Patterico's Pontifications

2/5/2015

Halbig, King, and Federalist No. 78

Filed under: General — Patterico @ 9:33 pm



In considering the King v. Burwell case that will be argued next month, I had occasion to read once again Alexander Hamilton, Federalist No. 78:

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

In other words: even if you happen to know that the people want to deviate from the Constitution, one cannot sanction such a deviation until it is made official, through an amendment.

This applies to statutes as well. I don’t care if you presume or even know the will of the people. Until you change the actual law, the written word governs.

But yes: this does require “an uncommon portion of fortitude in the judges to do their duty.”

Call me naive, but I believe that this time, they will. Or 5 of them, anyway — which is enough.

48 Responses to “Halbig, King, and Federalist No. 78”

  1. Ding.

    Patterico (9c670f)

  2. yepp, you are naive. and you are going to be disappointed.
    i think it will go 6-3 that the SC will rule that the law can be applied however the other branches decide.
    Heck, this “law” is already being applied as they see fit. Did you not see that the IRS has said don’t worry about the details of the law this year on tax returns?

    seeRpea (9a7f2e)

  3. My Supreme Court predictions are always wrong, so exercising the Epimenidian Paradox, I predict that it will be another Hollingsworth v. Perry, a weaselly non-decision on standing, possibly spiced with political question and Chevron deference, and hope for the best.

    nk (dbc370)

  4. Suppose the Court does rule that you need a state exchange. Wouldn’t the administration just ignore them? Wouldn’t that create a huge crisis? Doesn’t the Court avoid those situations with ad hoc justifications that strain credulity? The Court is the helpless branch, and against a ruthless executive is going to have to seriously consider how its power really works.

    I have suspected that this concept was lobbied hard to Roberts back when he apparently made a 180 on Obamacare being a tax and not a tax. There’s a reason so many of the Court’s most incomprehensible decisions (Wickard, for example) accommodate tremendous power. The Court is like water running down a hill in those situations.

    I sure hope Patterico is right about this one. I realize there’s not much of a question about what the ACA actually says, so it’s sad that this is a debate (or a case), but I’m not optimistic.

    Dustin (2a8be7)

  5. or that the courts would be under a greater obligation to connive at infractions in this shape

    This ship has sailed long long ago.

    Kevin M (25bbee)

  6. Suppose the Court does rule that you need a state exchange. Wouldn’t the administration just ignore them? Wouldn’t that create a huge crisis?

    Maybe and yes. It takes a very powerful president to get away with it, though. Jackson and Lincoln come to mind. Results were mixed. I cannot see Obama telling the Supreme Court to STFU. He’d be impeached and probably convicted — any other course and the Constitution is dead, left to Obama to reconstruct.

    Kevin M (25bbee)

  7. So you admit that the sentiments of Congress were that the federal exchanges be subsidized? And that you must rely on the fortitude of the courts to ignore that intent and focus on one possible interpretation of the text?

    That would be news to Adler/Cannon who persist in claiming that Congress really and truly wanted to deprive federal exchanges of subsidies and the text merely reflects that intent

    Northener (162df5)

  8. the sleazy congresswhores who foisted substandard third world obamacare on pitiful uncomprehending foodstamp-swilling failmericans didn’t even read the bill they voted on Mr. Northener

    they passed it to find out what was in it

    happyfeet (831175)

  9. Northener, I see you persist in being wrong. No one has “admitted” any such thing because plain reading of the statute proves you wrong.

    Once more for everyone’s edification:

    https://patterico.com/2015/02/03/scott-lemieuxs-challenge-to-halbigking-is-his-typical-nonsense/#comment-1738594

    Yes. I agree that the Obama administration might be able to convince our supra-legislature to provide the votes they couldn’t get once Scott Brown was elected. So they can change the language in the bill. But that would be the absurd result.

    There are antecedent bills that condition individual tax credits on state compliance. In fact, the “Affordable Health Care Choices Act” (S. 1679) actually allows the HHS Secretary to revoke individual tax credits if a state falls out of compliance.

    https://www.opencongress.org/bill/s1679-111/text

    ‘(b) Establishing States-

    ‘(1) IN GENERAL- If the Secretary determines that a State has taken the actions described in subsection (a)(1), any resident of that State who is an eligible individual shall be eligible for credits under section 3111 beginning on the date that is 60 days after the date of such determination.

