# 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:** 7
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [October 27, 2013, 11:38pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/121 "2013-10-27T23:38:54Z")
> [@Terr](#): > > 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. Once again, a lawyer who does not make every available motion to get a case dismissed or judgment in faver of his or her clients is not likely to number the Federal government among those clients. Your attempts to paint that as running scared, or as underhanded in some way, are pure spin. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 12:00am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/122 "2013-10-28T00:00:44Z")
> [@Hershele\_Ostropoler](#): > > Once again, a lawyer who does not make every available motion to get a case dismissed or judgment in faver of his or her clients is not likely to number the Federal government among those clients. Your attempts to paint that as running scared, or as underhanded in some way, are pure spin. FCOL, look at what my post was in response to. It was an article by some law professor that claimed that the case had no chance in “the courts” due to “jurisdictional problems”. As I said, the professor was wrong. ---
**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 28, 2013, 12:08am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/123 "2013-10-28T00:08:16Z")
> [@jtgain](#): > > 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.” This is erroneous reasoning for three reasons. First, you’re still reading the provision in a vacuum. Even if it were true that the IRS reading somehow does violence to the phrase “established by the State,” this might still be the most harmonious way to interpret the statute in light of the other provisions explaining how the federal-run exchange is substituting for all purposes for the state-run exchange. In other words, if you have to neutralizing some language no matter what you do, it isn’t an argument against an interpretation to say that it neutralizes some language But second, we don’t have to read “established” to mean “desires” or “controls.” The word can mean “came into being as a consequence of the decisions of the state” as distinct from “came into being as a consequence of private entities.” Third, even if “established” means “run by the state,” and even if for some reason we decided that language was more sacrosanct than the rest of the language, there still wouldn’t be a problem with reading the statute to have essentially said that normally states will establish these, but that when the federal government does, you treat that the exact same way you do the state one. What you have to read in is a sort of parenthetical that says “established by the state (as distinct from the federal government).” There’s no reason to add that implication. > [@Falchion](#): > > 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”? See above. ---
**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 28, 2013, 12:28am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/124 "2013-10-28T00:28:46Z")
> [@Terr](#): > > FCOL, look at what my post was in response to. It was an article by some law professor that claimed that the case had no chance in “the courts” due to “jurisdictional problems”. As I said, the professor was wrong. Nope, you had to use a strawaman to claim that he was wrong, succeeding in the courts does not mean just getting a hearing or going forward. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 1:11am UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/125 "2013-10-28T01:11:25Z")
> [@Richard\_Parker](#): > > in light of the other provisions explaining how the federal-run exchange is substituting for all purposes for the state-run exchange > … > but that when the federal government does, you treat that the exact same way you do the state one Can you quote the exact language of the law that claims that the federal-run exchange is “ **substituting for all purposes** ” for the state-run exchange? or that the federal government-created exchange has to be treated “exact same way you do the state one”? I couldn’t find anything. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [October 28, 2013, 1:07pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/126 "2013-10-28T13:07:18Z")
> [@Falchion](#): > > 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. But, in this case there are only two categories (state-established and HHS Secretary-established exchanges). It’s not clear that HHS-established exchanges are even meant to be a separate category. > [@](#): > > 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 don’t have the background to speculate much more than I already have as to whether the statute will be found to be ambiguous or not. I can see a plausible argument either way. If it _is_ ambiguous, then the federal interpretation will prevail, because the agency interpretation is certainly a reasonable one. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 1:20pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/127 "2013-10-28T13:20:32Z")
