Patterico's Pontifications

7/3/2014

Why a Theory of Legal Interpretation Could Decide Whether ObamaCare Subsidies Live or Die

Filed under: General — Patterico @ 7:38 am

Here’s a fun little statutory interpretation question. The Affordable Care Act says that tax credits and subsidies are available when one enrolls in a health plan “through an Exchange established by the State under Section 1311.” A “State” is defined as “each of the 50 States and the District of Columbia.” Section 1311 is a provision that allows exchanges to be set up by states.

If one enrolls in a health plan through an exchange established by the federal government, they would not appear to be enrolled in a health plan “through an Exchange established by the State under Section 1311.” And thus, one is not eligible for a subsidy.

This is really happening — and it could be the death knell for ObamaCare subsidies, because most states didn’t bother to set up exchanges.

So, we have two competing schools of interpretation. One is: the language means what it means. You look at the language as it is reasonably understood by people reading it when it is passed. Nobody reading the word “State,” defined as “each of the 50 States and the District of Columbia,” would interpret it as “each of the 50 States and the District of Columbia and also the federal government under certain circumstances.”

But then we have another school of interpretation that says it doesn’t really so much matter what the law says — we have to look to what the lawmakers really meant. And there, it gets messy. Democrats will say: “Well, of course we meant for the subsidies to apply to policies bought on the federal exchange.” Jonathan Adler has long argued the contrary position: that the subsidies were intended to provide an incentive for the states to set up their own exchanges. Applying this theory of legal interpretation, some judge would have to wade through all the possible motivations Congressmen might have had for writing what they wrote, and decide between Adler’s view and the Dems’ view.

But you don’t even get to this argument unless you concede the proposition that what Congress “intended” can trump the plain language of what it actually wrote. I have criticized this position in the past. The only way you can have a rule of law is to interpret laws according to their objective reasonable meaning as understood at the time the law is written.

You can see the two schools of interpretation at work in the description of the argument of this case in the D.C. Circuit:

“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.

Randolph, a George H.W. Bush appointee, said the text of the statute “seems perfectly clear on its face” that the subsidies are confined to state-run exchanges. Carter-appointed Judge Harry T. Edwards slammed the challengers’ claims as “preposterous.” So the deciding vote appears to be with George W. Bush-appointed Judge Thomas B. Griffith, who wasn’t resolute but sounded unconvinced of the Obama administration’s defense, saying it had a “special burden” to show that the language “doesn’t mean what it appears to mean.”

Whether ObamaCare lives or dies will likely depend — for now — on one judge’s view of his role. Does he follow the law as written? Or does he ignore the plain language of the law to try to ascertain some subjective meaning that Congress might have intended to express?

Of course, this will all eventually be headed to the Supreme Court, where Anthony Kennedy and Justice Roberts will end up grappling with the same question. I don’t hold out much hope for Kennedy on this issue.

113 Responses to “Why a Theory of Legal Interpretation Could Decide Whether ObamaCare Subsidies Live or Die”

  1. Ding.

    Patterico (9c670f)

  2. You should not hold out much hope for John Glover Roberts, Jr. – either. GLZ.

    Gary L. Zerman (316cd5)

  3. [S]ome judge would have to wade through all the possible motivations Congressmen might have had for writing what they wrote. . .

    Well, let’s be precise: Congressmen didn’t write the Affordable Care Act; it was written by staffers, lobbyists, and think-tank types. That’s why Aunt Nancy told us we had to pass it in order to find out what is in it.

    JVW (feb406)

  4. i vote die

    and you know why it’s cause subsidies are same as food stamps, just these ones you use in the emergency room for your kids what came home from school with the scabies

    (scabies are the hot new thing in failmerica – scabies and tuberculosis)

    happyfeet (8ce051)

  5. The law may not be stupid

    It is enough, maybe, to show that at least one person thought this was what the law did.

    Somebody might really have intended this result – that the subsidies do not apply to the federal exchange – based on the assumption that only a few states, and only temporarily, would not set up an exchange.

    A link or two in, we get this:

    http://www.cato.org/blog/exactly-what-max-baucus-saying-here

    Sammy Finkelman (eb0eea)

  6. The courts as Pepe LePew: “Ah, cheri! Your lips say no, no, no; but your eyes says yes, yes, yes.”

    nk (dbc370)

  7. The oddest part of this mess is that this would be the first time the IRS has taken a legal position granting a tax credit or allowed a tax deduction(pro taxpayer position) when the statutory language would specifically bar the allowance of a credit and /or bar the allowance of a deduction.
    Unprecedented

    joe (debac0)

  8. “If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot.” – Charles Dickens / Oliver Twist

    tek (2063de)

  9. I think you only get to look at intent when the plain meaning of the words encompasses ambiguities or when you’re trying to apply the words to situations which weren’t contemplated at the time of passage.

    So in this case, I think Congress did a sloppy job drafting the law and they should be held to their drafting until they fix it.

    aphrael (e777bc)

  10. “If the legislation is just stupid, I don’t see that it’s up to the court to save it,”

    Then it all hinges on the integrity of the judge, does it not? A judge that has none will try to do just that.

    Blacque Jacques Shellacque (51809b)

  11. Some staffers, I suspect, will be fired over this, although it’s not their fault. I think it says exactly what it was meant to say: the feds would help pay for plans purchased through the mechanism of the State’s exchanges, and not through those purchased through the federal exchange.

    The only hook I can see here are the federal territories, United States Virgin Islands, Guam, Marshall Islands … which are not States in the list. Those folk have no choice but to go through the federal exchange. I wonder if they would have some kind of unequal treatment claim, but the’re in the same position as someone living in a State without an exchange; but they have no State who could have granted them this benefit.

    At that point … I’m glad I’m not a lawyer.

    htom (412a17)

  12. # 11 –

    The only hook I can see here are the federal territories, United States Virgin Islands, Guam, Marshall Islands … which are not States in the list. Those folk have no choice but to go through the federal exchange. I wonder if they would have some kind of unequal treatment claim, but the’re in the same position as someone living in a State without an exchange; but they have no State who could have granted them this benefit.

    At that point … I’m glad I’m not a lawyer.

