The writers kept it so secret that even they didn’t know about it. 
Come on now.
That doesn’t answer the question either.
What is the point of an incentive that no one knows about. Who will be incentivized by a secret incentive?
An incentive is like a big stick, do this thing or you get hit with the big stick. If you are never told about, or shown, the big stick, why would you feel compelled to do that thing?
I agree that’s a good point and I am of the opinion that either interpretation of the relevant text is valid. The Medicaid incentives were right out front. And you would think that since there were no incentives that Congress knew about on the exchanges, that maybe none were intended.
Problem is, one of the guys who wrote the law got caught saying twice that this was what was written into the law. It’s quite possible that Congress voted for it without understanding it. There’s no way to define the intent of Congress when they didn’t read the law in the first place. So you go by the text. And the text isn’t as 100% clear as Bricker says it is, but it comes close enough to justify a ruling for the plaintiffs. An administration cannot simply rewrite faulty law, especially when it involves the tax and spend power, which is solely Congress’. Unless the law clearly authorizes those taxes and spending in states with federal exchanges, then that money cannot be spent by the administration and those taxes cannot be collected.
Effective communication is a two-way street. The transmission must be clear and the reception must be clear. In the end, both parties should understand what is expected. The “explainers” obviously have failed to make their intentions clear.
If some activist partisan judge decides to interpret the law according to their own agenda instead of ruling based on what the bill/law actually says, they’re being hippo-critical (sp?). Judges were sworn in to uphold the law, not to make up stuff whenever they feel like it.
More evidence Congress did not intend to use the subsidies as a cudgel.
So to confirm, you’re talking about the Medicaid expansion?
LOL at the admission that Republican governors who turned down the Medicaid expansion are crazy. (I think that’s being kind.)
He got caught saying the opposite many other times, and so did other people who were just as involved in the creation of the law. For what feels like the fifth time, why don’t their opinions count? Again, the idea that this threat was supposed to be a secret and one of the chief creators of the law “got caught” admitting how it works once or twice makes no sense. A secret threat is not a threat.
Either it was sloppy drafting–saying “state exchange” when they meant “state or federal exchange”–or the statute was intentionally written that way, presumably as a threat/incentive to the states to get their own exchanges going.
If it was the latter, I’m saying the threat was pretty damn surreptitious, if “clandestine” is too strong a word for you. My “evidence” that it was surreptitious is that no one involved in framing or implementing the law talked ex ante about such a threat/incentive existing in the law. As Dr. Strangelove asks, what’s the point of a doomsday device if you don’t tell anyone about it?
In the case of this law, that’s exactly what happened. The IRS is enforcing the law as it was obviously intended. What is happening is an outside attempt to find a loophole that can be used to damage the law, regardless of actual consequences other than embarrassing the President.
Horse, water.
Following the obvious intent is doing their job. Actively trying to make it be, ridiculously, something else is activist, and claiming it is not is hypocritical (didja know you can spell-check words online?).
True, and that’s why this latest partisan attack should meet the fate of the others, although it may not given the partisan predilections of the Supreme Court. Claiming an intent that is nowhere in evidence *is *“making up stuff”.
Is there any evidence that any state didn’t know they would lose the subsidies if they didn’t set up an exchange? If not, then “clandestine” doesn’t remotely apply.
n.b.: I’m OK with the ruling that Federal Exchanges = State Exchanges. I just think your argument isn’t helpful.
Would these states now be scrambling to protect the subsidies if they always knew they woudn’t be eligible?
http://online.wsj.com/articles/states-try-to-protect-health-exchanges-from-court-ruling-1406328692
It would have been crazy to do it if it meant losing all Medicaid funding. That was illegal. It would have been more illegal to just try to make it mandatory, which is why it never even crossed legislators’ minds. There are some aspects of the Constitution that even they understand.
Did he say the opposite after the lawsuit was filed? I’m more interested, and I think the courts will be more interested, in what he said before they knew how the states would react. Remember, they assumed Medicaid would be expanded too.
Given that a whopping 36 states decided not to set up their own exchanges, it seems likely that they had no idea they could lose subsidies. I can see Republican governors essentially gutting Obamacare in their states. No Democratic governor would knowingly do so.
In the end, the vast majority of states just found the idea of their own exchange to be too much work for too little reward. Really, all of them should have just let the feds set it up, but the 14 that did it on their own wanted to be helpful I guess. Because there’s certainly nothing that California or Kentucky or New York are getting out of having their own exchange that Virginia or Texas aren’t getting by not.
But if the states knew the subsidies were dependent on setting up their own exchanges, that would give even Rick Perry pause.
BTW, isn’t there a fairly easy way to fix this? Doesn’t the government own the licensing to the website? Just issue the software to every state, along with the individual data for each state insurance market. How long would that take to get up and running? 90 days at most?
I think it’s fascinating that this case has made its way to the federal appeal system and you’re hoping the court now starts to consider your “evidence.” I don’t know if that’s more or less ridiculous than reading one sentence in a law out of context, but it’s one absurdity piled on top of another in any case.
Should the courts rule based on the text, or by intent? If by the text, your screwed. If by intent, then they need to look at intent when it was passed, not intent three years later.
And intent of those doing the passing, not that of commentators.
Gruber is no mere commentator. And the intent of those passing the bill assumes they knew what they were passing. Judging by the lack of commentary, it seems more likely that they had no idea what they were passing on this particular issue. So there is no Congressional intent. That leaves the text.
Is he a Congressman? Did he vote on the bill?
No, more likely they thought this part was entirely clear and obvious, and that the opposite would be so ridiculous to contemplate that it never even came up, and therefore that it required no commentary.
Absolutely the opposite. There being no discussion whatever about what would have been a major point shows that there was no intent of doing something as nonsensical as your side would wish to be the case.
OK. You asked.
Wikipedia"States are not required to participate in the program, although all currently do."
National Conference of State Legislatures “Although participation is optional, all 50 states participate.”
I thought this should be obvious to anyone with a basic understanding of the dual sovereignty structure of government in the United States. The federal government can entice states to do all sorts of things, but the states can say no. There are areas that are reserved to the states and the federal government cannot intrude without state cooperation.
No, he just helped write the thing. As I pointed out, few Congressmen even knew what was in the bill.
Then they obviously didn’t read it, because the text is not obvious.
Okay, so Congress meant exactly what they wrote.
This has been addressed over and over and over again. The courts should rule based on the context of the law, not a tortured reading of a single sentence. You know what backs up the context? Contemporaneous legislative discussions, none of which support this interpretation of the law. There’s ample documentation of that as well as commentary from the people who were there. On the opposite side is “Gruber said something once or twice.” And as has also been repeatedly explained, when a law is unclear the courts are supposed to defer to the way the law is being enforced.
I have not seen any commentary on this part of the law prior to the lawsuit being filed. Commentary afterwards is politically motivated and thus unworthy of consideration.
Unless you can provide some commentary pre-lawsuit about federal exchanges getting subsidies just like state exchanges by the relevant actors, the courts have nothing to go on other than the text. There is no context, that’s the problem.
I think you’re grasping at a straw man with the “secret incentives” line of argument. My take is that Congress simply did not know beyond the vaguest details what they were voting on. And what they were voting on had serious flaws, flaws that had to be corrected by legislative fixes, or just put up with. The courts do not have to assume that Congress meant to do it the right way, becuase they didn’t do it the right way in so many other parts of the law.