I would be heartened by Parker’s display of erudition and reason. I would be pleased that the government has the better case here if I truly believed that the Forces of Darkness were swayed by reason and probity. But the better case is not airtight and irrefutable, it is not such a better case that Scalia and his squamous minions would be too embarrassed to vote against it. These are, after all, the people who were willing to do complex intellectual gymnastics in order to install Dubya as President.
I would love to think that they were so deeply ashamed of themselves that they would never, ever resort to supporting the weaker case for partisan reasons. I’d love to think so, but I don’t.
I thought that restricting subsidies to states that did not set up their own exchanges was a well-known aspect of Obamacare at the time. In fact, I recall posts on this very board calling out Republican governors for being stupid in not setting up their own exchanges because they were going to lose subsidies over it. As Jonathan Gruber said - offering subsidies to states which set up their own exchanges and withholding them from states that did not was part of the carrot-and-stick approach being used to get the states to comply.
Am I misremembering this? I thought that aspect of the law was common knowledge at the time.
I think you’re probably conflating subsidies with Medicaid expansion.
So far Gruber’s comments are all Fox News has managed to dig up. If there were a lot more out there, we’d be bombarded with it right now.
Gruber is helpful to the challengers for PR, but as a legal matter they can’t really push those comments since getting to how people understood the bill is a losing proposition for them.
I don’t think that’s true. Because to the extent that there’s ambiguity as to legislative intent, that makes it harder to overturn the “plain language” argument.
One problem with the legislative intent is always that a lot of different legislators may have had different intents. So you would need - I would think - evidence that all points in the same direction. If a guy who was pretty intimately involved in putting together the law thought the law was intended one way, that suggests there’s at least no clear-cut legislative intent in the other direction, and harder to walk away from the words as written.
I don’t think legislative intent plays a big role in a case involving administrative law. In step one of Chevron, the inquiry is whether the statute, standing alone, is unambiguous as to this issue. If it is not, then the government wins. If it is, then it doesn’t matter what Gruber or anyone else have to say.
In order for legislative intent to matter, it would have to come in at the inquiry into whether the text is ambiguous. I don’t think even the liberal justices think legislative intent is sufficient to render unambiguous text ambiguous.
What confuses a lot of people is the distinction between statutory purpose and legislative intent. The former usually refers to an intent expressed in the text of the statute, either explicitly as a purpose, or implicitly as a matter of logic (such as a purpose that the federal exchange can sell PPACA-eligible insurance). Legislative intent, by contrast, usually refers to unexpressed desires or understandings, sometimes contained in the legislative record or debates. The former is very much in play for this case. I don’t think the latter really comes in under Chevron.
Well, yeah. The point is that there is no obvious place for it to come in at that stage, as explained in the rest of my post.
In a statutory interpretation case in which there is no administrative guidance, legislative intent is used as an aid for the court to interpret an ambiguous statute. But where the court is reviewing an administrative regulation, the question before the court is simply whether the part of the statute being interpreted unambiguously forecloses the administrative interpretation. It is even more of a text-centered inquiry than ordinary statutory interpretation, and I think even the liberal justices do not believe that unexpressed legislative intent can render text ambiguous if it is otherwise clear and not in conflict with other parts of the statute.
ETA: And certainly the conservative justices do not think that the opinions of actual Senators, much less Gruber, are relevant to whether the text is ambiguous. Maybe they will change their views in this case, but that would be quite shocking.
OK. (It seemed earlier that you were saying that legislative intent could be used in order to help decide whether the language was ambiguous or not - it now seems that this is not what you meant.)
Certainly the government has available to it a variety of colorable arguments that could lead to its preferred conclusion.
Can you explain the “such exchange”? Is “such exchange” a quote from 18041? And, if so, how does text authorizing the creation of federal exchanges imply the authorization of tax credits?
What is the redundancy from “qualified individual”?
I recall a fair amount of discussion - led by the conservative/reluctant Democrats - not to create a system that could be converted into a federalized single-payer. A system that failed to incent State-sponsored exchanges would be inconsistent with the concerns of the voting block that had all of the leverage at the end of the debate. I obviously do not know what was going on in anyone’s mind, or behind closed doors - and no one seems to be talking, other than Gruber.
Yes. That section says that if HHS determines that a state doesn’t establish the Exchange it is required to establish by January 1, 2014, then “the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State.” The antecedent to “such Exchange” is clearly the Exchange that the State failed to establish. That’s part of the textual basis for understanding the Secretary to be creating an entity that is to stand in the shoes of the state exchange.
The statute says that a qualified individual is one residing in the state that established the Exchange. Under the challenger’s reasoning, state’s with a federally created Exchange did not establish an Exchange, and therefore no one is a qualified individual in the federal Exchanges. They counter this point by observing that just because “qualified individuals” are explicitly allowed to purchase insurance doesn’t mean non-qualified individuals cannot do so. But that just renders the term mere surplusage. The plain reading of defining “qualified individual” is that everyone else lacks the power entailed in that qualification.
I think you’re confusing the public option with federally-established exchanges.
But, look, this didn’t happen back in the mists of time. If any reluctant Democrats voiced something like what Gruber said, and especially if you remember it (which means it was in the media somewhere), then you should be able to give us a cite.
Senate Democrats’ other leading health-care bill emerged from the Health, Education, Labor, and Pensions Committee. The HELP bill allowed premium assistance through federal exchanges (called “gateways”) in certain circumstances. But if a state refused to assist with implementation, the HELP bill denied premium-assistance subsidies to that state’s residents. And if a state fell out of compliance, the HELP bill explicitly revoked these subsidies from residents who were already receiving them.
