# So - what happens if these lawsuits succeed? **URL:** \ **Category:** Great Debates\ **Created:** [October 22, 2013, 4:44pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944 "2013-10-22T16:44:32Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [October 27, 2013, 5:36am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/101 "2013-10-27T05:36:54Z")
> [@jtgain](#): > > The text is clear and should control. But this will be covered by the “bad facts make bad law” doctrine and be held to be okay. I know that my interpretation would cause problems, but maybe, just maybe, this is why we shouldn’t pass 1000 page bills that nobody reads before voting on? I’m pretty sure that nobody in the whole nation reads the annual budget bill cover to cover, not even counting the super secret highly classified military and spy stuff. If I were in charge of the ACA bill, I would have extended Medicare to all ages for people that wanted to sign up, free of charge. Like all other economically successful modern nations do. But instead we get this ACA without any lube or a reach around. And believe me, you want the lube and reach around. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 5:37am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/102 "2013-10-27T05:37:05Z")
… and I see there was another case filed (not sure when the hearing is) the State of Indiana and Indiana public school corporations against the IRS, US Dept. of Treasury and HHS. > **[Events Calendar](https://events.in.gov/)** > > State of Indiana events updated every day. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 5:38am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/103 "2013-10-27T05:38:58Z")
> [@The\_Second\_Stone](#): > > The Supreme Court has ruled ACA constitutional on a very broad basis, basically saying the government can say to the citizens, do something or we will tax you as a penalty for not doing it. This has nothing to do with the lawsuits in question. If you want to read up on this, try this: [http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2106789](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2106789) ---
**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:** [October 27, 2013, 12:21pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/104 "2013-10-27T12:21:50Z")
> [@jtgain](#): > > All of these doctrines of statutory construction like “intent” and in para materia only come into play if there is ambiguity. The words “established by” a state contain no ambiguity. To qualify for a subsidy, the exchange must be “established by” a state. If it’s established by the federal government, then it is not “established by” a state. Does anyone disagree with that? > > The text is clear and should control. But this will be covered by the “bad facts make bad law” doctrine and be held to be okay. I know that my interpretation would cause problems, but maybe, just maybe, this is why we shouldn’t pass 1000 page bills that nobody reads before voting on? The error in your analysis is statutory interpretation does not proceed by only analyzing three words in a vacuum. You have to make an effort to read the whole thing together consistently, without renderjng any part nonsensical or surplusage. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 27, 2013, 2:24pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/105 "2013-10-27T14:24:31Z")
> [@Human\_Action](#): > > Doesn’t the ambiguity come from the “presumably”? The statute doesn’t actually state that policies from HHS Secretary-established exchanges don’t qualify for subsidy, it must be inferred. I hedged too much. I don’t think it’s presumably at all. I think it’s clear. It can’t be the case that in order to have the statute apply to a particular category (and only that category) you need to also specify that it doesn’t apply to the non-enumerated categories. > [@](#): > > If that were the case, then it’d be easy to show evidence of Congress’ intent, would it not? That is, if the statute as written is the result of a deliberate choice and not poor phrasing. So, I’m a textualist, but even that weren’t true, I believe that it’s a standard canon of construction to assume that Congress intended to say what it says (to the extent that a body that size can have a collective intent). I believe that, if the text is clear, the burden is actually shifted to the proponents of another interpretation to show a different intent (and that it is a fairly high burden). > [@](#): > > I’m out of my field here, so can you point to other cases that demonstrate the bounds of what’s ambiguous and what’s not? I don’t really know where to look. And this sort of Administrative Law stuff is out of my field as well. But, as I understand it, a court should apply the standard canons of construction to the statute to see if “Congress has spoken” on the issue. So, you see if the text is clear. If it’s not, then you play the legislative intent game. It’s only if it’s still ambiguous (and you might otherwise adopt a judicially constructed interpretation), that you defer to the agency. > [@Richard\_Parker](#): > > The error in your analysis is statutory interpretation does not proceed by only analyzing three words in a vacuum. You have to make an effort to read the whole thing together consistently, without renderjng any part nonsensical or surplusage. You are right, of course. But tell me this: if 1331 permits the state to establish an exchange. And another section authorizes the Secretary to establish a 1331 exchange. What interpretation of the subsidy provision can we fashion that includes the exchanges established by the Secretary, but gives some effect to the language “established by the State”? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 27, 2013, 4:00pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/106 "2013-10-27T16:00:07Z")