> [@Human\_Action](#): > > I don’t have the background to speculate much more than I already have as to whether the statute will be found to be ambiguous or not. I can see a plausible argument either way. If it _is_ ambiguous, then the federal interpretation will prevail, because the agency interpretation is certainly a reasonable one. Not even that. From the paper I cited earlier: "But ambiguity alone does not trigger Chevron deference. As the Supreme Court has made clear in recent years … the basis for according deference to agency interpretations of ambiguous statutes is the conclusion that Congress has delegated such interpretive authority to the agency. Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Further, notes Professor Adrian Vermeule, “the default rule runs against delegation. Unless the reviewing court affirmatively finds that Congress intended to delegate interpretive authority to the particular agency at hand, in the particular statutory scheme at hand, Chevron deference is not due and the Chevron two-step is not to be invoked.” The Obamacare does not expressly delegate such authority. Again, from the paper: "The D.C. Circuit has expressly rejected the proposition that Chevron step two is satisfied “any time a statute does not expressly negate the existence of a claimed administrative power.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 28, 2013, 1:40pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/128 "2013-10-28T13:40:05Z")
**Terr** , do you know what language is required to indicate an express delegation under _Chevron_? ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 2:01pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/129 "2013-10-28T14:01:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > **Terr** , do you know what language is required to indicate an express delegation under _Chevron_? IANAL. From what I understand, there is no mention of delegating the interpretive authority to IRS (or to anyone, AFAIU) in the law. Thus the absence of the Chevron’s second step. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [October 28, 2013, 2:14pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/130 "2013-10-28T14:14:36Z")
Can you say “grasping at straws?” Yeah, I’ve been following these lawsuits ever since Oklahoma filed the first one all those months ago, and, um, I’d say it’s more likely that the sky will begin raining prime ribs than for these lawsuits to ever go anywhere. Seriously, there’s just no “there” there, and you’d have to be an incredibly vindictive judge to step over the kinds of boundaries that would need to be crossed in order to rule against the administration in this case. But the OP is asking about the practical effects of such a ruling, right? OK, I’ll play ball. To start off, any conclusive ruling wouldn’t be handed down until well into 2015, at which point there will be _millions_ of insured individuals who will have been receiving premium assistance on the federal marketplaces. Folks who live in states that are managing their own exchanges will not be affected at all, and I just can’t see the Democrats suddenly agreeing to destroy the singular policy that they’d fought for for nearly a century just to placate an activist GOP judge. You’d also have to confront the dynamic of citizens in the federal states suddenly finding themselves having to pay for the premium assistance of individuals in the state-run marketplaces. If anything, there’d be a rush of individuals pushing their state legislators to just adopt the federal marketplace as their state-run exchange, rather than a sudden rush to kill the whole law. Of course, this entire stupid question could be resolved in five minutes if Congress were to just pass a clarifying amendment to the ACA, but until the D’s take back the House that isn’t likely to happen anytime during Obama’s tenure in office. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 2:16pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/131 "2013-10-28T14:16:46Z")
> [@2ManyTacos](#): > > To start off, any conclusive ruling wouldn’t be handed down until well into 2015 The judge in the case I cited in the OP is promising a decision by Feb 15, 2014. ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [October 28, 2013, 3:32pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/132 "2013-10-28T15:32:18Z")
A ‘conclusive’ ruling though? That’ll be the end of the process wrt to these lawsuits you think? Nowhere to go from there? ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 3:36pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/133 "2013-10-28T15:36:47Z")
> [@Airbeck](#): > > A ‘conclusive’ ruling though? That’ll be the end of the process wrt to these lawsuits you think? Nowhere to go from there? If (note the if) the judge on Feb 15 decides in favor of the plaintiffs, injunctions will be instituted. That’s fairly “conclusive” (until the higher court decision, if appealed). ---
**Author:** ![Airbeck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/airbeck/32/6574_2.png) [@Airbeck](https://boards.straightdope.com/u/Airbeck)\ **Post date:** [October 28, 2013, 3:39pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/134 "2013-10-28T15:39:43Z")
You think there’s a chance that would’t be appealed? Please, pull the other one … ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 28, 2013, 3:41pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/135 "2013-10-28T15:41:19Z")
> [@Terr](#): > > If (note the if) the judge on Feb 15 decides in favor of the plaintiffs, injunctions will be instituted. That’s fairly “conclusive” (until the higher court decision, if appealed). Well, not really. First there would be an automatic stay on appeal, and second the subsidies won’t have any practical effect until April 2015. ---
