A Halbig F*cking Deal: The Triumph of Textualism Over the “Intent” Argument That Leftists Hope Will Save ObamaCare
Last week, citing a post by Allahpundit, I mentioned the case that could kill most ObamaCare subsidies: Halbig v. Sebelius. I have now listened to the oral argument (.mp3 audio download) from the appeal in the D.C. Circuit Court of Appeals, and I am now convinced that the judges on the panel will rule 2-1 against Obama. As the title implies, this is a Big F*cking Deal, and I’d like to go through the highlights of the oral argument to explain why I think so.
A decision could come down any day now, by the way:
# Halbig RT: @BrantHadaway: @UriManor @Patterico @jadler1969 could be any upcoming Tue or Fri.
— Jonathan H. Adler (@jadler1969) July 4, 2014
To review from my original post on the matter: The law’s plain language says subsidies are available only when a health plan is purchased on an exchange “established by the state under section 1311.” 34 states refused to establish an exchange, after which the HHS Secretary invoked her authority to set up federal exchanges under a different section: section 1321. Then the IRS promulgated a rule that said exchanges set up by the Secretary under section 1321 were actually exchanges “established by the state under section 1311.”
The plaintiffs in the lawsuit say: “state” does not mean “federal government.” The exchanges established by the HHS Secretary under section 1321 are not “established by the state under section 1311.” Making the point even clearer: a “state” is defined in the ACA as “each of the 50 States and the District of Columbia,” they note, and not the federal government.
The Obama lawyers say: oh, come on. Don’t look at the plain language of that one provision. You gotta look at the whole law and the intent of Congress.
THE ORAL ARGUMENT
That sets the stage for the oral argument, and while I could give you a blow by blow, I want to concentrate on a couple of points that jumped out at me as significant. The plaintiffs, of course, rely on the plain language of the provision, which is the key to the outcome. But they also argue that Congress intended to limit subsidies to plans bought on state exchanges. The main argument made by the plaintiffs along these lines goes like this: Congress limited subsidies to plans bought on state exchanges in order to provide the states with an incentive to create their own exchanges. An interesting exchange along these lines was already reported in a Federalist Society blog post:
Judge Randolph seemed inclined to side with the plaintiffs, while Judge Edwards heatedly disputed with both the plaintiffs and Judge Randolph.
“Your argument makes no sense,” Judge Edwards said. “Who cares who sets up the exchanges?”
Judge Randolph retorted: “Ben Nelson.”
Mr. Nelson was a Democratic senator from Nebraska at the time the Affordable Care Act passed, and he was viewed as the key swing vote — and was seen as wary of expansive federal control of the health care system. . . .
Indeed. Judge Randolph makes a great point: the Democrats needed Ben Nelson’s vote, and he at least purported to be in favor of federalism. To pacify him, the law was set up so that the states would be the ones, in the first instance, that would supposedly set up the exchanges. Indeed, the plaintiffs argue, Congress apparently expected every state to go along — why turn down free money? — just like Congress was so confident that states would accept Medicaid expansion that they didn’t even provide subsidies for people making less than the poverty level, because they assumed (wrongly) that every state would expand Medicaid for those people.
When Judge Edwards argued that absolutely nobody believed that this would be the result, and that this was a recently concocted argument, Judge Randolph noted that Investors’ Business Daily pointed it out in a piece in 2011 (which is admittedly after the passage of the law. You can read that piece here).
There is no question where Judge Edwards stands, as he called the arguments of the plaintiffs “preposterous.” There is also no question that Judge Randolph will vote that there are no subsidies under the federal exchanges; as he said: “If the legislation is just stupid, I don’t see that it’s up to the court to save it.” That leaves Judge Griffith as the swing vote here, and in over an hour of arguments, I didn’t hear him say one thing supportive of Obama’s position. One point you may not have realized: Griffith is the judge nominated by George W. Bush after Miguel Estrada was filibustered into frustrated submission and withdrew his name from consideration.
The most important point I heard Griffith make during the whole argument was this: the states can still set up exchanges after this ruling. The states will have to explain to their citizens that the subsidies they thought they were going to get, they actually won’t get — only because the state declined to establish an exchange. That will put tremendous pressure, not just on Congress to amend the statute (which likely won’t happen), but also on individual states to establish their own exchanges (which probably will happen in several of the 34 states that have to date failed to establish an exchange).
In other words: Judge Griffith will argue that he is not preventing people from getting their subsidies. The states are, by not setting up the exchanges — which they can still do.
(It should be noted that, as the subsidies are removed, many people will, for the first time, be legally excused from the mandate. That’s because the law contains a provision that the penalty, er, tax, will not be imposed on people who can’t afford insurance — defined as people who would have to pay more than 8% of their income for health insurance. As the subsidies disappear, this group of people will greatly expand — removing even more revenue for insurers, and potentially causing the structure of ObamaCare to collapse.)
BOTTOM LINE: After hearing the entire argument, I am convinced that we are about to see a 2-1 ruling against Obama from this panel.
WHAT HAPPENS NEXT?
Even if the panel rules the right way, as I expect they will, there is a long road to a final decision, likely beginning with an en banc rehearing:
If the three-judge panel rules against federal Obamacare subsidies, sources close to the case say the administration is very likely to request an en banc ruling — a re-vote taken by the full D.C. Circuit. The math of the overall bench is friendlier to the White House: 7 judges are Democratic appointees and 4 are Republican appointees. Four of the judges were placed by President Barack Obama himself, all during his second term.
