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

[Jimmy Higgins]

I know what you mean. I mean look at what you said.

I don't really doubt they intended to throw about subsidies to everyone.

Yet, even when you know that, you still seem to want to argue against it. Do your partisan goggles come with lenses that aren't so dark? That may help you.

The pivotal language from the statute is as follows:

" [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​

Emphasis mine.

First, it is important to observe the word "State" is capitalized and is preceded, in some places, with the word "each." This is important because this is a clear reference to the individual 50 states of the United States.

Now, the statutory language regarding exchanges established by the state reads as "Each State shall...establish an American Health Benefit Exchange," with subsequent language in the statute making clear the state may elect to establish an exchange with the language under section 1321 reading "Each State that elects..." to establish an exchange. (The is a constitutional reason for the change from "shall" to "elects".) Once again, this language is a clear reference to the states in their individual capacity. So, we have a clear understanding the law discusses State established exchanges.

Now, does the statute have a contingency plan in the event the State or States choose not to establish an exchange? Yes. What does this part of the statute say? I posted it above but repost again in italics. "[t]he Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State."

Who is doing the establishing of the exchange in the event the State does not establish an exchange? Is it the "State"? No, it is "the Secretary". The "Secretary" is not the "State." The statute treats them as different entities, different subjects, and we know this because in one section of the statute the "State" (capital "S") is used and elsewhere the word "Secretary" (capital "S") is used. The "Secretary" establishing an exchange is not the same as or identical to the "State" establishing an exchange. The Secretary is one entity, a federal entity, and the State is a separate entity. If one entity, the State, fails to do X, then the Secretary will do X.

It is important to note, the statute does not contain the languge of, "The Secretary established exchanges for the State, and operated within the State, shall constitute as a State exchange." No such language exists in the statute. None. The statute discusses the "State" establishing exchanges, and in the event the "State" does not establish an exchange then the "Secretary" establishes an exchange.

In addition, the language of "establish and operate such Exchange within the State" is pivotal. The exchange is to be established by the Secretary "within" the State and the Secretary is to "operate" the exchange "within the State." The State isn't establishing or operating the exchange. Rather, the "Secretary" is establishing and operating the exchange. The State, under the law, has no operating control over the exchange established by the Secretary. Furthermore, the exchange is created and operated "within" the State. The word "within" gives the location and nothing more, the word "within" doesn't suggest the exchange is the State exchange. Given the fact the State does not have operational control over the exchange created by the "Secretary", the exchange is established by the "Secretary" and the exchange is merely, and nothing more, located "within" the State, it is inconceivable to think an exchange established and operated by the "Secretary" is a "State" exchange.

Quite simply, this isn't ambiguity, as the 4th Circuit said. This isn't ambiguous at all.

Not to you, but to 3 judges it was sufficient.

Yeah but the statutory language doesn't lie. Based on this language in the statute, those 3 judges have the weaker argument, and factually they have the inferior position.

The legislation becomes nonsensical if it is assumed intent was meant to not have federal subsidies. The right-wing couldn't support their theory that it was ever intended to mean no Federal Subsidies with a single quote. Even dismal says the intent was quite clear to intend subsidies all around.

This case against the ACA smells a lot like those cases where that guy has "found a tax code loophole" and he doesn't have to pay taxes anymore. We know how that finishes up all the time.

As long as you look at it in the partisan bubble, you are correct.

This isn't very persuasive Jimmy as the same remark can be directed towards you and anyone else.

No. Because in judging intent, if it isn't clear cut, other avenues can be taken to determine intent. dismal is trying to pin this literally at a single point. Hence, looking at this in a bubble, assuming there is absolutely no other method for determining intent.

No, I am relying upon the plain text meaning, which in this instance is not ambiguous.

Odd, did you do this with the word "person"?

Legislative intent isn't needed here because the plain, unambiguous text is sufficient to answer the legal issue.

See, when we talk about what a person is, it means a piece of paper. When we talk about the state, it means state and only state and there can't possibly be any other take on it.

In this case the legislative intent was relied upon to ignore the plain unambiguous language of the statute, to not adhere to the plain unambiguous language of the statute, and instead impose another meaning onto the statute.