    That is no different that the amendments in the 1986 tax reform act whereby state income tax was a deductible itemized deduction and sales tax was not deductible. Big disadvantage in the 7 states with no state income tax where those states rely on the sales tax instead of the income tax. (sales tax deduction was subsequently reinstated in the American jobs creation act of 2004)

    joe (debac0)

  13. “it was written by staffers, lobbyists, and think-tank types.”

    Precisely and that is true of almost all laws passed by Congress. The Administrative State is in control.

    Mike K (b5c01a)

  14. This is why you don’t stick everything in a “comprehensive” legislative bill. They[Congress] should have dealt with those that didn’t have insurance to begin with, especially those who were priced out of the market because of pre-existing conditions. Health care and insurance was obviously too big for a one-size-fits-all approach, but our “smarter” political class felt something needed to be handled on a grand scale to get His Choomist a legacy. Is there anything a politician can’t screw up?

    Huitzilincuatec (7fc17e)

  15. …the feds would help pay for plans purchased through the mechanism of the State’s exchanges, and not through those purchased through the federal exchange.

    The problem is that some states made a good faith effort(for argument sake) but failed to provide a working exchange. Should individuals in those states be excluded because of state official’s incompetence? IOW, is there a legal remedy?

    Huitzilincuatec (7fc17e)

  16. This seems a pretty slim reed, given the fascia that Roberts and the Gang of Four ignored last time.

    It also is too late, in any practical sense. Attempting to go back to the status quo ante would be harder than what we just went through. Of course, staying where we are is untenable either, but those are the Court’s choices unless they really want to go all Rose Bird.

    Kevin M (b357ee)

  17. Perhaps there needs to be a constitutional amendment imposing a 10,000 word limit on bills.

    Kevin M (b357ee)

  18. oops. Fasces, not facia.

    Kevin M (b357ee)

  19. Perhaps there needs to be a constitutional amendment imposing a 10,000 word limit on bills.

    I’m sure you mean this as a tongue-in-cheek remark. These @$$h@t@ live to pontificate and write legislation bearing their name. It’s more about them and less about the law.

    Huitzilincuatec (7fc17e)

  20. But with a 10,000 word limit there would be more named bills. The Senator Fluke Free Contraceptive Act, etc.

    Kevin M (b357ee)

  21. Love the argument for Standing made by the Plaintiff(s). http://www.scribd.com/doc/199925805/Judge-Friedman-Halbig-v-Sebelius-Opinion

    Lorem Ipsum (cee048)

  22. It also is too late, in any practical sense. Attempting to go back to the status quo ante would be harder than what we just went through.

    The constitutionality cannot be dependent on the amount of disruption caused by overturning it.

    JD (addbc4)

  23. But then we have another school of interpretation that says it doesn’t really so much matter what the law says — we have to look to what the lawmakers really meant.

    So then if the “lawmakers” really meant to say something that couldn’t pass by a ote of Congress, they now get to ask the SCOTUS to replace the verbiage that passed with the words they really wanted but couldn’t get past the people’s representatives the first time.

    To channel happyfeet,

    when the judges look at the constitution and say hey goofballs you can’t ban socialized medicine

    they are making us more free as a people not less

    yay freedom say me

    Steve57 (c4c6a6)

  24. This interpretation theory (to immediately consider what the legislators “must” have been intending, even though the words have a clear meaning) is just another way to eliminate the concept of a written Constitution and Laws that the citizens can count on.

    Ken in Camarillo (481b14)

  25. Kevin — you’re much too generous. Five hundred words, max. Each to be debated separately, published separately, conferenced separately, voted on separately, and signed seperately. Keep them so busy passing the legislation (and regulations, which have to be accepted by Congress as if they were bills before they go into effect) that we actually need that they won’t have time for the nonsense.

    htom (412a17)

  26. When you use language to express an intention, it’s important to recognize that intentions come in layers. At a relatively high level you may be intending to lower inequality by socializing health care cost. At a lower level you may be intending to incentivize states to set up exchanges by providing a subsidy. At the next level you may be expressing your intention of how states go about setting up the exchanges. At the fundamental level each word or word combination is selected to codify intent within the specific section.

    The text only has meaning within the context of this layered set of intentions. The question we see here is when the implementing language expresses an intent that doesn’t lead to the ultimate desire or grand intention. In other words we may have intended to build a grand palace but we specified the building of a small outhouse.

    The important distinction between the implementing intention and the grand intention is the difference between what is hoped to come from an efforts vs. the mechanism that was intended to realize that hope. In each case language codifies intention so the challenge isn’t to ignore intention. It is more to choose which intention to privilege.

    jls090 (cbc276)

  27. jls090 @2:51 –
    Sweet Jesus, I hope you’re not a judge.

    Walter Cronanty (d16f1a)

  28. I have been listening to the audio of the argument in the D.C. Circuit in this case. Folks, this is a big deal. Listening to the argument has clarified the importance of the issues and the strength of the arguments.

    I predict, with a certain amount of confidence, that the D.C. Circuit is going to rule that subsidies are not available to people who signed up on the federal exchanges. I believe five members of the Supreme Court will agree. This is going to be an explosion on the political scene, and it will place huge pressure on governors to set up exchanges (which, apparently, they can still do, at least if they act this year) and also on Congress to amend the statute. The political fallout from those who relied on IRS promises to give them subsidies will be overwhelming.

    I will write a separate post about all this, perhaps to be published Monday.

    Patterico (9c670f)

  29. I just can’t believe there are judges out there that actually believe that written language doesn’t mean what it appears to mean. It should be unanimous decisions across the board denying federal subsidies.

    DejectedHead (06f486)

  30. When do the unilateral exemptions by the Executive, the exemptions by court decision, and the changes in interpretation by just about everybody involved, trip the lack of a Severability Clause and the entire thing just goes Poof?

    askeptic (efcf22)

  31. joe (debac0) — 7/3/2014 @ 9:06 am

    As we have seen with the 501(C)(4) morass, the IRS is a law unto itself, and can do whatever it damn well pleases, because no one has the backbone to say STOP!

    askeptic (efcf22)

  32. When you use language to express an intention, it’s important to recognize that intentions come in layers it’s important to make it clear to the other monkeys where the bananas are and where the leopard is lying in wait.

    nk (dbc370)

  33. So legislatively, it is acceptable for politicians to structure a bill so that all sides are agreeable with specific clauses to protect several people’s interests, but once the legislation is passed, they can advocate for any position they want in the courts. Even positions that violate the plain language of the text…because suck, they won.

