Not under section 1311. There is no such provision there. Which is what the language of the law refers to.
It should be easy for you to pick out the “clear and unambiguous” language from it that proves you’re right, then, shouldn’t it? :dubious:
“The State” can be defined several different ways. The portion of the law in question explicitly disambiguates the term by tying it to section 1311, which deals with the individual States, not the federal government.
Assuming the OP really does want us to presuppose that these lawsuits succeed, then the effect is pretty straightforward I think.
States without state-run exchanges (largely GOP-dominated states) stop getting individual subsidies. State’s with state-run exchanges (largely Democratic-dominated states) continue getting them. All states are still operating under the individual mandate. So now either there is a movement in the GOP-dominated states to get their own state-run exchanges (and thus subsidies) or these states will be subsidizing health coverage for the poor in the Democratic-run states. Oh, and it will also help out the deficit quite a bit (like the refusal of GOP-run states to expand Medicaid has done).
As for it prompting the Democrats in the federal government to give up on Obamacare? If a government shutdown and threats regarding the payment of debt obligations didn’t shake them, why would the fact that red-state citizens would be getting screwed in favor of blue-state citizens do it?
It’s not gonna succeed, Terr. This is absurd and pitiful.
If you refer to the text of the ACA linked by Terr (And hate yourself as I obviously do), 1311 deals only with states setting up their exchanges. The option for the Federal exchange is not mentioned or referenced in that section. Section 1401 explicitly references that section as the basis for granting subsidies and references “a State” instead of “the State” making it seem much more plausible that they are referencing the individual states and not the federal State.
The letter of the law seems to indicate that the subsidies should only be paid to participants in the State-run exchanges.
I am NOT a lawyer. But from a layman’s perspective, it certainly seems that they left a fairly large missing link in terms of subsidy payments with the text of this law.
In terms of what this means if upheld: the 14 states with exchanges will get their exchange users subsidized and the other 36 states will not. It’s a fairly simple outcome.
I’m struggling to figure out the section of the law that provides the states the option to defer to the Federal government to run their exchange, but it appears to me to be Sec 1321 that allows them to do that.
In that section, the Secretary of HHS is directed to: “establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”
Seems to me that if one reads 1321 and 1311 together, a State exchange operated by the Secretary for a State is still a State exchange… just a State exchange that is not run by a State.
I believe the lawyerly term is de minimis.
At best.
The mildest of guidances from your beloved zombie mod…
Please address the content of the argument and not one’s opinion of the poster, please. This thread has shown several signs of mockery beginning. Should it continue I would be…irritated.
Of course in normal times congress would just pass a quick amendment to the law to make it explicitly read what they intended for it to read.
So that could happen.
That’s right Ravenman. Section 1321 allows states to opt-out or be declared non-compliant by SecHHS. In that case the Secretary establishes the exchange (or has a third-party non-profit do it) for the state. It’s still an exchange under Section 1311, as I read it, just one that the state has lost control of.
Either way, I don’t understand how we get from a legalistic ruling that screws citizens of 35 or so states out of subsidies to a complete dissolution of the law. Perhaps Terr (or someone else) can walk me through that.
Nor am I, but it seems that 1401 should have been written as “enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act, or an exchange established by the Secretary under section 1321”.
Ah, but 1401 says “an Exchange established by the State” (my emphasis), which one established by the HHS Secretary under 1321(2)c wouldn’t be.
The unsubsidized policies are prohibitively high-priced. Check them out yourself.
The citizens of those 35 states would not sign up for something they could not possibly afford. The whole Obamacare thing is supposedly very dependent (I am repeatedly told, both on this board and in the media) on almost everyone who qualifies signing up for these policies (to the point where even a one-year delay of the individual mandate was, according to a few lefty posters here, going to collapse Obamacare).
If forced into lowering premiums to where they cannot make money, most if not all insurance companies will withdraw from those exchanges. Obamacare collapses in those 35 states. It’s definitely not certain if the 15 states that have their own exchanges can sustain it.