If it is so clear cut, why are the people against the ACA up in arms about it and not the ones who proposed, wrote, and passed the legislation?

 

[laughing dog]

The statutory language, previously cited by me in this thread, is factual. The statutory language is a fact. The strength and weakness of an argument is, in part, contingent upon facts. The 4th Circuit's opinion isn't supported by the statutory language. How do I know? Because I have read the relevant parts of the statute and posted them here. The stronger argument is not the 4th Circuit's opinion, not because I said so, but because of the facts, i.e. the very language of the statute......

Apparently the other court disagrees. Which means you are not stating facts but opinion, because, as we all know, facts are facts.

Statutes do not have to make sense.

And neither do legal judgments nor do opinions about them.

There is no constitutional requirement for a law to make sense, for a law to be a good law, for common sense to be inherent in the law, or for the law to be rational. Congress can, and has, passed bad laws, stupid laws, laws which make no sense at all. So the argument the law "makes no sense" quite simply is an argument that does not make sense as it rests upon the false assumption the law is to make sense and the law isn't permitted to "not make sense." The law can not make sense, the law can be stupid and irrational, and it is for the legislature to remedy and rectify stupid laws, bad laws, laws devoid of being rational.

Thank you for the explanation but it misses the point. I think the point was obvious - the intent was to permit subsidies for all exchanges. Since the language - despite your claims to the contrary - is ambiguous (as evidenced by the conflicting opinions in two courts) - your argument is unconvincing. The fact that the statutory language is ambiguous does not make it constitutionally invalid nor does it necessarily invalidate the subsidies.

 

[ZiprHead]

Intent is a valid and established by the Supreme Court method of interpreting laws.

Justice John Paul Stevens:

(1) "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

"If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,

(2) f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).

 http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.

Because Justive Stevens says so? Well, great! Wait, Justice A. Scalia disputes the notion of "intent" as a valid mode of interpretation. What is more relevant to this dialogue is whether intent is appropriate when and where the statute's plain language resolves the legal issue, i.e. no ambiguity in the plain language of the statute. I am aware of no U.S. Supreme Court case so holding in regards to the use of intent.

My apologies for the poor link. Can a mod fix it please. I'm apparently link-deficient.

Here is the address: "http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc."

Justice Scalia was in the minority. The decision stands and is accepted now Supreme Court procedure.

"Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases."

 

[James Madison]

Effin Christ Jimmy, in the non-partisan bubble of reality the law does not authorize credits on federal exchanges.

Does the law say that Federal Exchanges must not have subsidies or are you just looking at the text of the law and concluding that maybe there is a possible loophole regarding the use of the word state that can help you in proving to yourself, that despite the sworn affidavits of those that actually passed the legislation, the legislation clearly and without doubt INTENDED not to subsidize federal exchange policies?

From the 4th Circuit opinion:

Eligibility for the premium tax credits is calculated according to 26 U.S.C. § 36B. This section defines the annual
"premium assistance credit amount" as the sum of the monthly premium assistance amounts for "all coverage months of the taxpayer occurring during the taxable year." Id. § 36B(b)(1). A "coverage month" is one in which the taxpayer is enrolled in a health plan "through an Exchange established by the State under section 1311."​

All right, a "coverage month" is not defined as an "exchange established and operated by the Secretary" or the federal government. A "coverge month" is defined as an "Exchange established by the State..." The premium assistance credit amount is applicable for "all covered months" and
covered months" is a health plan "through an Exchange established by the State..."

 

[James Madison]

Apparently the other court disagrees. Which means you are not stating facts but opinion, because, as we all know, facts are facts.

Statutes do not have to make sense.

And neither do legal judgments nor do opinions about them.

There is no constitutional requirement for a law to make sense, for a law to be a good law, for common sense to be inherent in the law, or for the law to be rational. Congress can, and has, passed bad laws, stupid laws, laws which make no sense at all. So the argument the law "makes no sense" quite simply is an argument that does not make sense as it rests upon the false assumption the law is to make sense and the law isn't permitted to "not make sense." The law can not make sense, the law can be stupid and irrational, and it is for the legislature to remedy and rectify stupid laws, bad laws, laws devoid of being rational.

