Supreme Court to Hear Obamacare Suit

[maxparrish]

http://www.hhs.gov/healthcare/rights/law/patient-protection.pdf

Sec. 1401(b)(2)(A):



So the plaintiff's case is that federally run state exchanges don't meet the definition under 1311. Let's look at 1311(b):

(b) AMERICAN HEALTH BENEFIT EXCHANGES.—

(1) IN GENERAL.—Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State that—

(A) facilitates the purchase of qualified health plans;

(B) provides for the establishment of a Small Business Health Options Program (in this title referred to as a ‘‘SHOP Exchange’’) that is designed to assist qualified employers in the State who are small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the State; and

(C) meets the requirements of subsection (d).

Seems simple enough so far: tax subsidies are for Exchanges that are 1311 Exchanges as defined in Sec. 1311(b).

The federally run exchanges are defined in Sec 1321(c)(1):

(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—

(1) IN GENERAL.—If—

(A) a State is not an electing State under subsection (b); or

(B) the Secretary determines, on or before January 1, 2013, that an electing State—

(i) will not have any required Exchange operational by January 1, 2014; or

(ii) has not taken the actions the Secretary determines necessary to implement—

(I) the other requirements set forth in the standards under subsection (a); or

(II) the requirements set forth in subtitles A and C and the amendments made by such subtitles; the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

Now, the Textualists tell us it's very important take the literal meaning of the words in the law in order to properly interpret it.

Section 1401 says subsidies are eligible on the Exchanges established under Sec 1311. Note that the word Exchanges is capitalized. That means there is a specific definition for what Exchanges are.

Section 1311(b)(1) gives us that definition:

an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’)

Therefore an Exchange is that which meets the criteria drawn up in Section 1311.

Section 1321 directs the head of HHS to set up "such Exchange" for a State if a State does not set up a 1311 Exchange on its own. The text says "such Exchange". So unless the supporters of the Plaintiffs can demonstrate there's a different definition of the word "Exchange" in the text of the PPACA then that has to mean that "such Exchanges" set up by the federal government meet the requirements of 1311 Exchanges and thus individuals enrolling in those "such Exchanges" are eligible for the federal subsidies.

I lifted the above reasoning from here where you can go and read that author's development of this point.

Perhaps a review is in order. There are two Sections of ACA at issue. 1311 is for the establishment of exchanges created by the states (or their non-profits, or multi-state cooperative exchanges) and 1321 is for federal exchanges, to be established in states which fail to do so. Section 1401 provides tax credits for “exchanges established by the State under Section 1311.”

There is no need to resort to borderline sophistry - this means what it literally says: that tax credits are only authorized in exchanges established by the States.

ACA supporters argue that the phrase “established by the State” does not REALLY mean what it says, and then they try to make some degree of equivalence between Section 1311 and Section 1321 transform into total equivalence.

The problem with this weak limb is that it requires us to pretend the repeated phrase “established by the State” has no real meaning – as if it is it saturated with literalness of no relevance of meaning or effect to the law. They ignore that this was added in multiple places within Section 1401 at multiple times, and that “State” is defined as the fifty states and the District of Columbia. The ignore that the law does explicitly make equivalency between territorial exchanges and state exchanges, but does not do so for federal exchanges. They ignore that the law contained no reference to tax credits in federal exchanges.

What do they do? They try to mine (or invent) a single nugget and, if discovered, hope it can overcome the avalanche of definitional and constructive evidence on the other side.

If we were arguing about any other non-political case of statutory interpretation is would be a no-brainer. "The law clearly says what it says, that it means what it says, and that if Congress made an error, it is up to Congress to fix it." (J. Alder).