> [@jayjay](#): > > This bullshit again? Jesus, you people need better writers… I’m not trying to be a smartass; this is a true statement. Handing someone a 1000 page bill, saying the vote is tomorrow but trust me it’s a good bill, will lead to these types of drafting errors and inconsistencies. A lawyer would be guilty of malpractice if he just skimmed a 1,000 page settlement agreement on his paralegal’s assurance that everything was fine. Why shouldn’t a Congress who is voting for laws that effect the lives of over 300 million people be held to the same standard? Oh, because Obama needed his signature project to become law quickly. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 4:04pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/107 "2013-10-27T16:04:02Z")
> [@Falchion](#): > > I don’t really know where to look. And this sort of Administrative Law stuff is out of my field as well. But, as I understand it, a court should apply the standard canons of construction to the statute to see if “Congress has spoken” on the issue. [http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2106789](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2106789) (or [this link for the PDF](http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2234155_code372314.pdf?abstractid=2106789&mirid=1)) Page 176 and down. Goes into great detail why Chevron doesn’t apply. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [October 27, 2013, 4:06pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/108 "2013-10-27T16:06:22Z")
> [@Terr](#): > > This has nothing to do with the lawsuits in question. If you want to read up on this, try this: [http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2106789](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2106789) Then again, I might not want to. The USSC has not only tipped its hand, it has ruled on the constitutionality of the law. Legally the issue is a carcass. The legal vultures will pick over the carcass for years to come, but both legally and politically, it is over. There are going to be some attention mongers and demagogues who lead (for fame and/or profit) smaller groups on legal and political battles, but legally it is a dead issue until Congress does something politically to revive it. Any lawyer worth his salt knows that it is a losing battle. That won’t stop the kind of lawyers who can bill for a losing battle. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 4:07pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/109 "2013-10-27T16:07:42Z")
> [@The\_Second\_Stone](#): > > Then again, I might not want to. The USSC has not only tipped its hand, it has ruled on the constitutionality of the law. The lawsuits in question have nothing to do with constitutionality of the law. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [October 27, 2013, 4:42pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/110 "2013-10-27T16:42:31Z")
I have to agree with many that report that the lawsuits have very little chance to succeed, virtually the same ones that pumped the ICE lawsuit against the dreamers also promised a big defeat for Obama and that he was “frantically” trying to quash the lawsuit. That conspiracy theory language is indeed coming form the same territory of misleading information so typical coming from the right these days. As it turned out one can find experts that support the lawsuits, but they are in the minority and also supported by conservative [del]stink[/del] think tanks. Here I have to point out that when one does a cursory search for expert views on this the cites coming out are indeed coming from the usual right wing think tanks, just like in the ICE case those think thanks give a sense of a false consensus, and one should not forget the old saying that a “lie can travel around the world before the truth has a chance to get his pants on” This case is no different. [http://healthaffairs.org/blog/2012/07/18/tax-credits-in-federally-facilitated-exchanges-are-consistent-with-the-affordable-care-acts-language-and-history/](http://healthaffairs.org/blog/2012/07/18/tax-credits-in-federally-facilitated-exchanges-are-consistent-with-the-affordable-care-acts-language-and-history/) > [@](#): > > Those who oppose making affordable health insurance available to lower- and middle-income Americans are not giving up easily. Having lost their two-year long battle to have the Affordable Care Act nullified in its entirety by the federal courts, opponents have come up with a new theory that they believe will at least deprive millions of middle-income Americans of the tax credits that Congress has offered through the ACA to help make health insurance affordable. > > While this theory has little chance in succeeding in the courts, and even less chance of being addressed by the courts anytime in the near future because of jurisdictional problems, it may very well convince conservative state legislators and governors to refuse to establish health insurance exchanges in their states. This would in turn lead to the establishment of federally facilitated exchanges in states that decide not to establish their own exchanges. Thus, ironically, we see the spectacle of ACA opponents fighting for increased taxes on the middle class and for a greater federal government “takeover” of health insurance markets. > [@](#): > > The Legislative History Shows That Congress