    DejectedHead (06f486)

  34. jls090 @2:51 –
    Sweet Jesus, I hope you’re not a judge.

    A-men

    Layers and layers of nuance and multiple primary layers followed by often contrasting sub-layers followed by additional sub-sub-layers of ambiguous language subjective to wildly divergent interpretation.

    JD (addbc4)

  35. Patterico (9c670f) — 7/3/2014 @ 5:35 pm

    This is going to be an explosion on the political scene, and it will place huge pressure on governors to set up exchanges (which, apparently, they can still do, at least if they act this year) and also on Congress to amend the statute.

    Congress will almost have to amend the statute, to waive the Obamacare penalty and waive the return of the subsidy money. There’s a lot of people going to owe money (or lose their refund) come april 15, 2015 – although the Obama Administration will let people repeat what they did for 2014 in 2015 so they owe money in 2016, even if theyre owe for 2014 in 2015. This will probably happen before the subsidies on the federal exchange is thrown out.

    The thing is, thhough, Congress may not have any idea what to do about the PPACA. The only giod rewrite possible is a completely different system. If Harry reid is no longer Majority Leader, maybe some progress is possible.

    The political fallout from those who relied on IRS promises to give them subsidies will be overwhelming.

    I will write a separate post about all this, perhaps to be published

    Sammy Finkelman (48f9c6)

  36. The political fallout from those who relied on IRS promises to give them subsidies will be overwhelming.

    It’s not just the subsidies on the federal exchange – it’s the overpayment of subsidies even if the hallenge is not upheld and the huge bills Medicaid will be sending some people…

    I will write a separate post about all this, perhaps to be published

    I understand these things take time. I guess you’re doing things on the 4th of July.

    Sammy Finkelman (48f9c6)

  37. We saw this kind of legislative and executive cowardice with McCain-Feingold. The Congress passed it, the Shrub signed it, they let the Supreme Court be the lightning rod, because who wanted not to be against money in politics?

    nk (dbc370)

  38. “The constitutionality cannot be dependent on the amount of disruption caused by overturning it”

    The question here isn’t constitutional. Just statutory interpretation. And in that case disruption may matter. Shouldn’t be hard to find support for the idea that Congress intended to pass a non-disruptive bill.

    What seems left out of the story told so far is the parts of the bill, and the legislative process (debate, CBO estimates, etc…) that do refer to subsidies going to exchanges established by the feds.

    dan (25a5af)

  39. Just statutory interpretation. And in that case disruption may matter. Shouldn’t be hard to find support for the idea that Congress intended to pass a non-disruptive bill.

    Hogwash. On many levels.

    JD (addbc4)

  40. You don’t think this is statutory interpretation?

    dan (25a5af)

  41. Nick/dan/etal – your whole schtick is hogwash. The idea that the disruptions caused by following the actua
    Words of the law allow the Judge to rewrite the law is sophomoric, with sincere apologies to sophomores. And it is readily apparent that your brand of passive-aggressive multiple banned personalities is mendoucheous, at best.

    JD (addbc4)

  42. When you use language to express an intention, it’s important to recognize that intentions come in layers. At a relatively high level you may be intending to lower inequality by socializing health care cost. At a lower level you may be intending to incentivize states to set up exchanges by providing a subsidy. At the next level you may be expressing your intention of how states go about setting up the exchanges. At the fundamental level each word or word combination is selected to codify intent within the specific section.

    The text only has meaning within the context of this layered set of intentions. The question we see here is when the implementing language expresses an intent that doesn’t lead to the ultimate desire or grand intention. In other words we may have intended to build a grand palace but we specified the building of a small outhouse.

    The important distinction between the implementing intention and the grand intention is the difference between what is hoped to come from an efforts vs. the mechanism that was intended to realize that hope. In each case language codifies intention so the challenge isn’t to ignore intention. It is more to choose which intention to privilege.

    Gobbeldygook. The words mean what they mean. Whatever all that was that you just said, it doesn’t change that fact.

    Patterico (9c670f)

  43. Just statutory interpretation. And in that case disruption may matter. Shouldn’t be hard to find support for the idea that Congress intended to pass a non-disruptive bill.

    Yeah, they predicted a lot of stuff about the bill that was wrong. They thought states would all implement the Medicaid provisions too.

    Patterico (9c670f)

  44. See, you can blab on about “privileging” one “intention” or another, or you can say: an exchange established by the federal government is not one established by the state. I prefer the plain-spoken approach. If Congress followed my lead, maybe they’d be able to say what they mean, and be understood properly.

    Patterico (9c670f)

  45. whatever they decide, the important thing is that if you like your doctor you can keep your doctor

    let’s not lose sight of that

    happyfeet (8ce051)

  46. ” They thought states would all implement the Medicaid provisions too.”

    Sure but no-one doubts that interpretation. That was the court that changed that.

    ” I prefer the plain-spoken approach. If Congress followed my lead, maybe they’d be able to say what they mean, and be understood properly.”

    I’d say it’s rather plain spoken how the reform is meant to work, and the role subsidies play in it (as you can see from the text, even) from the days it was a Heritage idea through being Romneycare and then the ACA.

    dan (25a5af)

  47. Once you understand what’s going on here, it’s plain that this is simply another executive overreach — Obama, acting through the IRS, is offering subsidies that he couldn’t get from Congress.

    Patterico (9c670f)

  48. I’d say it’s rather plain spoken how the reform is meant to work, and the role subsidies play in it (as you can see from the text, even) from the days it was a Heritage idea through being Romneycare and then the ACA.

    Wow. You’re actually saying that the plain language of the statute calls for subsidies for health plans set up on the federal exchanges?

    That’s completely false. I challenge you to produce the plain language in question. You cannot. Because it does not exist.

    Patterico (9c670f)

  49. I challenge you to a debate on this, Dan, here and now. You’d better run.

    Make it quick — I only have a few minutes.

    Patterico (9c670f)

  50. Patterico – that is a serial troll.

    JD (addbc4)

  51. OK, going to watch Sherlock.

    Patterico (9c670f)

  52. Next time I have to go in for jury duty, can I just tell the judge that I’ll have to decide if the law means what it says, or if it really means something else?

    I imagine that will get me excused pretty quick.

    malclave (4f3ec1)

  53. “Once you understand what’s going on here, it’s plain that this is simply another executive overreach — Obama, acting through the IRS, is offering subsidies that he couldn’t get from Congress.”

