Supreme Court to Hear Obamacare Suit

[Jimmy Higgins]

Hence your strawman. The question is, what is an Exchange established by the Federal Government for the State called?

No, the question is why you think such an exchange would qualify for a tax credit that is limited to an exchange established by the state.

The implication of the subsidy is much larger, as such an infinitesimal review of the law pretty much kills federally established state exchanges.

Section 1312 states, in part, that:

IN GENERAL The term ‘‘qualified individual’’ means, with respect to an Exchange, an individual who

(i) is seeking to enroll in a qualified health plan in the individual market offered through the Exchange; and
(ii) resides in the State that established the Exchange (except with respect to territorial agreements under section 1312(f)).

Therefore according to this, and the infinitesimal hypertextual review, people who live in states that didn't establish an Exchange, aren't qualified to get coverage. Forget about getting a subsidy! But we already know that in 1321, that the Federal Government is to explicitly create Exchanges in States that refused to set them up, which means the the hypertextual review is crap. Therefore the "leap" regarding subsidies isn't exactly a leap to begin with, but common sense.

 

[dismal]

I think you may have a good argument there that people who want to buy health insurance on a federally established exchange are not "qualified individuals".

This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in Michigan’s words) Congress “must have intended” something broader.

- Justice Kagan

 

[laughing dog]

To be fair, "common sense" and Congress are rarely in sync. The issue here is sloppy legislative language, regardless of the intent.

 

[RVonse]

But do you place the rule of law, (in this case a typo of the law) above the medical survival of American citizens?

 

[RVonse]

With regard to the OP, I guess this is what you can expect when congress passes laws without reading whats in their own law. I can clearly remember at the time this was passed that almost no one had read the entire 2000 page document. Good article from NYT that sums this up perfectly: http://www.nytimes.com/2014/11/10/o...atest-frivolous-attack-on-obamacare.html?_r=0

 

[maxparrish]

One thing I'm curious about, what is the basis for regulating a Federally overseen Exchange if not 1311?

If the subsidy mechanism of 1311 doesn't apply, that'd imply that none of 1311 applies to a Federally overseen State exchange. 1321 (c)(1)(A)(ii)(II) indicates that:

...the Secretary shall (directly or through agreement with a notforprofit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

"such Exchange", as in the same type of Exchange the State was required to create. The Fed is given no change or exceptions in the existing regulation, but that they are instructed and authorized to "establish and operate such Exchange within the State..." No distinction is made here.

The plain text overwhelming conveys the intent of the law (let alone the legislative and political history). Irrespective of a single phrase of alleged ambiguity, if you take the time to read the most important sections and put it on the scales of Lady Justice (assuming she is still blindfolded) it easily bottoms out on one side of intent. Recognizing this as a legal reality does not force you to believe ACA is/was a bad idea, or that there is not a potential loophole or a minor ambiguity, but it does provide respect for scholarship and law.

After reading all the pivotal sections, I find little or no ambiguity. In sum:

Section 1311 provides a directive, that ‘‘Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)’’. It then provides the 1311 rules/requirements for States. It requires that an Exchange must be ‘‘a governmental agency or nonprofit entity that is established by a State.’’ Section 1304(d) clarifies, ‘‘In this title, the term ‘State’ means each of the 50 States and the District of Columbia.’’

Section 1321 directs the Secretary to create an Exchange in states that fail to create an Exchange or fails to implement the federal insurance regulations. Specifically 1321 says ‘‘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.’’

So there are two types of exchanges, one is an exchange complaint with particular requirements for the State, and the fallback federal exchange created under 1321.

The presumed support for the "loophole" is in miscellaneous provisions, in Section 1563(b), amending Section 2791 (d) of the Public Health Services Act reads: ‘‘The term ‘Exchange’ means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.’’

The "shoehorn" logic is: if "Exchange" means an "AHBE under 1311", then the direction to the Secretary to create "such Exchange" means that 1321 and 1311 are equivalent. Inventive to be sure, but the problem is that the provision does not literally say that, and the remainder of the Title is clearly incompatible with such a view.

Whatever AHBE requirements "under" 1311 are, and however a Section 1321 exchange may have to meet the same Title I requirements, a state Exchange formed under Section 1311 is not literally a 1321 federal Exchange. They may be (in your view) annoying legal distinctions without a functional difference, but they are still legally distinct. Section 1321 exchanges are authorized under different provisions, and have been treated differently in amendments by Congress.