Thank you for the explanation but it misses the point. I think the point was obvious - the intent was to permit subsidies for all exchanges. Since the language - despite your claims to the contrary - is ambiguous (as evidenced by the conflicting opinions in two courts) - your argument is unconvincing. The fact that the statutory language is ambiguous does not make it constitutionally invalid nor does it necessarily invalidate the subsidies.

Apparently the other court disagrees. Which means you are not stating facts but opinion, because, as we all know, facts are facts.

No, another court disagreeing with me merely means another court disagrees with me, and disagreement by another court makes no showing or demonstration I am not stating facts but opinion. Disagreement, regardless of the source, whether it is a court or some other entity, does not make the demonstration or showing you allege.

Thank you for the explanation but it misses the point. I think the point was obvious

It is your opinion the point was obvious. It is my opinion the point wasn't obvious. It is your opinion my explanation misses the point. It is my opinion the explanation doesn't miss the point.

the intent was to permit subsidies for all exchanges. Since the language - despite your claims to the contrary - is ambiguous (as evidenced by the conflicting opinions in two courts)

This isn't a strong rebuttal or counterargument. Rather than espouse an argument looking at the statutory language itself, you articulate a weak argument and it's weak because it involves no analysis of the statutory language, no argument or reasoning relying upon, citing to, or referencing the statutory language. Whether the statute is ambiguous isn't determined by conflicting opinions by courts, or the number of people venturing concurring or conflicting opinions. Rather, whether a statute is ambiguous is predicated upon the language in the statute and how well the language in the statute supports the argument of ambiguity or clarity. The language in the statute isn't ambiguous because the 4th Circuit said so. The language in the statute isn't clear because the D.C. Circuit says so. And the language in the statute isn't ambiguous because of conflicting opinions on the subject matter. None of what you reference (disagreement, contrary opinions) is sufficient or satisfactory evidence for determining whether a statute or its provision(s) is/are ambiguous.

 

[dismal]

Even dismal says the intent was quite clear to intend subsidies all around.

Do you imaginer these sort of gross mischaracterizations help you?

My position is pretty clear and supported by precedents you seem unwilling to read.

Macro statements about the intent of a law are irrelevant. When we talk are talking about intent in this case we are talking about the intent with respect to the specific mechanism in the specific law.

There has yet to be any evidence provided there was any intent that the was intended to provide credit to people on federal exchanges.

If you can't demonstrate intent at this level, you have lost according to existing USSC legal precedent provided here for second time in hopes you will read and stop restating your incorrect argument:
The government concedes that neither paragraph 1, paragraph 3, paragraph 4, paragraph 5, or any other paragraph 4 of section 800(a), provides in terms for taxing a privilege like that enjoyed by the plaintiff. It makes no contention here that the tax can be sustained under any paragraph of section 800(a) unless it be paragraph 3. It argues that Congress clearly intended to tax all sales of tickets; that there is in the section no indication of intention to exempt from the tax any sale of tickets or any resale at a profit; that the receipts here taxed are in character substantially similar to those specifically described in paragraph 3; that this general purpose of Congress should be given effect, so as to reach any case within the aim of the legislation; and that the act should, therefore, be extended by construction to cover this case. It may be assumed that Congress did not purpose to exempt from taxation this class of tickets. But the act contains no provision referring to tickets of the character here involved; and there is no general provision in the act under which classes of tickets not enumerated are subjected to a tax. Congress undertook to accomplish its purpose by dealing specifically, and in some respects differently, with different classes of tickets and with tickets of any one class under different situations. The particularization and detail with which the scope of each provision, the amount of the tax thereby imposed, and the incidence of the tax, were specified, preclude an extension of any provision by implication to any other subject. The statute was evidently drawn with care. Its language is plain and unambiguous. What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.

http://www.law.cornell.edu/supremecourt/text/270/245

You need to prove there was intent to make credits available on a federal exchange.