 

[Jimmy Higgins]

I need to affirm another reality as debates occurring in this Forum always come down to labeling opposing posters to being motivated by a political partisan mentality : mine is NOT. Mine is based on what is humanely acceptable and what is not. It is my humane based experience which makes me cringe and fear each time the GOP attempts to find any justification to impair my access (as well as other millions of human beings' access) to affordable and adequate insurance plans. It is the indifference you, Dismal and Max, show towards those fellow human beings while neither you Dismal, nor Max, nor the GOP have so far presented any viable alternative to the AHCA, for people like me and other millions.

As I noted a long while back, this is a misnomer. It isn't that Republicans haven't offered a viable alternative... AHCA was supposed to be alternative to a UHC system. There is whining and gnashing of teeth about how Obama and the Democrats didn't involve the Republicans in the development of this program. It was pretty much a Republican skeleton program to begin with. Not a single Republican has tried to overthrow RomneyCare in the courts.

Yet, this program gets created (a bipartisan design to begin with), the alternative as the starting point, and still the gnash the teeth. It is pathetic.

 

[ksen]

ACA supporters argue that the phrase “established by the State” does not REALLY mean what it says, and then they try to make some degree of equivalence between Section 1311 and Section 1321 transform into total equivalence.

That's because the Exchanges in 1311 and 1321 are equivalent. A 1321 Exchange is a 1311 Exchange. The text of the law itself makes them equivalent given that the law only defines the word "Exchange" one way (and the definition of words in the text is what's important, right?).

Therefore it should be perfectly acceptable for the IRS to interpret the legislation as creating only one kind of Exchange, that defined in Section 1311. There is no non-partisan reason to treat the two equivalent exchanges differently since the text of the law defines them as the same type of Exchange merely because a State decided to let the federal government create their exchange for them.

I live in Florida which has a federally set up exchange. We don't have a "federal exchange". We have a State exchange that was just set up and run by the federal government.

 

[Loren Pechtel]

I will give you straight forward what makes me "angry" :

-the elimination of subsidies in all 36 States (which includes my state of residency, Florida) would affect me directly. Directly as in being, once more, a medically needy person unable to afford and access the benefits an insurance plan covering the cost of VITAL treatments necessary to support my extended survival. I benefit of an excellent prognosis but only if and when I can have access to oncology based treatments each time my lymphoma recurs.

- I will content that I am certainly not an isolated case of a medically person. Further, as I am a health care worker, I am fully aware of Americans who had to ration themselves and delay a medical intervention which would have prevented the need for emergent care at a point when their condition reached an acute stage and one where the outcome was either fatal or necessitating much higher cost treatments. When it comes to catastrophic illnesses, the earlier they are detected and treated, the better the outcome and lower cost.

That's the idea--the poor and sick are supposed to go off and die quietly!

 

[NobleSavage]

It’s way too soon for ACA opponents to celebrate

Opponents of the Affordable Care Act succeeded in getting the Supreme Court to hear their latest challenge to the ACA last week, but they should hold off on celebrating. What matters in the end is not what the Court did last week, but what it does next year when it actually decides whether the tax credits that are critical to the effective operation of the ACA are available on exchanges nationwide, or only on those exchanges run by the states. And on that front, there should be no doubt. Because for all of the politics surrounding this case, it remains a straightforward case of statutory interpretation, so straightforward that there should be no question about what the Court will do – and, in any other case, there would be no question. The Court would recognize what the statutory text makes clear, and the structure, purpose, and history of the statute all confirm: tax credits and subsidies should be available on all exchanges, state-run and federally facilitated.

http://www.scotusblog.com/2014/11/s...n-for-aca-opponents-to-celebrate/#more-221122

 

[Jayjay]

Unless you can come up with a statutorily different definition for "Exchange" then you are engaging in just so much handwaving.

An exchange estabilshed by the Feds may well be an "Exchange" under the law, but it is not an Exchange established by the State under section 1311.

Notice there are extra words.