And Section 1401 expressly and repeatedly restricts tax credits to those Exchanges "established by the State under Section 1311". It does not provide those benefits to 1321 Exchange. However a 1321 federal exchange is like a AHBE Exchange under the rules of 1311 , it is NOT a 1311 AHBE Exchange ‘‘established by a State.’’

In short, Section 1321 directs the Secretary to create such Exchanges that are identical in form to an AHBE under Section 1311 requirements, but 1401 provides tax benefits ONLY to those who use 1311 Exchanges established by a State.

There is only ambiguity for those who are looking for a needle in a haystack, and then if found, can then claim that that they actually found a needle-stack.

FYI: More Background Notes on Two Provisions:

Section 1401 (and indirectly 1402) gives specific authorizations of tax credits and cost-sharing subsidies but only for 1311 exchanges established by a state. This is not a case of errant phrasing, it is very clear as seven times it says so, repeatedly pointing out that it only occurs when the taxpayer is in an Exchange "established by the State under section 1311".

Section 1421 gives authorization for tax credits for small businesses under an exchange. The word "exchange" (no caps) refers to state Exchanges and federal Exchanges. The contrast between the two sections (1401 and 1421) in this case highlights the authorizations intended.

Therefore PPACA makes small business tax credits available to state and federal Exchanges, but makes premium tax credits only available in state Exchanges.

 

[bilby]

One thing I'm curious about, what is the basis for regulating a Federally overseen Exchange if not 1311?

If the subsidy mechanism of 1311 doesn't apply, that'd imply that none of 1311 applies to a Federally overseen State exchange. 1321 (c)(1)(A)(ii)(II) indicates that:

...the Secretary shall (directly or through agreement with a notforprofit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

"such Exchange", as in the same type of Exchange the State was required to create. The Fed is given no change or exceptions in the existing regulation, but that they are instructed and authorized to "establish and operate such Exchange within the State..." No distinction is made here.

The plain text overwhelming conveys the intent of the law (let alone the legislative and political history). Irrespective of a single phrase of alleged ambiguity, if you take the time to read the most important sections and put it on the scales of Lady Justice (assuming she is still blindfolded) it easily bottoms out on one side of intent. Recognizing this as a legal reality does not force you to believe ACA is/was a bad idea, or that there is not a potential loophole or a minor ambiguity, but it does provide respect for scholarship and law.

After reading all the pivotal sections, I find little or no ambiguity. In sum:

Section 1311 provides a directive, that ‘‘Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)’’. It then provides the 1311 rules/requirements for States. It requires that an Exchange must be ‘‘a governmental agency or nonprofit entity that is established by a State.’’ Section 1304(d) clarifies, ‘‘In this title, the term ‘State’ means each of the 50 States and the District of Columbia.’’

Section 1321 directs the Secretary to create an Exchange in states that fail to create an Exchange or fails to implement the federal insurance regulations. Specifically 1321 says ‘‘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.’’

So there are two types of exchanges, one is an exchange complaint with particular requirements for the State, and the fallback federal exchange created under 1321.

The presumed support for the "loophole" is in miscellaneous provisions, in Section 1563(b), amending Section 2791 (d) of the Public Health Services Act reads: ‘‘The term ‘Exchange’ means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.’’

The "shoehorn" logic is: if "Exchange" means an "AHBE under 1311", then the direction to the Secretary to create "such Exchange" means that 1321 and 1311 are equivalent. Inventive to be sure, but the problem is that the provision does not literally say that, and the remainder of the Title is clearly incompatible with such a view.

Whatever AHBE requirements "under" 1311 are, and however a Section 1321 exchange may have to meet the same Title I requirements, a state Exchange formed under Section 1311 is not literally a 1321 federal Exchange. They may be (in your view) annoying legal distinctions without a functional difference, but they are still legally distinct. Section 1321 exchanges are authorized under different provisions, and have been treated differently in amendments by Congress.

And Section 1401 expressly and repeatedly restricts tax credits to those Exchanges "established by the State under Section 1311". It does not provide those benefits to 1321 Exchange. However a 1321 federal exchange is like a AHBE Exchange under the rules of 1311 , it is NOT a 1311 AHBE Exchange ‘‘established by a State.’’

In short, Section 1321 directs the Secretary to create such Exchanges that are identical in form to an AHBE under Section 1311 requirements, but 1401 provides benefits ONLY for those who State citizens use 1311 Exchanges.