Intended Premium Subsidies To Be Available In All Exchanges > [@](#): > > The provisions of the current ACA addressing this issue are taken largely from the Finance Committee bill, which makes sense because the Finance Committee has jurisdiction over tax matters. The punitive provisions of the HELP bill were abandoned. Section 1311 provides that states “shall” establish an exchange by January 1, 2014. The Constitution, however, prohibits the federal government from literally requiring states to establish exchanges, so section 1321 provides that “the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State.” > > By “such Exchange” Congress meant the “required exchange” mandated by section 1311. Thus when several subsequent sections refer to “an Exchange established by the State under section 1311,” including the provisions of Internal Revenue Code section 36B on which Cannon and Adler rest their argument (as well as the provision of section 2001 that prohibits states from reducing Medicaid eligibility until an exchange “established by the State under section 1311” is operational), they are referring both to state exchanges and to “such exchanges” established within states by the Secretary. > > Although the PPACA could be clearer on this matter, the issue is clarified by section 1004 of the later-adopted HCERA. This section directs both 1311 and 1321 exchanges to provide the Secretary and individuals eligible for tax credits with information concerning the amount of advance premium tax credits, as well as information necessary to determine eligibility for premium tax credits and whether an individual has received excess tax credits. As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction. > [@](#): > > The courts are also likely to put great weight on the interpretation of the provision by the IRS, which is explicitly given authority under the statute to adopt regulations interpreting the provision. Cannon and Adler are correct that under the governing “Chevron doctrine,” courts will not defer to the interpretation of an agency if “Congress has spoken to the precise question at issue.” However, where a statute is ambiguous, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” In situations like this, where there is ambiguity, “legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” As noted above, the interpretation of the ACA by the IRS is completely consistent with, rather than “manifestly contrary” to, the statute and thus deserves judicial deference. > [@](#): > > Premium Tax Credits In Federally Facilitated Exchanges Could Not Be Challenged Until 2015 > > Finally, there is the matter of jurisdiction. Under our Constitution, the federal courts only have jurisdiction over “cases or controversies,” that is disputes in which someone has actually been injured. As Cannon and Adler admit, the courts will not hear cases brought by someone who simply objects to a law. Indeed, as the Fourth Circuit held in the Virginia challenge to the ACA (relying on long line of cases) even states cannot sue to challenge a law to which they object unless the state is concretely injured by the law. > > The only viable challengers to the law are employers who may in the future have to pay an exaction because they fail to offer their employees insurance (or affordable or adequate insurance) and their employees consequently end up receiving tax credits in the federal exchanges. But the employer responsibility provision of the ACA expressly refers to the exaction as a tax, and under the Supreme Court’s recent ACA decision, challenges to it would be barred by the Tax Anti-Injunction Act until it was actually assessed, which will probably not be until sometime in 2015. Of course, by then possibly millions of Americans will have received premium tax credits from federally facilitated exchanges, and the political risk of a lawsuit depriving them of this federal tax advantage will be high. > > Which brings us back to the original question: Why are ACA opponents trying to increase the taxes of middle-income American taxpayers? Or more importantly, what is it about extending the benefits of our health care system to millions of uninsured Americans that so troubles opponents of the ACA? And that was Timothy Stoltzfus Jost, J.D., who holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 27, 2013, 4:50pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/111 "2013-10-27T16:50:54Z")
> [@The\_Second\_Stone](#): > > Then again, I might not want to. The USSC has not only tipped its hand, it has ruled on the constitutionality of the law… Not really, and not even on topic. SCOTUS ruled that “the mandate” was constitutional, but it also ruled that compelling the states to accept the medicare expansion was not. So there is precedent for overturning part of the law. And, in the case of the mandate, SCOTUS could have determined that it was unconstitutional and still not overturned the rest of the law. You are extrapolating too far from that one ruling. But as noted, this has nothing to do with the constitutionality of the law. It’s about how to apply the law, as written. Now, there are good reasons to argue that this lawsuit will fail, but just throwing out random facts that have nothing to do with the case isn’t one of them. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [October 27, 2013, 5:08pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/112 "2013-10-27T17:08:56Z")
