D.C. Circuit Court of Appeals Decides IRS Rule Permitting Subsidies for Federal Exchanges Is Not Permitted Under the ACA

[Nice Squirrel]

The Smoking Gun That Wasn't

Don't expect opponents of the ACA to read it. Because the quote was off the cuff, out of context, and spoken two years after Congress approved it, this remark proves it to them.

 

[James Madison]

The correlation is that those beaming over the DC court ruling don't seem to give a shit about the implications of that ruling which is that millions of people will no longer be able to afford insurance if they get their way and the ruling stands.

But hey, they got theirs and that's what's important.

This is a very impassioned and compassionate plea, an emotional appeal, but this is sufficient to permit or justify the federal judiciary to no longer adhere to the plain text of a statute and espouse an alternate reading not supported by the text of the statute. In this instance, the federal judiciary, in adopting a reading of the statute not based on its plain text but resorting instead to what a documented few people intended the law to say, involves itself in the midst of a political dialogue best resolved within the halls of Congress, where political decisions codified into law is supposed to transpire. If the statute fails to accomplish some goal, then it is for Congress to remedy and recitfy, for Congress and the political system to address and subsequently, if the political process permits or demands it, to amend the statute, as opposed to the federal judiciary. This implication isn't the fault of the D.C. Circuit ruling but a result of poor drafting by Congress.

It is but a truism the D.C. Circuit ruling will affect people, just as many other decisions issued by the federal judiciary has such a result. The federal judiciary deciding cases necessarily has the result of impacting peoples' lives and this is an inherent part of deciding cases and issuing rulings. The fact the D.C. Circuit ruling, along with the 4th Circuit Court of Appeals decision, will affect people, isn't some new or novel concept.

However, I perceive your unstated point to be the affect is undesirous but this is a mere matter of opinion. For some, the affect, or the implications of the D.C. Circuit Court of Appeals decision is absolutely desirous. The federal judiciary shouldn't be interpreting the law or statute on the basis of whether some implication is or isn't desirous by members of the public, or is/isn't palatable by some segment of the population. This is for the legislature to address, the institution specifically conceived to measure, gauge, and assess public sentiment and then decide whether to act and determine how they should specifically proceed, or if they should do anything at all.

I have, however, begun reading through the amicus brief you cited. So far, the evidence cited in the brief, ambiguously supports the contention the intent was subsidies for both exchanges.

 

[dismal]

I believe most of the lawmakers didn't read and/or understand the bill.

I believe the people who did write it assumed the states would go along with it in large part because they did not anticipate the unpopularity of the law.

Hmm. That's really not an answer the the question that I asked.

Actually it answers your question appropriately. I answered very early on in the thread that I have little doubt that many of these democrats wanted to hand out subsidies to everyone with a pulse.

This is entirely irrelevant to what the document says.

First, the House had nothing at all to do with the drafting of this document. The house was forced to choke down a law that the Senate had already passed without comment because Scott Brown was elected. What they now say they intended is 100% irrelevant. It did not affect the language that was drafted, passed and signed into law.

So, we look into the Senate. The Senate bill was a product of corrupt bargains required to secure the 60 Democrat votes needed to pass the law. Some Democrat senators were adamantly against setting up a federal exchange, period. Ben Nelson (he of the Cornhusker kickback) was openly against it. Ben Nelson's vote was required. The Senate had two healthcare bills pass committees. Both of them restricted credits to state exchanges. One of them was the PPACA, which was modified and then was passed and signed into law.

So, I do honestly believe the truth of the matter is the people in the Senate who actually read this law, who actually brokered this bargain, who actually wrote this law, fully intended it to say what it clearly says seven times with appropriate section references.

And as an added plus, I have an illustrious MIT healthcare professor and highly paid administration consultant who was there in the sausage factory at the time who confirmed this exact version of events.

 

[dismal]

Let me add a couple exhibits from around the time the law was passed that I don't think have made an appearance yet:

Ben Nelson on federal exchanges:

Sen. Ben Nelson (D-Neb.) said Monday that he would oppose any health care reform bill with a national insurance exchange, which he described as a dealbreaker.

"The national exchange is unnecessary and I wouldn’t support something that would start us down the road of federal regulation of insurance and a single-payer plan," Nelson told reporters Monday.

http://www.politico.com/livepulse/0110/Nelson_National_exchange_a_dealbreaker.html

A group of 11 house democrats complains the Senate bill will leave citizens in their state without subsidies:

The House bill establishes a national insurance exchange, but allows states with the political will and the resources available to establish their own exchanges, as long as the state-based exchange meets the same strong standards as the national health insurance exchange. This approach protects existing state exchanges and allows innovation, while ensuring that consumers enjoy the same coverage and protections afforded in the national exchange.