Any time you forego plain language in favor of rootless searches for legislative “intent,” you give dishonest leftists an opening. And the brute politics of the makeup of the full en banc panel — together with the malleable “intent” standard that gives those judges a warrant to write their own preferences into the law, and the text of the statute be damned — make a pro-Obama ruling from the en banc court seem likely.
Of course, the matter will likely eventually end up in the U.S. Supreme Court, unless they chicken out and refuse to hear it, which seems to me unlikely. I like our chances there better. Kennedy, often a squish, was a solid vote against ObamaCare in the previous major ObamaCare decision. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.
In fact, if the Justices were to be honest, this would be a unanimous decision against Obama in the Supreme Court. Jonathan Adler has collected some recent quotes from the Supreme Court on rewriting statutes to reflect “intent” — and even the lefties are not supportive of the idea . . . in the right case. Justice Kagan said in one opinion: “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress ‘must have intended’ something broader.” But that was said in a boring lawsuit about American Indian tribal sovereign immunity. Somehow, I think Kagan will find a different principle applies when Obama’s health care subsidies are at stake.
THE TRIUMPH OF TEXTUALISM AND THE DEATH OF APPEALS TO “INTENT”
Once conservatives understand the issues at stake in Halbig, I believe that will be the death knell for the theory that says judges should choose unexpressed intent over the plain language of a statute — at least for conservatives. Choosing unexpressed intent over plain language is how leftists have undermined the rule of law in this country for decades. It must stop. The more conservatives awaken to the issues in Halbig, the better chance we have to make it stop.
Appealing to Congress’s subjective “intent” is the subsidies’ only hope for survival. An appeal to “intent” is the only method leftists have available in this case to twist the words to their purpose. A textualist approach means most ObamaCare subsidies will be found unlawful. There is zero debate: a plain language, textualist approach in this case means Obama loses. That’s why every Democrat rejects a plain language approach in this case, and tortures the text to argue that Congress’s “intent” was to provide subsidies for all. As one of the judges said at oral argument, the legislative history is a “wash” — which at least gives Democrats a fighting chance to argue for their version of “intent.”
Notably, Nancy Pelosi and others have filed a brief (.pdf) in Halbig saying: we really meant to provide subsidies on federal exchanges. If a court elevates subjective intent over the plain language of the law, that court might well give great weight to Pelosi’s brief.
But even if Pelosi is telling the truth, that does not end the matter. Even if we foolishly looked only to “intent” and not to the plain language, the “intent” of everyone who voted would be relevant, I would think. And there’s the rub. Pelosi might have “intended” one thing, and Ben Nelson another. This shows why trying to divine legislative “intent” is a fool’s errand. As I have argued before, legislative intent should not be a judge’s focus in interpreting a law. For one thing, you can’t ever discern a collective “intent” from a collection of different politicians, except by examining what they actually said. That’s why the only reasonable way to resolve the issue is to look at the plain language of the law, and enforce that.
Forget “intent.” Intent does not matter unless it is conveyed in the language of the law. Period. This isn’t just about one result, however important that result is. Original understanding alone preserves the rule of law.
IF YOU WANT TO GEEK OUT: The law is here. Jonathan Adler’s initial post on this is here, and a follow-up is here. The lower court decision ruling for Obama is here (.pdf). Pelosi’s brief is here (.pdf). Adler and Cannon’s amicus brief is here (.pdf). A great Federalist Society blog post on the oral arguments is here. Finally, the oral arguments can be heard here. If all that is not enough, there is a comprehensive list of resources here.
P.S. One more point: properly understood, the IRS rule here is just another example of executive overreach. Congress didn’t make subsidies available on the federal exchanges, so the IRS simply wrote a rule saying they are. This must be rejected — and I think the court will.
WOW!. I sure would like to geek out, but it is way past my bedtime! Good thing the net is “forever”!
Ding.felipe (960c75) — 7/7/2014 @ 12:50 am
This looks like a sure setback for Obamacare. However, there is another challenge making its way through the courts that should kill it completely if your textual approach is applied along with the concept that documents must be interpreted to give each clause effect (to the extent possible according to the way it was written). I refer to the challenge that says Obamacare is void because it is a revenue raising bill that did not originate in the House of Representatives.
One can posit the concept that the court will finesse its way around this fault, but if so there is no way to rebut the conclusion that they chose to remove an explicit mandate from the Constitution.Ken in Camarillo (2c0dee) — 7/7/2014 @ 12:59 am
Patterico, you say: …a “state” is defined in the law as “each of the 50 States and the District of Columbia,” …and not the federal government. In the law can be seen as a bit ambiguous and could be misapplied, does that definition appear in the PP&ACA itself, or in a different law? (Sorry, if it seems like a silly question, but it’s the first thing that jumped out at me.)
Additionally, you acknowledge: I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach. I don’t wish to quibble, but didn’t Roberts reject the “textualist” approach when he held ObamaCare was indeed a tax instead of a fee as it had been so clearly and repeatedly defined?
Incidentally, I’m in full-throated agreement that Choosing unexpressed intent over plain language is how leftists have undermined the rule of law in this country for decades.ropelight (9b8f6e) — 7/7/2014 @ 4:29 am
ropelight (9b8f6e) — 7/7/2014 @ 4:29 am
I don’t wish to quibble, but didn’t Roberts reject the “textualist” approach when he held ObamaCare was indeed a tax instead of a fee as it had been so clearly and repeatedly defined?
