# Halbig v. Burwell ruling against Obamacare subsides **URL:** \ **Category:** Great Debates\ **Created:** [July 22, 2014, 2:42pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740 "2014-07-22T14:42:40Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [July 27, 2014, 9:16pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/181 "2014-07-27T21:16:54Z")
> [@Bricker](#): > > Indeed. > > But how do you explain my reaction here when the Sixth Circuit upheld the individual mandate? I’m not saying you’re invariably partisan. I’m saying you’re partisan. You eventually were convinced to be for gay marriage, so you’re clearly not a blind ideologue. > [@](#): > > In other words, I argue from principle, rather than from partisan position. You’re correct to say that I have always had a dislike of the law, as that post shows. But I also immediately agreed (even before the court challenges) that the individual mandate was Constitutional, even though I could have easily claimed “rock solid certitude” for the opposite position. Indeed, the SCOTUS decision was 5-4. In this case, you are certain, even though there is significant wiggle room. I’d say that’s a sign that ideology may be coloring your perceptions a bit. > [@](#): > > So there’s a time-stamped, dated proof of me taking a constitutional interpretation position than ran counter to my ideological position. > > Something you never do, by the way. Never. All your positions just happen to run with your political goals. That’s a bold statement. My positions are based on my reasoned perception of the issue. For instance, I’m pro nuclear energy. I’m reasonably pro NSA metadata collection. I’m fairly against drone strikes. > [@](#): > > That’s not how I roll. Except when you do. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [July 27, 2014, 9:20pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/182 "2014-07-27T21:20:46Z")
> [@jtgain](#): > > And just to nitpick, **Bricker** , you were technically wrong on that point. You argued that Wickard v. Filburn allowed the commerce clause to validate the ACA, but the Court ruled 5-4 against that interpretation. > > The individual mandate was upheld on the tax argument (that frankly nobody saw coming). Your larger point still stands. It is unfair to say that you only take positions that support your partisan views. This is a perfect example. Your view in this case was to the left of Thomas, Scalia, Roberts, Kennedy, and Alito. I didn’t say he only takes positions that support his partisan views. I said his partisan dislike of the ACA was coloring his views. I try not to make absolute statements. I don’t always succeed, but in this case I didn’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2014, 10:01pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/183 "2014-07-27T22:01:05Z")
> [@jtgain](#): > > It is unfair to say that you only take positions that support your partisan views. This is a perfect example. Your view in this case was to the left of Thomas, Scalia, Roberts, Kennedy, and Alito. I feel so dirty now. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2014, 10:04pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/184 "2014-07-27T22:04:23Z")
> [@Lobohan](#): > > That’s a bold statement. My positions are based on my reasoned perception of the issue. I think that everyone would claim the same of their own views. > [@](#): > > For instance, I’m pro nuclear energy. It’s true that most anti-nuclear energy types are far left, but so far as I know, the mainstream left is generally in favor. In other words, this is a position most lefties would not disparage. > [@](#): > > I’m reasonably pro NSA metadata collection. But this is not. Fair point for you. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 28, 2014, 3:37pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/185 "2014-07-28T15:37:38Z")
> [@ElvisL1ves](#): > > Alas, the evidence for that assertion is nonexistent, and falsified by the evidence that does exist. Too bad, huh? [More evidence for **ElvisL1ves** ’ interpretation.](http://www.vox.com/2014/7/28/5942933/Obamacare-Halbig-Gruber?utm_medium=social&utm_source=facebook&utm_campaign=ezraklein&utm_content=monday) [Letter from the CBO to Congress:](http://www.cbo.gov/publication/43752) > [@](#): > > To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered. Nor was the issue raised during consideration of earlier versions of the legislation in 2009 and 2010, when CBO had anticipated, in its analyses, that the credits would be available in every state. [Reporter Sarah Kliff, whose work was cited in the _Halbig_ ruling](http://www.vox.com/2014/7/26/5937593/obamacare-halbig-gruber-tax-credits?utm_medium=social&utm_source=facebook&utm_campaign=ezraklein&utm_content=sunday): > [@](#): > > Congress battled over how generous the tax credits ought to be. There was a vicious argument over whether they would cover abortions. But Congress never debated whether they would limit the subsidies to states that built their own exchanges. The subsidies were seen as so fundamental to making the Affordable Care Act work, that, as former Republican staffer Chris Condeluci put it to me, “we never argued over this particular provision.” ---
