# 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:** 8
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 25, 2014, 7:30pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/141 "2014-07-25T19:30:44Z")
> [@Marley23](#): > > If I understand this correctly, the Wyden-Brown amendment presumes the federal government will fund the state exchanges. Yes, but the amendment is just that…an amendment that allows subsidies for these states that receive a waiver from ACA and set up their own systems. This is quite different from a state that just chose not to set up a state-run exchange and let the feds do it for them. I don’t see how this has anything to do with the discussion at hand. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 25, 2014, 7:36pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/142 "2014-07-25T19:36:04Z")
> [@yorick73](#): > > Yes, but the amendment is just that…an amendment that allows subsidies for these states that receive a waiver from ACA and set up their own systems. This is quite different from a state that just chose not to set up a state-run exchange and let the feds do it for them. [I think I linked to this earlier, but in case I didn’t:](http://www.newrepublic.com/article/118826/halbig-v-burwell-argument-fraud-just-ask-scott-brown) > [@](#): > > When he was still a senator from Massachusetts, Brown sponsored legislation with Senator Ron Wyden of Oregon to hasten the availability of Wyden’s State Innovation Waivers. Beginning in 2017, those waivers will exempt states from the ACA’s individual and employer mandates, the requirement of having an exchange, and other regulations, if and only if the states successfully design alternative health systems that meet the ACA’s cost and coverage goals. Such states would be eligible for all of the federal funds they and their residents would’ve received through an exchange, and would use those funds to finance their own systems. > > Neither the existence of the waiver program, nor the desire among members to hasten its implementation, are consistent with the idea that Congress intended to allow states to essentially waive out of these same requirements simply by doing nothing. Indeed, the legislative text of the waiver provision makes it abundantly clear that Congress intended federal dollars to flow to all exchanges (and indeed all states) whether or not the exchanges were established by the states themselves. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 25, 2014, 7:41pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/143 "2014-07-25T19:41:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No. You’re late to the party, so maybe you didn’t know, but the wording of the law does not “seem clear”. If you read the section in question, standing alone, then it seems clear that federally created exchanges do not come with subsidies. That’s not how statutory construction works, though; you have to read the whole thing, and when you do it is equally clear that federal exchanges are treated identically to state ones. I’m not talking about one sentence. Section 1311 is referenced over and over in other sections that provide for tax subsidies. Section 1321 is not referenced in any of them. Even section 1321 doesn’t state that federal exchanges are to be treated as state exchanges. I don’t know if that was a drafting error or not but it does not seem obvious enough for the IRS to establish a rule that the federal and state exchanges are identical under ACA ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 25, 2014, 7:47pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/144 "2014-07-25T19:47:38Z")
> [@Marley23](#): > > [I think I linked to this earlier, but in case I didn’t:](http://www.newrepublic.com/article/118826/halbig-v-burwell-argument-fraud-just-ask-scott-brown) I would argue the opposite. This amendment is basically asking for benefits under a state plan while waiving certain requirements. In effect they asked for permission and permission was granted. I don’t see how this is remotely related to the question at hand. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 25, 2014, 7:49pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/145 "2014-07-25T19:49:43Z")
> [@yorick73](#): > > I would argue the opposite. I’m sure you would, but if we’re talking about arguments that makes sense rather than ones that just barely hang together if you squint… ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 25, 2014, 8:04pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/146 "2014-07-25T20:04:13Z")
> [@Marley23](#): > > I’m sure you would, but if we’re talking about arguments that makes sense rather than ones that just barely hang together if you squint… Could you explain to me how the Wyden amendment has anything to do with whether federal exchanges are eligible for subsidies? Your cute one-liners aside it seems that this amendment allows deviation from the rules of ACA while still obtaining subsidies. So what? It would seem to imply the opposite of what you are arguing…specifically that these states would not have been eligible for subsidies in the absence of an amendment. I don’t see how this in any way advances the argument that the states that opted out of forming their own exchanges are eligible for subsidies. Care to connect the dots for me? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 25, 2014, 8:14pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/147 "2014-07-25T20:14:51Z")