I predict you will fail to do this because the government has had 3 years to produce evidence of this intent and has come up completely empty. On the other hand, the other side has produced evidence that 1) this was not the only law produced in congress around this time that limited credits to State exchanges; 2) the 60th vote was bought in a backroom trade with a Senator who was openly against having a federal exchange.

 

[dismal]

Because Justive Stevens says so? Well, great! Wait, Justice A. Scalia disputes the notion of "intent" as a valid mode of interpretation. What is more relevant to this dialogue is whether intent is appropriate when and where the statute's plain language resolves the legal issue, i.e. no ambiguity in the plain language of the statute. I am aware of no U.S. Supreme Court case so holding in regards to the use of intent.

My apologies for the poor link. Can a mod fix it please. I'm apparently link-deficient.

Here is the address: "http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc."

Justice Scalia was in the minority. The decision stands and is accepted now Supreme Court procedure.

"Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases."

There's not a lot of ambiguity about whether congress approved an expenditure for credits on a Federal exchange.

It unambiguously did not.

 

[ZiprHead]

What then would be the purpose of creating a federal exchange?

 

[dismal]

What then would be the purpose of creating a federal exchange?

This question has nothing whatsoever to do with ambiguity in the statute.

Stupidity, maybe. Incompetence, maybe. Ambiguity, no.

 

[KeepTalking]

Statutes do not have to make sense. There is no constitutional requirement for a law to make sense, for a law to be a good law, for common sense to be inherent in the law, or for the law to be rational. Congress can, and has, passed bad laws, stupid laws, laws which make no sense at all. So the argument the law "makes no sense" quite simply is an argument that does not make sense as it rests upon the false assumption the law is to make sense and the law isn't permitted to "not make sense." The law can not make sense, the law can be stupid and irrational, and it is for the legislature to remedy and rectify stupid laws, bad laws, laws devoid of being rational.

Awesome job, you just invoked the Chewbacca Defense! Johnny Cochran would be proud.

 

[arkirk]

What then would be the purpose of creating a federal exchange?

This question has nothing whatsoever to do with ambiguity in the statute.

Stupidity, maybe. Incompetence, maybe. Ambiguity, no.

You know, you are quite a literalist. Have you ever thought that you are looking at a typo that is unambiguously out of line with the rest of the legislation? Edited

 

[ksen]

There has yet to be any evidence provided there was any intent that the was intended to provide credit to people on federal exchanges.

Well, any evidence you want to acknowledge anyway.

Here's some more from a staffer involved in the creating of the PPACA:

"The evidence of Congressional intent here is overwhelming," John McDonough, who worked on the Health, Education, Labor and Pension committee during the health reform debate, wrote in an email. "There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status."

This has never been a talking point of the republican legislators. Even the jerk who filed the lawsuit acknowledges that it's a long-shot.

So basically you have republican, conservative, and libertarian groups trying to throw as much shit up against the wall as possible to see if they can get anything to stick.

Actually, I do support this effort. Because if they do manage to take the subsidies away from the republican states that refused to set up their own exchanges then we just might get to singlepayer that much faster.

 

[KeepTalking]

Everyone is wrong

The DC Circuit Court obviously did not go far enough with this one. In plain text the statute says "State" not "States". The only logical take away from this unambiguous wording is that only one State can take advantage of the credits.

It is clear that the intent of Congress was to have a giant Thunderdome built, where the States will fight to the death over the right to be the One State.

Need I remind you that Nancy Pelosi said, and I paraphrase:

"Two States enter, one State leaves."

 

[laughing dog]

No, another court disagreeing with me merely means another court disagrees with me, and disagreement by another court makes no showing or demonstration I am not stating facts but opinion.....

I see, you are of the opinion that facts are different for different people.

This isn't a strong rebuttal or counterargument. Rather than espouse an argument looking at the statutory language itself, you articulate a weak argument and it's weak because it involves no analysis of the statutory language, no argument or reasoning relying upon, citing to, or referencing the statutory language....

Your view of the strength or weakness of an argument is irrelevant. Read the other court's unanimous opinion if you want their argument. I don't need the statutory language. The conclusion that the statutory language is based on 2 observations: 1) if it were as clear as you claim, the 4th court decision would have been unanimous, and 2) the other court would not have made an unanimous different ruling.

