# I admire the tenacity of republicans **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 20, 2014, 6:13pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614 "2014-07-20T18:13:18Z")\ **Posts on this page:** 20\ **Page:** 25
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:00pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/481 "2014-07-23T17:00:09Z")
> [@Richard\_Parker](#): > > As a practical matter, I don’t know how hard it would have been to just go re-write all the cross-references. I suspect that part of the Committee or informal deliberation process involved sort of signing off on sections that were approved, and maybe it would have taken more time to go back and open them back up to edits. But that’s entirely speculation on my part. It was clearly a situation in which a little time spent avoiding any ambiguities would have avoided a lot of headaches. But they did not. And what they ended up with was unambiguous. It wasn’t the result that they now want, true. But it is clear on its face. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 23, 2014, 5:01pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/482 "2014-07-23T17:01:23Z")
nm - doesn’t make sense on edited version ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:03pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/483 "2014-07-23T17:03:54Z")
> [@Richard\_Parker](#): > > I agree. As I’ve said many times, the bill is a complete mess. I don’t see why you think this helps your position. Because my position is: what’s left is, on its face, reading the letters and words in English, very clear that it does not authorize subsidies for federal exchanges. That is a mess, yes. But it’s not an absurd mess. It’s a mess that resulted from a misapprehension about states setting up their own exchanges. The Democrats did not dream (and the CBO did not, either) that so few states would set up exchanges. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 23, 2014, 5:07pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/484 "2014-07-23T17:07:29Z")
> [@Richard\_Parker](#): > > I believe that this particular ham-handed drafting happened before the final Senate bill passed, however, **ElvisL1ves**. It did, yes. Gluck’s point was that what was passed was a first draft that, in saner times, would have had the clause in question and all the various other trivialities cleaned up. It also has three Section 1563’s, for example. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 23, 2014, 5:11pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/485 "2014-07-23T17:11:45Z")
> [@MaxTheVool](#): > > So, to return to a previous example I gave… there’s a bill to raise taxes on imported apples. Congress debates it. Eventually it passes. In all of the debate, everyone believes it’s about apples, talks about apples, input is given from apple pressure groups on both sides, etc. A while after the law is passed, someone notices that the technical language of the bill mentions 5 latin names for the 5 main varietals of apples (I’m making that up for this hypothetical), except that one of them is wrong and is actually a latin name for a varietal of fig. So… do you believe that there are now taxes on 4 of the 5 varietals of apples and one of figs? > > That’s clearly a more extreme and clear case than the actual case under discussion, but as long as your position is not 100% absolute, then it’s just a matter of degree, not of absolutes. It’s a good question. But I think there’s a fundamental difference between a case where the law clearly intended to do something but failed due to some error, and a case where the law did not intend to do something but would have had the legislators thought of it. Which is why I made the distinction that I did to begin with. > [@Richard\_Parker](#): > > The language about the subsidy calculation at issue in this thread “established by the State…” first appears in the October 19, 2009 Chairman’s Mark (i.e., draft) bill submitted for the consideration of the Senate Finance Committee, S. 1796. That bill does not contain the provision empowering the Secretary to establish an exchange. > > The Senate Health Committee bill is where the federal exchanges come from. It calls exchanges “Gateways”–a term not used in PPACA. The federal gateways were expressly to receive subsidies. > > For the final bill, the language setting up the Gateways was put in the section establishing the federal fallback, but none of the other language was changed. > > That’s why I think it’s obvious that the language wasn’t intended to distinguish state vs. federal, because they used the same language when there was no state vs. federal. I don’t see how this is in any way inconsistent with my speculated version of events. I am not saying the language was intended to distinguish between federal and state exchanges. (In fact, I wrote “I personally am very skeptical of the notion that federal exchanges were deliberately excluded.”) What I said was that the language was written with only the state exchanges in mind, which is completely consistent with your pointing out that it was written before the federal exchanges were even being proposed. What you’re arguing here is that the writers consciously intended for the language to include federal exchanges, and just relied on it being apparent from the context. I don’t see any evidence at all for that, from what you’ve shown. I still think it was an oversight, as I said. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 23, 2014, 5:15pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/486 "2014-07-23T17:15:14Z")