As you know, the Senate bill does not establish a national health insurance exchange. Instead, each state is required to set up its own exchange. If the state does not set up the exchange, then the Secretary of Health and Human Services is required to set up an exchange for the state. The states will set up one exchange for individual coverage and another exchange for small businesses. The state may also set up regional exchanges within the state, which would create multiple exchanges in one state.

This approach not only reduces the market leverage of the exchange and increases complexity, but it also relies on states with indifferent state leadership that are unwilling or unable to administer and properly regulate a health insurance marketplace. A number of states opposed to health reform have already expressed an interest in obstruction.

In Texas, we know from experience that the dangers to the uninsured from greater State authority are real. Not one Texas child has yet received any benefit from the Children’s Health Insurance Program Reauthorization Act (CHIPRA), which we all championed, since Texas declined to expand eligibility or adopt best practices for enrollment. We also know that when states face difficult budget years, among the first programs to see reductions is Medicaid. The Senate approach would produce the same result — millions of people will be left no better off than before Congress acted.

http://www.myharlingennews.com/?p=6426

 

[ksen]

Let me add a couple exhibits from around the time the law was passed that I don't think have made an appearance yet:

Ben Nelson on federal exchanges:

Sen. Ben Nelson (D-Neb.) said Monday that he would oppose any health care reform bill with a national insurance exchange, which he described as a dealbreaker.

"The national exchange is unnecessary and I wouldn’t support something that would start us down the road of federal regulation of insurance and a single-payer plan," Nelson told reporters Monday.

Federal exchanges set up in the individual states is not a national exchange, which is what Nelson is addressing in your quote.

 

[dismal]

Let me add a couple exhibits from around the time the law was passed that I don't think have made an appearance yet:

Ben Nelson on federal exchanges:

Federal exchanges set up in the individual states is not a national exchange, which is what Nelson is addressing in your quote.

The point being made was 1) this guy was adamantly against the federalization of healthcare and federal exchanges; 2) this guy's vote had to be bought for the bill to pass.

If you wish to address these points let me know.

 

[ksen]

Federal exchanges set up in the individual states is not a national exchange, which is what Nelson is addressing in your quote.

The point being made was 1) this guy was adamantly against the federalization of healthcare and federal exchanges; 2) this guy's vote had to be bought for the bill to pass.

If you wish to address these points let me know.

Are there any other points that have nothing to do with the current discussion you'd like me to address as well? Maybe why the Red Sox are sucking wind this season?

 

[dismal]

The point being made was 1) this guy was adamantly against the federalization of healthcare and federal exchanges; 2) this guy's vote had to be bought for the bill to pass.

If you wish to address these points let me know.

Are there any other points that have nothing to do with the current discussion you'd like me to address as well? Maybe why the Red Sox are sucking wind this season?

Well, since I started the Ben Nelson discussion it seems like I'd be in a better position than you to understand what my point was.

But if the floor is open for questions: Does it ever occur to you you're trying too hard? I mean, at least Gruber got paid.

 

[ksen]

Are there any other points that have nothing to do with the current discussion you'd like me to address as well? Maybe why the Red Sox are sucking wind this season?

Well, since I started the Ben Nelson discussion it seems like I'd be in a better position than you to understand what my point was.

I know you started the Ben Nelson discussion. You're usually the one that starts most of the irrelevant discussions in a thread.

But if the floor is open for questions: Does it ever occur to you you're trying too hard? I mean, at least Gruber got paid.

I guess if Gruber is the ultimate authority on this then we should also take him at his word that he misspoke and didn't mean what you and Cannon want him to mean. it's too bad breitbart forget to include the part of the clip where Gruber said, immediately after the publicized quote,

Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.

So in Gruber's appearance, which you have characterized as being the final say due to the prepared nature of his remarks, he says that the federal exchanges are the backstops for providing healthcare subsidies should some states decide not to establish their own exchanges.

 

[dismal]

Well, since I started the Ben Nelson discussion it seems like I'd be in a better position than you to understand what my point was.

I know you started the Ben Nelson discussion. You're usually the one that starts most of the irrelevant discussions in a thread.

This is a really sad and pathetic argument. You do not serve the administration well. Just like Gruber. But at least Gruber got paid.