> [@yorick73](#): > > Could you explain to me how the Wyden amendment has anything to do with whether federal exchanges are eligible for subsidies? I already did. I’m not sure what else there is to say about it. [Here’s Wyden (in a PDF) summarizing his idea:](http://www.wyden.senate.gov/download/?id=6073398f-c82c-42f4-8da5-e004a867e01a&download=1) > [@](#): > > Step 3: Starting in 2017, if the Secretaries of Health and Human Services and Treasury find that the state’s law can meet the above requirements without certain federal requirements, states can get a waiver from having to comply with those federal requirements. Depending on the specifics, the state plan could waive out of the following aspects of federal health reform: > • The individual mandate. > • The employer penalty for not providing coverage. > • The exact standards for a basic health insurance policy. > • The health insurance exchange. > • The design for how federal subsidies would have to reduce premiums and copays for people [Here’s the Bipartisan Policy Center:](http://bipartisanpolicy.org/blog/2011/03/04/health-reform-flexibility-and-wyden-brown-waiver-state-innovation) > [@](#): > > Under Wyden-Brown, states could be exempt from the individual mandate to purchase health insurance (meaning you must have coverage or face a penalty), the state responsibility to design and launch a health insurance exchange (a new marketplace where consumers could shop for insurance and compare prices), the employer penalty payments for not providing coverage to employees, the minimum “essential benefit” standards for a health insurance policy, and the obligation to distribute federal subsidies for individuals and tax credits for small businesses to help purchase insurance. Instead, states could use the money for subsidies and tax credits to finance their own reforms. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 25, 2014, 8:25pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/148 "2014-07-25T20:25:09Z")
> [@Marley23](#): > > I already did. I’m not sure what else there is to say about it. [Here’s Wyden (in a PDF) summarizing his idea:](http://www.wyden.senate.gov/download/?id=6073398f-c82c-42f4-8da5-e004a867e01a&download=1) > > [Here’s the Bipartisan Policy Center:](http://bipartisanpolicy.org/blog/2011/03/04/health-reform-flexibility-and-wyden-brown-waiver-state-innovation) I’m still not seeing it. My question is what, if any, bearing this amendment has on whether or not federal exchanges are eligible for subsidies. As I already mentioned this amendment allows these states to deviate from ACA and still receive subsidies. As far as I can tell this has absolutely nothing to do with the current discussion…whether people in states that did nothing and let the Feds set up an exchange for them are eligible for subsidies. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 25, 2014, 8:26pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/149 "2014-07-25T20:26:50Z")
> [@yorick73](#): > > I’m still not seeing it. It backs the comment I quoted before. > [@](#): > > Neither the existence of the waiver program, nor the desire among members to hasten its implementation, are consistent with the idea that Congress intended to allow states to essentially waive out of these same requirements simply by doing nothing. Indeed, the legislative text of the waiver provision makes it abundantly clear that Congress intended federal dollars to flow to all exchanges (and indeed all states) whether or not the exchanges were established by the states themselves. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 25, 2014, 8:39pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/150 "2014-07-25T20:39:22Z")
[Other key aides and advisers offer their opinions.](http://theincidentaleconomist.com/wordpress/what-does-the-gruber-video-tell-us-about-halbig/) None of them take the subsidy-as-threat position. ---
**Author:** ![Drum\_God](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drum_god/32/44_2.png) [@Drum\_God](https://boards.straightdope.com/u/Drum_God)\ **Post date:** [July 26, 2014, 4:25am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/151 "2014-07-26T04:25:33Z")
> [@Damuri\_Ajashi](#): > > Its like you haven’t even heard of the Koch brothers. Of course I have, but they have never held a gun to my head and told me how to vote. They may flood politicians with money and allow them to flood the airwaves with garbage, but they cannot force my hand to darken the oval next to a candidate. I am in charge of that. Some of the right-wing lies are so outrageous, I wonder how anyone can believe them. It is up to those of us who are sane to speak the truth. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 26, 2014, 4:58am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/152 "2014-07-26T04:58:54Z")
Still, election outcomes are painfully highly correlated with campaign advertising expenditures. We all, as individuals, are independent of the lies and blandishments of the ad spots…but collectively, money buys elections. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 26, 2014, 5:41am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/153 "2014-07-26T05:41:16Z")
Not really, so long as candidates have a certain amount. sure, if one candidate has $2 million and the other $20,000, no contest. But if one has $2 million and the other has $1 million, the outcome isn’t as easy to predict. Might as well say that money buys baseball pennants. Sometimes it does. Often it doesn’t. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 26, 2014, 5:41am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/154 "2014-07-26T05:41:16Z")
