Supreme Court to Hear Obamacare Suit

[James Madison]

This risks weakening the government's argument as 1311 references and discusses solely the State creating/establishing exchanges and nothing else, which then risks the meaning of the word "exchange" being attached to 1311 to the exclusion of an exchange discussed under 1321, which is an exchange created/established by the Secretary of Health.

How can you possibly imagine that people with insurance from Exchanges run by States or the Federal Government would have any different standing under the Public Health Service Act, of which this portion of the ACA is amending?

1311 explains what an Exchange is, its roll, responsibilities, etc...

What 1526 does is specifically call out where to find the definition of the Exchange is. 1321 covers the contingency of how to specifically manage an Exchange as defined in 1311 for a state that doesn't create one.

So we have a pre-existing piece of legislation created in the 40's that gets amended. That amendment goes into a list of terms being defined related to health care coverage. Only one type is added, "Exchange".

Your argument still presents the palpable risk of pigeon holing the government's argument, Jimmy. The government may espouse your position if it were their desire to lose. Section 1311 references Exchanges as:

Section 1311(d)(1) Requirements:


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

​

 

[Jimmy Higgins]

How can you possibly imagine that people with insurance from Exchanges run by States or the Federal Government would have any different standing under the Public Health Service Act, of which this portion of the ACA is amending?

1311 explains what an Exchange is, its roll, responsibilities, etc...

What 1526 does is specifically call out where to find the definition of the Exchange is. 1321 covers the contingency of how to specifically manage an Exchange as defined in 1311 for a state that doesn't create one.

So we have a pre-existing piece of legislation created in the 40's that gets amended. That amendment goes into a list of terms being defined related to health care coverage. Only one type is added, "Exchange".

Your argument still presents the palpable risk of pigeon holing the government's argument, Jimmy. The government may espouse your position if it were their desire to lose. Section 1311 references Exchanges as:

Section 1311(d)(1) Requirements:


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

​

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

You argument isn't arguing intent of the law, but trying to find a loophole within it. Much like people using philosophical "logic" arguments to prove a god. The intent is clear. 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. 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.

 

[dismal]

Your argument still presents the palpable risk of pigeon holing the government's argument, Jimmy. The government may espouse your position if it were their desire to lose. Section 1311 references Exchanges as:

Section 1311(d)(1) Requirements:


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

​

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

You argument isn't arguing intent of the law, but trying to find a loophole within it.

That's really rather amazing. Which one sounds more like someone looking for a loophole:

Argument A: "an Exchange established by the State under section 1311" means an exchange established by a State under Section 1311.

Argument B: "an Exchange established by the State under section 1311" means an exchange either established by the state or the federal government in lieu of the state because the E is capitalized which implies you need to go to the definition of "Exchange" in the law which exists only in the section that talks about an Exchange that is established by the State ergo, and since the word "such" appears in the law as well we can assume that an exchange established by the Feds in in fact defacto equivalent and in all respects the same thing as an exchange established by the state and although "an Exchange established by the State under section 1311" was written out multiple times in the document as if its words "established by the State under section 1311" had some sort of meaning we can infer those words are simply superfluous and meaningless words because (obviously) the capital "E" and the elsewhere "such" magically transform the phrase "an Exchange established by the State under section 1311" into the equivalent of " an exchange" which they could have just written but didn't because they thought the capital "E" and the "such" would make it clearler than just writing it the way a normal person would read it and ZOMFG it's so damn clear only someone looking for a loophole would say the words in the law "established by the State under section 1311" mean what they say.

 

[Jimmy Higgins]

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

You argument isn't arguing intent of the law, but trying to find a loophole within it.

That's really rather amazing. Which one sounds more like someone looking for a loophole:

The backflips you are doing to try to justify your obviously ridiculous opinion is breathtaking. Doubles, triples, even a quad! But the fact remains, 1311 establishes what an exchange is, 1321 establishes enforcement of exchanges and what happens if a State fails to do what it was told by law to do (weren't you saying something about liking the whole "rule of law" thing?).

 

[dismal]

That's really rather amazing. Which one sounds more like someone looking for a loophole:

The backflips you are doing to try to justify your obviously ridiculous opinion is breathtaking. Doubles, triples, even a quad! But the fact remains, 1311 establishes what an exchange is, 1321 establishes enforcement of exchanges and what happens if a State fails to do what it was told by law to do (weren't you saying something about liking the whole "rule of law" thing?).

Yes, it's just so ridiculous and backflippy to use the straight up meaning of words when there is a capital "E" and a "such" which if looked at askance allow them to be interpreted to render the actual written words in the law as superfluage even thought hey are quite specific and quite direct and someone bothered to write them into the law multiple times!!!!