> [@John\_Mace](#): > > Not really, and not even on topic. > > SCOTUS ruled that “the mandate” was constitutional, but it also ruled that compelling the states to accept the medicare expansion was not. So there is precedent for overturning part of the law. And, in the case of the mandate, SCOTUS could have determined that it was unconstitutional and still not overturned the rest of the law. You are extrapolating too far from that one ruling. > > But as noted, this has nothing to do with the constitutionality of the law. It’s about how to apply the law, as written. > > Now, there are good reasons to argue that this lawsuit will fail, but just throwing out random facts that have nothing to do with the case isn’t one of them. Well, that is what I’m doing. Individual states can drag their heels all they want, but that isn’t going to destroy or put much of a dent in the ACA. Attacking the ACA in the courts seems to me to be a fools errand. And for what it is worth, I think the ACA sucks in comparison to what other developed nations offer their citizens. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 27, 2013, 5:15pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/113 "2013-10-27T17:15:50Z")
> [@Richard\_Parker](#): > > The error in your analysis is statutory interpretation does not proceed by only analyzing three words in a vacuum. You have to make an effort to read the whole thing together consistently, without renderjng any part nonsensical or surplusage. The only interpretation which does this is to prohibit a subsidy for a plan established by the federal government. Any other interpretation makes the “established by a state” language nonsensical or surplusage. One would have to ignore the plain meaning of “established by.” ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 5:43pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/114 "2013-10-27T17:43:37Z")
> [@GIGObuster](#): > > And that was Timothy Stoltzfus Jost, J.D., who holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. Of course, the Professor was wrong - he was writing this in 2012: “While this theory has little chance in succeeding in the courts, and even less chance of being addressed by the courts anytime in the near future because of jurisdictional problems.”. The case is, in fact, being addressed, by at least two federal courts so far, and the federal government’s efforts to have it dismissed using “jurisdictional problems” failed. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [October 27, 2013, 6:09pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/115 "2013-10-27T18:09:25Z")
> [@Terr](#): > > Of course, the Professor was wrong - he was writing this in 2012: “While this theory has little chance in succeeding in the courts, and even less chance of being addressed by the courts anytime in the near future because of jurisdictional problems.”. > > The case is, in fact, being addressed, by at least two federal courts so far, and the federal government’s efforts to have it dismissed using “jurisdictional problems” failed. Was? News to me that this has gone to the supreme court already. So it was the ICE lawsuit, they persisted but in the end higher courts still came to dismiss because of the jurisdictional problems, and you have not deal with the rest of his points; really, the Professor already infers that it is indeed being addressed, it is just that it is not likely to succeeded if it goes to higher courts. In the end, just like with the ICE lawsuit the promises of the right wing regarding their predictions of success in the courts against Obama are at pitiful levels. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 27, 2013, 6:21pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/116 "2013-10-27T18:21:19Z")
> [@GIGObuster](#): > > Was? News to me that this has gone to the supreme court already. Moving the goalposts? The Professor said “the courts”. Not “the Supreme Court”. It’s in federal courts, and the federal courts have decided that the plaintiffs have standing and that there are no “jurisdictional problems”. > [@](#): > > and you have not deal with the rest of his points; really, the Professor already infers that it is indeed being addressed, it is just that it is not likely to succeeded if it goes to higher courts. I have dealt with the rest of his points. I posted a link to the PDF that very meticulously and in great detail deals with the rest of his points. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [October 27, 2013, 6:35pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/117 "2013-10-27T18:35:07Z")
> [@Terr](#): > > Moving the goalposts? The Professor said “the courts”. Not “the Supreme Court”. It’s in federal courts, and the federal courts have decided that the plaintiffs have standing and that there are no “jurisdictional problems”. The answer is the same, it is still there in the federal courts, and no, the ones pushing the lawsuit have not succeeded yet, so the point still stands, talking about the conclusions of the professor in the past tense is just a very silly thing to do. There is a lot of steps and hurdles the ones pushing this will have to pass. The Supreme court being just the final one. > [@Terr](#): > > I have dealt with the rest of his points. I posted a link to the PDF that very meticulously and in great detail deals with the rest of his points. Not convincing at all, I have seen better from the ones pushing the ICE lawsuit, they still failed in the end. BTW the ones you cite are still the same I pointed out as being unreliable in issues like this one like the Cato Institute. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [October 27, 2013, 7:44pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/118 "2013-10-27T19:44:22Z")