That was where considered one way, a provision of the law would be unconstitutional, but if you made a minor revision, it would be, and that if it ppossible to construe it in a way that would be constitutional, it shold be.
The court is not governed by what Congress labeled it, except as far as far as the Anti-Injunction act is concerned, which prevents lawsuits to prevent the collection of a tax and says taxpayers can only sue for recovery.
Here we are not concerned with constitutionality, but simply “What does the law say?” not “What is is it that the law is doing?”Sammy Finkelman (cd2969) — 7/7/2014 @ 6:01 am
If the intent is what counts, why write text at all? Just have a few judges and a few legislators decide what the rest of us, or at least most of us, will be held to.
Isn’t that how we are operating already? That is if Obama also agrees to enforce the law.Amphipolis (d3e04f) — 7/7/2014 @ 6:30 am
This isn’t about law and order. This is about those in power maintaining a veneer of legitimacy.Amphipolis (d3e04f) — 7/7/2014 @ 6:31 am
As with Hobby Lobby, the real legal question was/is whether an administrative regulation should override a statute.
There was a tremendous amount arm twisting and promises regarding contraceptives, abortion, etc made to the 14 hold out pro life democrats. Without those promises, ACA would not have passed.
Same with the State vs Federal exchanges, Without Nelson getting the credit only for state exchanges.
This brings the core legal issue – should administrative regulations written by the executive branch with an expansion not in the statutory language override the statute or in the HL case over ride another statute.joe (debac0) — 7/7/2014 @ 6:49 am
Indeed. In fact, I just added this postscript, which conveys a thought I had meant to include in the original post:
P.S. One more point: properly understood, the IRS rule here is just another example of executive overreach. Congress didn’t make subsidies available on the federal exchanges, so the IRS simply wrote a rule saying they are. This must be rejected — and I think the court will.Patterico (9c670f) — 7/7/2014 @ 7:15 am
In the PPACA. Maybe I will edit the post to make this more clear, if it’s ambiguous.Patterico (9c670f) — 7/7/2014 @ 7:37 am
There you go.Patterico (9c670f) — 7/7/2014 @ 7:38 am
My question is whether Obama will ignore the court ruling. The arc of his presidency is progressive (pardon the term) action and ignoring of statutes. As he has gotten away with more, he has become more ambitious. We will never impeach the first black president (and never elect another) so he feels no threat.Mike K (b5c01a) — 7/7/2014 @ 7:43 am
Any remedy won’t happen right away, but I agree: if and when the USSC rules against him, he may just say he isn’t going to have the IRS go after people if they claim the subsidy.Patterico (9c670f) — 7/7/2014 @ 7:55 am
BarryCare is being slowly dismantled, one brick at a time, one course at a time.askeptic (efcf22) — 7/7/2014 @ 8:11 am
Like a lot of ‘comprehensive’ legislation, the bricks were stacked on a foundation of straw.
The problem is that if the courts throw out the subsidy for insurance purchased through federal exchanges, Congress will come under tremendous pressure to amend the law out of basic fairness. Given that many of those faced with losing their subsidies will be in conservative leaning states, the Republicans will bow to the pressure and agree to amend the law regardless of any desire to get rid of the law in totality.
I think the time for piecemeal challenges was over when the law went into effect January 1. A not insignificant number of people opposed to the law now have insurance through the ACA out of fear. A piecemeal approach leaves those people hanging out to dry. The only workable solution now is to repeal the law while making sure innocent Americans don’t get financially raped because of Obama’s preening arrogance.Mark Johnson (38989d) — 7/7/2014 @ 8:31 am
In the Hobby Lobby case, although they definitely diverged from what some members of Congress thought or claimedd, nobody ever made the argument, I think, that HHS was going beyond the law.
This does not tend to become an issue if the plain meaning of the text seems to allow what some members of Congress thought or claimed it didn’t, in which case they go with the plain or at least plausible meaning (there’s deference),
But it only tends to become an issue when a very straight reading of the law makes it look like it is self-defeating – i.e. nobody could have wanted to enact that.Sammy Finkelman (cd2969) — 7/7/2014 @ 8:52 am
Mark Johnson (38989d) — 7/7/2014 @ 8:31 am
Given that many of those faced with losing their subsidies will be in conservative leaning states, the Republicans will bow to the pressure and agree to amend the law regardless of any desire to get rid of the law in totality. </i.
Only retroactively. And they will also be under tremendous pressure to forgive any money owed due to faulty estimation (they'll try to carve out an exception for deliberate fraud, which won’t really work, but will enormously complicate things because there won’t be a bright line.)
And there will tremendous pressure to just plain kill the mandate.Sammy Finkelman (cd2969) — 7/7/2014 @ 8:56 am
“The main argument made by the plaintiffs along these lines goes like this: Congress limited subsidies to plans bought on state exchanges in order to provide the states with an incentive to create their own exchanges.”
Patterico – I would suggest the above argument of the plaintiffs is even stronger. Democrats held out the subsidies and money as a way of coercing states into setting up their own exchanges and expanding medicaid. They were stunned when so many states did not take the bait. The legislative language is clear. Using the administrative apparatus of the government after the fact to correct later discovered flaws of drafting is not the job of the courts to bless.