Jonathan “Oops I did it Again” Gruber must have made another speak-o. The video has been talked about. Now there is [audio from a separate speech](https://www.youtube.com/watch?v=LbMmWhfZyEI). > [@cited Gruber speech Jan 10](#): > > …the decision was made that states should play a critical role in running these health insurance exchanges. And health insurance Exchanges are the centerpiece of this reform. > … > Now, I guess I’m enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange the politicians of a state are costing state residents hundreds and millions and billions of dollars, that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is, \*\*will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens. \*\* [emphasis added] ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 26, 2014, 6:44am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/155 "2014-07-26T06:44:27Z")
Gruber’s the worst liar of all time: > **[Adviser's past remarks could give Obamacare a headache](https://www.msnbc.com/msnbc/jonathan-gruber-video-obamacare-msna376871)** > > Recordings have surfaced showing of one of the architects of the Affordable Care Act endorsing the legal theory behind a challenge that could cripple the law. Gruber told The New Republic that he had made a mistake. “I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it,” Gruber told The New Republic’s Jonathan Cohn. “But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.” A second recording has surfaced showing Gruber making similar statements about subsidies not being available on federally run exchanges. Asked over email whether those remarks were a mistake, too, Gruber wrote back, “same answer.” ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 26, 2014, 12:08pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/156 "2014-07-26T12:08:45Z")
> [@adaher](#): > > Gruber’s the worst liar of all time: I don’t know about that. You’re forgetting about Baghdad Bob. And Obama. As it stands now, Gruber’s running third. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 26, 2014, 12:47pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/157 "2014-07-26T12:47:21Z")
NAh. Obama’s seasoned, he’s an experienced politician. Gruber’s a professor who isn’t used to having to backtrack. If it was Obama that had said that, it would go something like this: “Well, what I said was, (gobbledygook), But let me be clear, (flim flam).” Gruber apparently just “misspoke” twice, in a very detailed fashion. And probably more than twice. If it had just been captured on film once, you could buy it. But if he’s been caught on film two times, then he probably said it on more occasions. What’s most offensive is yet again, a supporter of the health care law covers up his own dishonesty by accusing others of dishonesty. And in this case not even Republican partisans, but federal judges. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 26, 2014, 2:30pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/158 "2014-07-26T14:30:48Z")
> [@adaher](#): > > NAh. Obama’s seasoned, he’s an experienced politician. Gruber’s a professor who isn’t used to having to backtrack. If it was Obama that had said that, it would go something like this: > > “Well, what I said was, (gobbledygook), But let me be clear, (flim flam).” > > Gruber apparently just “misspoke” twice, in a very detailed fashion. And probably more than twice. If it had just been captured on film once, you could buy it. But if he’s been caught on film two times, then he probably said it on more occasions. > > What’s most offensive is yet again, a supporter of the health care law covers up his own dishonesty by accusing others of dishonesty. And in this case not even Republican partisans, but federal judges. If you like your assessment, you can keep to your assessment. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 26, 2014, 2:35pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/159 "2014-07-26T14:35:28Z")
> [@Marley23](#): > > It backs the comment I quoted before. You are missing the point. Wyden-Brown allows states to go their own way (as long as certain outcomes are achieved) AND still qualify for federal subsidies. States that did not set up their own exchanges have not “waived” out of anything. The same rules apply to them. But, due to the wording of the law, they may not be eligible for subsidies. The difference here is that doing nothing, as your quote says, does not mean that a state doesn’t have to abide by the law (i.e. a state can’t say “we didn’t set up an exchange so we are not part of the ACA”) Your quote, and the Wyden amendment, has nothing to do with the current discussion concerning subsidies in states that did not set up their own exchanges. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [July 26, 2014, 3:12pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/160 "2014-07-26T15:12:14Z")
C’mon guys, if you’re going to coalesce around Jon Gruber’s remarks here as some sort of smoking gun for your argument, then you’d also have to ignore the cascading amounts of evidence (even from Gruber himself) that obviously points to the opposite direction. That’s called cherrypicking. But look, I say this as somebody who believes that this entire lawsuit is the textbook definition of “desperate” & “stupid:” Gruber’s remarks here are important & I’m glad that we’re debating them. Still, however, they don’t discount all of the statements to the contrary that he made before & after the ones linked to upthread, nor do they negate his own work with the administration that _always_ assumed subsidies in every state regardless of the entity which established the given exchange. [Previous page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=7) [Next page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=9)