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.
nm - doesn’t make sense on edited version
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.
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.
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 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.
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.”
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.
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.
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.
Silly Americans… go single-payer already.
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.
No. Untrue.
Look (sigh) at the text of 42 USC § 18032(f)(1)(A):
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:
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).)
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.
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.)
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?
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.
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.
Untrue.
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?
Why should they understand that?
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.
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.
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.