    Oh I think everyone in Congress thought they were voting for (or against) the subsidies being nationwide. I think if you check the CBO score and the cost estimates of the bill, even the ones touted the opponents, they will agree. Have you ever talked about the cost of the ACA? I’m guessing if you have, you used the cost estimate that included nationwide subsidies.

    “Wow. You’re actually saying that the plain language of the statute calls for subsidies for health plans set up on the federal exchanges?”

    No I’m saying the plain language of how people in Congress talk about it shows they meant the subsidies to be nationwide. The actual text of the bill does refer to subsidies going to people in federal exchanges, yes, like the reporting provision.

    dan (25a5af)

  54. The actual text of the bill does refer to subsidies going to people in federal exchanges, yes, like the reporting provision.

    In the argument they discussed that. The judges said it was an amendment after the fact.

    Patterico (fa03e5)

  55. Roberts discovered a tax in the first go around. He will find whatever he needs to keep it going this time.

    Ed from SFV (3400a5)

  56. 47. Once you understand what’s going on here, it’s plain that this is simply another executive overreach — Obama, acting through the IRS, is offering subsidies that he couldn’t get from Congress.
    Patterico (9c670f) — 7/3/2014 @ 9:20 pm

    Once you understand that employer penalties only go into effect when their employees get subsidies on the exchanges, it’s even worse.

    I’s a tax not authorized by Congress.

    Steve57 (c4c6a6)

  57. 53. No I’m saying the plain language of how people in Congress talk about it shows they meant the subsidies to be nationwide. The actual text of the bill does refer to subsidies going to people in federal exchanges, yes, like the reporting provision.
    dan (25a5af) — 7/3/2014 @ 9:59 pm

    No the plain language of how people in Congress talked about it shows that withholding subsidies would force states to set up their own exchanges.

    No the actual text of the bill does not refer to subsidies going to people in federal exchanges. The reporting provision was intended to show residents what they would have received in the way of a subsidy had their state set up their own state exchange rather than rely on the federal exchange.

    No nothing you are saying is the least bit believable to anyone who, like I did, actually went and read the sections of the ACA when this issue first came up.

    And why did I look for myself? Because it is dangerous to let someone else do your thinking. Especially when that someone else is telling you what you want to hear. hat’s how you get scammed. Perhaps you should consider that, dan, because fro your arguments someone else is doing your thinking.

    Withholding or providing subsidies was Congress’ method of compelling states to set up their own exchange rather than rely on the feds. It was a way to shift costs from the feds to the states.It was all carrot and sticks.

    No what you are arguing is no remotely true.

    Steve57 (c4c6a6)

  58. “In the argument they discussed that. The judges said it was an amendment after the fact.”

    What does that mean? It was not in the bill that passed congress?

    “Withholding or providing subsidies was Congress’ method of compelling states to set up their own exchange rather than rely on the feds. It was a way to shift costs from the feds to the states.It was all carrot and sticks.”

    Shift costs? There’s a provision for federal money to help states set up exchanges! I think you’re getting this confused wiht the Medicaid expansion.

    dan (25a5af)

  59. No, dan, try again.

    Steve57 (c4c6a6)

  60. Dan’s arguments about “plain language” and “congress talking about it” are even funnier when one knows that this was never a normal type of bill passed by anything resembling normal procedures in the Senate and House of Representatives. The unfortunate combination of ramrodding, secrecy, sloppiness, and lies being told as the ACA was being perpetrated by a single political party (along with the under- the-table promises and assurances that were made to elected sheeple who had never even read it its thousands of pages) almost guaranteed that it would end up as the spectacularly craptastic, contradictory, unadulterated economic catastrophe it is for the American taxpayers–not to mention for the people who tried to sign up for insurance.

    Oh, if only some of these important issues necessary for it to function economically had been discussed openly and actually worked out in committee and then, where necessary, resolved by conference committee as is supposed to happen with major legislation…..

    elissa (1f8a0a)

  61. dan (25a5af) — 7/3/2014 @ 9:59 pm

    the CBO score and the cost estimates of the bill….the cost estimate…included nationwide subsidies.

    (I hope people will regard this ellipses as fair..)

    But it could be that the CBO score assumed that only a few states would not set up their own exchanges, and if the federal one was used, it might be used for only one year.

    There is a divergence between what the drafters of the bill expected to happen and what actually did.

    If there was a continuing majority in Congress for the bill, (or a continuing 60-plus majority in the Senate if that is what is needed) the bill would be amended to take that into account, but the composition of Congress is no longer the same as what it was when it passed the bill.

    Sammy Finkelman (688d8d)

  62. Elissa – it is funny watching this serial troll try to re-write history and the UCA right in front of our eyes.

    JD (addbc4)

  63. elissa (1f8a0a) — 7/4/2014 @ 6:39 am

    resolved by conference committee as is supposed to happen with major legislation…..

    That’s an important point.

    There were things in the Senate bill that nobody would have expected to survive conference committee.

    They did actually pass a second bill, which took out the Cornhusker kickback and a few other things, using budget rules in the Senate so that they wouldn’t need 60 votes.

    Patterico (fa03e5) — 7/3/2014 @ 10:28 pm:

    an amendment after the fact.

    An amendment after the fact, is still an amendment to the bill. They did pass a second bill.

    If a second bill posits people getting subsidies even though they enrolled on the federal exchange, that ought to be dispositive, even if they didn’t amend the original language.

    Sammy Finkelman (688d8d)

  64. I can’t find anything about “amendment after the fact” here:

    https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0623-67

    Where did taht come from?

    A lot of this opinion deals with the issue of standing and forum.

    Page 27 of the opionion says that 42 U.S.C. § 18031 provides that “[e]ach State shall, not later than January 1, 2014, establish an American Health Benefit Exchange.

    So they thought maybe they had ordered every state to do so. They cannot, however, legislate such a thing, so perhaps they made what they thought was an offer a state could not refuse, and everybody treated this as a mere technicality, never thinking the bluff might be called.

    Sammy Finkelman (688d8d)

  65. Page 28 of the above decision (upholding the tax credits on the federally run exchange) :

    Plaintiffs and defendants agree that 42 U.S.C. § 18031 does not mean what it literally says; states are not actually required to “establish” their own Exchanges.

