's very unusual and court-watchers are trying to ascribe meaning to it.
The dog that didn't bark
The challengers argue that the unavailability of subsidies on federal exchanges isn't a bug but a feature. The intention, they argue, was to give the states stronger encouragement to set up their own exchanges: If they didn't their citizens could still purchase on the federal website, but they wouldn't be eligible for subsidies. This is nonsense at the most basic level, because the exchanges would pointlessly devolve into death spirals without subsidies, as pretty much everyone understands.
But if this was the intention, it entirely escaped everyone's notice when the states debated whether to set up their own exchanges. Like the dog that didn't bark, no one in these debates expressed any concern that people would lose out on federal subsidies if their states refused to play along with exchanges. That's because everyone understood that the subsidies would be available on all exchanges, whether they were created by the states or by the federal government in a state's behalf.
The debate over Medicaid expansion stands in sharp contrast. In that debate everybody talked about the consequences of lost federal funds if their states didn't play along with Medicaid expansion, because that trigger was explicit in the statute. Unlike the subsidies, there is no fallback federal Medicaid expansion in a state that refuses to take the federal money. If the state says no, its citizens explicitly get screwed.
Toward the end of "Dr. Strangelove", the Russian ambassador informed all those in the war room that the Soviet Union had a secret doomsday machine that would automatically annihilate all life on earth if the US B-52s reached their targets. This was intended as the ultimate deterrent. Unfortunately, since the Soviets had kept the device a secret, they had defeated its entire purpose. The challengers' theory of Congress's unknown intention to deny subsidies on the federal exchanges reminds me of this secret doomsday machine.
This post was edited on 11/12 4:30 PM by Rockfish1
The challengers argue that the unavailability of subsidies on federal exchanges isn't a bug but a feature. The intention, they argue, was to give the states stronger encouragement to set up their own exchanges: If they didn't their citizens could still purchase on the federal website, but they wouldn't be eligible for subsidies. This is nonsense at the most basic level, because the exchanges would pointlessly devolve into death spirals without subsidies, as pretty much everyone understands.
But if this was the intention, it entirely escaped everyone's notice when the states debated whether to set up their own exchanges. Like the dog that didn't bark, no one in these debates expressed any concern that people would lose out on federal subsidies if their states refused to play along with exchanges. That's because everyone understood that the subsidies would be available on all exchanges, whether they were created by the states or by the federal government in a state's behalf.
The debate over Medicaid expansion stands in sharp contrast. In that debate everybody talked about the consequences of lost federal funds if their states didn't play along with Medicaid expansion, because that trigger was explicit in the statute. Unlike the subsidies, there is no fallback federal Medicaid expansion in a state that refuses to take the federal money. If the state says no, its citizens explicitly get screwed.
Toward the end of "Dr. Strangelove", the Russian ambassador informed all those in the war room that the Soviet Union had a secret doomsday machine that would automatically annihilate all life on earth if the US B-52s reached their targets. This was intended as the ultimate deterrent. Unfortunately, since the Soviets had kept the device a secret, they had defeated its entire purpose. The challengers' theory of Congress's unknown intention to deny subsidies on the federal exchanges reminds me of this secret doomsday machine.
This post was edited on 11/12 4:30 PM by Rockfish1
I don't see the mystery here
SCOTUS will uphold the subsidy and there are good reasons to clear the air about that sooner rather than later.
BTW, good post above but I don't think the administrative deference doctrine is all that critical. The issue is whether the law is ambiguous and I think SCOTUS will hold that it isn't notwithstanding horrible drafting.
Obamacare has much larger policy problems that require legislation (not executive orders) and the sooner we take care of that also the better.
SCOTUS will uphold the subsidy and there are good reasons to clear the air about that sooner rather than later.
BTW, good post above but I don't think the administrative deference doctrine is all that critical. The issue is whether the law is ambiguous and I think SCOTUS will hold that it isn't notwithstanding horrible drafting.