 

[ksen]

Huh, you ignored Gruber's comment about federal exchanges being there to provide the subsidies if the states didn't set up their own exchanges.

 

[PyramidHead]

If they wanted to have all those subsidies, they should have passed a law that contained provisions for all those subsidies. I can't disagree with the courts on this one.

Look, the ACA is a stupid bungle of a law that is going to get replaced eventually by single-payer health care. It's not a question of "if." Republicans are unwittingly hurrying the process along. Unfortunately for them, they will never gain the Congressional majority needed to repeal the ACA.

There will always be legislative casualties, especially with a politically contentious and ineptly crafted bill such as this.

 

[dismal]

Huh, you ignored Gruber's comment about federal exchanges being there to provide the subsidies if the states didn't set up their own exchanges.

Gruber, if Gruber is to believed, repeatedly has things spew from his mouth that Gruber does not believe are true.

Of course, Gruber may have been spewing something Gruber didn't believe when Gruber said Gruber spews things Gruber doesn't believe...

But at least Gruber got paid.

 

[fromderinside]

So we're still at it with this aberrant decision. The 11th district is stacked in favor of democratic appointees. So some will hand wring, others will agitate, still others will gloat, but, the end result will be two decisions going the same way. Yes, in favor of subsidies for federal exchanges.

Dismal is there any record of a USSC intervening in an district wide overrule of a partial district finding where no other decisions support the one overruled?

There.

 

[dismal]

IRepublicans are unwittingly hurrying the process along. Unfortunately for them, they will never gain the Congressional majority needed to repeal the ACA.

If we head down this legal path they won't need to. They will just need a President who chooses to interpret it away.

After all, the courts and the Democrats will on be on record with the opinion the law is ambiguous and interpretation of it must be deferred tot he executive. *shrug*

- - - Updated - - -

So we're still at it with this aberrant decision. The 11th district is stacked in favor of democratic appointees. So some will hand wring, others will agitate, still others will gloat, but, the end result will be two decisions going the same way. Yes, in favor of subsidies for federal exchanges.

Dismal is there any record of a USSC intervening in an district wide overrule of a partial district finding where no other decisions support the one overruled?

There.

I really don't know. I think the USSC can take whatever cases it wants.

 

[fromderinside]

Dismal is there any record of a USSC intervening in an district wide overrule of a partial district finding where no other decisions support the one overruled?

I really don't know. I think the USSC can take whatever cases it wants.

That may be. But it would throw a monkey wrench in to good order of the courts with the USSC swooping down and, in essence, overruling current uniform decisions.


You actually answered my question when you wrote "I really don't know".

 

[maxparrish]

The Smoking Gun That Wasn't

I suppose for an embattled defense attorney looking for any loophole to save his client this might be acceptable, but for those of us who believe in ordinary listening to plainly spoken text this is darned lame. I read the original source of the claim. Here is the "full context" of his answer:

"Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges."

Gruber's initially makes a general comment about "these exchanges" as places people go for subsidies which is broadly true (given that hopes and expectations the States would mostly comply with the mandate), although he is a bit unclear if these exchanges mean all exchanges. And it is also true that he said the federal government been slow because they want the States to do it. And then he emphatically clarifies what will will happen to the rejecting State that does not comply:

"What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges."

How do you reconcile a brief, somewhat ambiguous first paragraph with an emphatic, longer and plainly stated second followup paragraph? Reasonable folk know the speaker is clarifying ambiguity with plain meaning. What unreasonable folks do (as did the analysis you linked to) is reject the deeper and clearer followup explication because it does not say what the analyst wants it to say.

Gruber is abundantly clear, if you're a State and you don't set up an exchange (not if you delay an exchange) your citizens don't get their tax credits but will pay taxes for "all the other states in the Country" (which also confirms he thought most states would comply). It will cost your State "billions" in tax credits should you fail to comply.

Finally, note that even Gruber has NOT claimed it was a matter of unfair quotes and context, and there are TWO occasions he made the same claim.

So it's a bit late to try and patch holes in a ship hull that has already sunk, no?

 

[ksen]

Look at max go!

 

[maxparrish]

Huh, you ignored Gruber's comment about federal exchanges being there to provide the subsidies if the states didn't set up their own exchanges.

Except he didn't. See post 237.

 

[ksen]

Huh, you ignored Gruber's comment about federal exchanges being there to provide the subsidies if the states didn't set up their own exchanges.

Except he didn't. See post 237.

Except he did.