    ‘(2) CONTINUED REVIEW- The Secretary shall establish procedures to ensure continued review by the Secretary of the compliance of a State with the requirements of subsection (a). If the Secretary determines that a State has failed to maintain compliance with such requirements, the Secretary may revoke the determination under paragraph (1).

    This bill didn’t pass into law. But there’s nothing unusual about Congress conditioning tax credits on state compliance with federal requirements. And if the state doesn’t comply, then tax credits aren’t available to individuals in their states through the feds. They’ve done it before. And the language in the PPACA is basically boilerplate. You may not get a Senator saying explicitly enough for Northener that they put that exact same language in the PPACA for exact same purpose that they said they put the same language in those preceeding bills. But so what? We know why they put that language into those proceeding bills.

    To compel exactly the state compliance that they wanted before.
    Steve57 (8d38a0) — 2/4/2015 @ 9:24 am

    The Senate Finance Committee routinely used language depriving individuals of tax credits if the states they resided in failed to comply with federal regulations.

    The PPACA essentially used boilerplate language. Which is why it’s not surprising no one commented on it at the time.

    Steve57 (f0ee0c)

  10. Rather that was the Senate Committee on Health, Education, Labor, and Pensions. But conditioning tax credits on state compliance and even revoking those tax credits if the state fell out of compliance wasn’t at all unusual.

    Which is probably why it’s lost on Adler/Cannon. Because often Congress really and truly did want to deprive individuals of tax credits unless their states complied with federal regulations.

    And the language in the PPACA does exactly that.

    Steve57 (f0ee0c)

  11. “SEC. 3104. ALLOWING STATE FLEXIBILITY.”

    Steve57 (f0ee0c)

  12. Steve,

    In other words, there is no contemporary evidence of any legislator, state or federal, stating an intent to deny subsidies to federal exchanges. What you have instead is a supposition, based on somewhat similar language in another failed bill, that Congress must have intended to so. It is reverse engineering, at best.

    It would be surprising for no one to comment, because the proposal you advance, that federal exchanges would be denied subsidies, would make those federal exchanges dsyfunctional and thus invalidate any purpose for their existence. As noted by the dissenters in the previous ACA case (the title escapes me), the purpose of the federal exchanges was to backstop if state exchanges were not established.

    If the argument is that legislative intent is completely irrelevant to statutory interpretation, fine. That’s an argument. But to claim that Congress really truly intended to set up dysfunctional federal exchanges is an extraordinary claim requiring extraordinary proof. And one element of such proof would be somebody actually saying so at the time. Or for that matter later. No Republican legislator that I know of has recently stated his or her understanding of the ACA at the time was to deny subsidies to federal exchanges. If anything, e.g. Grassley, the contrary.

    Northener (162df5)

  13. it wasn’t the Republicans’ job to point out the flaws in the Democrats idea to use subsidies as a leverage to force states to build exchanges

    incompetent democrats own this

    happyfeet (831175)

  14. idiotwhore obama signed a crappy law to where if takes $50,000 to cover one pitiful food-stamper

    those are expensive votes even for a p.o.s. from Chicago

    happyfeet (831175)

  15. You have no argument, Northener.

    The Senate routinely did this. In fact, the language in the PPACA was lifted almost entirely intact from “America’s Healthy Future Act of 2009″ (S. 1796) (which passed out of committee while Baucus was chairman).

    We know the intent of Committee when they put that exact same language when they put it in S. 1796. The language was intended to deny individuals tax credits unless their states complied with federal regulations.

    There’s nothing vaguely similar about it, unless you wish to pretend it is.

    Steve57 (f0ee0c)

  16. the whole crappy bill is collapsing around food stamp’s feet

    plan b?

    nuke the jews!

    happyfeet (831175)

  17. Why should anyone pretend the language meant something different this time when we know what it meant every other time the Senate used it?