Harsh? Perhaps. But this legislative history shows that denying premium assistance to residents of non-compliant states was not some beyond-the-pale idea that Congress could not possibly have intended, but was instead the dominant approach in the Senate; every bill Senate Democrats advanced contained this feature. The HELP bill also suggests a legislative purpose behind the language: to encourage states to implement the law.
from the same article:
During a September 23, 2009, committee markup of his bill, Baucus acknowledged that restricting tax credits to policies purchased through state-created exchanges was the reason the Finance Committee had jurisdiction to direct states to establish exchanges, making this language an essential part of the bill. (Again, the Finance bill’s language restricting premium assistance to state-created exchanges was adopted without substantive change in the PPACA.)
I recall the concern being that federal exchanges would lead to a public option, which many opposed. Here is some commentary about the talk in the time, pulled up in a quick search:
Thanks for the explanation. I certainly agree with regard to the clear antecedent to the phrase “such Exchange.”
But aren’t both of these issues fully resolved by the full text of 18041(c)(1)?
The text (1) expressly uses the word “establish” in connection with the Secretary’s actions, (2) describes the Secretary-established exchange as “within” a State and not “for” or “on behalf of” the State, and (3) authorizes the Secretary to take actions to implement requirements (a category of actions that would not include tax credits):
Qualified individuals can purchase on the state exchanges, others on the federal exchanges according to rules set by the federal government, no?
I’m aware of the HELP bill’s use of tax credits as an incentive. I’ve been pointing that out in these threads for a year now. But I think that pretty clearly cuts against the challenger’s case because that language did not make it into the final version.
Why would they abandon clear language setting up the tax credits as incentives in favor of this elephant in a mousehole version buried in the calculations of premium subsidies?
National exchange is not the same thing as several federally established exchanges limited to each state. But I might have misunderstood your point. If you’re just saying that some Senators had reason to want to incentivize the states to create an exchange, then I totally agree. What I dispute is that any Senator at the time thought that PPACA did this.
I don’t see why. The argument would be that if the Secretary establishes it, then it cannot be considered “established by the State.” But that’s like saying Congress cannot define an “apple” as an “apple or an orange” for the purposes of a statute. Of course it can. Obviously, the question is whether it did, but since the fact that it did is the government’s argument, it is non-responsive to observe that in the absence of such shoe-filling these provisions would seem to refer to different things.
Putting that language in the definition of qualified individual is an awfully odd way to say that all the requirements put on who can purchase in an exchange don’t apply to the feds. That seems far more odd than just understanding Congress to have treated HHS as establishing the exchange on behalf of the state.
Moreover, if you read it that way, then the federal government can set up a single Exchange in Hollywood and sell PPACA-eligible insurance to everyone in the country, including prisoners and illegal immigrants. Why would Congress have seen fit to limit states this way but not the federal government? Indeed, wouldn’t permitting a single national exchange with no rules placed on it be exactly what Ben Nelson feared?
OK, I had to go look up what the HELP bill is. Now that I have, I see that the HELP bill expressly conditioned tax credits on states setting up exchanges. If that’s a fair characterization, isn’t the better argument that the Senators supporting the HELP bill were willing to transfer their support to the Finance bill when they got confirmation that it created the same incentive for States?
At a minimum, this is the classic problem with legislative history; the direction it points is always in the eyes of the beholder. (And that’s not to mention the odd history here, with closed-door final negotiations, the reconciliation process and the absence of a conference report.)
I know that this statement was not directed to me, but nonetheless I don’t follow the reasoning.
I think that we’ve agreed that the natural reading of the language would not allow the tax credits created by the IRS, but - the argument goes - the natural reading is in contrast to the expected policy and purpose of the act, and the context (textual context and extra-textual context) as well.
Thanks for the thoughtful, generous response. We’re on the same page here - I recall the holdout votes (and, of course, hardened critics) worried about a slippery slope. And I recall the State-by-State approach being portrayed as a bulwark against what was seen as the slippery slope to singer payer.
Except that Congress knows how to “define an ‘apple’ as ‘an apple or an orange’,” and it used none of that language here. Congress expressly defined States to include the District of Columbia. Congressly expressly wrote that territories could be treated as states, as well. But there is no language suggesting that the federal government is within the definition of “State” or that it should be treated as a State.
I like your “in the shoes of the State” argument, but you have to explain away a lot of text - and several much more parsimonious approaches - to make it.
Why no national exchange? Because the Secretary’s authority was limited to “within” a State at a time.
Why could the Secretary not create different criteria for qualified individuals? I haven’t thought about it, but perhaps she could. I see the State Exchanges bounded in part by (a) federal statute, in part by (b) federal regulation, and i part by (c) State law. The federal exchanges, in contrast, have less applicable federal statute and no applicable State law (except perhaps in the case of a not-yet-ready exchange) - but a much broader grant of authority to HHS to implement requirements. I quoted 18041(c) in part because of the broad grant of authority to the Secretary.
Why would Congress have been comfortable with the broad grant to the Secretary, broader than the grant to the States? Because unlike the States, the Secretary is beholden to Congress. It is much easier to fix the secretary’s errors legislatively than it is a State’s errors.
One of the workarounds to a bad SCOTUS decision that I’ve seen floated online is that the Obama administration could basically just unilaterally declare that all ACA exchanges are state-based in order to keep the subsidies flowing in HC.Gov marketplaces.
What’s the legal rationale for that idea, and is it legally sound?
No. It would need cooperation from the respective states.
But you know what, by now Obama administration is so sure that it cowed Republicans to the point that they hide under their desks when they hear the scary “I” word and cower under their beds when they hear the word “shutdown” that it can do whatever it wants and there is nothing the Congress can do to oppose them.