 

[James Madison]

The statute uses language of "Each State" more than once, indicating a reference to the individual 50 states.

 

[KeepTalking]

The statute uses language of "Each State" more than once, indicating a reference to the individual 50 states.

Individual, man. Individual. How can it be individual if more than one State gets it?

The very definition of individual is 'single'.

Plain text man, read it!

 

[James Madison]

I see, you are of the opinion that facts are different for different people.

This isn't a strong rebuttal or counterargument. Rather than espouse an argument looking at the statutory language itself, you articulate a weak argument and it's weak because it involves no analysis of the statutory language, no argument or reasoning relying upon, citing to, or referencing the statutory language....

Your view of the strength or weakness of an argument is irrelevant. Read the other court's unanimous opinion if you want their argument. I don't need the statutory language. The conclusion that the statutory language is based on 2 observations: 1) if it were as clear as you claim, the 4th court decision would have been unanimous, and 2) the other court would not have made an unanimous different ruling.

I see, you are of the opinion that facts are different for different people.

That is your opinion that it is my opinion.

Read the other court's unanimous opinion if you want their argument.

I have. In addition, I have referenced, cited, and relied upon the statutory language in making my argument, which is the logical and rational thing to do since, after all, the text of the statute and what it says is at issue.

I don't need the statutory language.

You do, if you are attempting to make the claim the statute is ambiguous and the claim my argument the statute isn't amibguous is an erroneous argument.

The conclusion that the statutory language is based on 2 observations: 1) if it were as clear as you claim, the 4th court decision would have been unanimous.

This is not necessarily true. Unanimity or a lack of it is not evidence the law is or isn't ambiguous. Again, the number of people in agreement for or against some claim, any claim, in this instance whether the statute is ambiguous, isn't evidence a claim is true or false, in this instance it isn't evidence the statute is or isn't ambiguous.

At best all the evidence you rely upon shows is disagreement.

- - - Updated - - -

The statute uses language of "Each State" more than once, indicating a reference to the individual 50 states.

Individual, man. Individual. How can it be individual if more than one State gets it?

The very definition of individual is 'single'.

Plain text man, read it!

Plain text says "Each State." Simple. Plain text man, read it.

 

[dismal]

"The evidence of Congressional intent here is overwhelming,"

If he has evidence he should send it to the government. They can't seem to find any.

 

[ksen]

Another bit of evidence to be rejected from a 2010 report by the Joint Committee on Taxation:

The provision creates a refundable tax credit (the “premium assistance credit”) for eligible individuals and families who purchase health insurance through an exchange.26 The premium assistance credit, which is refundable and payable in advance directly to the insurer, subsidizes the purchase of certain health insurance plans through an exchange.

Under the provision, an eligible individual enrolls in a plan offered through an exchange and reports his or her income to the exchange. Based on the information provided to the exchange, the individual receives a premium assistance credit based on income and the Treasury pays the premium assistance credit amount directly to the insurance plan in which the individual is enrolled. The individual then pays to the plan in which he or she is enrolled the dollar difference between the premium tax credit amount and the total premium charged for the plan.27 Individuals who fail to pay all or part of the remaining premium amount are given a mandatory three-month grace period prior to an involuntary termination of their participation in the plan. For employed individuals who purchase health insurance through a State exchange, the premium payments are made through payroll deductions. Initial eligibility for the premium assistance credit is based on the individual’s income for the tax year ending two years prior to the enrollment period. Individuals (or couples) who experience a change in marital status or other household circumstance, experience a decrease in income of more than 20 percent, or receive unemployment insurance, may update eligibility information or request a redetermination of their tax credit eligibility.

Those rubes also thought the subsidies applied to any qualifying person purchasing a plan from any exchange. I guess they couldn't read the plain text of the statute either.

 

[ksen]

If he has evidence he should send it to the government. They can't seem to find any.

The government has plenty. It's the two dummies on the 9th Circuit that can't seem to wrap their heads around it.

And where was the republican outcry when the IRS first proposed this interpretation that goes against the law as passed?