    Steve57 (f0ee0c)

  18. I thought plan b was the morning after pill.

    Steve57 (f0ee0c)

  19. there is no morning after Mr. 57

    happyfeet (831175)

  20. 12. It would be surprising for no one to comment, because the proposal you advance, that federal exchanges would be denied subsidies, would make those federal exchanges dsyfunctional and thus invalidate any purpose for their existence. As noted by the dissenters in the previous ACA case (the title escapes me), the purpose of the federal exchanges was to backstop if state exchanges were not established.

    Northener (162df5) — 2/6/2015 @ 2:36 am

    No doubt the Senate would have liked to change that language. But that’s what happens when you cut and paste a bill together. And the election Scott Brown meant they were stuck with that language. Which means the same thing that it meant every other time it had been used.

    So now you think the SCOTUS should fix that language that makes the federal exchanges “dysfunctional?” So in other words you think the SCOTUS should provide the votes to edit the language of the law that the Democrats no longer had the votes to edit once they lost “Ted Kennedy’s seat.”

    Admit the truth. You know what that language means. You want the SCOTUS to be the conference committee that would have taken place, had Scott Brown not been elected.

    In other words, we all know you want the SCOTUS to help you with your end run around the legislative process.

    Steve57 (f0ee0c)

  21. Mr. feets, looking at two more years of Prom Queen as preezy, what you’re saying @19 sounds almost like a welcome relief.

    Steve57 (f0ee0c)

  22. I wish the IDF would kick our azz.

    mg (31009b)

  23. Still might.

    Steve57 (f0ee0c)

  24. “He’d be impeached and probably convicted”

    This is the Congress whose black caucus yesterday called Rand Paul a racist for saying he will vote against Lynch for AG. He said he opposes her position on asset forfeiture, which doesn’t sound racist to me but I am not the black caucus.

    I don’t know if the country has the stomach for the black race riots that would follow impeachment. Obama is certain it does not and will continue to become more outrageous as he tests our tolerance. What will happen in the confrontation over Iran ? I don’t know but fear we may find out in June.

    That will be the crucial test as I fear he will try to get his “great diplomatic breakthrough” any way possible, including defying impeachment. He is getting rid of independent thinkers in the military higher ranks and I fear I know why.

    Mike K (90dfdc)

  25. Dr. K., I am always amazed that people suspect some kind of organized plan from these clowns in the Oval Office.

    Me, I think that Hanlon’s Razor applies best:

    http://en.wikipedia.org/wiki/Hanlon%27s_razor

    I work around academics every day (and despite the fact that he was never really a true academic in Chicago, the man certainly thinks like one). It’s amazing to hear the bizarreness that reactively emits from the anterior portions of most vocal academics.

    The key: everything such people say is designed to reinforce their own opinions of themselves as fabulous, thoughtful, and sophisticated people…who know so much better than the clueless proles. Period.

    Narcissism and entitlement uber alles.

    Simon Jester (c8876d)

  26. # 4. Dustin:
    There’s a reason so many of the Court’s most incomprehensible decisions (Wickard, for example) accommodate tremendous power. The Court is like water running down a hill in those situations.

    Dustin (2a8be7)
    Dustin – Wickard was decided correctly. The problem with Wickard, is the subsequent courts misinterpretation of the holding. Wickard only held that the growing of wheat for commercial use in his dairy operations was subject to the commerce clause. The growing wheat for personal consumption was not before the court and there was no ruling on that issue (though it is hard to actually determine that from the opinion). It was the subsequent courts misinterpretation of that holding which is the problem. See Scalia’s & Occonner’s discussion on the on the issue in Raich(?)

    Joe (43b0c6)

  27. So you admit that the sentiments of Congress were that the federal exchanges be subsidized? And that you must rely on the fortitude of the courts to ignore that intent and focus on one possible interpretation of the text?

    Nope. I sure don’t, as you well know from reading the post.

    But hey, misstate away. It’s not like someone is going to hold a drive-by troll accountable in any actual way, right?

    Patterico (9c670f)

  28. Dustin – Wickard was decided correctly. The problem with Wickard, is the subsequent courts misinterpretation of the holding. Wickard only held that the growing of wheat for commercial use in his dairy operations was subject to the commerce clause. The growing wheat for personal consumption was not before the court and there was no ruling on that issue (though it is hard to actually determine that from the opinion). It was the subsequent courts misinterpretation of that holding which is the problem. See Scalia’s & Occonner’s discussion on the on the issue in Raich(?)

