So - what happens if these lawsuits succeed?

[Richard_Parker]

ISTM that the early draft supports the challengers in this respect: the HELP draft that created the federal “Gateway” idea included the subsidies for the federal exchange only if the state submitted itself to the employer mandate. You could read the lack of such an inducement in the final draft to mean they didn’t think there would be federal subsidies.

But I still think the better reading is that they hamhandedly grafted the national and state exchanges together and that, as **jtgain **says, the whole “established by the State” language (which is actually like a seven-word phrase with all the pursuant tos) is a term of art within the statute. That reading is further supported by the fact that the precise language is repeated four or five times, and in each of which the statute seems to be talking about exchanges in general.

I don’t think that interpretation reflects very well on the Congressional process here, and to some extent supports the GOP arguments that this thing was not sufficiently reviewed. So if that’s what the court ultimately decides, the lawsuit could be useful for PR purposes if nothing else.

[Zakalwe]

October 29, 2013
Chicago, IL

FOR IMMEDIATE RELEASE

Today, in a nearly unprecedented event, the SDMB (Great Debates Division) is pleased to announce that two lawyers arguing over the finer details of legal stuff related to the ACA Exchanges had a lengthy legal discussion and then came to agreement.

Yes, you read that right. They came to agreement! Hosannas and wide-spread rejoicing are reported.

Hell has refused to comment about any sudden temperature drops.

;)

[Richard_Parker]

The SDMB consensus gets it right (so far!): http://www.businessweek.com/news/2014-01-15/obamacare-tax-subsidy-challenge-dismissed-by-federal-judge

“The plain text of the statute, the statutory structure and the statutory purpose make clear that Congress intended to make premium credits available on both state-run and federally facilitated exchanges,” U.S. District Judge Paul Friedman in Washington said in a ruling today dismissing a lawsuit.

[Really_Not_All_That_Bright]

The situation of the one plaintiff who was found to have standing is deeply, deeply ironic, but it also answers my question about what the plaintiffs’ endgame was:

David Klemencic is one of four individual plaintiffs in this suit.
4
He avers in a declaration – and the government does not dispute – that he expects to earn approximately $20,000 in 2014. Klemencic Decl. ¶ 4; Third Moulds Decl. ¶ 2. For ideological reasons, Klemencic does not wish to purchase minimum essential health coverage. Klemencic Decl. ¶ 8. Mr. Klemencic also has introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income. See Kessler Decl. ¶ 21. Thus, if tax credits were unavailable, he would be eligible for an “unaffordability exemption” under the ACA and could forego purchasing health insurance without incurring a tax penalty under Section 5000A.

The effect of the IRS Rule, however, is that the tax credit available to Mr. Klemencic lowers the cost of his insurance premiums so significantly that he no longer qualified for the unaffordability exemption. See Kessler Decl. ¶ 22; Klemencic Decl. ¶ 7. The Rule thereby places Klemencic in a position where he has to purchase subsidized health insurance, estimated at approximately $20 per year, see Third Moulds Decl. ¶ 6, or he will have to pay some higher amount per year as a Section 5000A tax penalty. Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic.

The federal court’s analysis proceeded along remarkably similar lines to ours:

On its face, the plain language of 26 U.S.C. § 36B(b)-(c), viewed in isolation, appears to support plaintiffs’ interpretation. The federal government, after all, is not a “State,” which is explicitly defined in the Act to mean “each of the 50 States and the District of Columbia.” ACA § 1304(d), codified at 42 U.S.C. § 18024(d). The phrase “Exchange established by the State under [42 U.S.C. § 18031]” therefore, standing alone, could be read to refer only to state-run Exchanges.

In making the threshold determination under Chevron, however, “a reviewing court should not confine itself to examining a particular statutory provision in isolation. Rather, [t]he meaning – or ambiguity – of certain words or phrases may only become evident when placed in context.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. at 666 (internal quotations and quotation marks omitted). As the D.C. Circuit has observed, “the literal language of a provision taken out of context cannot provide conclusive proof of congressional intent, any more than a word can have meaning without context to illuminate its use.” Petit v. U.S. Dept. of Educ., 675 F.3d 769, 781 (D.C. Cir. 2012) (quoting Bell Atl. Tel. Cos. v. FCC, 131 F.3d at 1047); see also Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239, 241 (2004) (examining surrounding statutory language and related provisions). So here, one cannot look at just a few isolated words in 26 U.S.C. § 36B, but also must at least look at the other statutory provisions to which it refers. See United States v. McGoff, 831 F.2d 1071, 1080 (D.C. Cir. 1987) (rejecting construction that isolated disputed statutory provision from expressly cross-referenced statute).

[elucidator]

So, what happens to English majors who cannot write a simple, declarative sentence? Law school.

[Really_Not_All_That_Bright]

Political science majors. English majors who can’t write go to journalism school.

[Bricker]

(posted in wrong thread - sorry)

[Richard_Parker]

bah

[Really_Not_All_That_Bright]

Well that was odd.

[yorick73]

DC appeals court panel rules that states without their own exchanges are not eligible for subsidies.

[Airbeck]

http://talkingpointsmemo.com/dc/dc-c...care-subsidies

"The Obama administration is expected to seek a re-vote by the full active bench – an en banc ruling – which could potentially reverse the result. An en banc vote would be cast by the three judges who heard the case as well as 10 other judges on the active bench. Such a vote may be friendlier to Obamacare as it would feature 8 Democratic appointees and 5 Republican appointees. Four of the judges on the court were appointed by President Barack Obama, three of them after Senate Democrats eliminated the 60-vote threshold for most nominations in November to overcome Republican obstruction.

“The Department of Justice can, and will, seek en banc review by the full D.C. Circuit. Generally, this involves new briefing before a final decision,” an Obama administration official told TPM after the ruling. “While this further review is ongoing, the premium tax credits will continue, unchanged.”"

Nothing changes for now, and the next time all of the DC Circuit judges get to vote not just this 2-1 Republican version.

[Really_Not_All_That_Bright]

Decision here. I assume the government will be requesting en banc rehearing shortly.

[yorick73]

I read the 4th Circuit is also deciding a similar case and the result is imminent.

[Really_Not_All_That_Bright]

Incidentally, of the two judges who voted against the government, Arthur Randolph is an extremely conservative Bush I appointee, but Thomas Griffith is a moderate Bush II appointee.

[Really_Not_All_That_Bright]

There are two similar cases in federal trial courts too, Pruitt v. Halbig in Oklahoma and Indiana v. IRS.

[Nars_Glinley]

@Really_Not_All_That_Bright

There are two similar cases in federal trial courts too, Pruitt v. Halbig in Oklahoma and Indiana v. IRS.

As an Okie, I have to ask, “WHY IS IT ALWAYS OKLAHOMA??”

And then I remember, we’re the state where the President failed to win a single county in the last election.

[Really_Not_All_That_Bright]

I was going to say the OK case involves a private plaintiff but it turns out it was filed by the OK AG.

[yorick73]

@Really_Not_All_That_Bright

There are two similar cases in federal trial courts too, Pruitt v. Halbig in Oklahoma and Indiana v. IRS.

Note that the case is Pruitt v. Burwell

[tim314]

@yorick73

I read the 4th Circuit is also deciding a similar case and the result is imminent.

As noted in the other thread, the 4th Circuit panel just issued their ruling, unanimously upholding the subsidies.

[jayjay]

Any Democrat who doesn’t use the phrasing “Republicans want you to stay sick and die” in their campaign ads in November doesn’t deserve to go to Congress.