Assuming the court does the right thing and cures the administrative law overreach, does it create any problems for Republicans? With only a questionable eight million enrolled via Obamacare so far and a large chunk of those via Medicaid, why should it?daleyrocks (bf33e9) — 7/7/2014 @ 9:00 am
If you’re a lobbyist, you probably want the court to rule in favor of strict textualism, because then you can sneak provisions into the law that only a few members of Congress realize the implications of, or even realize at all, and furthermore, that way, at least you cabn know for more certain, what the law does.Sammy Finkelman (cd2969) — 7/7/2014 @ 9:08 am
And there will tremendous pressure to just plain kill the mandate.
Most people who buy health insurance would buy it without the mandate. So this is no solution, really. The problem is that the private market is thoroughly broken.
Given that the previously excluded sick are buying insurance in the same pool as the self-employed and early retired, those prices have doubled and are likely to go up again next year. Since there is no way to buy insurance in a pool that excludes expensively-sick people, the subsidies are needed by a lot of middle-class folks. It is just not practical to expect people to shell out $1500 a month for insurance, nor is reasonable for people in their 50’s and 60’s to go without.
So, killing the mandate will only accomplish two things: release a lot of young folks from this disaster (good as far as it goes), but drive the prices up even further for older people in Obamacare’s Sacrifice Zone.Kevin M (b357ee) — 7/7/2014 @ 9:22 am
daleyrocks (bf33e9) — 7/7/2014 @ 9:00 am
Patterico – I would suggest the above argument of the plaintiffs is even stronger. Democrats held out the subsidies and money as a way of coercing states into setting up their own exchanges and expanding medicaid.
They definitely wanted to coerce the states into expanding Medicaid (and thought the coercionwas overwhelming, as it was with the 18-year old drinking age and the 55 mile per hour speed limit) but the Supreme Court ruled that such coercion could not be used, and it had to be less forcing,
and they rewrote the law.
The threat there was to stop all support for Medicaid.
Here the “threat” was different. Not to give subsidies. But if that was the intent, and of that wa sthe threat, the question is, why bother with a federal exchange at all??
What does the federal exchange accomplish, if there are no subsidies for policies bought on such an exchange?
It’s not like the law said that a state can take it over, or pay for it. It’s not like there is no other way to buy insurance. It’s not like they really need to compete with ehealthinsurance.com. It’s not like ehealthinsurannce.com will offer insurance policies that do not meet the requirements of avooding the penalty for not buying insurance. They should have then just left things alone, and not put in any provision for a federal exchange!
With only a questionable eight million enrolled via Obamacare so far and a large chunk of those via Medicaid, why should it?
The federal exchange was supposed to facilitate enrollment in Medicaid – so that’s one thing it does – but that part was not or is not working – a person had to contact Medicaid separately aanyway, so it only functioned as a calculator.
The federal exchange may still serve some other purposes besides granting subsidies, but having it useless for getting subsidies would seem to be a too important provision or non-provision of the law for it to have been tossed in casually, and determined only by a careful checking of cross-references. (an elephant, that is, hidden in a mousehole.)Sammy Finkelman (cd2969) — 7/7/2014 @ 9:22 am
Mark Johnson (#14) is exactly correct. The pressure will be enormous as the principal red-state beneficiaries of the subsidies are small family farmers and other rural self-employed.
The only real issue is what the Republicans can get for it. There might not be anything meaningful to get out of Obamacare, but an IRS Special Prosecutor would be a simple thing to try for. Hard to impossible for Obama to veto without having people ask why.Kevin M (b357ee) — 7/7/2014 @ 9:27 am
daleyrocks (bf33e9) — 7/7/2014 @ 9:00 am
Assuming the court does the right thing and cures the administrative law overreach, does it create any problems for Republicans? With only a questionable eight million enrolled via Obamacare so far and a large chunk of those via Medicaid, why should it?
The mandatory issuance of policies and the non-exclusion of pre-existing conditions may continue in the law. There is no issue of severability because here they are only interpreting what the law says.
The result is you start to head into an insurance death spiral, but insurance companies find clever ways to avoid marketing to the sick, like excluding cancer medications, or marketing only to people who attend meetings, or limiting themselves to employment based nsurance.Sammy Finkelman (cd2969) — 7/7/2014 @ 9:28 am
Without subsidies, more people don’t buy insurance and perhaps are excused.
Obamacare will collapse anyway economically, irregardless.Sammy Finkelman (cd2969) — 7/7/2014 @ 9:30 am
14. 21. I tend to agree but any law passed is likely to be limited, so it probably will only continue subsidies for the year 2014 and 2015, and possibly, 2016. It also likely will forgive most people from having to pay back money. More hospitals will go bankrupt.Sammy Finkelman (cd2969) — 7/7/2014 @ 9:33 am
“They definitely wanted to coerce the states into expanding Medicaid”
Sammy – Exactly. And they definitely wanted states to set up insurance exchanges. They threatened to withhold all Medicaid funds from states which did not expand Medicaid, but that threat was ruled unconstitutional by the Supreme Court. The parallel threat construction of withholding subsidies on exchanges not established by states has not been finally judicially settled at this point, but it illustrates the form of thug government practiced by the administration.
“What does the federal exchange accomplish, if there are no subsidies for policies bought on such an exchange?”