    I think it was incomprehensible and one of the most dangerous decisions the Court has ever issued. You make it sound so mild in effect. But the Court was laying the groundwork for ObamaCare and other outrages.

    Patterico (9c670f)

  29. Isn’t ‘Wickard’ an example of a ruling that is sound for the particular case but was abused as a precedence crowbar for later cases?

    seeRpea (9a7f2e)

  30. “In other words, there is no contemporary evidence of any legislator, state or federal, stating an intent to deny subsidies to federal exchanges.”

    Northerner – The funny thing is, you have not yet been able to produce contemporaneous evidence from any legislator, state or federal, which supports your position. Why is that?

    daleyrocks (bf33e9)

  31. Patterico, thank you for your informed and unequivocal denunciation of Wickerd-Filburn.

    IMO, no it wasn’t a sound decision for the particular case, either, seeRpea. I’m curious. On what basis do you think that it was?

    elissa (7fdb1f)

  32. i would not have voted with the majority in the Wickerd-Filburn case but I did not think that the majority’s opinion was indefensible, ie: this wasn’t a Kelo-NewLondon.
    What has happened since though shows once again how maintaining a thread of jurispudence can lead to bad consequences. Sort of a corollary to “great cases make bad laws”.

    seeRpea (bcd9d2)

  33. If only 5 Supreme Court justices find the “established by the state” provision to be clear…that in itself is deeply alarming considering how plain the issue is.

    DejectedHead (75dfa4)

  34. 20. Steve57 (f0ee0c) — 2/6/2015 @ 3:15 am

    No doubt the Senate would have liked to change that language. But that’s what happens when you cut and paste a bill together. And the election Scott Brown meant they were stuck with that language.

    That is not true. They didn’t need Scott Brown to change this, because it was a tax provision, and that could be changed in the budget reconciliation bill. They did, indeed, change a number of things in a second bill. like getting rid of the “cornhusker kickback.”

    Everybody thinks hey undertand this. I think the way to understsnd this is more like this:

    They didn’t change it, because it was too early. Theat would have also changed the CBO budget estimates, and that’s one thing they didn’t wnat to do. The CBO assumed that everybpdy in the 50 states plus the District of Columbia would be eligible to a tax credit, but they also assumed there would be no administrative costs to the federal government in operating the exchanges.

    The drafters of the bill knew perfectly well that not every state would create an exchange and so they provide for the Secretary of HHS to write one for any state that didn’t – and got the CBO to agree there would be no extra cost for doing this, by wrapping the cost of any of that into $1 billion I think for pverhead in getting the law started.

    It’s very probabe that, among the few Senators who knew about this, it was decided that they would change it only in the next Congress (where also you wouldn’t need 60 votes, but only a majoroty in both houses. Nobody expected the democrats to lose control of the House of Represenatives in the 2010 election. Probablky nobody thought that wa sthe least bit realistic. It was a shock, rremember?

    They didn’t immediately correct it for possily two reasons:

    A) This way the CBO budget estimates would not need to be immediately revised – but next year who cares what the cost of the PPACA is?

    B) Maybe they could scare a couple of more states in establishing an exchange.

    Having the Secretary of HHS get started bought them maybe more tahn two years to change the law.

    Sammy Finkelman (e806a6)

  35. To Summarize, I think:

    1) They knew what the law said.

    2) They didn’t intend for the law to go into effect the way the law was written.

    3) They didn’t need 60 votes in the Senate to change this part of the bill.

    4) They didn’t want to change it right then, in 2010, because that would also change the CBO scoring, and perhaps they really were hoping to offload some of the costs onto the states, making things easier for Democrats in Washington in future budget years.

    5) They intended to change it later, in the next Congress.

    6) But they lost control of the House of Represenatives in the 2010 election.

    This was a long range strategic ploy by the Democratic leadership in the Senate. It just didn’t work out as planned.

    Obama “solved” the problem by saying that an exchange established under Section 1321 wa sjust the same as one established under section 1311, which in fact, was not the way the law was written. The law didn’t even anticipate the federal government operating , as opposed to constructing, any state exchange.