    So there we have already statutory construction not being structly literal.

    The judge writes further, that this is:

    because Section 1321 of the ACA provides that a state may “elect” to establish an Exchange [and if a state doesn't] … “the Secretary shall . . . establish and operate such Exchange within the State..” ….if a state will not or cannot establish its own Exchange, the ACA directs the Secretary of HHS to step in and create “such Exchange”

    The court then moves on to consider the other “traditional tools of statutory construction”

    The judge points out:

    By invoking both Section 18031 and Section 18041, this advance payment provision is expressly directed at every Exchange, regardless of whether the Exchange is state- or federally-run. Section 36B(f) would serve no purpose with respect to the federally-facilitated Exchanges, and the language referencing 42 U.S.C. § 18041 would be superfluous, if federal Exchanges were not authorized to deliver tax credits. Section 36B(f) thus indicates that Congress assumed that premium tax credits would be available on any Exchange, regardless of whether it is operated by a state under 42 U.S.C. § 18031 or by HHS under 42 U.S.C. § 18041.

    And if the plaintiffs were right:

    The federal Exchanges would have no customers, and no purpose. Such a construction must be avoided, if at all possible.

    You could say maybe it had a minor purpose in facilitating comparison shopping, and in pressuring states by showing people what subsidies they might have gotten.

    On page 33ff:

    Plaintiffs try to explain away the inconsistency between their proposed construction and the statute’s underlying purpose by proposing that Congress had another, equally pressing goal when it passed the ACA: convincing each state to set up its own health insurance Exchange….Plaintiffs’ theory is tenable only if one accepts that in enacting the ACA, Congress intended to compel states to run their own Exchanges – or at least to provide such compelling incentives that they would not decline to do so. The problem that plaintiffs confront in pressing this argument is that there is simply no evidence in the statute itself or in the legislative history of any intent by Congress to ensure that states established their own Exchanges.

    Except then, why have state exchanges at all? Because each state regulates insurance separately?

    Page 37:

    Early proposals for comprehensive health insurance reform contemplated that the federal government would establish and operate the Exchanges, and an earlier version of the House Bill so provided…Ultimately, however, these proposals proved politically untenable and doomed to failure in the Senate, so the Senate passed a bill that provided “flexibility” to each state as to whether it would operate the Exchange….Furthermore, there is no evidence that either the House or the Senate considered making tax credits dependent upon whether a state participated in the Exchanges. To the contrary, Congress assumed that tax credits would be available nationwide.

    The opinion then cites a letter from the director of the CBO stating that “…the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff…”

    That was Judge Paul L. Friedman, United States District Judge for the District of Columbia, on January 15, 2014.

    Also in the opinion: (page 34)

    Nor does plaintiffs’ theory make intuitive sense. A state-run Exchange is not an end in and of itself, but rather a mechanism intended to facilitate the purchase of affordable health insurance…It makes little sense to assume that Congress sacrificed nationwide availability of the tax credit…

    That should be: It makes little sense to assume that Congress sacrificed the general goals of the legislation, in order to pressure states to run their own health exchanges.

    Sammy Finkelman (688d8d)

  66. “The unfortunate combination of ramrodding, secrecy, sloppiness, and lies being told as the ACA was being perpetrated by a single political party (along with the under- the-table promises and assurances that were made to elected sheeple who had never even read it its thousands of pages) almost guaranteed that it would end up as the spectacularly craptastic, contradictory, unadulterated economic catastrophe it is for the American taxpayers–not to mention for the people who tried to sign up for insurance”

    My argument is that both people for and against the bill understood that subsidies would be available to individuals on exchanges established by the feds.

    dan (968c29)

  67. The question here isn’t constitutional. Just statutory interpretation. And in that case disruption may matter. Shouldn’t be hard to find support for the idea that Congress intended to pass a non-disruptive bill.

    And it did. The disruption from overturning it won’t be caused by the bill, but by the fact that the government, on the president’s orders, deliberately violated it. Undoing that violation will indeed be disruptive, but that’s not any business of the courts. The government has sown the wind, the courts have no authority to stop the whirlwind.

    Milhouse (b95258)

  68. What seems left out of the story told so far is the parts of the bill, and the legislative process (debate, CBO estimates, etc…) that do refer to subsidies going to exchanges established by the feds.

    What parts of the bill refer to these subsidies? None that I’ve ever heard of. If they exist, please give the exact reference to them, so they can be looked up. Debate and CBO estimates are not part of the law, and can play no part in interpretation. What someone who never read the bill guessed that it might say is irrelevant. Especially since earlier drafts did provide for these subsidies, and they were taken out of the final bill, so any mentions you can find in the debate probably referred to those earlier drafts.

    Milhouse (b95258)

  69. I’d say it’s rather plain spoken how the reform is meant to work, and the role subsidies play in it (as you can see from the text, even) from the days it was a Heritage idea through being Romneycare and then the ACA.

    Irrelevant. None of those are the law.

    Milhouse (b95258)

  70. My argument is that both people for and against the bill understood that subsidies would be available to individuals on exchanges established by the feds.

    Even if that were true, so what? It doesn’t matter what anyone thought was in the bill; all that matters is what’s actually in it. Voting for a bill is no different from signing a contract. If a Congressman is so irresponsible as to vote for a bill without having read it (as they all did in this case) he is consenting to whatever is in it, even if it provides for his own execution. He can’t come later and say “if I’d realised what it said I’d never have voted for it”. No honest court in the world could take such a claim into account.

    Milhouse (b95258)

  71. Judge Freidman wrote that the IRS interpretation of the statute only has to be reasonable, but he furtehr seemed to say it wasn’t even ambiguous.

    He also wrote in footnote 12 on page 35:

    Moreover, the statutory formula for calculating the tax credit seems an odd place to insert a condition that the states establish their own Exchanges if they wish to secure tax credits for their citizens. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“[Congress] does not, one might say, hide elephants in mouseholes.”).

    One would expect that if Congress had intended to condition availability of the tax credits on state participation in the Exchange regime, this condition would be laid out clearly in subsection (a), the provision authorizing the credit, or some other provision outside of the calculation formula.

    This is particularly so because courts presume that “Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989) (collecting cases); see also United States v. Irvine, 511 U.S. 224, 238 (1994) (“[T]he revenue laws are to be construed in the light of their general purpose to establish a nationwide scheme of taxation uniform in its application.”).

