Not really. They could attach something they knew to be unconstitutional, but that would be a different issue. (Not sure that was a serious question, but if so, I can’t think of a way to accomplish that.)
I’d have to read the decision and the dissent if it’s not unanimous first and see whose argument was better. Perhaps there are arguments that show that Richard Parker’s “in short” explanation is flawed. I’d listen to the experts chiming in, since I’m no constitutional scholar by a long shot.
But if it seems there’s a “permissible construction of the statute” consistent with the president’s interpretation compellingly explained in the dissent, and they still rule against him, I would say he got screwed by an activist court. And, no, I would not be okay with that despite my opposition to ACA, which I think is what you’re getting at.
I don’t think the counter-arguments are persuasive, obviously, but they do exist.
The strongest counter-argument is that my reading has “Exchange” mean an exchange established by a state, but the statute also uses the phrase “Exchange established by the State.” That seems to create a redundancy, and the challengers say that the best way to explain that redundancy is to understand the key provision to be distinguishing some 18031 Exchanges from others–namely, those set up by the feds from those set up by the states.
I don’t find that persuasive for a lot of reasons. Chiefly, I don’t think there’s any doubt that the term “Exchange” means an exchange established by a state. That’s literally what 42 U.S.C. § 18031(d)(1) says. In order to overcome that, you have to find, as the D.C. Circuit panel did, that (d)(1) “is not definitional.” That strikes me as a sleight of hand. Whether it’s a definition or not, it underscores the point that Congress understood every Exchange established under these provisions to be an Exchange established by a state, whether directly or with the federal government standing in the shoes of the state.
There is also the fact that many other provisions in PPACA are in tension with the reading that federal exchanges get no subsidies, including the requirement that they report the details of the subsidies they are not allowed to give. Here too there are counter-arguments–such as Bricker’s argument that they were just building in a skeleton for potential future changes to subsidies. I don’t find that persuasive, because I’ve never heard of Congress doing that, and there’s really no reason to do it, since any such change would require an amendment and you could then add these provisions in that same amendment.
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My interest is in making clear that these are the issues that are in dispute. The Court is NOT deciding whether “it’s the Court’s job to serve as a super-legislature: to get it right when Congress gets it wrong,” as Bricker and you had it.
I find Richard Parker’s explanation of the issues at play to be very clear and helpful. I’m nearly persuaded. If the ACA is to be dismantled or significantly modified, I’d prefer it to go through congress rather than a SCOTUS ruling at this point.
I’m actually surprised that cert was granted - I expected Halbig to go en banc and get reversed, and SCOTUS to deny all cert petitions. I would love to read an insider account on SCOTUS proceedings, even if were decades later.
I agree. His pro bono legal work here is greatly appreciated!
If the court’s ruling were based on legal issues, you’d certainly be right. Its record of partisanship, including both the fact and the timing of cert in this case, suggests that those are not at all the issues in *real *dispute, unfortunately.
Yes and no. Partisanship on the court matters. But the legal issues also matter.
Even if you think every justice (or just the ones you don’t like) decide issues solely on partisan valence, they still are only deciding the legal issue presented. So if you thought that the Court might decide that Obama doesn’t get to choose a reasonable interpretation, even if there is another reasonable interpretation that Conservatives favor, then you’d be wrong.
And the truth is that none of the justices decides things solely out of political bias. To pick a liberal target, Scalia is both biased toward Republicans–indeed, increasingly so as he gets older–but has also staked out a principled view of statutory interpretation that is very scornful of inquiries into legislative intent or even textual statutory purpose. So it’s not hard to guess how he’ll decide this one. But in other cases, like criminal procedure cases, he often sides against the prevailing Republican position.
In this case, I don’t think it’s clear at all how Kennedy will feel. He is the least principled, least clear-thinking of the justices. And we’re not going to predict his decision without thinking about the legal issues, since he’s not a reliable vote for either partisan side. Also very hard to predict Roberts either without thinking through the actual issues. Not because he’s as wooly-brained as Kennedy, but because he is occasionally persuaded by arguments, even in cases with a high degree of political importance.
The man who shot…partisan valence! (Ka-pow!)
He shot…partisan valence! (Ka-pow!)
He was the bravest of them all!
This is vaguely familiar of the argument pro-gun.
As a practical matter, I imagine the Republicans would agree to some sort of fix but only as part of a broader deal involving other major revisions to the ACA. Obama and the Democrats have been resistant to such revisions to this point, but a ruling of this sort might force their hands, especially if the Republicans focus on unpopular aspects of the law.
I don’t understand the argument you’re making here.