    Sammy Finkelman (e806a6)

  36. seeRpea: the usual version is “hard cases make bad law”….judges straining to achieve a morally just result in an individual case but faced with law that points the other way are capable of producing opinions that achieve the desired result there but lead to bad precedents elsewhere. Or else produced legislation as a reaction which goes too far the other way.
    And it does not have to be trying to achieve a moral result. Politically palatable results can serve as well. Roberts’s opinion in Obamacare might be such an instance.

    Patterico (9c670f) — 2/6/2015 @ 7:36 am

    not claiming credit for any great insight, but if you go back and search my comments from that time, you will see I said that if Obamacare had been thrown out by SCOTUS then, the chain of precedents from Wickard onwards would have been, if not directly overruled, at least seriously undermined. And I suspect Roberts’s contortions in that case were in part an effort to avoid going against the Wickard chain of cases.

    kishnevi (94a358)

  37. well it depends how strictly they pared back the Commerce Clause ‘penumbras and emanations’

    narciso (ee1f88)

  38. narciso (ee1f88) — 2/6/2015 @ 10:12 am

    The method Roberts actually adopted had the feature of evading the need to provide such an answer.

    kishnevi (94a358)

  39. “Northerner” vomits out the same nonsense. Every. Time.

    JD (1a76f9)

  40. JD – Northerner needs to put some ice on that butt hurt.

    daleyrocks (bf33e9)

  41. Northener is desparate for the rest of us to admit something. So somehow that means he can go back and edit bills what became law. Having lost the votrs.

    Am I missing anything?

    Steve57 (36c0a6)

  42. Beutler is that you,

    narciso (ee1f88)

  43. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness

    That’s a quote I didn’t know about.

    You missed what this is referring to.

    It’s referring to this:

    http://www.revolutionary-war.net/articles-confed-transcript.html

    Article XIII of the Articles of Confederation:

    Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

    The point is that this wasn’t being done. I have said that’s why they satrted out with the words “We the People”

    They were acting the constitution.

    Now Hamilton says there is aright to act outside of the constitution, but it has to be something where

    the people have, by some solemn and authoritative act, annulled or changed the established form

    That’s why they were having it ratified by conventions.

    He means only in such cases can unconstitutional laws – like the new constitution – be passed. It has to have both support from the people, and some act by the people, not merely legislators.

    He was not talking about proper amendments.

    I highlighted what I want to connect.

    Sammy Finkelman (d22d64)

  44. Sammy Finkleman,

    I’m guessing that many King proponents would endorse your summary – quite possibly Cannon and Adler themselves! I don’t quite follow the last sentence, however. The law itself – as opposed to, on your view, the people who wrote – certainly anticipated the Feds both constructing and operating exchanges. S1311(c)(5)(B) required the Feds to build a fully-functional exchange – tax credit calculation and all – and funded it via s1005. Now, to me it is obvious that this exchange was expected to be adequate to serve the handful of states who declined or who otherwise failed to get an exchange adequately developed by Nov 2012 to convince HHS they would be ready to go come starting time. That said, I fully understand that this would be the minority view on this board.

    Ken Kelly (5c3675)

  45. On the related topic of Peak Democracy:

    http://www.zerohedge.com/news/2015-02-06/china’s-monumental-debt-trap-why-it-will-rock-global-economy

    We have something north of $250 Trillion in assets 40% owned by the top 0.6%.

    Now consider that the total debt is well north of $200 Trillion.

    Guess who owns $50 Trillion in debt backed by no collatteral whatever?

    DNF (a41485)

  46. 44. Ken Kelly (5c3675) — 2/6/2015 @ 11:10 pm

    I’m guessing that many King proponents would endorse your summary – quite possibly Cannon and Adler themselves!

    I think they would – if it was put to them. Right now, actually, they don’t have a good explanation as to why the law was written the way it was. Every explanation has a problem with it. There was not a serious attempt to force states to establish exchanges. To try to get them to expanad Medicaid, yes, but not this. There was certainly no belief that every state would establish an exchange – that’s why an alternative was provided. And there was no idea that anyone in the 50 states or the District of Columbia would be excluded. But the law didn’t say an exchange written under section 1321 would qualify. And it isn’t that they lost the 60th vote in the Senate because that thing they could have changed in the second bill they passed in 2010.