Let me ask you this: if I asked you to draft a provision that made it clear tax credits were available on both state and federal exchanges would you say to yourself, "I know just how to make this clear - I'll write the credits are available on state exchanges but capitalize the "E" which will lead people to a definition that does not actually say an Exchange is either a state or federal exchange, but only appears in the section where the state exchanges are formed, so I'll also add a "such" elsewhere to make it so people will assume when I say "Established by a state" I am also talking about a federal exchange because a federal exchange can only be a state exchange where the feds are acting in lieu of the state. Yeah, I could just say it's available on a "state or federal exchange" or even just "it's available on an exchange" since the words "exchange founded by a state under section 1311" are obviously superfluous and rendered meaningless by combo of the capital "E", the lack of a definition elsewhere, and the "such" but I'll go with this because it's waaaaaaaaaaaay clearer than just saying it directly. Which is my intent since that was what I was told to do.

Good luck with this in the Supreme Court.

 

[James Madison]

Your argument still presents the palpable risk of pigeon holing the government's argument, Jimmy. The government may espouse your position if it were their desire to lose. Section 1311 references Exchanges as:

Section 1311(d)(1) Requirements:


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

​

And 1321 covers how the Federal Government has the authority to oversee the 1311 Exchange.

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.

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.

You argument isn't arguing intent of the law

You are kidding me? Really? This isn't anything new or any new revelation.

The intent is clear.

First, I am not convinced the intent is "clear." Second, written law, not the unwritten "intent" of legislators is what is controlling. After all, there is a reason why laws are placed into writing and it is because the written law is the law. Second, intent shouldn't even be considered unless there is some ambiguity in the statute, i.e. the statute isn't clear, the statute does not have any plain language providing the answer (although even if ambiguity existed intent may not be a proper method of statutory interpretation).

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 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.
​

And 1321 covers how the Federal Government has the authority to oversee the 1311 Exchange

This isn't all 1321 does as 1321 commands, mandates the Secretary to establish an exchange.

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.
​

So, once again, if the government wanted to enhance its chance to lose its argument before the U.S. Supreme Court, then they'd adopt your porous argument, as your position very likely increases the risk of losing by pigeon holing their position to section 1311.

 

[Horatio Parker]

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

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.

 

[Jimmy Higgins]

And 1321 covers how the Federal Government has the authority to oversee the 1311 Exchange.

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.

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.

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.

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.

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

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

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.

This is the best part. The ACA amends a 1944 Act to indicate the clear definition of an Exchange. There is no text to indicate that there is a difference... and you seem to be arguing a god in the gaps that because they didn't say they are the same, therefore it doesn't mean they are the same. There is one definition which implies that there is just one type of Exchange. What applies to states, applies the federally establish state exchanges.

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.

I know you want to make a mountain out of a molehill here. "Exchange within the State" v "Exchange established by the State". That your legalese allows you to think that this has some sort of massive significance. The reality is, your interpretation that the text indicates some sort of dichotomy creates a nonsensical intent of the legislature.

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.

 

[dismal]

Jimmy:

Why didn't they just write:

"an Exchange established by the State under section 1311 of by the Secretary under section 1321"

or just

"an Exchange"?

 

[Jimmy Higgins]

The backflips you are doing to try to justify your obviously ridiculous opinion is breathtaking. Doubles, triples, even a quad! But the fact remains, 1311 establishes what an exchange is, 1321 establishes enforcement of exchanges and what happens if a State fails to do what it was told by law to do (weren't you saying something about liking the whole "rule of law" thing?).

Yes, it's just so ridiculous and backflippy to use the straight up meaning of words when there is a capital "E" and a "such" which if looked at askance allow them to be interpreted to render the actual written words in the law as superfluage even thought hey are quite specific and quite direct and someone bothered to write them into the law multiple times!!!!

Filler.

Let me ask you this: if I asked you to draft a provision that made it clear tax credits were available on both state and federal exchanges would you say to yourself...

There is no "federal exchange". The state exchanges in states that failed to be law abiding are having their exchanges run by the Secretary of the Treasury. You are the one creating this mythical second type of exchange. There is no indication that there is any regulatory difference between an exchange run by the state or run for the state. 1321 indeed would have been a place to indicate that credits would only be available to State run exchanges. But there is no indication in the text that says there are any regulatory differences. What is funny is that your argument hinges on the case that the text doesn't say run by and run for are equivalent... a god in the gaps hail mary.

But you still haven't addressed how you are celebrating the defiance to the rule of law by the Republican run states that ignored the law in the first place. You got all uppity while on your high pedestal about how you were for the rule of law and yet, seem to be quite fine with the defiance of the law.

Jimmy:

Why didn't they just write:

"an Exchange established by the State under section 1311 of by the Secretary under section 1321"

Why would they need to? You'd have to take the text out of context to draw any other conclusions.