> [@Bricker](#): > > That is a mess, yes. But it’s not an absurd mess. It’s a mess that resulted from a misapprehension about states setting up their own exchanges. The Democrats did not dream (and the CBO did not, either) that so few states would set up exchanges. Again, there’s no evidence at all to support your proposition about a misguided attempt at incentives. And it is an absurd mess. Under your version of the statute, the federal exchanges aren’t allowed to have customers because no one is a “qualified individual” in the federally-run exchange states. Under your version of the statute, the feds have to prepare detailed reports on the zero subsidies they give to zero people–according to you they do so just in case Congress one day lets them have subsidies (and customers). The statute makes no sense at all read your way. The much more sensible reading is that when they said that the federally-run exchange will count as “such Exchange” they meant “such Exchange” as the statute defines “Exchange.” ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [July 23, 2014, 5:16pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/487 "2014-07-23T17:16:09Z")
> [@Bricker](#): > > That is a mess, yes. But it’s not an absurd mess. It’s a mess that resulted from a misapprehension about states setting up their own exchanges. The Democrats did not dream (and the CBO did not, either) that so few states would set up exchanges. This much I agree with. The 2009 Democrats were mistaken in believing that Republican controlled state legislatures would govern in the interests of their citizens and set up exchanges. They did not conceive of the fact that Republicans hate Obama more than they love America and would rather make their people suffer than hand any sort of victory to Democrats. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 23, 2014, 5:17pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/488 "2014-07-23T17:17:11Z")
> [@Fotheringay-Phipps](#): > > I don’t see how this is in any way inconsistent with my speculated version of events. It wasn’t intended to be. > [@Fotheringay-Phipps](#): > > What you’re arguing here is that the writers consciously intended for the language to include federal exchanges, and just relied on it being apparent from the context. I don’t see any evidence at all for that, from what you’ve shown. I still think it was an oversight, as I said. I’m saying they didn’t give a second thought to the other statutory references to exchanges. They thought they had done all they needed to do by saying that a federal exchange will fill the shoes of the state exchange. I’m not sure we are disagreeing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:30pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/489 "2014-07-23T17:30:32Z")
> [@BobLibDem](#): > > This much I agree with. The 2009 Democrats were mistaken in believing that Republican controlled state legislatures would govern in the interests of their citizens and set up exchanges. They did not conceive of the fact that Republicans hate Obama more than they love America and would rather make their people suffer than hand any sort of victory to Democrats. OK. So let’s say that’s true. That proves my point about Congressional intent in 2009. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [July 23, 2014, 5:32pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/490 "2014-07-23T17:32:46Z")
> [@Bricker](#): > > OK. So let’s say that’s true. > > That proves my point about Congressional intent in 2009. I think their intent was that a federal exchange would be superflous but did not actively state that a federal exchange would be impossible. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 23, 2014, 5:38pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/491 "2014-07-23T17:38:56Z")
Silly Americans… go single-payer already. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [July 23, 2014, 5:48pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/492 "2014-07-23T17:48:02Z")
> [@Richard\_Parker](#): > > It wasn’t intended to be. > > I’m saying they didn’t give a second thought to the other statutory references to exchanges. They thought they had done all they needed to do by saying that a federal exchange will fill the shoes of the state exchange. I’m not sure we are disagreeing. I think you’re saying they consciously thought “there are a lot of other references to exchanges in the bill, but once we inserted federal exchanges in one section they will automatically incorporated into the other sections, and all references to exchanges will be understood to mean state or federal exchanges”. I’m saying they never thought about the other sections altogether, being very focused on a lot of other matters at the time. As above, ISTM that there’s a significant difference between legislators having intended for their words to have a certain meaning, even if forced or technically incorrect, and legislators never having intended for their actual words to have that meaning, even if that meaning is something they liked and would have said had they thought of it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:49pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/493 "2014-07-23T17:49:02Z")