**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 28, 2013, 3:47pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/136 "2013-10-28T15:47:17Z")
The only thing the Court has ruled on so far is the standing issues, if we’re talking about the DC case.Also, IIRC, the Court is reaching the merits of a motion for a preliminary injunction, which is of course still removed from an actual determination of the merits of the case. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [October 28, 2013, 3:59pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/137 "2013-10-28T15:59:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, not really. First there would be an automatic stay on appeal, and second the subsidies won’t have any practical effect until April 2015. AFAIU, for those who choose that option, the subsidies will be applied to their premium payments starting Jan, 2014. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 28, 2013, 4:22pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/138 "2013-10-28T16:22:02Z")
Hmmm. Looks like you’re half right. If the exchange is able to determine that the insured qualifies, the subsidy is directly to the insurer, and if not then it gets applied like a normal tax credit at tax time. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 28, 2013, 4:49pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/139 "2013-10-28T16:49:59Z")
> [@Richard\_Parker](#): > > This is erroneous reasoning for three reasons. > > First, you’re still reading the provision in a vacuum. Even if it were true that the IRS reading somehow does violence to the phrase “established by the State,” this might still be the most harmonious way to interpret the statute in light of the other provisions explaining how the federal-run exchange is substituting for all purposes for the state-run exchange. In other words, if you have to neutralizing some language no matter what you do, it isn’t an argument against an interpretation to say that it neutralizes some language > > But second, we don’t have to read “established” to mean “desires” or “controls.” The word can mean “came into being as a consequence of the decisions of the state” as distinct from “came into being as a consequence of private entities.” > > Third, even if “established” means “run by the state,” and even if for some reason we decided that language was more sacrosanct than the rest of the language, there still wouldn’t be a problem with reading the statute to have essentially said that normally states will establish these, but that when the federal government does, you treat that the exact same way you do the state one. What you have to read in is a sort of parenthetical that says “established by the state (as distinct from the federal government).” There’s no reason to add that implication. I disagree. There is a case that says that words of a statute must be given their ordinary and customary meaning. To answer your three points 1. There is no contradiction in the overall statute or a reading that makes it ambiguous. Linguistically, it allows the creation of state and federal exchanges, but only allows subsidies for those “established by a state.” No contradictions; no ambiguities. The only way it becomes ambiguous is if you say “Well, obviously, Congress meant for the two exchanges to be treated the same way.” You can’t get to intent unless the statute is ambiguous linguistically, unless that literal reading creates an absurd result. 2. With respect, this is an absolutely tortured definition of “established by.” It would be like saying that since you left dirty clothes lying all over the house and your wife finally got tired and picked them up, that YOU (the general you) actually picked them up because your actions of not picking them up caused them to be picked up. “Establishing” something is an affirmative, conscious act; not something that can be attributed to a person causing something to be established by a third person because of the first person’s own intentional or negligent choices. Do you know of any other use of the word “establish” in the context that you use it? 3. This is another legislative intent argument basically saying that well, Congress meant them to be treated the same. No peeking at intent unless the words are ambiguous, or the literal reading creates an absurd result. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [October 28, 2013, 5:05pm UTC](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944/140 "2013-10-28T17:05:25Z")
Why can’t congress pass an amendment so that citizens of states that didn’t set up their own exchanges can qualify for the subsidy? I mean, if the point is that the law was sloppily worded, we can easily fix the law. This happens–or used to happen–all the time. But of course, the Republicans don’t want to fix the law. The fact that there is possibly a mistake in the law is, to their minds, a good thing. Rather than amend it to fix it, they’d rather the error stand, because that means Obamacare doesn’t work as well as it might, and that’s good, because Obamacare is bad, and the worse it is, the better. See, I’m not a lawyer and I have no idea how far these lawsuits will go. It depends on lots of things that I don’t know about. But the lawsuits themselves won’t kill Obamacare, and the problem that the lawsuits ostensibly expose could easily be fixed. But there’s no hope of that, is there? Because the Republicans in the house won’t allow a vote that would fix the (potential) problem. That’s the actual story, not how far these lawsuits will go. It’s the shutdown crisis all over again. [Previous page](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944.md?page=6) [Next page](https://boards.straightdope.com/t/so-what-happens-if-these-lawsuits-succeed/671944.md?page=8)