 

[dismal]

Jimmy:

Why didn't they just write:

"an Exchange established by the State under section 1311 of by the Secretary under section 1321"

Why would they need to? You'd have to take the text out of context to draw any other conclusions.

LOL. That's the best you can do?

"We aren't going to bother writing our intent clearly in English because why should we?"

Good luck in the supreme court arguing this stinking pile of shit.

They are going to get roasted if they attempt that argument.

 

[Jimmy Higgins]

Why would they need to? You'd have to take the text out of context to draw any other conclusions.

LOL. That's the best you can do?

"We aren't going to bother writing our intent clearly in English because why should we?"

The intent is clear. States shall create exchanges. If a state fails to create one, the Secretary of Treasury will oversee the creation of one within the state. No distinctions are made between the two. You are arguing that because it doesn't make distinctions, there must be distinctions.

Good luck in the supreme court arguing this stinking pile of shit.

SCOTUS stopped returning my calls when they figured out I wasn't actually Thurgood Marshall.

They are going to get roasted if they attempt that argument.

Uh-huh. But that is what I'd expect from someone with no respect for the rule of law, especially because of partisan bias.

 

[Jimmy Higgins]

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.

 

[dismal]

But that is what I'd expect from someone with no respect for the rule of law, especially because of partisan bias.

Just a reminder: the law says the credits are available on exchanges established by a state.

 

[Jimmy Higgins]

But that is what I'd expect from someone with no respect for the rule of law, especially because of partisan bias.

Just a reminder: the law says the credits are available on exchanges established by a state.

Does the ACA include any text saying "Exchange established by *anyone other than the state*".

 

[dismal]

Just a reminder: the law says the credits are available on exchanges established by a state.

Does the ACA include any text saying "Exchange established by *anyone other than the state*".

Are you actually attempting to argue that all exchanges are established by a state even if a state didn't establish them?

Because that seems pretty ridiculous.

 

[Jimmy Higgins]

Does the ACA include any text saying "Exchange established by *anyone other than the state*".

Are you actually attempting to argue that all exchanges are established by a state even if a state didn't establish them?

Because that seems pretty ridiculous.

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

 

[Togo]

But that is what I'd expect from someone with no respect for the rule of law, especially because of partisan bias.

Just a reminder: the law says the credits are available on exchanges established by a state.

Um.. I'm really only familiar with UK and European law, but this seems like a fairly typical piece of statute writing. You write the basic case in a core statute, covering the most common cases. Then you add the extra sections that expand the original to include the exceptions and variations. There's no contradiction in taking an exchange set up under the provisions of 1321 as being a variation on an exchange set up under 1311. All such exchanges would still be exchanges set up under 1311. It's just that 1311 has a lot of additional statutes that vary it. The only way the exchange would a 1321 exchange and not a 1311 exchange would be if there were two types of kinds of exchanges set up under the statute. And there aren't, as ksen pointed out. If there's only one kind of exchange, they're all set up under 1311. It's only if 1321 copied all the articles from 1311 and didn't refer to it that you could argue that the law describes two different kinds of exchange. There simply isn't any legal support for that position.

And does anyone really think that the supreme court would kick thousands of americans out of their health care plans on a the basis of a poorly written statute?

 

[dismal]

Are you actually attempting to argue that all exchanges are established by a state even if a state didn't establish them?

Because that seems pretty ridiculous.

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.

 

[dismal]

Just a reminder: the law says the credits are available on exchanges established by a state.

Um.. I'm really only familiar with UK and European law, but this seems like a fairly typical piece of statute writing. You write the basic case in a core statute, covering the most common cases. Then you add the extra sections that expand the original to include the exceptions and variations. There's no contradiction in taking an exchange set up under the provisions of 1321 as being a variation on an exchange set up under 1311. All such exchanges would still be exchanges set up under 1311. It's just that 1311 has a lot of additional statutes that vary it. The only way the exchange would a 1321 exchange and not a 1311 exchange would be if there were two types of kinds of exchanges set up under the statute. And there aren't, as ksen pointed out. If there's only one kind of exchange, they're all set up under 1311. It's only if 1321 copied all the articles from 1311 and didn't refer to it that you could argue that the law describes two different kinds of exchange. There simply isn't any legal support for that position.

And does anyone really think that the supreme court would kick thousands of americans out of their health care plans on a the basis of a poorly written statute?

Higgins claims the statute is clear. You say it's poorly worded. You want to have that out with him first?

And this whole "there is only one kind of exchange" argument is assertion is a fabricated claim of convenience that should not be considered fact. It requires the assumption that “[a]n Exchange shall be a governmental agency or nonprofit entity that is established by a State,” is a definition that carries throughout the document. This results in an absurdity because the document clearly contemplates other exchanges that are not created by the state.

The more rational reading is that this is not a definition but a restriction. It requires an exchange created under this section to be an agency or a non-profit. I.e., it can't be a division of Microsoft.