I admire the tenacity of republicans

[Bricker]

@Richard_Parker

Yeah, you made that argument earlier. I’ll let those following the thread decide whether a mandate that the federal exchanges annually produce a report saying they followed the law and offered $0 in subsidies is a plausible reading of the statute.

Really? You’ll let the audience of a thread on the SDMB decide whether to believe any argument that hurts the success of Obamacare?

Gosh, I wonder what they’ll do.

There is only one answer, and that’s for me to point out that SCOTUS has ruled. Even then, the crowd won’t accept it, and we’ll hear wailing about how Catholic men are evil.

Right?

[John_Mace]

@Richard_Parker

Yeah, you made that argument earlier. I’ll let those following the thread decide whether a mandate that the federal exchanges annually produce a report saying they followed the law and offered $0 in subsidies is a plausible reading of the statute.

It’s confusing, maybe odd, but not contradictory. Contradictory would be if it said the exchanges had to report subsidies and that they also did NOT have to report subsidies.

The other parts make my head hurt when I read them, so I’ll let you guys duke it out some more before I decide.

[Richard_Parker]

I get it, Bricker. This is about tribe for you. The Republicans have been attacked. The Catholics have been attacked. You must avenge them in this den of loopy-headed liberals. You’ve made that very clear.

But I don’t give a shit about the recriminations and whining. If you want to return to talking about the legal arguments, then I enjoy that.

If all you want is to wait until the Supreme Court rules, so be it. I won’t be shouting from the rooftops how much of a stupid-head Bricker is when you are proven wrong.

[Richard_Parker]

@John_Mace

It’s confusing, maybe odd, but not contradictory. Contradictory would be if it said the exchanges had to report subsidies and that they also did NOT have to report subsidies.

The other parts make my head hurt when I read them, so I’ll let you guys duke it out some more before I decide.

Confusing and odd is sufficient. The judge is obligated to make sense of the statute as a whole. If one interpretation makes another section confusing and odd, then he is forced to consider whether another interpretation makes more sense of the statute as a whole.

I again recommend Judge Friedman’s opinion for a longer explication of the other two arguments (and others). But I’m also happy to answer questions about them, if I can make them clearer.

[John_Mace]

@Richard_Parker

Confusing and odd is sufficient. The judge is obligated to make sense of the statute as a whole. If one interpretation makes another section confusing and odd, then he is forced to consider whether another interpretation makes more sense of the statute as a whole.

I again recommend Judge Friedman’s opinion for a longer explication of the other two arguments (and others). But I’m also happy to answer questions about them, if I can make them clearer.

OK, I’ll see if I can get through that reference.

But my own layman’s take on this is that the federal exchanges are clearly set up in lieu of the state exchanges and therefore should be treated as such. And if Congress doesn’t like that interpretation, Congress can change the law to explicitly disallow subsides in states with exchanges are set up by the federal government.

[Richard_Parker]

@John_Mace

OK, I’ll see if I can get through that reference.

Here are the relevant parts, excerpted and bracketed to make more readable. Keep in mind that the Administration wins if they have a reasonable view of the statute. It need not be the only reasonable view, or even the correct view. Just one reasonable view.

[On interpretation of the statute as a whole and “such Exchange”]

Looking only at the language of [the subsidy calculation], isolated from the cross-referenced text [providing that the term “Exchange” shall mean a governmental agency or nonprofit entity that is established by a State, and that the federal government shall operate such “Exchange” in certain circumstances], the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS?

But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.

