Supreme Court to Hear Obamacare Suit

[Horatio Parker]

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?

Your actions have the same force of law. From a legal perspective, yes.

 

[maxparrish]

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)

Nope.

 

[Jimmy Higgins]

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?

When you are faced with an inherent contradiction, you need to reassess the information in front of you.

We are stuck with "established by the State" seemingly indicated literally by "a State". But when held in context with other sections of the bill (as shown previously), that interpretation becomes nonsensical. A federal create Exchange within a State can't possibly exist due to that definition, despite a Section indicating clear authority for a federally created Exchange within a State. This requires the understanding of "established by the State" to mean something more broad than "a State".

 

[Sabine Grant]

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.

No one here is dismissing the reality of the separation of the 3 powers, Executive, Legislative and Judiciary and their defined roles. I was directly addressing your claim regarding "if you are a judge".

 

[James Madison]

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".

I'm not sure what exactly you are suggesting with the last paragraph. However, I can say the party taking the position subsidies for federal exchanges isn't permitted under the statute doesn't have to save those clauses cited by yourself as examples in a prior post.

 

[PyramidHead]

Pardon my naivety. But can't "State" also have a broader meaning than just "one of the fifty States"? Separation of church and state is a concept that limits federal power, for example.

 

[James Madison]

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.

This is rather simple. There is a difference not only in language but also in meaning, between the phrases of "exchange established the State" and "exchange established by the Secretary of Health." Section 1311 references exchanges as a nonprofit/governmental agency established by a State.

Hence, unless the government wants to increase its risk of losing then they aren't going to rely on Section 1311 as the definition and look nowhere else or not rely upon other provisions for its meaning.

 

[maxparrish]

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)

Nope.

I don't know what specific point you are laboring to make, but the meaning and scope of "such exchange" precludes the view that they are literally 1311 Exchanges established by a State - they are Exchanges created by the Secretary of State as a fallback. Here is the text:

(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—
(1) IN GENERAL.—If—
(A) a State is not an electing State under subsection
(b); or
(B) the Secretary determines, on or before January 1,
2013, that an electing State—
(i) will not have any required Exchange operational
by January 1, 2014; or
(ii) has not taken the actions the Secretary determines
necessary to implement—
Sec. 1322 PPACA (Consolidated) 86
(I) the other requirements set forth in the
standards under subsection (a); or
(II) the requirements set forth in subtitles A
and C and the amendments made by such subtitles;
the Secretary shall (directly or through agreement with a not for-
profit entity) establish and operate such Exchange within
the State and the Secretary shall take such actions as are necessary
to implement such other requirements.

At the very least it requires the Secretary to establish an Exchange that meets the Subsection requirements in bold. It might require, under 1563(b) an "AHBE" like that of 1311. BUT the authorization scope for tax credits is in 1401, not 1311. And it explicitly states numerous times that tax credits are for Exchanges established under 1311 AND that are established by a State.

It would not have been a challenge for the bill's authors to write the same equivalence language they wrote for the territories, which defined how and under what conditions territories could be considered "State" exchanges. They could have even written a single sentence beginning with "Notwithstanding that an Exchange established by the Secretary is not..." . And in 1401 they could have authorized tax credits for Exchanges established by the Secretary of State.

They didn't. And whatever the requirements are for a federal Exchange, or under Title 1 in general, it is NOT a 1311 Exchange and (even if it were) it is CERTAINLY not established by a State.

 

[Jimmy Higgins]

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.

This is rather simple. There is a difference not only in language but also in meaning, between the phrases of "exchange established the State" and "exchange established by the Secretary of Health."

Section 1311 references exchanges as a nonprofit/governmental agency established by a State.

Hence, unless the government wants to increase its risk of losing then they aren't going to rely on Section 1311 as the definition and look nowhere else or not rely upon other provisions for its meaning.

You keep repeating this, but the claim seems hollow.

• The ACA states that an "Exchange" is defined solely in 1311.
• 1321 authorizes an "Exchange" to be created by the Secretary of Health where a State refuses to put an Exchange together
• 1321 (nor anywhere else) does not specifically define or establish regulations for an Exchange established by the Secretary of Health, outside of those established for Exchanges "established by the State"

Because there is no other definition or regulation of an Exchange (for those established by the Fed within a state), it has to be referencing 1311. If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

 

[maxparrish]

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?

When you are faced with an inherent contradiction, you need to reassess the information in front of you.