    (separated into paragraphs)

    Sammy Finkelman (cd2969)

  72. “In the argument they discussed that. The judges said it was an amendment after the fact.”

    What does that mean? It was not in the bill that passed congress?

    That is my understanding from the argument. Correct.

    An amendment after the fact, is still an amendment to the bill. They did pass a second bill.

    If a second bill posits people getting subsidies even though they enrolled on the federal exchange, that ought to be dispositive, even if they didn’t amend the original language.

    Wrong. The language should be dispositive. For example, look at my previous post linked above which posits a hypothetical in which a legislature passes a tax on “people making over $100,000 a year” — but the legislative history shows they meant to tax “people making over $10,000 a year.” The language still means what it means. If, after the passage of the bill, they add language saying: “And we want a report on the taxes paid by people making over $10,000 a year” . . . but do not change the operative language, that does not change what the operative language says.

    Patterico (9c670f)

  73. The main reason is that legislators do not get to write in code. People engaging in a contract could — they could agree that a term “$100,000″ actually means “$10,000″ — and if both parties agree to this, then the meaning they mutually agree on should control. But laws are different. Citizens are not parties to the discussion and should not be assumed to have read conference reports and floor debates. They are responsible for following the law as written — and if it is clear, then the clear language controls. That is the only way for the rule of law to work in society.

    Patterico (9c670f)

  74. Milhouse (b95258) — 7/4/2014 @ 12:29 pm

    Voting for a bill is no different from signing a contract.

    But I think contracts are sometimes interpreted this way too.

    http://en.wikipedia.org/wiki/Interpreting_contracts_in_English_law

    But the order for rectification is rare. The reason for this is the necessity of promoting certainty. In The Olympic Pride Mustill LJ remarked,[20]
    The Court is reluctant to allow a party of full capacity who has signed a document with opportunity of inspection, to say afterwards that it is not what he meant. Otherwise, certainty and ready enforceability would be hindered by constant attempts to cloud the issue by reference to pre-contractual negotiations. These considerations apply with particular force in the field of commerce, where certainty is so important. Various expressions have been employed in the reported cases to describe the standard of proof required of the person who seeks rectification. Counsel in the present case were agreed that the standard can adequately be stated by saying that the Court must be “sure” of the mistake, and of the existence of a prior agreement or common intention before granting the remedy.

    That is English law. It says that contracts have a higher standard for sticking to the text as written than other kinds of documents, but still they will read differently than what is written if you can be sure of the mistake.

    In the United States, rectification is called reformation.

    http://thekuhnlawfirm.com/doctrine-reformation-mutual-mistake-contract-changed-accurately-reflect-parties-intent/

    …there are two doctrines that allow reformation. The first is the doctrine of mutual mistake. In such a case, the plaintiff must show that both parties were mistaken as to a material portion of the written agreement. The second is the doctrine of unilateral mistake. The party asserting this doctrine must show that it was mistaken and that the other party knew of the mistake but remained silent.

    Or see:

    http://www.chadbourne.com/files/Publication/5d888d9d-cf4d-4c4b-830e-c015d7af9b95/Presentation/PublicationAttachment/23213ce6-c2f1-407e-abff-c7b724733f8f/PleadingProvingContractReform_Hall%20NYLJ_Dec12.pdf

    Under New York law, courts have the authority to grant the remedy of reformation and impose new contractual terms on the parties. Reformation was developed as an equitable remedy because actions at law provided no
    relief against contracts secured through fraud or mistake.

    To prevent misuse of this remedy to gain relief from unfavorable or inconvenient contractual obligations, courts impose a strong presumption that a properly prepared and executed contract reflects the actual bargain struck by the parties.

    Courts generally use reformation only to bring inaccurately drafted contracts into conformity with the actual agreement between the parties. Thus, courts limit the remedy of reformation to three situations: (1) scrivener’s error, or an inadvertent mistake in reducing the agreement to writing, (2) mutual mistake of fact, and (3) unilateral mistake of fact induced by the fraud of the counterparty.

    Sammy Finkelman (cd2969)

  75. Patterico @73.

    The main reason is that legislators do not get to write in code. People engaging in a contract could — they could agree that a term “$100,000″ actually means “$10,000″ — and if both parties agree to this, then the meaning they mutually agree on should control. But laws are different. Citizens are not parties to the discussion and should not be assumed to have read conference reports and floor debates. They are responsible for following the law as written — and if it is clear, then the clear language controls. That is the only way for the rule of law to work in society.

    Th courts actually seem to be more careful about contracts.

    For lsws, there seems to be the doctrine “[Congress] does not, one might say, hide elephants in mouseholes.”

    http://www.conservapedia.com/Elephant-in-mousehole_doctrine

    The elephant-in-mousehole doctrine holds that “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Association, 531 U.S. 457, 468 (2001). This doctrine is an exception to the textualism approach to constitutional interpretation.

    American Trucking’s elephant-in-mousehole doctrine was first implied by FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), where the Court held that nicotine was not a “drug” within the meaning of the statute (the FDCA) and thus could not be regulated by the FDA. Although a pure textualism approach could find that nicotine fit within the FDCA’s technical definition of a “drug”, the Court held that “we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Brown & Williamson, 529 U.S. at 160.

    The Court also applied the elephant-in-mousehole doctrine in Gonzales v. Oregon, 546 U.S. 243 (2006). It held that the Attorney General lacks authority under the physician-registration provision of the Controlled Substances Act (“CSA”) to prohibit physicians from prescribing drugs for use in physician-assisted suicide. The Court found implausible “[t]he idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA’s registration provision.” Gonzales, 546 U.S. at 267 (citing American Trucking and Brown & Williamson).

    Courts of Appeals have been applying the elephant-in-mousehole doctrine. Compare Am. Bar Ass’n v. F.T.C., 368 U.S. App. D.C. 368, 430 F.3d 457 (D.C. Cir. 2005) (finding elephant-in-mousehole where Federal Trade Commission claimed authority under financial consumer privacy statute to regulate attorneys) with Am. Fed’n of Gov’t Employees, AFL-CIO v. Gates, 486 F.3d 1316 (D.C. Cir. 2007) (finding no elephant-in-mousehole where the Department of Defense claimed authority under National Defense Authorization Act to curtail collective bargaining with civilian employees) (2008); NISH v. Rumsfeld, 348 F.3d 1263, 1269 (10th Cir. 2003) (“We simply do not see the elephant in the mousehole” where the military claimed statutory authority to give blind vendors priority in awarding mess hall contracts).