> [@Richard\_Parker](#): > > Again, there’s no evidence at all to support your proposition about a misguided attempt at incentives. > > And it is an absurd mess. Under your version of the statute, the federal exchanges aren’t allowed to have customers because no one is a “qualified individual” in the federally-run exchange states. No. Untrue. Look (sigh) at the text of 42 USC § 18032(f)(1)(A): > [@](#): > > The term “qualified individual” means, with respect to an Exchange, an individual who— > (i) is seeking to enroll in a qualified health plan in the individual market offered through the Exchange; and > (ii) resides in the State that established the Exchange. No argument there. A “qualified individual” resides in the state that established the exchange. Right there with you. Now show me where it says that only a qualified individual can enroll in the federal exchange. You can’t: > [@42 USC § 18032(a)(1)](#): > > (1) Qualified individuals > A qualified individual may enroll in any qualified health plan available to such individual and for which such individual is eligible. Nothing there says _only_ a qualified individual may enroll. A federal exchange can have customers galore – not “qualified individuals,” but customers nonetheless. And also a qualified individual may enroll in any qualified health plan that he’s eligible for. Where did your implication of the word “only” come from? Lamie v. US Trustee, 540 US 526, 538 (2004): “There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted.” (Quoting Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978).) > [@](#): > > Under your version of the statute, the feds have to prepare detailed reports on the zero subsidies they give to zero people–according to you they do so just in case Congress one day lets them have subsidies (and customers). Not customers, so it won’t be zero people, since as I showed above they are allowed to have all the customers their bug-ridden malformed website can support. And no “detailed” reports are required, since the subsidy amount is zero. No contradiction at all. > [@](#): > > The statute makes no sense at all read your way. The much more sensible reading is that when they said that the federally-run exchange will count as “such Exchange” they meant “such Exchange” as the statute defines “Exchange.” No. That’s only true because conditions after the statute passed changed. When the statute passed Congress imagined fifty state exchanges, all subsidized, with a backup federal exchange to cover any delay of a state or two to get going by the statutory deadline. (Another item that is very “flexible” despite being written in ink on paper.) ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [July 23, 2014, 5:50pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/494 "2014-07-23T17:50:18Z")
> [@Fotheringay-Phipps](#): > > It’s a good question. But I think there’s a fundamental difference between a case where the law clearly intended to do something but failed due to some error, and a case where the law did not intend to do something but would have had the legislators thought of it. Which is why I made the distinction that I did to begin with. I don’t think that’s always an easy line to draw, and I think reasonable people can disagree about precisely where it should be drawn, what factors should be used when considering where to draw it, how to apply this when the question is how a federal agency should act when given instructions it finds to be ambiguous, and so forth. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:53pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/495 "2014-07-23T17:53:17Z")
> [@MaxTheVool](#): > > I don’t think that’s always an easy line to draw, and I think reasonable people can disagree about precisely where it should be drawn, what factors should be used when considering where to draw it, how to apply this when the question is how a federal agency should act when given instructions it finds to be ambiguous, and so forth. If President Perry orders the IRS to not grant the subsidy in 2016, how do you feel about the legality of that order? In other words, are you saying this is ambiguous enough that we should defer to the IRS, or that this is ambiguous enough that we should defer to always giving the subsidy? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 5:54pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/496 "2014-07-23T17:54:44Z")
> [@BobLibDem](#): > > I think their intent was that a federal exchange would be superflous but did not actively state that a federal exchange would be impossible. And it isn’t impossible. The DC Circuit’s decision doesn’t order the federal exchange to shut down. And I wouldn’t support that. The law clearly authorizes a federal exchange; no court could or should order anything to the contrary. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 23, 2014, 6:01pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/497 "2014-07-23T18:01:12Z")
> [@Bricker](#): > > Nothing there says _only_ a qualified individual may enroll. A federal exchange can have customers galore – not “qualified individuals,” but customers nonetheless. And also a qualified individual may enroll in any qualified health plan that he’s eligible for. > > Where did your implication of the word “only” come from? The phrase “A qualified individual may enroll…” followed by a list of who is not a “a qualified individual” can only be reasonably read as meaning “only a qualified individual may enroll.” Your reading renders that whole section nonsensical. In your reading, an incarcerated individual can register on the federal exchange notwithstanding the clear prohibition in 18032(f)(1)(B). Every Exchange has understood that definition of qualified individual to restrict who may enroll in the Exchange. You should probably tell them they could get a lot more customers