[On Anomalies created by Plaintiff’s interpretation]

The defendants point to various provisions of the ACA that appear to reflect an intent by Congress to make tax credits available to taxpayers purchasing insurance from the federally-facilitated Exchanges; they also cite provisions that, if construed consistently with plaintiffs’ proposed definition, would create numerous anomalies within the statute that Congress could not have intended. See 26 U.S.C. § 36B(f)(3) (requiring reporting by federally-run Exchanges of advance payments of tax credits); 42 U.S.C. § 18032(f)(1)(A)(ii) (restricting any Exchange-based purchase of health insurance to residents of “the State that established the Exchange”); 42 U.S.C. § 1396a(gg) (providing that a state must maintain certain standards in its Medicaid program until “an Exchange established by the State under [42 U.S.C. § 18031] is fully operational”); 42 U.S.C. § 1397ee(d)(3)(B) (requiring HHS to determine, for each state, whether health plans offered through “an Exchange established by the State under [42 U.S.C. § 18031]” provide benefits for children comparable to those offered in the state’s CHIP plan).

[For example,] Section 1312 of the ACA, codified at 42 U.S.C. § 18032, sets forth provisions regarding which individuals may purchase insurance from the Exchanges. This section provides that only “qualified individuals” may purchase health plans in the individual markets offered through the Exchanges, and requires that a “qualified individual” be a person who “resides in the State that established the Exchange.” 42 U.S.C. § 18032(f)(1)(A)(ii). There is no separate provision defining “qualified individual” for purposes of the federally-facilitated Exchanges.

If this provision were read literally, no “qualified individuals” would exist in the thirty-four states with federally-facilitated Exchanges, as none of these states is a “State thatestablished [an] Exchange.” The federal Exchanges would have no customers, and no purpose. And this absurd construction can be avoided, say defendants, by viewing 42 U.S.C. § 18041 – the provision which grants states flexibility in the operation of Exchanges and permits the Secretary to establish and operate an Exchange when a state declines to do so – as authorizing the federal government to “stand in the shoes of the state” for purposes of Section 18032’s residency requirement.

[On Legislative Intent and Statutory Purpose]

Plaintiffs try to explain away the inconsistency between their proposed construction and the statute’s underlying purpose by proposing that Congress had another, equally pressing goal when it passed the ACA: convincing each state to set up its own health insurance Exchange. . . . The problem that plaintiffs confront in pressing this argument is that there is simply no evidence in the statute itself or in the legislative history of any intent by Congress to ensure that states established their own Exchanges. And when counsel for plaintiffs was asked about this at oral argument, he could point to none. See Dec. 3, 2013 Tr. 8-18.

Furthermore, there is no evidence that either the House or the Senate considered making tax credits dependent upon whether a state participated in the Exchanges. To the contrary, Congress assumed that tax credits would be available nationwide. See, e.g., Congressional Budget Office, An Analysis of Health Insurance Premiums Under the Patient Protection and Affordable Care Act Defs.’ SJ Mot., Ex. 5, at 2, 4-7 (Nov. 30, 2009) (calculating anticipated subsidies across all states); Letter from Douglas W. Elmendorf, Director, CBO, toRep. Darrell Issa, Chairman, House Committee on Oversight and Government Reform, Defs.’ SJMot., Ex. 17, at 1 (Dec. 6, 2012) (“To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.”). Plaintiffs hang much of their argument on the suggestion of one contemporaneous commentator that Congress could incentivize state participation in the Exchanges “by offering tax subsidies for insurance only in states that complied with federal requirements.” Timothy S. Jost, Health Insurance Exchanges: Legal Issues 7, O’Neill Institute, Georgetown Univ. Law Ctr., no. 23, April 27, 2009. But there is no evidence in the legislative record that the House, the Senate, any relevant committee of either House, or any legislator ever entertained this idea.

[John_Mace]

One question. Clearly Congress wanted to disallow some kind of exchanges to receive subsidies. What kind of exchange might that be? One set up by a city?

[Airbeck]

@John_Mace

One question. Clearly Congress wanted to disallow some kind of exchanges to receive subsidies. What kind of exchange might that be? One set up by a city?

One set up by a corporation? Outside of any type of government oversight?

[Richard_Parker]

Exchanges other than “American Health Benefits Exchanges” created pursuant to or in compliance with PPACA. So that would be private exchanges, SHOP exchanges, and exchanges created pursuant to state laws that do not qualify as “American Health Benefits Exchanges” under PPACA.