Obamacare has much larger policy problems that require legislation (not executive orders) and the sooner we take care of that also the better.
Then how do you explain Gruber, one of the apparent "architects" of
the ACA, stating at least twice now that it was indeed an embedded hammer in the ACA to force states to set up their own exchanges?
From January of 2012: "That is really the ultimate threat - will people understand that gee, if your governor doesn't set up an exchange, you're losing hundreds of millions of dollars in tax credits to be delivered to your citizens."
Also, do you know if there are any places in the ACA which distinguish explicitly refer to state exchanges (like the clause being argued about now)?
http://dailycaller.com/2014/07/25/obamacare-architect-says-again-that-subsidies-were-only-supposed-to-go-to-state-exchanges/
the ACA, stating at least twice now that it was indeed an embedded hammer in the ACA to force states to set up their own exchanges?
From January of 2012: "That is really the ultimate threat - will people understand that gee, if your governor doesn't set up an exchange, you're losing hundreds of millions of dollars in tax credits to be delivered to your citizens."
Also, do you know if there are any places in the ACA which distinguish explicitly refer to state exchanges (like the clause being argued about now)?
http://dailycaller.com/2014/07/25/obamacare-architect-says-again-that-subsidies-were-only-supposed-to-go-to-state-exchanges/
I've already explained that
At some great length, I've explained in this thread why I think the current challenge is farcical. In particular, I've explained why "Exchanges established by a State" can't be construed, in isolation, as though Congress was speaking colloquially. If you're going to be serious, as a lawyer, about statutory interpretation, then you can't pretend that textualism is limited to a dictionary analysis of the four words that are all you guys care about. And you must explain, as a human being, why your perverse understanding of the law requires us to believe that Congress meant to do something stupid instead of what everyone understood that it had actually done.
At some point we have the problem that only smart people could hold a view this stupid. You're almost never stupid here. To the contrary, you're routinely the antidote to stupidity. If you spoke for all conservatism, I'd quit worrying about conservatism. (By the way, sorry about this. I understand that my endorsement could undermine you, but that's just the kind of asshole I am.) But the fact remains that this is a silly and dishonest challenge, even if it attracts honest and non-silly persons such as yourself. If you're like me about the Iraq War, at some point your therapist will be helping you come to terms with how you got it so wrong.
At some great length, I've explained in this thread why I think the current challenge is farcical. In particular, I've explained why "Exchanges established by a State" can't be construed, in isolation, as though Congress was speaking colloquially. If you're going to be serious, as a lawyer, about statutory interpretation, then you can't pretend that textualism is limited to a dictionary analysis of the four words that are all you guys care about. And you must explain, as a human being, why your perverse understanding of the law requires us to believe that Congress meant to do something stupid instead of what everyone understood that it had actually done.
At some point we have the problem that only smart people could hold a view this stupid. You're almost never stupid here. To the contrary, you're routinely the antidote to stupidity. If you spoke for all conservatism, I'd quit worrying about conservatism. (By the way, sorry about this. I understand that my endorsement could undermine you, but that's just the kind of asshole I am.) But the fact remains that this is a silly and dishonest challenge, even if it attracts honest and non-silly persons such as yourself. If you're like me about the Iraq War, at some point your therapist will be helping you come to terms with how you got it so wrong.
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Although you've always been a critic of Obamacare, I saw in your initial post (I think) that you weren't buying the challengers' revisionist history. I'd like to share your confidence that the Court will make the right call, but I've lost confidence that the Court's conservative majority is capable of anything like disinterested analysis. The same could have been said of William O. Douglas back in the day, but Antonin Scalia long ago quit caring that he acts like a cartoon character.
Although you've always been a critic of Obamacare, I saw in your initial post (I think) that you weren't buying the challengers' revisionist history. I'd like to share your confidence that the Court will make the right call, but I've lost confidence that the Court's conservative majority is capable of anything like disinterested analysis. The same could have been said of William O. Douglas back in the day, but Antonin Scalia long ago quit caring that he acts like a cartoon character.
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