This is not the only place where those extra words are present:

‘(2) COVERAGE MONTH.—For purposes of this subsection—
‘‘(A) IN GENERAL.—The term ‘coverage month’ means, with respect to an applicable taxpayer, any month if—
‘‘(i) as of the first day of such month the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer is covered by a qualified health plan described in subsection (b)(2)(A) that was enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act, and
‘‘(ii) the premium for coverage under such plan for such month is paid by the taxpayer (or through advance payment of the credit under subsection (a) under section 1412 of the Patient Protection and Affordable Care Act).

So technically, according to the plaintiffs' definition a person who is covered via a federal exchange is in fact not covered at all.

Also:

‘‘(B) ASSURANCE OF EXCHANGE COVERAGE FOR TARGETED LOW-INCOME CHILDREN UNABLE TO BE PROVIDED CHILD HEALTH ASSISTANCE AS A RESULT OF FUNDING SHORTFALLS.—In the event that allotments provided under section 2104 are insufficient to provide coverage to all children who are eligible to be targeted low-income children under the State child health plan under this title, a State shall establish procedures to ensure that such children are provided coverage through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act.’’.

Which would be bizarre, if the state does not have "an Exchange established by the State". In order to comply with this rule the state would have to establish one, because it would not be sufficient to cover childred through federal exchanges.

There are a few other places as well where the phrase is used but those seem to relate to the establishment of said exchange so could in theory be read either way. But these two sections would be hard to interpret if "an Exchange established by the State under 1311" is not inclusive of exchanges that are established by federal government and operated within the state.

 

[Horatio Parker]

It’s way too soon for ACA opponents to celebrate

Opponents of the Affordable Care Act succeeded in getting the Supreme Court to hear their latest challenge to the ACA last week, but they should hold off on celebrating. What matters in the end is not what the Court did last week, but what it does next year when it actually decides whether the tax credits that are critical to the effective operation of the ACA are available on exchanges nationwide, or only on those exchanges run by the states. And on that front, there should be no doubt. Because for all of the politics surrounding this case, it remains a straightforward case of statutory interpretation, so straightforward that there should be no question about what the Court will do – and, in any other case, there would be no question. The Court would recognize what the statutory text makes clear, and the structure, purpose, and history of the statute all confirm: tax credits and subsidies should be available on all exchanges, state-run and federally facilitated.

http://www.scotusblog.com/2014/11/s...n-for-aca-opponents-to-celebrate/#more-221122

I'm beginning to wonder if SCOTUS accepted the case to lighten the case load. There are at least two other suits on this issue.

 

[James Madison]

You had me until that last line. Shouldn't any judge, regardless of their political bent, enforce the law as it was written and not how it was intended? I think that if justices ignore sloppily written, inconsistently executed legislation, it tells future administrations not to give a damn about what's in a bill. I want future heath care reforms to be detailed and clear, don't you? Don't you want judges who will take a Republican bill to task for not specifying what the "intent" was in writing?

It depends on whether you want the law to work as intended or be a quibbling pedant.

Then there is no point in having written law if the unwritten "intent" of the legislator(s) is to be law.

 

[ksen]

Well, then it's a good thing the written law is clear in that there is only one kind of Exchange and people enrolled in that Exchange are eligible for subsidies.

 

[Horatio Parker]

It depends on whether you want the law to work as intended or be a quibbling pedant.

Then there is no point in having written law if the unwritten "intent" of the legislator(s) is to be law.

Every word and all punctuation can be litigated over, fine. Some make more sense than others. This one is a joke.

 

[James Madison]

http://www.hhs.gov/healthcare/rights/law/patient-protection.pdf

Sec. 1401(b)(2)(A):



So the plaintiff's case is that federally run state exchanges don't meet the definition under 1311. Let's look at 1311(b):

(b) AMERICAN HEALTH BENEFIT EXCHANGES.—

(1) IN GENERAL.—Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State that—

(A) facilitates the purchase of qualified health plans;

(B) provides for the establishment of a Small Business Health Options Program (in this title referred to as a ‘‘SHOP Exchange’’) that is designed to assist qualified employers in the State who are small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the State; and

(C) meets the requirements of subsection (d).

