Did you read any of the posts in this thread? Because this contention has been thoroughly covered in previous posts, and you didn’t offer any substantive insights or objections to that discussion. Instead, you’re just repeating the same thing over and over.
Why don’t you respond to the specific point that the reference to section 1311 and state established exchanges is part of an either-or section of the bill which relates to how much of a tax credit someone is eligible for, as opposed to whether or not someone is eligible. Or respond to the standard of reasonableness that the court must use to determine whether the IRS is accurately implementing the law. But don’t just repeat the same allegations that have been pretty solidly refuted over the last day or two.
“Or” would make it easier for the plaintiffs, but after reading the Chevron decision upon Really Not All That Bright pointing it out, it sure seems like it’ll be tough sledding. The deference is made out to be pretty broad.
That’s not especially unambiguous; an unambigious statute would specifically and directly exclude policies from HHS-established exchanges from being eligible for the subsidy. As written, the law only lays out what exactly an exchange is in 1311, there’s no separate class of federal exchange, just permission for the HHS Secretary to be the one to establish one in a state if the state is unable or unwilling to do so.
I’m not sure I disagree with you about 1401(b)(2)(A). But I don’t see why that doesn’t just dump the taxpayer into (b)(2)(B). (Because, despite the “lesser than” language, “not applicable” doesn’t mean “$0”).
The Chevron deference will be (almost certainly) dispositive if the defendants get to “step three.” I don’t believe that the initial ambiguity question is as clear as others do (remember, in Chevron, it was pretty clear that the term needed to be defined and that Congress didn’t do it; the question (as I recall) was whether to use a judicially-created definition or the EPA definition).
Look again. 1401(b)(2)(B) refers to any plan that “is offered through the same Exchange through which the qualified health plans taken into account under paragraph (2)(A) were offered”. So both sections require State-established exchanges.
No, Terr, you have not answered this question. You have asserted that it would be the end of Obamacare based on fifteen states not having subsidies, which is no more than a wild ass guess. Let’s see you put some facts and reasoning behind your assertion. If this were IMHO, I could see why you might wish to just throw out an opinion and leave it at that, but you chose great debates, so I would hope that there would be some meat on the bones rather than just unsupported opinion.
I submit that if fifteen states did not have subsidies, either there would be fewer people enrolled in those states and therefore fewer expenses in funding medical services via Obamacare to those people, or there would be the same or number of people enrolled and therefore the same level of expenses in providing medical services to those people without additionally having to subsidize them, either way leaving Obamacare trucking along quite nicely.
So Terr, I ask you again, what do you think will happen if the lawsuits succeed?
We have been told, repeatedly, that the Obamacare success depends on massive signups and if that doesn’t happen it fails. “Death spiral” I believe it was called. So fragile, it required fining people in order to get them to sign up.
The exchanges will fail without large signups, but the exchanges are fairly localized. They don’t just go “Hey, what’s in State X?” Information down to the zip code is used to place you into your plans.
So the exchanges in the places where no one subscribes will fail and the exchanges in places where every person signs up will succeed. States that run their own exchanges and aren’t affected by these lawsuits being affirmed can still run successful exchanges. So, in fact, can the states that will be affected. It’ll just be harder.
Right, but it’s less clear that HHS-established exchanges under 1321 don’t count. I suggest that you read the Chevron decision, which illustrates just how much latitude agencies have to interpret statutes, and just how high a bar the plaintiffs face in these suits.
I agree with your interpretation, as it happens, but after reading up on the legal standard, it seems highly unlikely that these suits will be victorious.
You’re right. I misread 3(B)(i) to apply to all exchanges.
I think you’re focusing too much on the Chevron issue (although, as a practical matter, I think that a court is going to be tempted to take that route as an “out”). I’m not sure that an honest reading of the statute produces enough ambiguity to get to the second “stage” of Chevron.
The statute is really fairly clear. There are these exchanges. They can be “established” by the State or “established” by the Secretary. If they are “established” by the State, there is a subsidy structure. If not, then presumably there isn’t. The strongest argument for clarity, really, is that if you remove the language “established by the State” from (b)(2)(A), the statute would make perfect sense and clearly encompass those exchanges established by the Secretary.
Beyond that, it’s not only not implausible, it is, in fact, highly plausible that Congress would provide the subsidies to only state exchanges in order to incentivize the states into setting up their own exchanges (indeed, the whole “the GOP is to blame for the roll-out glitches” argument is based on the fact that states were supposed to cooperate and set up the exchanges and failed to do so).
An honest application of Chevron to this situation, I think, simply would not allow you to get to the “agency interpretation” prong. Now, what is going to happen? I have no idea. Although, I’m not sure how this would eviscerate the ACA; worst case, it would probably force states to create exchanges in the face of pissed off residents (which, of course, was the whole point of the “state exchange only” subsidy structure).
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.
[QUOTE=Falchion]
Beyond that, it’s not only not implausible, it is, in fact, highly plausible that Congress would provide the subsidies to only state exchanges in order to incentivize the states into setting up their own exchanges (indeed, the whole “the GOP is to blame for the roll-out glitches” argument is based on the fact that states were supposed to cooperate and set up the exchanges and failed to do so).
[/quote]
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.
[QUOTE=Falchion]
An honest application of Chevron to this situation, I think, simply would not allow you to get to the “agency interpretation” prong. Now, what is going to happen? I have no idea. Although, I’m not sure how this would eviscerate the ACA; worst case, it would probably force states to create exchanges in the face of pissed off residents (which, of course, was the whole point of the “state exchange only” subsidy structure).
[/QUOTE]
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?
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 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 dates back to at least the Civil War Draft where everyone was drafted to serve as a soldier or pay a $300 tax as a penalty to get out of it. In this case, we have the outrage that we don’t directly kill anyone on the other side who disagrees with us on the causes of the Civil War, but rather, we must secure health insurance on ourselves or our loved ones or pay a frickin’ tax. Civilized modern nations give this health care thingy in exchange for taxes regularly paid. Our government is really frickin cheap. I don’t need a nation protected by 10,000 atom bombs, 13 supercarriers, 6000 tanks etc, when we have two frickin’ moats the size of oceans labeled “Atlantic” and “Pacific”. Something more modest would do in that department.
So is the Obama administration going to be “frantically” trying to play whack-a-mole with these lawsuits, or will they leisurely swat them with a finger, like Obama does with flies? My experience with federal courts is that the government starts with presumptions in their favor, plus a Supreme Court ruling in this case, and somewhere along the line a lower court will follow the Supreme Court’s clear and unequivocal direction, and if that doesn’t happen, the Supreme Court itself will smack down the various challenges.
If you don’t like Obamacare, get something better suited for you outside the exchanges, or do without and owe the tax.