[elucidator]

…Clearly Congress wanted…

“Clearly”? Well, yeah, if there’s one thing lawyers are widely admired for, its the clarity and simplicity of their prose style.

[Bricker]

@Richard_Parker

I get it, Bricker. This is about tribe for you. The Republicans have been attacked. The Catholics have been attacked. You must avenge them in this den of loopy-headed liberals. You’ve made that very clear.

You make it sound so unreasonable.

No, neither of those motivates me.

What motivates me is the wrong-headed view of the role of the judiciary.

But I don’t give a shit about the recriminations and whining. If you want to return to talking about the legal arguments, then I enjoy that.

I don’t think you do. I think you have spent post after post valorizing the dissent because it supports a political goal you like, and I think you are willing to be very flexible in choosing what standard of judicial review judges should use based on what political goal you like.

If all you want is to wait until the Supreme Court rules, so be it. I won’t be shouting from the rooftops how much of a stupid-head Bricker is when you are proven wrong.

If the Supreme Court upholds the subsides based on this law, you’d be right to shout such things.

[Bryan_Ekers]

No, he’d be unclassy to shout such things. It’s a distinction worth noting.

[MaxTheVool]

@Bricker

Not really, no. If you take social good out of the equation, you’re left with an unambiguous law. Where, even once, is the authorization for federal exchanges to get subsidies?

I think Richard Parker is doing an excellent job of arguing that side of the debate, better than I could. And note that he’s basing his argument not on random shit he pulled out of his wooly-headed liberal imagination, but on an actual decision of an actual judge, who presumably knows more about the issue than any of us.

If you had asked the people voting for this law about the issue, they would have said, “That’s the plan: we incentivize the state exchanges with the subsidies to encourage states to start their own exchanges.” The federal exchange was at first a last-ditch stopgap.

I can’t decide if you actually think this is literally true, or if you’re proposing it as a plausible explanation for why the law might have been written as it was. Do you have any actual quotes from anyone confirming your interpretation? As far as I can tell, no one else on your side of the argument seems to think this is the case.

IF your belief was true, IF it were the case that federal exchange were meant to be a disincentivized and unlikely fallback in the unlikely case that state exchanges failed, and IF liberals woke up a year later, realized that many states didn’t have state exchanges, and suddenly wanted to ex post facto change the clear meaning of the bill in order to undisincentivize the federal exchange – then that would be wrong of them to do so. But I don’t believe that’s the case.

Without the social good, this is not a close question.

Well, it’s close enough that so far we’ve had one panel of judges rule 2-1 one way, and one rule 3-0 the other way, and everyone seems to be predicting a 5-4 supreme court decision, whichever way it ends up going.

I’m also reasonably certain of the Supreme Court result, although not 1000:1 certain.

Well, you continue to talk about your prediction if you were literally absolutely certain you will be correct. Which is of course similar to what you’re always getting upset about liberals doing which makes you bet against them.

No, but it sheds light on whether the speaker is bloviating and regurgitating liberal echo chamber bullshit.

I’ll try to keep an ear open for it, but I don’t think that liberal echo chamber bullshit usually includes absolute certainty about future predictions. So I suspect that some number of the times that you bring out your betting technique what you’re really finding is not someone who is absolutely certain of something but just someone who is using imprecisely optimistic language. I’m sure there were people in the runup to the 2004 election who talked big about how Bush was going to lose, because we really really wanted him to lose and were sure he DESERVED to lose, without actually honestly thinking that it was certain to happen. Hitting that person with a rhetorical stick until he or she agreed to moderate his or her language to more accurately reflect wishes vs certainties seems like a bit of a silly use of time, but hey, if you enjoy it… (Although, again, your language about certainty about SC decisions in this very thread is falling into that very same trap.)