Seems simple enough so far: tax subsidies are for Exchanges that are 1311 Exchanges as defined in Sec. 1311(b).

The federally run exchanges are defined in Sec 1321(c)(1):

(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—

(1) IN GENERAL.—If—

(A) a State is not an electing State under subsection (b); or

(B) the Secretary determines, on or before January 1, 2013, that an electing State—

(i) will not have any required Exchange operational by January 1, 2014; or

(ii) has not taken the actions the Secretary determines necessary to implement—

(I) the other requirements set forth in the standards under subsection (a); or

(II) the requirements set forth in subtitles A and C and the amendments made by such subtitles; the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

Now, the Textualists tell us it's very important take the literal meaning of the words in the law in order to properly interpret it.

Section 1401 says subsidies are eligible on the Exchanges established under Sec 1311. Note that the word Exchanges is capitalized. That means there is a specific definition for what Exchanges are.

Section 1311(b)(1) gives us that definition:

an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’)

Therefore an Exchange is that which meets the criteria drawn up in Section 1311.

Section 1321 directs the head of HHS to set up "such Exchange" for a State if a State does not set up a 1311 Exchange on its own. The text says "such Exchange". So unless the supporters of the Plaintiffs can demonstrate there's a different definition of the word "Exchange" in the text of the PPACA then that has to mean that "such Exchanges" set up by the federal government meet the requirements of 1311 Exchanges and thus individuals enrolling in those "such Exchanges" are eligible for the federal subsidies.

I lifted the above reasoning from here where you can go and read that author's development of this point.

Sections 1311 and 1321 are two different sections. Furthermore, there is other language indicating a difference between an exchange established by the State and one established by the federal government.

" [e]ach Stateshall, not later than January 1, 2014, establish an American Health Benefit Exchange."

Each State that elects...

Failure To Establish Exchange or Implement Requirements.--
(1) In general.--If--
(A) a State is not an electing State under subsection (b); or
the Secretary determines, on or before January 1, 2013, that an
electing State-- (i) will not have any required Exchange operational by January 1, 2014; or
(ii) has not taken the actions the Secretary determines necessary to implement--...
the Secretary shall (directly or through agreement with a not-
for-profit entity) establish and operate such Exchange within the State

A "coverge month" is defined as an "Exchange established by the State..." The premium assistance credit amount (subsidy) is applicable for "all covered months" and "covered months" is a health plan "through an Exchange established by the State..."

 

[ksen]

So where's the definition for the other kind of Exchange?

 

[James Madison]

Well, then it's a good thing the written law is clear in that there is only one kind of Exchange and people enrolled in that Exchange are eligible for subsidies.

Except for the fact the text of the law does not have any language treating a 1311 and 1321 exchange as one and the same, i.e. identical. There isn't one line, paragraph, sentence fragment, etcetera, containing the language of, "A section 1311 and 1321 exchange are to be treated the same under this statute, " or "a section 1311 and 1321 exchange shall be considered an exchange Established by the State regardless of whether such exchange was established by the State or Secretary of Health," and like or other similar language.

 

[ksen]

Really? Then what does "such Exchange" mean in 1321 if it's not referring to a 1311 Exchange?

 

[James Madison]

So where's the definition for the other kind of Exchange?

I am not convinced you even need the definition you seek to resolve this issue. The statute references exchanges to be established by the Secretary of State. The section of the statute regarding the premium assistance credit amount (subsidy) references exchanges as an "Exchange established by the State...", and not "Exchanged Established by the Secretary of State on behalf of the State."

The text of the law does not have any language treating a 1311 and 1321 exchange as one and the same, i.e. identical. There isn't one line, paragraph, sentence fragment, etcetera, containing the language of, "A section 1311 and 1321 exchange are to be treated the same under this statute, " or "a section 1311 and 1321 exchange shall be considered an exchange Established by the State regardless of whether such exchange was established by the State or Secretary of Health," and like or other similar language.

