Bagley’s absolutist statement “Because of the deference extended to agency interpretation, doubt means they lose” is wrong. As explained in the article I cited.
:dubious:
Remember that motivated reasoning I mentioned up thread? Well…
I think it’s likely that the majority of HC.Gov states would hold out until after the next presidential election, hoping that a GOP president gets in & the ACA gets fundamentally restructured in 2017, whatever the Hell that even means. A few will rush to make exchanges, though, likely the purple-ish states such as Michigan & New Jersey.
No matter what the Republicans say, they’ve absolutely no intention of passing the requisite sentence that could make this lawsuit a total non-issue. Even now, they’re haphazardly peddling around the 2008 McCain/Palin health care plan as a possible legislative fix, as if the 2008 election never took place.
It’s all bullshit, and the Dems & Obama would have no reason to acquiesce to it. So, again, clusterfuck.
You were told to refrain from making it personal the last time you made accusations of “motivated reasoninng.”
This is a Warning to remind you that you need to follow Moderator instructions.
[ /Moderating ]
I would argue that the coverage is complaint but their issuing practices are non-compliant. The whole purpose of the tax penalty is to make sure that there are no freeloaders out there. In my hypo, I am not a freeloader. I have all of the coverage required by law. But you are suggesting that I would still have to pay a penalty because of the insurance company’s practices?
The law uses the term minimum essential coverage (MEC) to describe the characteristics of an insurance policy that meets the requirements of the PPACA. MEC is defined under IRS section 5000a(f)(1)(c). If you don’t have MEC (and don’t otherwise qualify for an exemption) then you owe the shared responsibility payment penalty.
IRS section 5000a states that, among other plans, MEC includes:
(C) Plans in the individual market
Coverage under a health plan offered in the individual market within a State.
This is getting circular, eh?
The PPACA requires in section 1201 (pdf link to PPACA full text) amends the Public Health Service Act (42 U.S.C. 300gg et seq.) to prohibit rate differences not explicitly allowed under the PPACA. The requirements apply to both group and individual coverage. The text of the PPACA explicitly prohibits discrimination based upon health status such as a pre-exisiting condition in plans meeting the MEC requirements.
The dissent in NFIB v. Seblius talks a LOT about “federal subsidies”.
It uses the term when discussing federal subsidies to the States in support of the Medicaid program.
It uses the term when discussing federal subsidies to individuals in various hypotheticals about how the PPACA would perform if the individual mandate was ruled unconstitutional. And the dissent concludes that the entire PPACA would need to be stricken - that an unconstitutional individual mandate could not be severed from the remainder of the act.
It discusses the (so-far) undisputed interpretation that federal subsidies are not available at all to individuals with incomes below the federal poverty line as those low income individuals would be covered under the Medicaid expansion that Congress assumed all States would accept.
What the dissent does not do is explicitly state that federal subsides to individuals are definitely available to individuals who purchase qualifying coverage on an exchange established by the federal government when a State refuses to establish an exchange. But the dissent does not explicitly state that federal subsidies are definitely not available to such persons. The dissent in NFIB v. Seblius is silent on the point raised in the *King *case.
What 2ManyTacos is seizing on is a line from a hypothetical in the dissent. That same section begins with the assertion that,
The entire section is explicitly talking about federal subsidies for policies bought on State-established exchanges. No one is disputing that federal subsidies extend to such policies bought on an exchange established by a State.
Question.
Do judicial dissents, even at the level of the SCOTUS, have any precedential value, at all?
IANAL, but it appears that dissenting opinions do not create binding precedent but may be called upon as a persuasive authority.
To be clear, if the dissent in *NFIB v Sebelius * clearly and unambiguously addressed the issue raised in King (availability of federal subsidies for insurance policies purchased on an exchange established by the federal government) it would be a very significant indication of how those justices will likely rule in King. Alas, there was no such tip off on the *King *issue, either way.
However, it is noteworthy that Kennedy was one of those dissenting justices in NFIB v Sebelius. He is often viewed as the swing vote in closely divided cases. He voted to invalidate the entire PPACA. Supporters of the administration’s position may need to count on Roberts again.
We’re kind of getting off topic a bit. There are other threads, I believe, about the merits of the case. I’m interested in what’ll happen if the worst occurs for the administration.
Again, if the case comes down to Chevron, then it should be a 9-0 win for the administration (though given the makeup of this Court, it’s more likely a 7-2). It’s also possible that SCOTUS rules that the law unambiguously provides for subsidies in both state AND federal marketplaces, as one of the lower courts already ruled. The bottom line is that the prior 2012 case SHOULDN’T be a marker for how the conservative Justices might rule, given that that case was fought over nebulous constitutional issues & this one is over statutory interpretation. Still, IANAL.
I know that we’ve veered off course, but since we’re talking about worst case scenarios I think that I’ve done a good job of explaining what a bad decision would mean for the Court itself: A bad ruling in King - especially if it’s 5-4 - will not in any way be an objective decision but will rather be a political calculation. Consequently, both Roberts’s legacy & the legitimacy of his Court will be destroyed, & it’ll probably be another 2-3 generations before it could ever rebound from that.