I personally am very skeptical of the notion that federal exchanges were deliberately excluded. But I don’t think they were intended to be included and left out through an oversight either. I think nobody paid attention to them at all. People did not anticipate that they would come into existance, at least in a big way, and did not consistently try to make sure the law would “make sense” if there ended up being a bunch of them.
IOW, I think if someone would have pointed out to the people writing the law “hey, you know you left out the federal exchanges, and you never know, maybe some states won’t make exchanges and the federal exchanges won’t be eligible for subsidies”, I think it’s likely that they would have amended the language. But no one did and the language was not amended.
So the other side of the argument (to the extent that it’s valid, in my speculation of the facts) is not “this is what we meant to do but someone forgot to add the proper language”. It’s more like “this is what we would have done had we thought about it some more”.
I am not a legal scholar so I don’t know what the legal approach is in such cases. But I would personally prefer that laws were required to be executed as actually written and passed, and not as the framers and signers would have written it had they thought more about it.
Weird that you did not similarly object to RP doing the exact same thing in the very post Bricker was responding to. Could almost lead one to speculate about your own motivations
What happens here is that everyone says it, everyone agrees with it, and then reality happens. It’s like the possibly-apocryphal story of Pauline Kael’s reaction to the news that Nixon won against McGovern in one of the biggest landslides in American memory: “How can he have won? Nobody I know voted for him.”
And then on the heels of that comes the rationalizations. Since nobody you know could have ever predicted such a farcical result, it must be the subject of partisan allegiance and bias.
According to the SDMB, Hobby Lobby didn’t get decided because the RFRA and the Dictionary Act clearly and unambiguously say, “Any person whose religious exercise is burdened gets the protection of this law, and by the way, ‘person’ means corporations too.” No, no – it happened because there are five Catholic males on the Court who hate women.
And this decision is going to be subject to the same treatment. You all will assure each other that the law’s “intent” and “overall purpose” are more important than the plain meaning of the actual words Congress passed, and then when the Supreme Court smacks you in the face with reality, it will be because they are five racists who want Obama to fail, and all evil inhuman monsters who enjoy seeing poor people suffer.
Very good point. Even if the Administration wins this case, as I think they will, the next Republican in the White House very well might do what you suggest if the holding of this case relies on deference to the agency. So this thread might end up getting a lot of bumping in the next five years.
I think if you look at the draft bills from which the final bill was made it is pretty obvious what happened. They grafted on the idea of the federally-run exchanges to language from the bill that just talked about state exchanges. They thought it was sufficient to say that the federal exchange is the same as the state exchange, so they didn’t bother to change all the other references to the state exchanges. Because of the context, they did not expect someone to argue that “established by the State” excluded the federal step-in exchanges, even though that argument is really obvious in retrospect.
But none of that history has really been the basis for any of the opinions upholding the subsidies. They have reasoned that the other language in various parts of the statute renders the statute as a whole ambiguous (at worst), and that in that scenario the agency wins.
I think there was a lot more basis for what I said about Bricker than what he said about me. But I agree that speculation about other’s motives does nothing to further this discussion. I withdraw my speculation.
I ask because Judge Friedman’s opinion below has the government winning at Chevron step 1, unambiguous language, but your new best friend Judge Edwards’s dissent says Chevron step 2, reasonable interpretation of ambiguous language. And the Fourth Circuit found that as well: ambiguous language, reasonable interpretation.
Yes. You’re right. I was angry, and it wasn’t true. You’re arguing the law.
But while your argument of the standard is correct, your view of the ambiguity is not.
No – if that were true, then the Fourth Circuit would be correct. The statute is not unclear, in any reasonable sense. Its commands are crystal clear. They just produce a result that isn’t what ACA proponents now want.
If this is Chevron Step 2, and President Perry appoints a new IRS Commissioner on January 20th, 2016, and on January 22nd the IRS announces no subsidies for federal exchange purposes… would the IRS still be acting legally?
Where is this “new best friend” bit coming from? Have I referenced Edward’s dissent? I don’t think I’ve even read it yet.
I think there’s an OK case for resolving this at step 1 in the Administration’s favor. But I think that, at worst, it should get resolved in their favor at step 2. The latter is obviously a more conservative approach.
This is possibly OT, but there is no way that will happen.
The Republicans might cheer a legal ruling that will allow the ACA to be undermined with themselves hiding behind legal arguments, but if an alternative interepretation survived SCOTUS review and then a Republican president pulled the rug out from under millions of people based on what would be an arbitrary alternative explanation, they would get killed. Not going to happen.
I agree entirely that this is the most likely interpretation of what happened.
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.
If you’re referring to this:
Then it’s not really a fair comparison, for two reasons:
(1) It’s a direct response to Bricker suddenly bringing up “wailing about how Catholic men are evil” in post 441, when Richard Parker had generally politely been arguing purely about legalistic things
(2) To the extent that it’s being rude and obnoxious and bringing up outside irrelevancies (and clearly there’s an extent to which it is), it’s just questioning Bricker’s MOTIVES, not his ACTIONS. It’s not accusing Bricker of having a double standard, it’s just accusing him of caring MORE and arguing with more vitriol in this case, because he feels attacked. That’s a much less serious accusation than Bricker claiming that RP’s entire position is based purely on partisanship.
That said, I’ve never claimed that I am 100% objective in how I direct my posting energy, and Bricker and I have discussed that phenomenon at great length in many other threads.
Edited to add: At this point both Bricker and RP have backed off their personal attacks (credit to both of them), so it’s probably better to let that side tangent drop.
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.
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.