But if you look at (a) in 1401, it states that in general, an “applicable taxpayer” shall be allowed certain tax credits. It looks like the reference to “an exchange established by the state” has to do with the calculation for the amount of the tax credit… right?
Again, from my quick reading, the law seems to state that as a general principle, taxpayers are eligible for a tax credit; but the problem of exchanges created under 1311 really refers to the size of the credit they are eligible for, and doesn’t seem to relate to a persons eligibility.
So, it seems to me that the Congress declared any “applicable taxpayer” to be able to receive tax credits, but there seems to be no guidance on the size of the tax credit that an applicable taxpayer registered through a Federally-run exchange shall be.
That doesn’t appear to me to be evidence that people enrolled in Federal exchanges aren’t eligible for tax credits – it just means, in the narrowest possible construction, that Congress didn’t say how big or small those credits must be for those taxpayers.
ETA: Perhaps the people who are filing this lawsuit are taking the wrong approach – maybe Congress intended the subsidies to people enrolled in Federal exchanges to be even larger than those provided to people enrolled through State exchanges!
If you’re referring to the one-year delay that was sought by House Republicans during the government shutdown, I think you’re misreading the opposition to it. It’s not that a delay would have changed the fundamental nature of the law. I just didn’t believe for a second, and I suspect few others did either, that they would have left it at just a one-year delay; they’d have used the same shutdown tactic to force another delay, and another, until the sands of time ran out. That would have effectively repealed the law, under the guise of a delay.
It looks to me like the “Applicable taxpayer” will get a credit only if they meet the eligibility requirements, which in 1401 2 a relies on their getting a plan through “a State” exchange as defined in 1311.
The size of the credit is set by 1401(a): “there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.”
So, the tax credit is equal to the premium assistance credit. And the premium assistance amount is:
“The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of-- (A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer's spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or
(B) the excess (if any) of-- (i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over
(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.”
The problem is that only premiums for plans enrolled in through state exchanges count, so in the absence of such a plan, the credit would be $0. I don’t see any other mechanism for setting the amount of the credit, by which plans from a federal exchange could exceed those from state exchanges, or indeed be any amount above $0.
What if we consider that ‘the State’ (nation, just as it was meant in the 2nd amendment) established the concept of the exchanges in the ACA. Then ‘the State’ has in effect established all of the individual state exchanges as well as the Federal exchange by passing the ACA. The states implement their own, if they so choose, but ‘the State’ established them with this law being enacted.
“an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act”
The ACA was enacted by ‘the State’ just like every law of Congress is. So it was the action of ‘the State’ to establish all of the exchanges.
Good point. Seems to me that at the very least, a taxpayer on a Federal exchange would have his tax credit equal to the calculation under paragraph B, because under your strict interpretation, paragraph A doesn’t apply to them.
If Congress were to write a law that reads:
If a non-star-bellied sneetch applied for this benefit, paragraph A clearly doesn’t apply to them. Therefore, notwithstanding the “lesser of” phrase, the answer has to be $10, not zero.
In my state it looks like coverage for my entire family at the Bronze level is about $600 a month. Silver is more like $700-$750. That’s high, but not prohibitively high. Consider that my employer currently pays over $10k per year just to cover myself and my kid (on what is admittedly more like a Gold or Platinum plan).
I guess one could argue that the individual mandate (and its associated fine) is an essential part of the ACA. I don’t think it is, and wouldn’t be shocked if its delayed a year. I’ve always believed that if affordable health care were available outside of full-time employment (which at least in my state it now is) folks would buy it without a government stick.
We shall see, I guess. You need to remember, also, that “Obamacare” is not just the Exchanges + Individual Mandate. All the other insurance requirements and regulations will remain even if the exchanges become wastelands.
It still seems to me far more likely that if subsidies are available only in “blue states” (for lack of a better word) that “red-state” citizens would likely want their Congressperson to vote to fix it rather than accept the status quo until a GOP president and Senate are both elected. IMHO.