It allows people to people to comparison shop for insurance policies offered for sale which comply with Obamacare within a given state. It functions the same as a state exchange, although my state exchange redirected me HHS.gov right off the bat for some reason.daleyrocks (bf33e9) — 7/7/2014 @ 9:37 am
“What does the federal exchange accomplish, if there are no subsidies for policies bought on such an exchange?”
Sammy – The states avoid directly paying for setting it up and maintaining it on their own!daleyrocks (bf33e9) — 7/7/2014 @ 9:51 am
In fact, if the Justices were to be honest, this would be a unanimous decision against Obama in the Supreme Court
If my grandma had balls, she’d be my grandpa.Kevin M (b357ee) — 7/7/2014 @ 9:57 am
“If my grandma had balls, she’d be my grandpa.”
If the sweet, attractive Dana who now writes blog posts here were in fact the adjectival Dana, I would ask her to make me a sammich.daleyrocks (bf33e9) — 7/7/2014 @ 10:06 am
this underscores why Team R needs real senators in place not senile cowardly ones what would sell out god and country in exchange for some sweet sweet pork monieshappyfeet (8ce051) — 7/7/2014 @ 10:12 am
It also goes to show why we should have pulled the nuclear option pin when we could. Doesn’t “Chief Justice Janice Rogers Brown” have a nice ring to it? W could have filled up all the courts as Obama is now doing. A hundred more Thomases and Scalias instead of all the new Reinhardts and Thelton Hendersons were are getting.Kevin M (b357ee) — 7/7/2014 @ 10:35 am
Meghan’s coward daddy forms gangs to prevent such things Mr. M
#theydidsomethingtohisbrainhappyfeet (8ce051) — 7/7/2014 @ 10:42 am
“What does the federal exchange accomplish, if there are no subsidies for policies bought on such an exchange?”
daleyrocks (bf33e9) — 7/7/2014 @ 9:51 am
Sammy – The states avoid directly paying for setting it up and maintaining it on their own!
What is the point of having a federal exchange if it doesn’t do the most important thing a tate exchange does – the thing that a private exchange is excluded from doing?
They could have left the law as it was, except just not have set up a federal exchange. What’s the point of the federal exchange??
It’s not like there’s some standing offer to let a state take its portion over in some way.
Is the point to list all the qualified health plans that are eligible to avoid the penalty? But not all are listed.
It is more logical to assume that when this provision was written somebody didn’t check the cross-references and realize that the provision that limited subsidies to state exchanges had to be amended, or this section had to specificaly state that tax credits could be given for policies purchased on it too.
Section 1311, paragraph d says what an exchange does.
Premium tax credits are in Schedule E Section 1401
I am not sure where it says that only policies ourchased through a state exchange qualify for the tax credit.Sammy Finkelman (cd2969) — 7/7/2014 @ 10:47 am
In page 214, it seems to say that this applies to an exchange established under Section 1311 (a more key provision than that the exchange be established by a state)
Section 1321 (c) (A) and (B) talks about what happens if a state fails to establish an exchange that satusfies the Secretary of HHS.
In that case they should operate such an exchange.
I believe that, if, this is to be interpreted as not fully taking the place of a state exchange, there should never have been created a healthcare.gov, but separate exchanges should have been established for every state, with each state invited to take it over. That interpretation is possibly tenable.
If the law is to be interpreted that way, there should have been created exchanges that a state could take over the management of, and an injunction could be issued against the continuation of healthcare.gov, because that’s not what the law contemplates.Sammy Finkelman (cd2969) — 7/7/2014 @ 11:28 am
Sammy is endlessly verbose.JD (7a6611) — 7/7/2014 @ 12:57 pm
It comes down to, that, if the plaintiffs in Halbig v. Sebelius are correct, there never was supposed to be a healthcare.gov, only state exchanges that the federal government would prepare for a state if a state didn’t.
Because, actually I see there’s no provision the creation of a federal exchange.Sammy Finkelman (cd2969) — 7/7/2014 @ 1:18 pm
No, that is not what it comes down to.JD (7a6611) — 7/7/2014 @ 1:28 pm
Read the law.
Section 1321 says nothing about the creation of any federal exchange.Sammy Finkelman (cd2969) — 7/7/2014 @ 1:33 pm
“this underscores why Team R needs real senators in place not senile cowardly ones what would sell out god and country in exchange for some sweet sweet pork monies”
Mr. Feets – I’m wif you! We need to punish the Team R Senators what voted for Obamacare.daleyrocks (bf33e9) — 7/7/2014 @ 1:43 pm
THERE NEVER WAS SUPPOSED to be any such thing as healthcare.gov.
That’s why the tax credit provisions ARE NOT WRITTEN TO APPLY to it.
What the law does say is that if a state does not create a proper state exchange..
There are only supposed to be a lot of independent exchanges, at least one per state that didn’t create one, and it is contemplated that HHS could arrange for some non-profit organization to operate one or more.
Now – do the words “such exchange” mean that all provisions of the law that apply to state exchanges apply to one like this too?
That is the crux of the case.Sammy Finkelman (cd2969) — 7/7/2014 @ 1:47 pm
“What is the point of having a federal exchange if it doesn’t do the most important thing a tate exchange does – the thing that a private exchange is excluded from doing?”
Sammy – I appreciate that your opinion is that the most important thing a state exchange does is calculate premium subsidies, but not everybody shares that opinion, especially people needing to buy insurance who are not eligible for subsidies.daleyrocks (bf33e9) — 7/7/2014 @ 1:49 pm
If it can’t fulfill all the purposes of a state exchange, then how can it be “such exchange?”