We are stuck with "established by the State" seemingly indicated literally by "a State". But when held in context with other sections of the bill (as shown previously), that interpretation becomes nonsensical. A federal create Exchange within a State can't possibly exist due to that definition, despite a Section indicating clear authority for a federally created Exchange within a State. This requires the understanding of "established by the State" to mean something more broad than "a State".

So then you find if there is a "nonsensical" reading that gives meaning to every phrase, does not leave 'surplusage', and that does not do violence to the text. Correct?

 

[dismal]

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?

Your actions have the same force of law. From a legal perspective, yes.

So if congress passes a law authorizing expenditures to teenage girls I can take them personally because when I act on behalf of my daughter I become a teenage girl?

 

[dismal]

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.

No one here is dismissing the reality of the separation of the 3 powers, Executive, Legislative and Judiciary and their defined roles. I was directly addressing your claim regarding "if you are a judge".

If you are a judge on this case your job is to determine is congress has authorized this expenditure. It is not to make free standing healthcare policy decisions to make things more like you think things really ought to be.

 

[Jimmy Higgins]

When you are faced with an inherent contradiction, you need to reassess the information in front of you.

We are stuck with "established by the State" seemingly indicated literally by "a State". But when held in context with other sections of the bill (as shown previously), that interpretation becomes nonsensical. A federal create Exchange within a State can't possibly exist due to that definition, despite a Section indicating clear authority for a federally created Exchange within a State. This requires the understanding of "established by the State" to mean something more broad than "a State".

So you find if there is a "nonsensical" reading that gives meaning to every phrase, does not leave 'surplusage', and that does not do violence to the text. Correct?

Huh?

1. The definition to Exchange is established in 1311.
2. 1321 clearly authorizes Federally overseen Exchanges within a State if a condition is met.
3. Because only 1311 exists as a definition to Exchange, 1321 has to be authorizing a Section 1311 Exchange.
4. If a Federally overseen Exchange within a State is a 1311 Exchange then that means "established by the State" has to include Federally overseen Exchanges to coincide with 1311(d)(1).

 

[dismal]

Pardon my naivety. But can't "State" also have a broader meaning than just "one of the fifty States"? Separation of church and state is a concept that limits federal power, for example.

It can but in this case it doesn't. State is clearly defined in the statute.

 

[dismal]

[*]The ACA states that an "Exchange" is defined solely in 1311.

No it doesn't. This is an assertion made by people attempting to ignore the actual words of the law.

[*]1321 authorizes an "Exchange" to be created by the Secretary of Health where a State refuses to put an Exchange together

Other than the word "refuses" should be "does not", yes.

[*]

1321 (nor anywhere else) does not specifically define or establish regulations for an Exchange established by the Secretary of Health, outside of those established for Exchanges "established by the State"
[/LIST]

So what? How does this change the relevant words in the relevant section where the credits are authorized?

Because there is no other definition or regulation of an Exchange (for those established by the Fed within a state), it has to be referencing 1311. If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

At best you have a weak argument based on dubious assumptions that other words elsewhere are nonsensical. You have absolutely no basis to argue that the relevant words in the relevant section are nonsensical at all.

 

[Horatio Parker]

Your actions have the same force of law. From a legal perspective, yes.

So if congress passes a law authorizing expenditures to teenage girls I can take them personally because when I act on behalf of my daughter I become a teenage girl?

If you are power of attorney for said teenage girls, you can cash the checks or access the accounts.

 

[PyramidHead]

Pardon my naivety. But can't "State" also have a broader meaning than just "one of the fifty States"? Separation of church and state is a concept that limits federal power, for example.

It can but in this case it doesn't. State is clearly defined in the statute.

Where? I looked, but couldn't find it.

 

[Jimmy Higgins]

No it doesn't. This is an assertion made by people attempting to ignore the actual words of the law.

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

That should take care of your misunderstanding of the law.

[*]1321 authorizes an "Exchange" to be created by the Secretary of Health where a State refuses to put an Exchange together

Other than the word "refuses" should be "does not", yes.
[*]

1321 (nor anywhere else) does not specifically define or establish regulations for an Exchange established by the Secretary of Health, outside of those established for Exchanges "established by the State"
[/LIST]

So what? How does this change the relevant words in the relevant section where the credits are authorized?

The Credit section is irrelevant because if the definition of Exchange includes being "established by the State" in Section 1311 (which as I have shown is the Definition of the term Exchange), and 1321 can only authorize an Exchange as per 1311, then a federally run Exchange is understood to be congruent with the terms of 1311(d)(1), which is the exact same wording in Section 1400.