    Sammy Finkelman (cd2969)

  76. http://supreme.justia.com/cases/federal/us/531/457/case.html

    Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes. See MC! Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., supra, at 159-160. Respondents’ textual arguments ultimately founder upon this principle.

    In other words, this would be too important a provision, one that could undermine much of the law, for it to be intentionally indicated the way it was.

    Sammy Finkelman (cd2969)

  77. The argument is, there would hardly have been any purpose to allowing the federal government to set up an exchange when a state did not, if the tax credits did not apply to them, too.

    Congress might indeed legislate that, but it wouldn’t hide such an elephant in a mousehole.

    Sammy Finkelman (cd2969)

  78. It’s not a vague or ancillary term. As the judges pointed out in the oral argument, if you were looking for the provision regarding subsidies and tax credits, you would turn right to the quoted provision.

    Patterico (9c670f)

  79. In other words, it’s not a mousehole. The elephant is right where you would expect to find it, in the elephant enclosure, with a great big sign that says “E L E P H A N T S”. On the other hand, the incidental references that 0bamacare supporters are clinging to, which suppose the existence of subsidies for the federal exchanges, are like signs at the zoo pointing the way to the elephants, which are indirect evidence for the existence of elephants, but if the elephants themselves can’t be found then the signs are meaningless. They’re just a relic from when the zoo had elephants, or preparation for some future plan to get some elephants, no more.

    Milhouse (b95258)

  80. The law states that every state “shall” set up an exchange.

    But Congress has no power to order that.

    It look like somebody understood that, and left in, or put in, a provision for a federal exchange if a state failed to set one up, but without altering the subsidy and tax credit language, which was limited to state exchanges, but probably was intended only to exclude private exchanges like ehealthinsurance.com.

    The quiestion is, when a provision to allow a federal exchange as a substitute for a state exchange was included, did it mean or did it not mean to include all the other provisions of the law that touched on state exchanges, so that it stood 100% in its place?

    It would be an elephant if the federal exchange could not substitute 100% for the state exchange, because nothing about it being different from a state exchange is mentioned anywere in the bill.

    It’s an elephant because a large portion of the reason for an exchange is to subsidize policies – only policies listed there qualify to be subsidized. Why would you even want a substitute for a state exchange if there was no subsidy or tax credit?

    Sammy Finkelman (cd2969)

  81. The quiestion is, when a provision to allow a federal exchange as a substitute for a state exchange was included, did it mean or did it not mean to include all the other provisions of the law that touched on state exchanges, so that it stood 100% in its place?

    Subsidies go to exchanges obtained “through an Exchange established by the State under Section 1311.” A “State” is defined as “each of the 50 States and the District of Columbia.” Section 1311 is a provision that allows exchanges to be set up by states. Section 1321 is the provision that allows the federal government to set up exchanges if a state does not do so.

    The Obama lawyers obviously argued that when the federal government set it up for a state under section 1321, that somehow was the same as the state establishing it under section 1311. But it isn’t. If the HHS Secretary established the exchange — and she did — then the state of West Virginia (I believe that’s the relevant state in the litigation) did not.

    “Federal” does not mean “state” and “1321″ does not mean “1311.”

    This is all very, very clear if you listen to the argument.

    Patterico (9c670f)

  82. It would be an elephant if the federal exchange could not substitute 100% for the state exchange, because nothing about it being different from a state exchange is mentioned anyw[h]ere in the bill.

    Sammy. Wrong. Yes it is. They are under two different sections, and the whole point of this case is that the two are different, because state-established exchanges under 1311 get a subsidy, and federal exchanges under 1321 do not.

    Patterico (9c670f)

  83. The law states that every state “shall” set up an exchange.

    But Congress has no power to order that.

    Correct, and they knew that. But they apparently assumed all the states would jump at the chance to get free subsidy money for their citizens, just as they assumed all the states would jump at the chance to expand Medicaid. They miscalculated, badly. What’s more, the IRS rule, by removing the incentive Congress had included for states to set up the exchange, caused some states not to set up an exchange — states which would have otherwise (and which will after this ruling comes down against Obama, which it will, at least from the panel).

    Why would you set up an exchange if you can get the feds to do it for you?

    Patterico (9c670f)

  84. The answer is: because Congress gave you an incentive: your citizens get subsidies if you take on the work of setting up the exchange.

    But that’s all an “intent” argument.

    The plain words are clear. And we must choose the plain words over some unexpressed intent. Choosing intent over plain language is how leftists have undermined the rule of law in this country for years.

    Mark my words: once conservatives truly understand the Halbig case, they will finally understand why they must reject theories about unexpressed intent, and choose an interpretation that relies on plain language.

    Patterico (9c670f)

  85. 66. …My argument is that both people for and against the bill understood that subsidies would be available to individuals on exchanges established by the feds.
    dan (968c29) — 7/4/2014 @ 9:18 am

    As Milhouse @70 observes, so what if true? My lesser, secondary argument is that it’s not true. All the evidence in the legislative history points the opposite way. That subsidies would not be available to individuals on exchanges established by the feds.

    Steve57 (c4c6a6)

  86. The best argument I have seen so far was made on Twitter, where someone cited language that (they argue) would make federal exchanges a nullity. That will require further study, and I have emailed Prof. Adler about it.

    But enough for tonight. Off to the fireworks.

    Patterico (9c670f)

  87. I still cynically believe that Justice Roberts will find a way to discern meaning that allows the subsidies to stand. He did FAR FAR worse in the original case, so I can’t see this straining his abilities in the least.

    The fact that overturning this will create havoc in the marketplace and cause hardship to millions of real people will be enough to convince Roberts to interpret the “meaning” rather than the printed word.

    Kevin M (b357ee)

  88. 87. I still cynically believe that Justice Roberts will find a way to discern meaning that allows the subsidies to stand. He did FAR FAR worse in the original case, so I can’t see this straining his abilities in the least.

    The fact that overturning this will create havoc in the marketplace and cause hardship to millions of real people will be enough to convince Roberts to interpret the “meaning” rather than the printed word.
    Kevin M (b357ee) — 7/4/2014 @ 6:25 pm

    You could prove to be right. When disputing the rational bases for Obamacare, I don’t dismiss the thought that Roberts may declare an irrational basis for Obamacare.