The part about the feds creating an exchange for the states is - per what you’ve quoted - in 18041, not 18031. So to the extent that another part of the law refers to an exchange established under 18031, this would not include a reference to the feds establishing an exhange on behalf of the states.
Statutes get to define their own terms, and that includes defining the federally-created exchange as being the statutory equivalent of the state-created exchange discussed in 18031. By defining them that way, subsequent references to the state-created exchange include the federal-created exchange. None of that is controversial, the only question is whether the statute does, in fact, define the federally-created exchange to be the equivalent of the state-created.
And, lo, it does. The statute says that the entity that the Secretary sets up under 18041 is an “Exchange.” 42 U.S.C. § 300gg-91(d)(21) defines that term: “The term ‘Exchange’ means an American Health Benefit Exchange established under section 18031 of this title.” So what happens if the Secretary sets up an “Exchange” pursuant to 18041? She isn’t empowered to set up an “exchange.” She is empowered to set up an “Exchange.” The only way to read that is to understand her to have been empowered to set up an Exchange that is treated for purposes of the statute as an “Exchange established under section 18031.” That’s what it means to define the term that way.
The conclusion is reinforced by the fact that 42 U.S.C. § 18031(d)(1) requires every Exchange to be “a governmental agency or nonprofit entity that is established by a State.” Unless you read (d)(1) as forbidding federal exchanges–a transparently nonsensical result–it follows that Exchanges established pursuant to 18041 are treated as 18031 Exchanges.
And, of course, that makes perfect sense. The whole point is that if the state fails to act, the Secretary sets up the exchange that the state was supposed to. The only thing creating confusion is the repeated use of “established by a State under 18031,” but when you understand that term to have been distinguishing PPACA exchanges from pre-PPACA exchanges, the confusion evaporates.
I don’t see how that follows. If “the Secretary sets up an “Exchange” pursuant to 18041”, then it’s an exchange pursuant to 18041 but is not an “Exchange established under section 18031”. What contradictions do you run into if you just allows for it to be an exchange under 18041 and not under 18031?
Again, I don’t see why this is so. The 18031 exchanges are defined as “a governmental agency or nonprofit entity that is established by a State”. There are also other exchanges established under other sections. I don’t see anything in the language that you quote which forbids any other exchanges from existing - only that they are not the exchanges which are under discussion in that particular section.
[I’m not a lawyer and don’t claim any sort of expertise here, and if the SC rules the other way I won’t complain. But from a lay perspective, the plain reading of the law seems to be to be against you.]
If I had to guess, I would say that the law was poorly written. That when the section on subsidies was put together the writers just weren’t thinking of the federal exchanges, which were not anticipated to be a major issue and were probably not on anyone’s mind, and possibly section 18041 hadn’t even been inserted at the time, and no one went back later to make sure the language covered all eventualities.
You’re still ignoring 42 U.S.C. § 300gg-91(d)(21) with this comment. “Exchange” is a defined term. It means an “Exchange established under section 18031.” So if another section of the statute empowers the creation of a capital-E Exchange, then whatever entity is thereby created, it is–by definition–an “Exchange established under section 18031.”
You seem to saying, “but, it wasn’t really established pursuant to 18031, because it was established under the authority provided in 18041.” But you don’t get to tell the statute how it is allowed to define its own terms. If Congress wants to say that, for the purposes of this statute, every time we say “orange” we mean “apples or oranges,” there’s no legal problem with that at all.
When they added the idea of the federal exchange in the merging of the two bills, they simply grafted it onto existing language setting out in detail the state exchanges. Instead of reworking everything, they effectively just defined “apples” as “apples and oranges.” You might fairly complain that this is confusing to the lay reader, but you cannot fairly complain that they aren’t allowed to do this, or that we should ignore the fact that they did this.
See above for why you’d be wrong to conclude that there are separate entities, 18031 exchanges and 18041 exchanges. The dichotomy set up by the statute is between an “Exchange” and any other insurance exchange.
If you don’t view the federal exchange as a stand-in and legal equivalent for the state exchange, like the statute calls for, then you get a whole lot of other anomalies. For example, one section defines a “qualified individual” as one who “resides in the State that established the Exchange.” It would follow that no one in a federal exchange state would be a qualified individual, who are the only people who can purchase insurance on an exchange. The challenger’s only response to that issue is to assert that the word “qualified” does no work in the statute–it is meaningless, and even non-qualified individuals can use exchanges. C’mon.
No, they would certainly be “allowed” to do this, but the question is if reading them as doing this is a reasonable reading of what they wrote.