Are we just talking computer software?Sammy Finkelman (cd2969) — 7/7/2014 @ 1:49 pm
What it comes down to is should people without state exchanges be liable for the penalty without a subsidy, or should they be liable for the penalty and not get a subsidy. This lawsuit, according to the District court, is barred by the Anti-Injunction Act when it comes to the penalty, and that part of the District court’s opinion sounds right. The way to challenge a tax in an Article III court is to pay it and sue for refund, I’ve always been told. So it comes down to the plaintiffs asking to be deprived of their subsidy because it’s illegal and they don’t want something that’s illegal. Also, the subsidy raises their income so they don’t qualify for an exemption from the penalty because of low income. I don’t envy the Court of Appeals panel. Sitting an equity, they must choose between either equitable and illegal (the government) or inequitable and legal (the plaintiffs). Talk about it, shout about it, what you got to choose, any way you look at this you lose. Am I close?nk (dbc370) — 7/7/2014 @ 1:51 pm
“Notably, Nancy Pelosi and others have filed a brief (.pdf) in Halbig saying: we really meant to provide subsidies on federal exchanges”jb (c49323) — 7/7/2014 @ 1:51 pm
why would Pelosi have standing on this?? house of Reps didn’t write the bill I thought it was the Senate?
“THERE NEVER WAS SUPPOSED to be any such thing as healthcare.gov.
That’s why the tax credit provisions ARE NOT WRITTEN TO APPLY to it.”
Sammy – Exactly. The federal government thought they would coerce every state into creating its own exchange and did not anticipate the resistance they met. Now they are trying to pretend to they anticipated it all along through amending the law administratively rather than legislatively because they screwed up.daleyrocks (bf33e9) — 7/7/2014 @ 1:52 pm
What it comes down to is should people without state exchanges be liable for the penalty without a subsidy, or should they be liable for the penalty andnk (dbc370) — 7/7/2014 @ 1:53 pm
notget a subsidy.
“What is the point of having a federal exchange if it doesn’t do the most important thing a tate exchange does – the thing that a private exchange is excluded from doing?”
40. daleyrocks (bf33e9) — 7/7/2014 @ 1:49 pm
Sammy – I appreciate that your opinion is that the most important thing a state exchange does is calculate premium subsidies,
Actually, it doesn’t calculate it at all. That’s done in Washington. A state exchange feeds information to Washington and gets information back – a process that wasn’t working – and establishes who is eligible for such a subsidy – to wit, only people who enroll through such an exchange are eligible.
but not everybody shares that opinion, especially people needing to buy insurance who are not eligible for subsidies.
Yes, it also rates insurance policies, and is supposed to be clearinghouse, and every policy listed there is supposed to be a “qualified policy”Sammy Finkelman (cd2969) — 7/7/2014 @ 2:00 pm
Look at this:
But, we see later on, HHS can do this if a state doesn’t.Sammy Finkelman (cd2969) — 7/7/2014 @ 2:00 pm
==THERE NEVER WAS SUPPOSED to be any such thing as healthcare.gov. That’s why the tax credit provisions ARE NOT WRITTEN TO APPLY to it.==
==If the law is to be interpreted that way, there should have been created exchanges that a state could take over the management of, and an injunction could be issued against the continuation of healthcare.gov, because that’s not what the law contemplates.==
Ha. The old Woulda Coulda Shoulda, Sammy? Have you forgotten that when this POS was cobbled together nobody had a clue what was in it or how it was going to work? Of course it’s effed up. Thank goodness the most important part about being able to keep our plans and keep our doctors worked out OK, tho.elissa (b62c4b) — 7/7/2014 @ 2:03 pm
There was a provision that none of the costs of operating an exchange would be paid for by he federal government after January 1, 2015. (however these costs are rather small.)Sammy Finkelman (cd2969) — 7/7/2014 @ 2:06 pm
daleyrocks, welcome back! You were missed.elissa (b62c4b) — 7/7/2014 @ 2:06 pm
“Actually, it doesn’t calculate it at all.”
Sammy – If somebody attempting to purchase a policy via an exchange does not see a calculation of their subsidy during the purchase process, then what point have you been attempting to make about the most important function provided by an exchange all day? What function is that? Please clarify?
Running around with the goal posts and saying the calculation is actually done by Washington, and that an exchange is a clearinghouse for approved policies does nothing for me. What was the most important function you claimed an exchange served earlier?daleyrocks (bf33e9) — 7/7/2014 @ 2:08 pm
The simple text of the law, Sammy, only allows for subsidies for State exchanges, and clearly defines what State exchanges are. The rest is noise.JD (285732) — 7/7/2014 @ 2:09 pm
elissa – Thank you.
I’m just glad my Obamacare policy gives me maternity coverage in case I’m punished wif a baby.daleyrocks (bf33e9) — 7/7/2014 @ 2:12 pm
elissa (b62c4b) — 7/7/2014 @ 2:03 pm
The old Woulda Coulda Shoulda, Sammy? Have you forgotten that when this POS was cobbled together nobody had a clue what was in it or how it was going to work?
That’s exactly the problem with this thing. It wasn’t carefully written. But the decision to establish healthcare.gov was made after the law was signed. That’s a problem with not following what the law said.