if they just ignore that whole section, since it doesn’t actually do anything. > [@Bricker](#): > > And no “detailed” reports are required, since the subsidy amount is zero. No contradiction at all. Untrue. > [@](#): > > Each Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c) of the Patient Protection and Affordable Care Act) shall provide the following information to the Secretary and to the taxpayer with respect to any health plan provided through the Exchange: > > (A) The level of coverage described in section 1302(d) of the Patient Protection and Affordable Care Act and the period such coverage was in effect. > (B) The total premium for the coverage without regard to the credit under this section or cost-sharing reductions under section 1402 of such Act. > **(C) The aggregate amount of any advance payment of such credit or reductions under section 1412 of such Act.** > (D) The name, address, and TIN of the primary insured and the name and TIN of each other individual obtaining coverage under the policy. > **(E) Any information provided to the Exchange, including any change of circumstances, necessary to determine eligibility for, and the amount of, such credit. > (F) Information necessary to determine whether a taxpayer has received excess advance payments.** ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 6:12pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/498 "2014-07-23T18:12:39Z")
> [@Richard\_Parker](#): > > The phrase “A qualified individual may enroll…” followed by a list of who is not a “a qualified individual” can only be reasonably read as meaning “only a qualified individual may enroll.” Your reading renders that whole section nonsensical. In your reading, an incarcerated individual can register on the federal exchange notwithstanding the clear prohibition in 18032(f)(1)(B). Not at all. That section affirmatively preserves the right of a qualified individual to enroll in any qualified plan at any level. That’s all it does. It does not say “only,” and Congress knows how to say “only” when it wants to. Why, specifically, is it “nonsensical” to read the exact words and say that the exact words are exactly what Congress meant to enact? What is specifically “nonsensical” about guaranteeing that a qualified individual may enroll in any plan at any level, period? > [@](#): > > Every Exchange has understood that definition of qualified individual to restrict who may enroll in the Exchange. You should probably tell them they could get a lot more customers if they just ignore that whole section, since it doesn’t actually do anything. Why should they understand that? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 23, 2014, 6:18pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/499 "2014-07-23T18:18:21Z")
> [@Richard Parker](#): > > Untrue. OK, fair point. They still are obligated to provide detailed reports. But not, as I said, about “no one,” because they can have as many customers as their DOS 3.3 machines allow. _(A) The level of coverage described in section 1302(d) of the Patient Protection and Affordable Care Act and the period such coverage was in effect._ What stops them from providing this? _(B) The total premium for the coverage without regard to the credit under this section or cost-sharing reductions under section 1402 of such Act._ Or this? _(C) The aggregate amount of any advance payment of such credit or reductions under section 1412 of such Act._ Or this? _(D) The name, address, and TIN of the primary insured and the name and TIN of each other individual obtaining coverage under the policy._ Or this? _(E) Any information provided to the Exchange, including any change of circumstances, necessary to determine eligibility for, and the amount of, such credit._ This captures any reductions that are not covered under the IRS subsidies. _(F) Information necessary to determine whether a taxpayer has received excess advance payments._ At best, this sentence contemplates that Congress may at some point authorize subsidies. And when it does, this bullet requires notification of any advance payments. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 23, 2014, 6:18pm UTC](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614/500 "2014-07-23T18:18:27Z")
> [@Bricker](#): > > Why, specifically, is it “nonsensical” to read the exact words and say that the exact words are exactly what Congress meant to enact? You imply that I’m ignoring the “exact words,” when in fact I’m pointing to other words that might make you change the interpretation of those words. You seem not to be able to understand that distinction, which really goes to the heart of this whole debate. I can’t tell if this is just a rhetorical strategy on your part, or if you really do not understand this very fundamental point. > [@Bricker](#): > > What is specifically “nonsensical” about guaranteeing that a qualified individual may enroll in any plan at any level, period? Because it doesn’t make sense of the rest of that same section. Why prohibit incarcerated persons from being qualified individuals if that does not thereby prevent them from using the Exchange to get health insurance? Your view is that there was some vague threat that non-incarcerated U.S. citizens would be barred from participating in the exchanges, so Congress sought to specially protect them? That just doesn’t make a lick of sense. [Previous page](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614.md?page=24) [Next page](https://boards.straightdope.com/t/i-admire-the-tenacity-of-republicans/693614.md?page=26)