    I don’t quite follow the last sentence, however. The law itself – as opposed to, on your view, the people who wrote – certainly anticipated the Feds both constructing and operating exchanges. S1311(c)(5)(B) required the Feds to build a fully-functional exchange – tax credit calculation and all – and funded it via s1005.

    I see actually yes, the Secretary of HHS is also supposed to operate one for a state but that’s not from S1311(c)(5)(B) That’s referring to him writing something for the (state) exchanges to connect to (A state exchange cannot function on its own. It’s got to send information to the Internet portal, wich will query the IRS and Social security system etc – to come up with a subsidy number which it send back.

    The provision for the writing of an exchange is

    SEC. 1321.(c) Failure To Establish Exchange or Implement Requirements

    (1) IN GENERAL-

    (B) (ii) (II) … 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.

    It required the Secretary of HHS to build it. They certainly did not anticipate healthcare.gov – one piece of software for many states.

    Instead this anticipated writing something – that would be turned over, you notice, maybe to a non-profit group, if the state didn’t want to do it – that would be physically located within the State

    Maybe the non-profit group is in here to avoid the CBO scoring any administrative costs to HHS.

    Now, to me it is obvious that this exchange was expected to be adequate to serve the handful of states who declined or who otherwise failed to get an exchange adequately developed by Nov 2012 to convince HHS they would be ready to go come starting time. That said, I fully understand that this would be the minority view on this board.

    I think the way the law was written, no tax credits would be given, but they weren’t going to leave it that way when push came to shove.

    This was a deliberately defectively written law. Not accidentally defective. Deliberately defective. And they left it taht way in 2010. That’s what nobody seems to understand.

    Now, nobody was trying to sabotage the law. They were trying to avoid the CBO projecting costs. They had all of the next Congress to correct it.

    Sammy Finkelman (e806a6)

  47. 44. Ken Kelly (5c3675) — 2/6/2015 @ 11:10 pm

    S1311(c)(5)(B) required the Feds to build a fully-functional exchange – tax credit calculation and all – and funded it via s1005.

    No that’s not an exchange. That’s a portal to be used by the exchanges to a federal website that will calculate the subsidy eligibility for all exchanges.

    Section 1321 is the one that authorizes the building of an exchange for a state, and that’s missing from the eligibility language, which only refers to an exchange created under Section 1311.

    Looking at Section 1321 more closely again…

    http://genius.com/Hr-3590-sec-1321-state-flexibility-in-operation-and-enforcement-of-exchanges-and-related-requirements-annotated

    While S1321(a)(2)(c)(1)

    [If a state fails to establish a satisfactory exchange] the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State…

    while it does say “operate” in it, it says it could be operated by a “non-profit” group as well as HHS, and that the exchange should be physically located within the State

    I think that means the idea is that hopefully the state should take it over (that’s why it is “within” the state) and the mention of the non-profit groups was enough to get the CBO to score operating costs as zero.

    Sammy Finkelman (e806a6)

  48. Another overlooked point:

    There was no anticipation of any such a thing as healthcare.gov – a massive web site for all nonparticipating states.

    Each non-partipating state should have written for it an independent piece of software, ready to be taken over by the state when it wanted to, or maybe even by a non-profit group that would get a fee paid for by the insurance companies for operating it, with the computers for the different state exchanges not even located in the same city.

    Ken Kelley:

    Now, to me it is obvious that this exchange was expected to be adequate to serve the handful of states who declined or who otherwise failed to get an exchange adequately developed by Nov 2012 to convince HHS they would be ready to go come starting time. That said, I fully understand that this would be the minority view on this board.

    If the law was to work, it had to be like that, but the law didn’t say that.

    What they did is give themselves two full years and more to fix that, while in the meantime, reducing the budget score for the bill, and maybe even scaring a couple of state to rite exchanges that otherwise wouldn’t.

    And I don’t know how they got away with this healthcare.gov website at all, because the law doesn’t anticipate anything like that. There was not supposed to be ONE federal exchange, but separate exchanges written FOR each and every state that didn’t satisfy HHS and put within the state so it could be taken over.

    The drafters of the bill never thought writing a piece of software like that would be a big problem.

    Sammy Finkelman (e806a6)


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