There is only ambiguity for those who are looking for a needle in a haystack, and then if found, claims that that they actually found a needle-stack.

FYI: More Background Notes on Two Provisions:

Section 1401 (and indirectly 1402) gives specific authorizations of tax credits and cost-sharing subsidies but only for 1311 exchanges. This is not a case of errant phrasing, it is very clear as seven times it says so, repeatedly pointing out that it only occurs when the taxpayer is in an Exchange "established by the State under section 1311".

Section 1421 gives authorization for tax credits for small businesses under an exchange. The word "exchange" (no caps) refers to state Exchanges and federal Exchanges. The contrast between the two sections (1401 and 1421) in this case highlights the authorizations intended.

Therefore PPACA makes small business tax credits available to state and federal Exchanges, but makes premium tax credits only available in state Exchanges.

That's an awful lot of words for an argument that completely ignores the word 'such'.

If 'such' doesn't mean 'that same kind of', then WTF does it mean?

If 'such' does mean 'that same kind of', then your fundamental argument vanishes up its own fundament.

 

[maxparrish]

A) It was not a typo
B) Do you place the survival of the Constitution and Democracy above a partially implemented insurance program? (If we are going to be melodramatic about it).

 

[maxparrish]

The plain text overwhelming conveys the intent of the law (let alone the legislative and political history). Irrespective of a single phrase of alleged ambiguity, if you take the time to read the most important sections and put it on the scales of Lady Justice (assuming she is still blindfolded) it easily bottoms out on one side of intent. Recognizing this as a legal reality does not force you to believe ACA is/was a bad idea, or that there is not a potential loophole or a minor ambiguity, but it does provide respect for scholarship and law.

After reading all the pivotal sections, I find little or no ambiguity. In sum:

Section 1311 provides a directive, that ‘‘Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)’’. It then provides the 1311 rules/requirements for States. It requires that an Exchange must be ‘‘a governmental agency or nonprofit entity that is established by a State.’’ Section 1304(d) clarifies, ‘‘In this title, the term ‘State’ means each of the 50 States and the District of Columbia.’’

Section 1321 directs the Secretary to create an Exchange in states that fail to create an Exchange or fails to implement the federal insurance regulations. Specifically 1321 says ‘‘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.’’

So there are two types of exchanges, one is an exchange complaint with particular requirements for the State, and the fallback federal exchange created under 1321.

The presumed support for the "loophole" is in miscellaneous provisions, in Section 1563(b), amending Section 2791 (d) of the Public Health Services Act reads: ‘‘The term ‘Exchange’ means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.’’

The "shoehorn" logic is: if "Exchange" means an "AHBE under 1311", then the direction to the Secretary to create "such Exchange" means that 1321 and 1311 are equivalent. Inventive to be sure, but the problem is that the provision does not literally say that, and the remainder of the Title is clearly incompatible with such a view.

Whatever AHBE requirements "under" 1311 are, and however a Section 1321 exchange may have to meet the same Title I requirements, a state Exchange formed under Section 1311 is not literally a 1321 federal Exchange. They may be (in your view) annoying legal distinctions without a functional difference, but they are still legally distinct. Section 1321 exchanges are authorized under different provisions, and have been treated differently in amendments by Congress.

And Section 1401 expressly and repeatedly restricts tax credits to those Exchanges "established by the State under Section 1311". It does not provide those benefits to 1321 Exchange. However a 1321 federal exchange is like a AHBE Exchange under the rules of 1311 , it is NOT a 1311 AHBE Exchange ‘‘established by a State.’’

In short, Section 1321 directs the Secretary to create such Exchanges that are identical in form to an AHBE under Section 1311 requirements, but 1401 provides benefits ONLY for those who State citizens use 1311 Exchanges.

There is only ambiguity for those who are looking for a needle in a haystack, and then if found, claims that that they actually found a needle-stack.

FYI: More Background Notes on Two Provisions:

Section 1401 (and indirectly 1402) gives specific authorizations of tax credits and cost-sharing subsidies but only for 1311 exchanges. This is not a case of errant phrasing, it is very clear as seven times it says so, repeatedly pointing out that it only occurs when the taxpayer is in an Exchange "established by the State under section 1311".

Section 1421 gives authorization for tax credits for small businesses under an exchange. The word "exchange" (no caps) refers to state Exchanges and federal Exchanges. The contrast between the two sections (1401 and 1421) in this case highlights the authorizations intended.