**Author:** ![Donald\_Rump](https://avatars.discourse-cdn.com/v4/letter/d/9fc29f/32.png) [@Donald\_Rump](https://boards.straightdope.com/u/Donald_Rump)\ **Post date:** [July 28, 2014, 9:10pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/186 "2014-07-28T21:10:22Z")
If the passage at issue in Halbig case was meant to create an incentive to states to set up their own exchanges, why slip it in as if clandestinely, buried deep within a 2,000-page law that conservatives love to insist that no one actually read? Doesn’t that kind of, you know, reduce the chance of the incentive being very effective as an incentive? What’s the point of an incentive that not only isn’t advertised, but is actively concealed? Sssshhhhhh. I will pay the first person to respond to my post $100. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [July 28, 2014, 9:27pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/187 "2014-07-28T21:27:59Z")
> [@Donald\_Rump](#): > > If the passage at issue in Halbig case was meant to create an incentive to states to set up their own exchanges, why slip it in as if clandestinely, buried deep within a 2,000-page law that conservatives love to insist that no one actually read? Doesn’t that kind of, you know, reduce the chance of the incentive being very effective as an incentive? What’s the point of an incentive that not only isn’t advertised, but is actively concealed? > > Sssshhhhhh. I will pay the first person to respond to my post $100. How are you? I am fine. Pay up. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 28, 2014, 9:53pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/188 "2014-07-28T21:53:12Z")
> [@Donald\_Rump](#): > > If the passage at issue in Halbig case was meant to create an incentive to states to set up their own exchanges, why slip it in as if clandestinely, buried deep within a 2,000-page law that conservatives love to insist that no one actually read? Doesn’t that kind of, you know, reduce the chance of the incentive being very effective as an incentive? What’s the point of an incentive that not only isn’t advertised, but is actively concealed? If the passage was meant to allow subsidies to federal exchanges, why does every mention say, “an Exchange established by a State?” Why doesn’t it just say, “An Exchange,” period? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 28, 2014, 10:13pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/189 "2014-07-28T22:13:49Z")
A good argument I heard is that states could opt out of Medicaid, makes sense that they could opt out of the subsidies too. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 28, 2014, 10:23pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/190 "2014-07-28T22:23:26Z")
> [@adaher](#): > > A good argument I heard is that states could opt out of Medicaid, makes sense that they could opt out of the subsidies too. Cite that states can opt out of Medicaid, please. I’ve never heard of this. If you’re talking about the ACA Medicaid expansion, this is exactly backward: the law made the Medicaid expansion mandatory, and it only became optional after the Supreme Court ruling in 2012. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 28, 2014, 10:45pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/191 "2014-07-28T22:45:02Z")
It was not actually mandatory, because such a thing would be illegal in the extreme. What they actually did was try to create an incentive that would make it crazy to turn it down. It makes perfect sense that they would try to get states to set up exchanges using similar incentives. Of course, we don’t know what Congress was thinking because almost none of them were. It said, “Affordable Care Act” and the leadership said it had to pass, so they voted for it. But we do know what one of the architects thought. It is perfectly plausible that the law was in fact written to attempt to force states to establish exchanges. By 2012, the administration thought, “oh crap, the incentives didn’t work”, and reinterpreted the law. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 29, 2014, 1:19am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/192 "2014-07-29T01:19:25Z")
> [@Bricker](#): > > If the passage was meant to allow subsidies to federal exchanges, why does every mention say, “an Exchange established by a State?” Why doesn’t it just say, “An Exchange,” period? That’s been discussed and explained pretty thoroughly already. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [July 29, 2014, 2:55am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/193 "2014-07-29T02:55:02Z")