[MaxTheVool]

@Bricker

I don’t think you do. I think you have spent post after post valorizing the dissent because it supports a political goal you like, and I think you are willing to be very flexible in choosing what standard of judicial review judges should use based on what political goal you like.

Do you have evidence for this? Was there a case in the past where a very complicated law was passed, and someone made an argument that read in isolation a few individual sections of it said X, but that in the larger context of the bill (and the debate that had preceded it) it seemed likely that the intent of those sections was Y – and Richard Parker came along and argued strenuously that the precise letter of the law had to be followed, and thus X should be implemented?

Because if not, then you’re basically just making shit up.

It’s one thing (and almost certainly an accurate thing) to say that the SDMB as a whole, being as liberal as it is, is having a reaction to this whole issue that is informed not by an SDMB-wide consensus on the precise role of judicial review but on an SDMB-wide consensus of Obamacare-good-Republicans-bad. But that doesn’t give you grounds to focus that accusation on one individual.

[Fotheringay-Phipps]

@John_Mace

One question. Clearly Congress wanted to disallow some kind of exchanges to receive subsidies. What kind of exchange might that be? One set up by a city?

FWIW, the latest hot thing in employee benefits is “private exchanges”, set up by consulting firms and marketed to employers. My company has one that it’s pushing like mad and the other big consulting firms are doing the same.

Hard to predict for sure what will happen. But so far they’re going quite well and they may be coming soon to your employer.

[John_Mace]

@MaxTheVool

I think Richard Parker is doing an excellent job of arguing that side of the debate, better than I could. And note that he’s basing his argument not on random shit he pulled out of his wooly-headed liberal imagination, but on an actual decision of an actual judge, who presumably knows more about the issue than any of us.

I agree. Definitely appreciate RP’s contribution to understanding this issue.

[Richard_Parker]

@Bricker

What motivates me is the wrong-headed view of the role of the judiciary.

The problem is that this is a really bad case for you to be using to advance that campaign.

I agree with you that judges shouldn’t be making free-form social policy and I agree that many posters on this board have wrong-headed views about the judiciary.

But this case is not an example of that. You apparently think the statute is crystal clear, and only judicial activist could see it any other way. But it isn’t clear. It’s ugly, and contradictory, and ambiguous. And Chevron deference should mean that the Administration wins, even if you don’t account for legislative purpose (and if you do, the answer is only more obvious).

@Bricker

I don’t think you do. I think you have spent post after post valorizing the dissent because it supports a political goal you like, and I think you are willing to be very flexible in choosing what standard of judicial review judges should use based on what political goal you like.

This isn’t true, and I’d like to think you’re just angry and don’t really believe it. I stated the proper standard for evaluating this case before the district court even decided it and every jurist to hear the case so far has agreed with my statement of the standard.

As much as you would like it to be, the disagreement between the parties in this case is not about whether language trumps purpose or whether the text trumps social policy. It is how best to read an unclear statute. Or, more precisely, whether the agency tasked with reading it has offered one of many possible reasonable readings.

[elucidator]

…Definitely appreciate RP’s contribution to understanding this issue…

Wholly agree, and its not just because I got so sick of Bricker smacking people upside the head with his law degree! Nosir! Well, OK, maybe a little…

[Bone]

@Bricker

I don’t think you do. I think you have spent post after post valorizing the dissent because it supports a political goal you like, and I think you are willing to be very flexible in choosing what standard of judicial review judges should use based on what political goal you like.

This isn’t how it’s coming across at all. RP definitley has his own views, but the legal arguments presented here, and in the posting history I’m aware of, have never been made in the spirit you are accusing him of.

Consider that it is possible for him to share your view on the role of the judiciary and come to the same conclusion he has.

[elucidator]

@Richard_Parker

…And Chevron deference should mean that the Administration wins…

**
Chevron Deference**

One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.

Chevron deference

OK, so its not about needless respect for corporate running dog jackals of the ruling class. Good!