    Steve57 (c4c6a6)

  89. “The answer is: because Congress gave you an incentive: your citizens get subsidies if you take on the work of setting up the exchange.”

    The ACA also had a provision for HHS to give grants to states to set up exchanges. That’s not consistent with ‘if you take on the work.’

    “They miscalculated, badly. What’s more, the IRS rule, by removing the incentive Congress had included for states to set up the exchange, caused some states not to set up an exchange — states which would have otherwise (and which will after this ruling comes down against Obama, which it will, at least from the panel).”

    Which states do you think will set up exchanges under your reading of the statute? The same ones turning away Medicaid money?

    dan (968c29)

  90. Kevin is surely right about Justice Roberts.

    It’s rare to see someone do something they know is wrong as prominently as Roberts has.

    Dustin (6a1d5a)

  91. The ACA also had a provision for HHS to give grants to states to set up exchanges. That’s not consistent with ‘if you take on the work.’

    dan (968c29) — 7/4/2014 @ 9:04 pm

    Cite that provision. Cite the sections of the law you say support your position. It’s as simple as that.

    Steve57 (c4c6a6)

  92. The ACA also had a provision for HHS to give grants to states to set up exchanges. That’s not consistent with ‘if you take on the work.’

    Sure it is. You do the work and we will help with money. Also your citizens get subsidies.

    Patterico (a36e1a)

  93. “If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.

    Oh, that’s just beautiful. Put that man on the SCotUS.

    Randolph, a George H.W. Bush appointee

    I am shocked!! Shocked, I say!!!

    Smock Puppet, "Si tacuisses, philosophus mansisses." (225d0d)

  94. Smock Puppet #93 – it is interesting, is it not, how a Judge who “was confirmed by the Unanimous consent of the U.S. Senate on July 13, 1990 and received commission on July 16, 1990.” (when the Senate was 55-45 Democrat-controlled) is being treated as a mindless GOP puppet …

    Alastor (2e7f9f)

  95. “Cite that provision. Cite the sections of the law you say support your position. It’s as simple as that.”

    It’s the first thing in section 1311, the section that’s discussed in the opening paragraph of the blog post.

    “Sure it is. You do the work and we will help with money. Also your citizens get subsidie”

    Oh I see what you mean by “do the work.”

    dan (968c29)

  96. As a bonus for those who have scrolled down this far, the March 25th oral argument in this case:

    http://www.cadc.uscourts.gov/recordings/recordings2014.nsf/10C56B6B41F4626185257CA6005D8A70/$file/14-5018.mp3

    Bracket for the moment the plain language v. intention debate, and ask yourself: If Judge Edwards thought he was on the winning side, would he have conducted himself like such a twat?

    Brian (d7b8f9)

  97. Nick/dan/imdw is just so cute.

    JD (39a468)

  98. “Which states do you think will set up exchanges under your reading of the statute? The same ones turning away Medicaid money?”

    How long does that Medicaid money last, and how good is the government at estimating costs?

    JD (39a468)

  99. How long does that Medicaid money last, and how good is the government at estimating costs?

    That’s always the “deal with devil” a state makes with the federal government. Short-term political feel-good program to buy votes for an upcoming election vs the long-term fiscal reality of maintaining said program. We’re have to pretend that it’s an actual solution to health care.

    Hadoop (f7d5ba)

  100. “It’s not freakin’ there.”

    Your first link. A few lines from the top. Did you read these words:

    “ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH BENEFIT EXCHANGES” ?

    Just curious.

    dan (968c29)

  101. “ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH BENEFIT EXCHANGES” ?

    And how’d that work out? If it was going to work like Amazon, you wouldn’t have each state working on their own exchange. You’d create a federal hub with each state connecting to that hub. Since the states are relying on federal information, e.g.— the IRS to verify income, attempting to do it the way it was done is a reason for the ongoing disaster. I’m not going to bother linking to the recent problems with incorrect information affecting 3 million enrollees because it doesn’t address the actual “supposed” solution the ACA was implemented to correct.

    The government claims 8 million signed up. It was implemented to insure the 30 million, or 50 million, or whatever number of uninsured individuals suit your political agenda at a particular moment in time. They should have taken whatever time was needed to do it right. Instead, we’ll limp through iteration after iteration spending untold amounts, until one day it will be quietly scrapped, and another attempt will be made to give it another try.

    By that time, single payer will be put forth as the only solution because the for-profit insurance companies will have been reimbursed billion, if not trillions, for the folly that is Obamacare.

    Hadoop (f7d5ba)

  102. You’d create a federal hub with each state connecting to that hub.

    I meant to say the a state standard should be adopted to connect to the federal hub, as there is a federal hub.

    Hadoop (f7d5ba)

  103. “ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH BENEFIT EXCHANGES” ?

    So, you just quit reading because the title sounded kinda close to the mendoucheous point you were peddling.

    JD (8e9387)

  104. There were grants by the feds to states, per the ACA. Steve wanted to know where it was in the ACA. So there it is. Right at the top of his link.

    dan (968c29)

  105. Grants to States to build their programs are not the topic of the discussion.

    JD (222480)

  106. So now if steve is not satisfied with my sourcing he can be satisfied by your declaration that this not a topic he should ask about.

    dan (15b551)

  107. You sourced something not germane to the lawsuit being discussed, imdw.

    JD (ea1128)

  108. I’m not sure you’re following the exchange I was having with steve.

    dan (15b551)

  109. I am sure you have been banned here under more than 20 names.

    Whether or not the Feds offered to help pay for State exchanges is irrelevant, a red herring, mendoucheous, and typical of your mendoucheity, imdw.

    JD (ea1128)

  110. I’ve already drafted my post, “A Halbig F*cking Deal: The Triumph of Textualism Over the ‘Intent’ Argument That Leftists Hope Will Save ObamaCare.”

    I’ll publish it Monday.

    Patterico (9c670f)

  111. this is the longest weekend ever already

    and hotter than a witch’s

    curling iron

    happyfeet (8ce051)

  112. I will immediately clutch your rss feed as I can’t in finding your e-mail subscription hyperlink or e-newsletter service.
    Do you have any? Please allow me recognize so that
    I could subscribe. Thanks.

    London Guaranteed Rental Scheme (12e6e7)


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