Therefore PPACA makes small business tax credits available to state and federal Exchanges, but makes premium tax credits only available in state Exchanges.

That's an awful lot of words for an argument that completely ignores the word 'such'.

If 'such' doesn't mean 'that same kind of', then WTF does it mean?

If 'such' does mean 'that same kind of', then your fundamental argument vanishes up its own fundament.

You are correct, 'such Exchange' means the 'the same kind of' exchange as in 1311. However the benefits to taxpayers (regardless of the form of the exchange) are authorized in 1401, it only grants tax benefits to those who participate in 1311 exchanges that are established by a State.

The wording of 1401 authorizations, repeated 7 times, applies to "such Exchanges" as well - as they are not 'established by a State', their clients don't get tax benefits.

 

[bilby]

That's an awful lot of words for an argument that completely ignores the word 'such'.

If 'such' doesn't mean 'that same kind of', then WTF does it mean?

If 'such' does mean 'that same kind of', then your fundamental argument vanishes up its own fundament.

You are correct, 'such Exchange' means the 'the same kind of' exchange as in 1311. However the benefits to taxpayers (regardless of the form of the exchange) are authorized in 1401, it only grants tax benefits to those who participate in 1311 exchanges that are established by a State.

The wording of 1401 authorizations, repeated 7 times, applies to "such Exchanges" as well - as they are not 'established by a State', their clients don't get tax benefits.

So you disagree with this guy?

"Section 1321 directs the Secretary to create an Exchange in states that fail to create an Exchange or fails to implement the federal insurance regulations. Specifically 1321 says ‘‘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.’’"(source)

 

[James Madison]

No, this one is a legitimate dispute quite simply because the Democratic House and Senate did a rather poor job of writing the statute as clearly as is humanly possible.

I'm surprised to hear that. You're arguing from outside the text.

No, it's a partisan witch hunt in search of a legal theory.

The subtitles of the ACA immediately surrounding the provision in question are a set of interlinking pieces: they add new requirements on insurers to make insurance accessible; impose the infamous individual mandate on the public to populate the insurance pools; and create the federal and state exchanges and authorize the subsidies (which the exchanges deliver) to make insurance purchase accessible and affordable enough for the individuals now required to purchase it. In their 2012 joint dissent in NFIB v. Sebelius, Justices Scalia, Kennedy, Thomas, and Alito read these parts as making no logical sense without one another and also read the statute to include subsidies on federal exchanges:

“Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.”

and then:

“That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”

Two examples:

[...] the ACA’s text – not its purpose or its legislative history, or anything else that textualists don’t generally consider – is slashed to pieces under the challengers’ reading. Two examples from a list of many offered in the briefing:

Section 36B(f)(3) requires “[e]ach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c)” to report the premiums doled out. Section 1321 is the federal exchange provision, and so this section is rendered meaningless if the federal exchanges have no subsidies.
Likewise Section 1312(f) provides that only “qualified individuals” can purchase on an Exchange but defines a qualified individual as one who “resides in the State that established the Exchange.” Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.

Justice Scalia’s own statutory interpretation treatise argues (at pages 63 and 168) that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” and that statutory provisions should not be interpreted to render them ineffective or superfluous.

In conclusion,

Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.

I'm surprised to hear that. You're arguing from outside the text.

No, I am very much arguing within the text itself.

Justice Scalia’s own statutory interpretation treatise argues (at pages 63 and 168) that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” and that statutory provisions should not be interpreted to render them ineffective or superfluous.

I care because???? This is very edifying information but not germane to my position.

Furthermore, it is quite possible, and very likely, Scalia's comments on those two pages are misused by the commentator in the context of the ACA. I suspect, without having the benefit of any communication with J. Scalia, is when and where the plain text says X, those two principles announced on pages 63 and 168 cannot be relied upon to have plain text say Y. This is all I will say on this digression.

[...] the ACA’s text – not its purpose or its legislative history, or anything else that textualists don’t generally consider – is slashed to pieces under the challengers’ reading. Two examples from a list of many offered in the briefing:

Section 36B(f)(3) requires “[e]ach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c)” to report the premiums doled out. Section 1321 is the federal exchange provision, and so this section is rendered meaningless if the federal exchanges have no subsidies.
Likewise Section 1312(f) provides that only “qualified individuals” can purchase on an Exchange but defines a qualified individual as one who “resides in the State that established the Exchange.” Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.
​

This is a good example of a consequence of a poorly written statute. However, this does not transform the language expressing those Exchanges established by the State are eligible for the subsidy. Contrary to the commentator's assertion, this isn't an example or evidence in conjunction with textualism reaching a result textualism would produce. Rather, this is an example and evidence of legislative intent.

Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.

Wonderful red herring as this is not the issue in this thread but is most certainly a tantalizing issue worthy of dialogue elsewhere.

 

[dismal]

But do you place the rule of law, (in this case a typo of the law) above the medical survival of American citizens?

If you're a judge you do. It's not your job to solve all the world's problems. That's for congress. Aka the people who made the credit available on state exchanges.

 

[dismal]

You are correct, 'such Exchange' means the 'the same kind of' exchange as in 1311. However the benefits to taxpayers (regardless of the form of the exchange) are authorized in 1401, it only grants tax benefits to those who participate in 1311 exchanges that are established by a State.

The wording of 1401 authorizations, repeated 7 times, applies to "such Exchanges" as well - as they are not 'established by a State', their clients don't get tax benefits.

So you disagree with this guy?

"Section 1321 directs the Secretary to create an Exchange in states that fail to create an Exchange or fails to implement the federal insurance regulations. Specifically 1321 says ‘‘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.’’"(source)

If the secretary establishes SUCH exchange under section 1321 how is it an exchange established by the state under section 1311?

 

[Horatio Parker]

I'm surprised to hear that. You're arguing from outside the text.

No, it's a partisan witch hunt in search of a legal theory.

The subtitles of the ACA immediately surrounding the provision in question are a set of interlinking pieces: they add new requirements on insurers to make insurance accessible; impose the infamous individual mandate on the public to populate the insurance pools; and create the federal and state exchanges and authorize the subsidies (which the exchanges deliver) to make insurance purchase accessible and affordable enough for the individuals now required to purchase it. In their 2012 joint dissent in NFIB v. Sebelius, Justices Scalia, Kennedy, Thomas, and Alito read these parts as making no logical sense without one another and also read the statute to include subsidies on federal exchanges:

“Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.”

and then:

“That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”

Two examples:

[...] the ACA’s text – not its purpose or its legislative history, or anything else that textualists don’t generally consider – is slashed to pieces under the challengers’ reading. Two examples from a list of many offered in the briefing:

Section 36B(f)(3) requires “[e]ach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c)” to report the premiums doled out. Section 1321 is the federal exchange provision, and so this section is rendered meaningless if the federal exchanges have no subsidies.
Likewise Section 1312(f) provides that only “qualified individuals” can purchase on an Exchange but defines a qualified individual as one who “resides in the State that established the Exchange.” Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.

Justice Scalia’s own statutory interpretation treatise argues (at pages 63 and 168) that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” and that statutory provisions should not be interpreted to render them ineffective or superfluous.

In conclusion,

Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.

I'm surprised to hear that. You're arguing from outside the text.

No, I am very much arguing within the text itself.

Justice Scalia’s own statutory interpretation treatise argues (at pages 63 and 168) that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously,” and that statutory provisions should not be interpreted to render them ineffective or superfluous.

I care because???? This is very edifying information but not germane to my position.

Furthermore, it is quite possible, and very likely, Scalia's comments on those two pages are misused by the commentator in the context of the ACA. I suspect, without having the benefit of any communication with J. Scalia, is when and where the plain text says X, those two principles announced on pages 63 and 168 cannot be relied upon to have plain text say Y. This is all I will say on this digression.

[...] the ACA’s text – not its purpose or its legislative history, or anything else that textualists don’t generally consider – is slashed to pieces under the challengers’ reading. Two examples from a list of many offered in the briefing:

Section 36B(f)(3) requires “[e]ach Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c)” to report the premiums doled out. Section 1321 is the federal exchange provision, and so this section is rendered meaningless if the federal exchanges have no subsidies.
Likewise Section 1312(f) provides that only “qualified individuals” can purchase on an Exchange but defines a qualified individual as one who “resides in the State that established the Exchange.” Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.
​

This is a good example of a consequence of a poorly written statute. However, this does not transform the language expressing those Exchanges established by the State are eligible for the subsidy. Contrary to the commentator's assertion, this isn't an example or evidence in conjunction with textualism reaching a result textualism would produce. Rather, this is an example and evidence of legislative intent.

Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.

Wonderful red herring as this is not the issue in this thread but is most certainly a tantalizing issue worthy of dialogue elsewhere.

All you guys do is wave your hands. You do realize that in front the court, the burden is on the plaintiff to make ACA into a coherent piece of legislation consistent with your "theory".

 

[James Madison]

And 1321 specifically covers the contingency of how the Federal governing body can oversee an Exchange if a State ignores the law as required in 1331 (b)(1).

Oversee? Fanciful language. The fact is the Secretary of Health establishes the Exchange for those States failing to Establish an Exchange.

I apologize. I should have said "oversee the establishment". Christ!

Your argument is extremely weak and based on the premise that the opponent doesn't know that 1321 exists.

Really? Well your comments, assertions, and position certainly does not establish my argument as "extremely weak." However, if the government wanted to increase their risk of losing their argument, then they'd adopt your position. I seriously doubt the government ever pondered your position quite simply because your position does pigeon hole them.

First, I am not convinced the intent is "clear."

States shall create exchanges. However, the code protects itself by creating a contingency if a state decides to ignore the law. It isn't much clearer than that.

The States shall create an exchange. States that fail to create an exchange will have one run by the Federal Government. There is no distinction between a state run and federal run exchange.

Except the statute does not have any language explicitly treating an exchange established by the State and an Exchange established by the Secretary of Health are to constitute as exchanges established by the State.

Furthermore, 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..."

...the Secretary shall (directly or through agreement with a notforprofit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

The law indicates the definition, role, etc... are established in 1311. And 1321 covers how the Federal Government has the authority to oversee the 1311 Exchange

Well you just lost the argument, good job! Once again, from Section 1311:

Section 1311(d)(1) Requirements:


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

Section 1321
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.
​

Lost? How so? You know, just saying "pigeon hole" doesn't establish an actual argument.

1311 is the primer. 1321 contains a contingency. There is nothing indicating that any regulation for the Exchange run by the Secretary for the State or by the State is different. 1321 doesn't include any exclusions to regulations or coverage. It just gives the Federal Government authority to oversee the creation of an Exchange in a State that has violated the law by not creating one on its own.

Only in the sense that there is only one definition to Exchange and that is found in 1311 and the enforcement code is established in 1321 which carries language regarding what to do if a State fails to follow the law.

Yes, precisely, which is why the government, unless it wants to increase its risk of losing before the U.S. Supreme Court, isn't going to make the argument section 1311 defines "exchange" for the entire statute as the 1311 definition, by its very terms, would exclude 1321 exchanges.

You simply aren't trying to argue against subsidies. You are trying to argue against the authority of a federal exchange... which oddly enough is authorized quite clearly in 1321.

I have quite explicitly articulated my position as one against the subsidies. So I am not sure how exactly you think I am not "trying" to argue against subsidies when I have in fact argued against them. Furthermore, I am not arguing against the authority of the federal exchange. Rather, I have argued the federal exchanges are not eligible for the subsidy. Pay better attention Jimmy.

What you are trying to do is what lawyers do. Take something that is pretty clear and parse the language.

Yes, the language is clear, exchanges established by the State are eligible for the subsidy, but there isn't any language stating exchanges established by the Secretary of State are also eligible for the subsidy. There isn't any express or explicit language treating those two exchanges, exchanges established by the State or Secretary of Health, are one and the same for purposes of the subsidy.

The intent of the ACA couldn't be clearer, but you want to play games with the text.

You are terribly confuses Jimmy, which renders your tirade about the work of lawyers comical. In one breath you argue the language is "pretty clear" and in the next breath you invoke "intent of the ACA." Here is what you are missing, in the midst of your diatribe about lawyers, is if the language is "pretty clear" then there isn't any need to invoke "intent." Learn it.

In my field we worry and waste our time parsing language in our recommendations to best make it as unlikely as possible for dumbass lawyer to parse the text out of context. In one project text couldn't have been clearer in saying that two things were not equivalent, yet the lawyer made the argument claiming otherwise by taking one sentence out of context of its own right and then ignoring the remainder of the paragraph.

Fantastic story I give little to no credibility to and isn't germane to what we are discussing. Save your diatribe for your personal journal at home.

I know you want to make a mountain out of a molehill here. "Exchange within the State" v "Exchange established by the State".