See, the point is, if a Federally run exchange is ruled not capable of having a subsidy... it is actually being ruled not being capable of existing at all.

Because there is no other definition or regulation of an Exchange (for those established by the Fed within a state), it has to be referencing 1311. If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

At best you have a weak argument based on dubious assumptions that other words elsewhere are nonsensical. You have absolutely no basis to argue that the relevant words in the relevant section are nonsensical at all.

Actually, I just redemonstrated it to you using the Actual Words of the Law.

- - - Updated - - -

So if congress passes a law authorizing expenditures to teenage girls I can take them personally because when I act on behalf of my daughter I become a teenage girl?

If you are power of attorney for said teenage girls, you can cash the checks or access the accounts.

Dude, don't even bother with his weak attempt of argument via analogy.

 

[James Madison]

This is rather simple. There is a difference not only in language but also in meaning, between the phrases of "exchange established the State" and "exchange established by the Secretary of Health."

Section 1311 references exchanges as a nonprofit/governmental agency established by a State.

Hence, unless the government wants to increase its risk of losing then they aren't going to rely on Section 1311 as the definition and look nowhere else or not rely upon other provisions for its meaning.

You keep repeating this, but the claim seems hollow.

• The ACA states that an "Exchange" is defined solely in 1311.
• 1321 authorizes an "Exchange" to be created by the Secretary of Health where a State refuses to put an Exchange together
• 1321 (nor anywhere else) does not specifically define or establish regulations for an Exchange established by the Secretary of Health, outside of those established for Exchanges "established by the State"

Because there is no other definition or regulation of an Exchange (for those established by the Fed within a state), it has to be referencing 1311. If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

Once again, you just lost the argument for the government by relying exclusively upon 1311 language (exchange established the State") which is different and says something entirely different than the language of (exchange established by the Secretary of Health) in
1321. The State is not the same as the Secretary of Health. The Secretary of Health is not the same as the State. In other words, X=State and Y=Secretary of Health. 1311 references an exchange as one in which X establishes the exchange. 1321 references Y as establishing the exchange. X and Y are not the same, hence those two phrases are asserting two different things, and asserting two different entities to do something.

Now, what you have done above is to actually argue beyond the meaning of 1311, which is very wise of you.

If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

First, what are you referencing by the word "[it]"? Second, 1321 authorizes the Secretary of Health to establish an exchange when the State does not establish an exchange. I am not quite sure how exactly you are deducing "[it] would authorize an Exchange that can't be created."

 

[Horatio Parker]

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

That should take care of your misunderstanding of the law.

[*]1321 authorizes an "Exchange" to be created by the Secretary of Health where a State refuses to put an Exchange together

Other than the word "refuses" should be "does not", yes.
[*]

1321 (nor anywhere else) does not specifically define or establish regulations for an Exchange established by the Secretary of Health, outside of those established for Exchanges "established by the State"
[/LIST]

So what? How does this change the relevant words in the relevant section where the credits are authorized?

The Credit section is irrelevant because if the definition of Exchange includes being "established by the State" in Section 1311 (which as I have shown is the Definition of the term Exchange), and 1321 can only authorize an Exchange as per 1311, then a federally run Exchange is understood to be congruent with the terms of 1311(d)(1), which is the exact same wording in Section 1400.

See, the point is, if a Federally run exchange is ruled not capable of having a subsidy... it is actually being ruled not being capable of existing at all.

Because there is no other definition or regulation of an Exchange (for those established by the Fed within a state), it has to be referencing 1311. If it is referencing 1311, that means "established by the State" is broader than opponents of the ACA claim it is. Otherwise the provision in 1321 would be nonsensical. Why would it authorize an Exchange that can't be created?

At best you have a weak argument based on dubious assumptions that other words elsewhere are nonsensical. You have absolutely no basis to argue that the relevant words in the relevant section are nonsensical at all.

Actually, I just redemonstrated it to you using the Actual Words of the Law.

- - - Updated - - -

So if congress passes a law authorizing expenditures to teenage girls I can take them personally because when I act on behalf of my daughter I become a teenage girl?

If you are power of attorney for said teenage girls, you can cash the checks or access the accounts.

Dude, don't even bother with his weak attempt of argument via analogy.

I'm curious where this going...helping dismal get in touch with his Inner Teenage Girl perhaps.