,

 

[ksen]

So where's the definition for the other kind of Exchange?

I am not convinced you even need the definition you seek to resolve this issue. The statute references exchanges to be established by the Secretary of State. The section of the statute regarding the premium assistance credit amount (subsidy) references exchanges as an "Exchange established by the State...", and not "Exchanged Established by the Secretary of State on behalf of the State."

The text of the law does not have any language treating a 1311 and 1321 exchange as one and the same, i.e. identical. There isn't one line, paragraph, sentence fragment, etcetera, containing the language of, "A section 1311 and 1321 exchange are to be treated the same under this statute, " or "a section 1311 and 1321 exchange shall be considered an exchange Established by the State regardless of whether such exchange was established by the State or Secretary of Health," and like or other similar language.

,

Well, no line, paragraph, or sentence fragment other than "such an Exchange". "Such an Exchange" as what? Maybe as that created in 1311?

 

[Jimmy Higgins]

‘‘(21) EXCHANGE
—The term ‘Exchange’ means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.’’

This seems to imply that there is a defining of Exchange and it is taken solely from 1311.

 

[James Madison]

Really? Then what does "such Exchange" mean in 1321 if it's not referring to a 1311 Exchange?

Well, since you ask, the phrase "such exchange" may quite possibly be referencing an exchange established by the State and exchange Established by the Secretary of Health, but not both as one and the same. After all, the language of "such exchange" is under section 1321, which also discusses exchanges established by the Secretary of State. The phrase "such Exchange" certainly does not indicate to me an exchange by the Secretary of Health in 1321 is identical or the same as an exchange in 1311 for purposes of the premium assistance credit amount (subsidy).

I notice the statute was careful to state, "the establishment and operation of Exchanges (including SHOP Exchanges)," which apparently would come under the phrase of "such exchanges" but doesn't specify or include any language indicating "such Exchanges" refers to both exchanges established by the State and/or Secretary of Health. I find it interesting the statute carefully included "SHOP EXCHANGES." Shop Exchanges are exchanges designed to assist small businesses access affordable insurance for their employees. The States were mandated under the law to establish Shop Exchanges, just as they were mandated to establish an Exchange, and yet apparently the law deemed it necessary to include Shop Exchanges as "such Exchanges."

This is rather significant, as the law was not merely assuming the two (Shop Exchanges) were one and the same, or they constituted as "such Exchanges" in 1321. Yet, such careful and artful wording is lacking in regards to an exchange established by the Secretary of Health when the opportunity was certainly present and they had the conscious of mind to do so in regards to another kind of exchange, "Shop Exchange."

They weren't so inclusive in regards to an exchange established by the Secretary of Health, although in Section 1321 we have an exchange established by the Secretary of Health, which is what is to happen should a State fail to establish an exchange under 1311, and the section regarding the subsidy is for exchange established by the State. There isn't any language directing the reader to treat those two exchanges as identical.

SEC. 1321. <<NOTE: 42 USC 18041.>> STATE FLEXIBILITY IN OPERATION AND
ENFORCEMENT OF EXCHANGES AND RELATED REQUIREMENTS.

(a) Establishment of Standards.--
(1) In general.-- <<NOTE: Regulations.>> The Secretary
shall, as soon as practicable after the date of enactment of
this Act, issue regulations setting standards for meeting the
requirements under this title, and the amendments made by this
title, with respect to--
(A) the establishment and operation of Exchanges
(including SHOP Exchanges);
(B) the offering of qualified health plans through
such Exchanges;
(C) the establishment of the reinsurance and risk
adjustment programs under part V; and
(D) such other requirements as the Secretary
determines appropriate.
The preceding sentence shall not apply to standards for
requirements under subtitles A and C (and the amendments made by
such subtitles) for which the Secretary issues regulations under
the Public Health Service Act.
(2) Consultation.--In issuing the regulations under
paragraph (1), the Secretary shall consult with the National
Association of Insurance Commissioners and its members and with
health insurance issuers, consumer organizations, and such other
individuals as the Secretary selects in a manner designed to
ensure balanced representation among interested parties.