Swing and a miss Jimmy, as this is most certainly NOT the basis of my objection to subsidies for exchanges established by the Secretary of Health. Hey, but go on another tirade about lawyers, it will make you feel better.

 

[Jimmy Higgins]

Yes, precisely, which is why the government, unless it wants to increase its risk of losing before the U.S. Supreme Court, isn't going to make the argument section 1311 defines "exchange" for the entire statute as the 1311 definition, by its very terms, would exclude 1321 exchanges.

How so? 1311(d) lists the responsibilities for the Exchange. 1311(d)(1) says specifically "An Exchange shall be a governmental agency or nonprofit entity that is established by a State."

1321 authorizes the creation of an Exchange if the State ignores the law. There is nothing indicating that the Exchange by the Fed within a State has any different regulatory understanding than a State run one. 1311(d) indicates the responsibilities of the runner of the Exchange. If we go strict textual on this bill's ass, 1311(d)(1) indicates that there can not be a Federally run Exchange within the state. An Exchange can only be created by the state. 1321 explicitly authorizes the existence of a federally started Exchange within a State.

This would imply that the text "established by the State" isn't a rigid statement meaning only the 50 States and DC or that the a Federally overseen Exchange within a State is equivalent to by the State.

 

[Horatio Parker]

Yes, precisely, which is why the government, unless it wants to increase its risk of losing before the U.S. Supreme Court, isn't going to make the argument section 1311 defines "exchange" for the entire statute as the 1311 definition, by its very terms, would exclude 1321 exchanges.

How so? 1311(d) lists the responsibilities for the Exchange. 1311(d)(1) says specifically "An Exchange shall be a governmental agency or nonprofit entity that is established by a State."

1321 authorizes the creation of an Exchange if the State ignores the law. There is nothing indicating that the Exchange by the Fed within a State has any different regulatory understanding than a State run one. 1311(d) indicates the responsibilities of the runner of the Exchange. If we go strict textual on this bill's ass, 1311(d)(1) indicates that there can not be a Federally run Exchange within the state. An Exchange can only be created by the state. 1321 explicitly authorizes the existence of a federally started Exchange within a State.

This would imply that the text "established by the State" isn't a rigid statement meaning only the 50 States and DC or that the a Federally overseen Exchange within a State is equivalent to by the State.

Yes. HHS is acting on behalf of the state. An agent or proxy.

 

[dismal]

How so? 1311(d) lists the responsibilities for the Exchange. 1311(d)(1) says specifically "An Exchange shall be a governmental agency or nonprofit entity that is established by a State."

1321 authorizes the creation of an Exchange if the State ignores the law. There is nothing indicating that the Exchange by the Fed within a State has any different regulatory understanding than a State run one. 1311(d) indicates the responsibilities of the runner of the Exchange. If we go strict textual on this bill's ass, 1311(d)(1) indicates that there can not be a Federally run Exchange within the state. An Exchange can only be created by the state. 1321 explicitly authorizes the existence of a federally started Exchange within a State.

This would imply that the text "established by the State" isn't a rigid statement meaning only the 50 States and DC or that the a Federally overseen Exchange within a State is equivalent to by the State.

Yes. HHS is acting on behalf of the state. An agent or proxy.

But it is not the state and it is not acting under section 1311, right?

Or do you think that when I act legally on behalf of my child I literally become my child?

 

[Sabine Grant]

But do you place the rule of law, (in this case a typo of the law) above the medical survival of American citizens?

If you're a judge you do. It's not your job to solve all the world's problems.

Which clashes with the reality that there are many instances when Judges will rule based on their OWN discretion. They do so as they will thoughtfully reflect on what type of catastrophic consequences would affect the concerned parties if they stick to the "rule of the law".
Or were you misusing the term "judge" when the correct term would have been Justices when addressing the role of the Supreme Court of Justice in direct relation with the Cato suit?

 

[dismal]

If you're a judge you do. It's not your job to solve all the world's problems.

Which clashes with the reality that there are many instances when Judges will rule based on their OWN discretion. They do so as they will thoughtfully reflect on what type of catastrophic consequences would affect the concerned parties if they stick to the "rule of the law".
Or were you misusing the term "judge" when the correct term would have been Justices when addressing the role of the Supreme Court of Justice in direct relation with the Cato suit?

In our system congress must pass the laws. The courts are not empowered to grant spending authority that congress has not.

This is so basic and fundamental to our system of government that I am surprised we are discussing it.