> [@ElvisL1ves](#): > > That’s been discussed and explained pretty thoroughly already. And yet the confusion continues on many levels. It has been discussed. That doesn’t mean the issue is settled. It has also been explained. That doesn’t mean the issue is settled. As **Bricker** previously mentioned, _"If the passage was meant to allow subsidies to federal exchanges, why does every mention say, “an Exchange established by a State?” Why doesn’t it just say, “An Exchange,” period?_ What do you think the term, “an Exchange established by a State” means to the courts (ie. not the average layperson) who may have to hear these cases in the future? ACA/Obamacare was a poorly written, poorly legislated, and still is a poorly understood bill. The rules are still being written/expanded plus the courts are finally being asked to rule on the many of the disagreed upon points. The term, “an Exchange established by a State” is not, legally-speaking, the same as the term “an Exchange”. It’s not what “they” meant to write but what “they” actually wrote. If anyone wants a “do-over”, they need to bring the matter to attention of their elected representatives. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 29, 2014, 2:55am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/194 "2014-07-29T02:55:06Z")
Also, such a “subsidy for one thing, but not another nearly identical thing” is not unheard of in this law. I just found out this week that when I contributed to my employees’ health care plans, I can take up to a 50 percent tax credit for these premiums but only so long as I buy them through what’s called the SHOP plan (some ACA acronym). However, if I go to [ehealhinsurance.com](http://ehealhinsurance.com) or to my local agent and buy an identical plan, I get no such credit. That seems to me to be an absurdity like I originally thought this construction was. Why would the government care as far as a tax incentive where I get health coverage? So what if there was some potential ambiguity in that section? Would we say that surely to God Congress didn’t intend for where I bought health insurance to matter, right? Then again, if one gets health insurance through an employer, it is a tax free benefit, but if an employer offers no health insurance and the employee buys a private policy, the employee gets no such tax break. The whole health care system is so filled with absurdities that it is hard to say that such and such provision makes no sense and Congress couldn’t have thought that. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [July 29, 2014, 5:21am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/195 "2014-07-29T05:21:15Z")
A fun tidbit: > **[Congressional Investigation: Treasury, IRS, HHS Conspired To Create An...](https://www.forbes.com/sites/michaelcannon/2014/02/10/congressional-report-treasury-irs-hhs-conspired-to-create-an-unauthorized-half-trillion-dollar-entitlement/)** > > In early 2011, Treasury and IRS officials realized they had a problem. They unanimously believed Congress intended to authorize certain taxes and subsidies in states that opt not to establish an ObamaCare "exchange." At the same time, they recognized... Here is what seven key Treasury and IRS officials told investigators. In early 2011, Treasury and IRS officials realized they had a problem. They unanimously believed Congress had intended to authorize certain taxes and subsidies in all states, whether or not a state opted to establish a health insurance “exchange” under the Patient Protection and Affordable Care Act. At the same time, agency officials recognized: (1) the PPACA plainly does not allow those taxes and subsidies in non-establishing states; (2) the law’s legislative history offers no support for their theory that Congress intended to allow them in non-establishing states; and (3) Congress had not given the agencies authority to treat non-establishing states the same as establishing states. Nevertheless, agency officials agreed, again with apparent unanimity, to impose those taxes and dispense those subsidies in states with federal Exchanges, the undisputed plain meaning of the PPACA notwithstanding. Treasury, IRS, and HHS officials simply rewrote the law to create a new, unauthorized entitlement program whose cost “may exceed $500 billion dollars over 10 years.” (My own estimate puts the 10-year cost closer to $700 billion.) … Congressional investigators found that from the moment this issue came to the attention of Treasury and IRS officials, everyone involved agreed not to follow the statute — even though the statutory language was (as Treasury officials would later describe it) “apparently plain,” and they recognized that Congress had given the IRS no authority to designate an Exchange established by the federal government under Section 1321 to be “an Exchange established by the State under section 1311.” To get around that problem, Treasury and IRS officials asked HHS to issue a rule declaring that federally established Exchanges are in fact “established by the State.” HHS had no authority to make such a paradoxical designation either, yet the agency obliged. When the IRS published its proposed tax-credit rule on August 17, 2011, it adopted HHS’s counter-textual designation. That had the effect of proposing to offer tax credits in federal Exchanges; or more precisely, of proposing a massive new entitlement program that is in fact specifically precluded by federal law. The proposed rule met instant condemnation in the media, from members of Congress, and from individual citizens during the rule’s public-comment period. Critics noted the IRS was planning to do the exact opposite of what the statute permits the agency to do. