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.
… 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.
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
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.
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.
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 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.
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”?
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.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2106789 (or this link for the PDF)
Page 176 and down. Goes into great detail why Chevron doesn’t apply.
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.
The lawsuits in question have nothing to do with constitutionality of the law.
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.
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.
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.”
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.
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”.
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.
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.
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.
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.
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.
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.