> [@GIGObuster](#): > > I have to agree with many that report that the lawsuits have very little chance to succeed, virtually the same ones that pumped the ICE lawsuit against the dreamers also promised a big defeat for Obama and that he was “frantically” trying to quash the lawsuit. That conspiracy theory language is indeed coming form the same territory of misleading information so typical coming from the right these days. > > As it turned out one can find experts that support the lawsuits, but they are in the minority and also supported by conservative [del]stink[/del] think tanks. > > Here I have to point out that when one does a cursory search for expert views on this the cites coming out are indeed coming from the usual right wing think tanks, just like in the ICE case those think thanks give a sense of a false consensus, and one should not forget the old saying that a “lie can travel around the world before the truth has a chance to get his pants on” > > This case is no different. > > And that was Timothy Stoltzfus Jost, J.D., who holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. It’s funny that you criticize “conservative think tanks” and then trot out as a dispassionate expert someone who says things like “Those who oppose making affordable health insurance available to lower- and middle-income Americans” and “Why are ACA opponents trying to increase the taxes of middle-income American taxpayers?” But still, Jost’s textual argument seems really weak. He says that 1311 allows states to establish an exchange (true); and that 1321 allows the Secretary to establish a 1311 exchange (also true). From that he concludes that the language, “established by the State under section 1311” includes both those established by the State under 1311 and those established by the Secretary under 1311. The HCERA sec 1004 argument is more interesting. But, while it’s certainly true that the subsequent bill takes precedence; I don’t think that works in the ambiguity context: i.e., that certain language means a certain thing because a subsequent enactment could be interpreted to suggest that the subsequent congress believed it may have meant that. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [October 27, 2013, 8:17pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/119 "2013-10-27T20:17:38Z")
> [@Falchion](#): > > But still, Jost’s textual argument seems really weak. He says that 1311 allows states to establish an exchange (true); and that 1321 allows the Secretary to establish a 1311 exchange (also true). From that he concludes that the language, “established by the State under section 1311” includes both those established by the State under 1311 and those established by the Secretary under 1311. > > The HCERA sec 1004 argument is more interesting. But, while it’s certainly true that the subsequent bill takes precedence; I don’t think that works in the ambiguity context: i.e., that certain language means a certain thing because a subsequent enactment could be interpreted to suggest that the subsequent congress believed it may have meant that. I still think the subsequent bill clarifies the intention, that and other issues (like the previous history I have seen regarding these ‘lawsuits that will sink Obama’) tells me that the chances of success for these lawsuits are more based on political reasons rather than legal ones. Or I should say, the reason why they continue going is precisely for the political reasons, in the case of the ICE lawsuit I saw posters day in and out telling others how Obama was in trouble, IMHO it does not matter how likely the lawsuits are to fail, the intention is to make a continuous talking point until a judge finally decides this was going far enough. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 27, 2013, 10:16pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/120 "2013-10-27T22:16:14Z")
> [@Falchion](#): > > The HCERA sec 1004 argument is more interesting. But, while it’s certainly true that the subsequent bill takes precedence; I don’t think that works in the ambiguity context: i.e., that certain language means a certain thing because a subsequent enactment could be interpreted to suggest that the subsequent congress believed it may have meant that. The problem is that sec 1004 only requires state and federal exchanges to report amounts to the IRS. It’s a good clue that Congress meant to make both eligible for subsidies, but that doesn’t change the law, because again, all of this about the Chevron rule, reading the intent of Congress, making provisions harmonize, etc. do not apply unless there is ambiguity in the statute. The words “established by a state” are not ambiguous any more than .08 BAC is ambiguous. There is nothing absurd or nonsensical about a law that talks of both state and federal exchanges, requires both to report information to the IRS, but only allows state exchanges to be eligible for a tax subsidy as an incentive for the states to establish these exchanges. But as I said, I think that a judge won’t allow such a key provision of a major law to be cast aside because Congress failed to read what they were voting on. Kennedy will write 37 pages of prose upholding the IRS “interpretation” and Scalia will make my argument in dissent. Further, I don’t think that the Anti-Injunction Act applies. In Roberts’ ruling, didn’t he make clear that it only applies when Congress specifically says that it applies in a new tax? Plus this part of the law isn’t a tax. It’s a tax credit. [Previous page](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944.md?page=5) [Next page](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944.md?page=7)