What they should have done, if you read the law, is establish separate exchanges for each state. Healthcare.gov can only be justified by saying that’s what it is. It’s one portal, but separate exchanges.Sammy Finkelman (cd2969) — 7/7/2014 @ 2:19 pm
Of course it’s effed up. Thank goodness the most important part about being able to keep our plans and keep our doctors worked out OK, tho.
That was never in the law. That was just Barack Obama, and members of Congress, talking. He knew it would not be true for at least 2% of the people, but figured that was such a small percentage it didn’t matter.
He later explained that only 5% of the people bought individual insurance policies, and the prmise he made could only apply to them, since the only people now who have the power to keep their doctor, are people buying individual insurance policies (the others being at the mercy of the group plan managers) and the majority of those 5% would not like their doctor so much that they would want to keep their old policy – let’s say that’s around 60% – that comes out to 3% and it follows then that only 2% of the population would not be satisfied.
And, as an Abraham Lincoln more or less said, if you fool only 2% of the people, that’s so few that that won’t interfere with your re-election.
Yes, he really said something very close to that.
In other words, only about 2% of the population can feel betrayed, and that’s too small a fraction of the population to take into account. ,Sammy Finkelman (cd2969) — 7/7/2014 @ 2:30 pm
I’d recommend you take a fiber supplement, but I’m afraid it’s your brain that is, uh, congested.Elephant Stone (6a6f37) — 7/7/2014 @ 2:32 pm
I second elissa’s “welcome, you were missed.”Elephant Stone (6a6f37) — 7/7/2014 @ 2:34 pm
Hope all is well.
You’ve missed stuff that is so upside down that it would make you root for the Green Bay Packers.
(I’m assuming you root for ‘da Bears.)
The individual market really was more like around 8%, and it’s obvious that a law could greatly increae the probability of not being able to keep your plan or doctor, even if now it wasn’t guaranteed.
The pledge had to be understood as not making the situation worse.
And actually it’s people in the individual market, who may have had the greatest probability of not being able to renew their plans and keep their doctors under the old law.Sammy Finkelman (cd2969) — 7/7/2014 @ 2:41 pm
Are you kidding? That was after the fact! I can’t believe you’re pushing this bu!!S!t. He knew people would misconstrue what he said, that’s why he didn’t clarify his remarks.Hadoop (f7d5ba) — 7/7/2014 @ 2:44 pm
“He knew it would not be true for at least 2% of the people, but figured that was such a small percentage it didn’t matter.”
Sammy – BS! He knew it was true for virtually everybody with private sector provided health insurance, since every plan had to become Obamacare compliant. In order to limit cost increases that meant narrowing provider networks, increasing deductibles, etc. The bulk of the pain has just been delayed for most Americans by Barky continually pushing out the employer mandates.daleyrocks (bf33e9) — 7/7/2014 @ 2:47 pm
“Hope all is well.”
ES – Therapeutic Breast Massage business is absolutely booming!
Let Unca Daley Turn Your Frown Upside Down
As Seen In The Movies – Mr. Miyagi’s Incredible Lotion Motion
Lotion On — Lotion Off
Donna Summer and Barry White mood music seems to be a big success.
Many happy errrr… Outcomesdaleyrocks (bf33e9) — 7/7/2014 @ 2:52 pm
52. JD (285732) — 7/7/2014 @ 2:09 pm
The simple text of the law, Sammy, only allows for subsidies for State exchanges, and clearly defines what State exchanges are. The rest is noise
The simple text of the law indicates that the only kind of exchange that can exist is one operated by a single state, unless…
Section 1311,(d) (6) (f) (1) (A)
Later, another section (1321) (c) (1) (b) comes in to add that the Secretary of HHS can create and operate “such” an “exchange” (a single state one, that is)
See top of page 176 and bottom of page 186 in case I made a mistake with the numbers and the letters.
http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdfSammy Finkelman (cd2969) — 7/7/2014 @ 2:53 pm
“And then for people who don’t have any health insurance at all, obviously that didn’t apply. My commitment to them was you were going to be able to get affordable health care for the first time.”
Sammy – How is Obama’s commitment working out so far? A shady 8 million out of the 50 million they fear mongered about? Does not seem very good.daleyrocks (bf33e9) — 7/7/2014 @ 3:00 pm
“He knew it would not be true for at least 2% of the people, but figured that was such a small percentage it didn’t matter.”
daleyrocks (bf33e9) — 7/7/2014 @ 2:47 pm
Sammy – BS!
I agree, because the promise seemed to be addressed to everyone, and thus, seemed to improve your ability to keep your plan.
He knew it was true for virtually everybody with private sector provided health insurance, since every plan had to become Obamacare compliant. In order to limit cost increases that meant narrowing provider networks, increasing deductibles, etc.
Which changes your plan, (even if it was vulnerable to being changed before) and makes it less likely you can eep your doctor.
But Obama and his people may have figured that as long as it could be claimed that what he said was technically true – at least for 98% of the population – he had a defense against being accused of being a liar.
The bulk of the pain has just been delayed for most Americans by Barky continually pushing out the employer mandates.
Very very true.
And there will be a lot of screaming from the other people when the IRS recalculates the subsidies and Medicaid sends some people enormous bills.