You’re saying, as I understand it, that “The term “Exchange” means an American Health Benefit Exchange established under section 18031 of this title” is intended to mean that if there is also a different section of the law which establishes an exchange, that exchange is to be treated as an exchange under 18031, in an “apples means apples and oranges” way. I would think it just means that “when we say “exchange” we mean those exchanges that were established under 18031, not those which were established in any other part of this or any other law, or any private exchanges”. Not that 18041 exchanges are to known henceforth as 18031 exchanges. That would be a weird way of doing things even in a law. There’s no reason to deliberately create an “apples means apples and oranges” fiction, even if technically possible, and it would have been trivial to say “The term “Exchange” means an American Health Benefit Exchange established under section 18031 or 18041 of this title”.
I agree that the language would be awkward, but I don’t know if it’s the same situation.
In that case, what the text is doing - not what the intent of the writers was, but what the qualifying language in the law was accomplishing - was not limiting qualifying individuals to people who live in states which have established an exchange. It was limiting it to people who live in the state which established the exchange, meaning to exclude people from other states which established other exchanges. The language presupposes that every state establishes an exchange - which I think was the assumption of those who wrote the law, as above - which is why it doesn’t address situations where the feds might be the ones who established the exchange, but it doesn’t explicitly limit it to such situations either - it just assumes that such will always be the case and fails to address any other situation. It’s not comparable to if the language had said " resides in a State that established an Exchange", which would be similar to the case at hand.
I don’t know how the law would address a situation where the law as written assumes that a situation exists and the language carelessly failed to address other situations, but I wouldn’t think it’s comparable to a situation where (as a result of that assumption) the law explicitly limited something to situations that it presumed would exist, but I don’t know that the treatment needs to be similar. But at any rate, the bottom line is that I don’t think this proves that the intent was to have a federal exchange be a legal stand-in for the state exchange; ISTM that it simply wasn’t contemplated altogether when certain parts of the law were written.
No, I’m saying they created a defined term, “Exchange.” If other parts of the statute use that term, then it has that meaning.
The syllogism is very simple:
[ol]
[li]An Exchange is an Exchange established under section 18031[/li][li]The federal government is empowered to create an Exchange[/li][li]Therefore, the federal government is empowered to create an Exchange established under section 18031.[/li][/ol]
The reason to do it this way is that the rest of the lengthy and complicated statute uses the phrase “established under section 18031,” so it was easier to do one substitution instead of 280.
That’s actually contrary to the challenger’s argument, which is that the federal exchange was deliberately not given subsidies to incentivize the states. Your claim here is closer to a drafting error, that they simply erroneously thought to provide for the federal exchange.
“A well regulated militia, being necessary to the security of a free State…”
Given that one of them was likely the fourth vote to hear the case at this particular time, isn’t that a pretty clear indication of how he’ll vote? I mean, what arguments can he hear at this point to completely reverse his logic in granting the hearing of the case?
It’s not a sure thing, for the reasons I set forth in my last response to you.
Namely, we know justices sometimes change their minds after granting cert, and we don’t know for sure which four justices took cert. There is a plausible (though not persuasive to me) argument that the liberal justices wanted it.
And this is totally the kind of case that looks different on initial review than it does after you’re more familiar with the whole framework.
That sounds like what I was saying. That they intended for that sentence to be a definition of terms used anywhere else in the law.
Seems fairly straightforward to me, what with modern word processing programs and all. I’ve never written any laws but I’ve put together a lot of actuarial reports and the like in which precise meanings and definitions are important, and it would never occur to me or anyone to make a late change by stating a counterintuitive definition of this sort - you just do a global replace.
This too has a bit of support (I linked to it in a prior thread on the subject) but I still think my suggestion here is most likely.
Not quite - it’s not that they thought their language was providing for a federal exchange. Rather, when they wrote that section they didn’t think there would be a federal exchange (or at least weren’t thinking about it) and thus did not account for it.
There’s no issue of figuring out their intent. The plain text is indisputably a statute-wide definition. That’s what I was making clear. Your position relies on you arguing that the section defining “Exchange” is some kind of drafting error–that they should have explained that this definition only applied to the use of “Exchange” in some sections and not others. But it doesn’t do that.
Well, it’s not. For one, they don’t use the exact same phrasing each time, so you can’t just cut and paste. For another, there are internal rules about which sections can be edited by whom, what language has been approved by committee, etc.
But all of that is irrelevant. You don’t need to reach that stuff unless you have a good argument for why the plain text doesn’t mean what it says.
Right. They forgot to provide for it, that argument goes. If the Court reaches the stage where it is trying to divine congressional intent to resolve ambiguity or conflict, that’s a much less compelling argument because it is akin to a brain fart, as distinct from an intentional tactic.