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 29, 2014, 1:17pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/196 "2014-07-29T13:17:25Z")
> [@doorhinge](#): > > And yet the confusion continues on many levels. Not the fault of the explainers, dude. > [@](#): > > What do you think the term, “an Exchange established by a State” means to the courts (ie. not the average layperson) who may have to hear these cases in the future? To courts who follow traditional, settled methods of interpretation, there is no issue. To courts following an activist partisan agenda of finding some way to screw Obama somehow, hoorah, there’s an opening! > [@](#): > > The term, “an Exchange established by a State” is not, legally-speaking, the same as the term “an Exchange”. All rulings except one by a couple of the aforesaid partisan activist judges say the opposite, and that one too will be overturned when adult supervision takes over. > [@](#): > > It’s not what “they” meant to write but what “they” actually wrote. Wrong. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [July 29, 2014, 2:22pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/197 "2014-07-29T14:22:23Z")
> [@Donald\_Rump](#): > > If the passage at issue in Halbig case was meant to create an incentive to states to set up their own exchanges, why slip it in as if clandestinely, buried deep within a 2,000-page law that conservatives love to insist that no one actually read? Doesn’t that kind of, you know, reduce the chance of the incentive being very effective as an incentive? What’s the point of an incentive that not only isn’t advertised, but is actively concealed? > > Sssshhhhhh. I will pay the first person to respond to my post $100. I would like to note that no one has responded to this yet. That seems telling to me. There’s a hundred bucks on the line, but nothing but crickets so far. Sure there were two replies to this post, but neither was the slightest bit responsive to these questions. Could one of the people arguing against the federal exchange subsidies please try to answer this? I’m not sure about the point of this discussion continuing with this hanging out there unanswered. What is the point of a secret incentive that no one knows about? How is that supposed to work? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 29, 2014, 2:47pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/198 "2014-07-29T14:47:00Z")
What is your evidence that it was slipped in “clandestinely”? What constitutes “buried deep”? ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [July 29, 2014, 2:51pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/199 "2014-07-29T14:51:22Z")
> [@John\_Mace](#): > > What is your evidence that it was slipped in “clandestinely”? What constitutes “buried deep”? Was the incentive concept made clear to the states? If not, what is the point of the incentive structure, if none of the states knew about it? What good does a secret incentive do? Also, the CBO estimates always included subsidies for all 50 states in the calculations. As much carrying on as the Republicans did about the Administration’s cooked up numbers making the ACA look better that it was, why was this issue never raised? You would think that they would have jumped all over this as some kind of proof that the numbers were cooked, yet that never happened? Why? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 29, 2014, 3:00pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/200 "2014-07-29T15:00:16Z")
Then why can’t the government just expand Medicaid in the states that refused by paying 100%? Obviously, legislators “meant” for every state to expand Medicaid. The law was written with a lot of little bombs in it. The CLASS Act for starters, but also the way the law treated the US territories. The administration finally had to exempt them because the law, as written, is unworkable. So the courts have a clear legislative history acknowledging that yes, the law can be all messed up, and that legally, only Congress can correct these defects unless the law specifically grants the administration the ability to do so(which was probably the case with the US territories, but not CLASS, Medicaid, or the exchanges). [Previous page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=9) [Next page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=11)