(b) State Action <<NOTE: Deadline.>> .--Each State that elects, at
such time and in such manner as the Secretary may prescribe, to apply
the requirements described in subsection (a) shall, not later than
January 1, 2014, adopt and have in effect--
(1) the Federal standards established under subsection (a);
or
(2) a State law or regulation that the Secretary determines
implements the standards within the State.

(c) Failure To Establish Exchange or Implement Requirements.--
(1) In general.--If--
(A) a State is not an electing State under
subsection (b); or
(B) <<NOTE: Determination. Deadline.>> the Secretary
determines, on or before January 1, 2013, that an
electing State--
(i) will not have any required Exchange
operational by January 1, 2014; or
(ii) has not taken the actions the Secretary
determines necessary to implement--
(I) the other requirements set forth
in the standards under subsection (a);
or
(II) the requirements set forth in
subtitles A and C and the amendments
made by such subtitles;
the Secretary shall (directly or through agreement with a not-
for-profit entity) establish and operate such Exchange within
the State and the Secretary shall take such actions as are
necessary to implement such other requirements.

​

- - - Updated - - -

I am not convinced you even need the definition you seek to resolve this issue. The statute references exchanges to be established by the Secretary of State. The section of the statute regarding the premium assistance credit amount (subsidy) references exchanges as an "Exchange established by the State...", and not "Exchanged Established by the Secretary of State on behalf of the State."

The text of the law does not have any language treating a 1311 and 1321 exchange as one and the same, i.e. identical. There isn't one line, paragraph, sentence fragment, etcetera, containing the language of, "A section 1311 and 1321 exchange are to be treated the same under this statute, " or "a section 1311 and 1321 exchange shall be considered an exchange Established by the State regardless of whether such exchange was established by the State or Secretary of Health," and like or other similar language.

,

Well, no line, paragraph, or sentence fragment other than "such an Exchange". "Such an Exchange" as what? Maybe as that created in 1311?

Or maybe the exchange created in 1311, and an exchange created in 1321, the former by the State, the latter by the Secretary of Health.

 

[dismal]

I need to affirm another reality as debates occurring in this Forum always come down to labeling opposing posters to being motivated by a political partisan mentality : mine is NOT. Mine is based on what is humanely acceptable and what is not. It is my humane based experience which makes me cringe and fear each time the GOP attempts to find any justification to impair my access (as well as other millions of human beings' access) to affordable and adequate insurance plans. It is the indifference you, Dismal and Max, show towards those fellow human beings while neither you Dismal, nor Max, nor the GOP have so far presented any viable alternative to the AHCA, for people like me and other millions.

You write us off while pausing as defenders of this "democratic" Republic, oh so endowed with righteousness and such strong sense of correctness. Meanwhile, you write us all off. You want to applaud and cheer for the dismantlement of subsidies and tax credits in 36 States? You'd better be prepared to present a viable alternative promoted and supported by a now GOP majority in your Congress.

And I placed "democratic" in quotes because for some of us, we do not define this nation as an actual democracy in view of your corrupted electoral system.

This is an adult discussion about a law. It really has nothing to do with any of us here.

It really has nothing to do with anything you just said.

 

[James Madison]

Of course, we have the following language from the statute. From section 1311(d)(1) Requirements:

An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
​

The use of the word "shall" is a command. This very statutory language is mandating "An Exchange" MUST be a "governmental agency" or "nonprofit entity" that "is established by a State." Looking at this language, along with the language regarding the premium assistance credit amount for an exchange "established by the State" renders it rather difficult to think "An Exchange" for purposes of the subsidy includes those exchanges established by the Secretary of Health.