Coming next spring.Sammy Finkelman (cd2969) — 7/7/2014 @ 3:01 pm
The left wingers want to seize as much control over health care as possible because they thirst for power over everyone.Elephant Stone (6a6f37) — 7/7/2014 @ 3:10 pm
Why is this so difficult for you to grasp ?
Sammy – Still waiting. What is the most important function of an Exchange that you were claiming earlier?daleyrocks (bf33e9) — 7/7/2014 @ 3:12 pm
“at least for 98% of the population – he had a defense against being accused of being a liar.”
Sammy – He may have a defense to use with 98% of those who believe he is the Messiah, but not the rest of the population who believes he lies every time he opens his mouth.daleyrocks (bf33e9) — 7/7/2014 @ 3:14 pm
Sammy still believes that the Whitewater documents which were amazingly “found” in Hillary’s office, just happened to fall out of the sky.Elephant Stone (6a6f37) — 7/7/2014 @ 3:16 pm
I think that despite all evidence to the contrary Sammy still believes that this administration and government officials in general are honorable, are there primarily to selflessly serve the public good, and to keep us safe from both external and internal harm. It’s kind of sweet really.elissa (b62c4b) — 7/7/2014 @ 3:26 pm
ES – People have no reason to believe Hillary was lying about suddenly finding them out of the blue.daleyrocks (bf33e9) — 7/7/2014 @ 3:27 pm
68. Elephant Stone (6a6f37) — 7/7/2014 @ 3:16 pm
Sammy still believes that the Whitewater documents which were amazingly “found” in Hillary’s office, just happened to fall out of the sky. Or something.
No, I don’t. What was “found” in Hillary’s possession were Rose Law firm billing records/
They did another thing.
Items removed from Vincent Foster’s office were subpoenaed. They pretended this was about Whitewater (a known, and relatively minor scandal, where the statute of limitations had expired) rather that other illegal or politically damaging secrets, like about events leading up to the Waco fire, or secret political alliances.
They had these files sent to Little Rock, mixed up with other files, and then Whitewater related documents selected out of them. So as to make people believe that the secrets Vincent Foster was protecting concerned Whitewater.Sammy Finkelman (cd2969) — 7/7/2014 @ 3:54 pm
elissa (b62c4b) — 7/7/2014 @ 3:26 pm
I think that despite all evidence to the contrary Sammy still believes that this administration and government officials in general are honorable,
It depends on the subject matter, and it depends on what their track record is.
I also think some types of accusations are kind of absurd. i.e., not so good people don’t want to destroy the country – they want to benefit themselves.Sammy Finkelman (cd2969) — 7/7/2014 @ 3:58 pm
Ok, so what’s their track record, champ ?Elephant Stone (6a6f37) — 7/7/2014 @ 4:00 pm
Elephant Stone (6a6f37) — 7/7/2014 @ 4:00 pm
Ok, so what’s their track record, champ ?
It depends on the person.Sammy Finkelman (cd2969) — 7/7/2014 @ 4:11 pm
As usual, you can’t actually provide an answer.Elephant Stone (6a6f37) — 7/7/2014 @ 4:15 pm
Except that it did, technically. The textual meaning of the constitution has been satisfied. That isn’t what the framers and ratifiers meant, but it is the literal meaning of what they wrote.Milhouse (b95258) — 7/7/2014 @ 6:43 pm
The text of the Constitution states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
What revenue raising bill originated in the House of Representatives? Can you cite the House bill and tell me what revenue it was going to raise?Patterico (9c670f) — 7/7/2014 @ 6:48 pm
No, he didn’t. He acknowledged what the law said, but he also pointed out that Congress has been known to lie, and the courts have not been in the habit of deferring to those lies. He cited a very apposite precedent from the 1930s, when Congress told the opposite lie; they imposed an unconstitutional penalty, and pretended it was a tax. The court, quite properly, saw through the charade and struck it down. It said that if it walks like a penalty and quacks like a penalty, it’s a penalty, no matter what Congress chooses to call it. So Roberts took the same approach here, showing all the ways in which this so-called penalty did not match the definition of a penalty, and did matched that of a tax. He pointed out that Congress had a very good reason to lie: tax raises are unpopular, and it would never have passed if they’d called it what it is, so it’s no surprise that they decided to call it something else. But if you call a tail a leg, a dog still has only four legs.Milhouse (b95258) — 7/7/2014 @ 6:48 pm
You might have had a fig leaf of a point if ObamaCare had originated as a House bill that raised revenue, albeit in a different way than ObamaCare did.
But it didn’t.Patterico (9c670f) — 7/7/2014 @ 6:49 pm
They did not expect all states to build exchanges. They hoped most would, but they always anticipated that some would refuse, so they created the federal exchange to serve the citizens of those benighted states, at least until those states buckled under the pressure and went along with the rest of the country.
In any case, it doesn’t matter why they did it. It’s not as if they read the bill before voting on it, and carefully considered each provision. There could easily be all sorts of useless provisions in it, but they’re still the law. All that matters is that this is what the law says, and the courts and government ought to be bound by it.Milhouse (b95258) — 7/7/2014 @ 7:03 pm
sammy – what kind of balls does obama play with?mg (31009b) — 7/7/2014 @ 7:08 pm
and how do you keep them clean?
If all the legalese has your head spinning, here’s all you need to know:
1) The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under 1311.”
2) The ACA says that if the state does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.”
3) Follow me here: when the HHS Secretary establishes an exchange, the exchange was established by the HHS Secretary.
4) The HHS Secretary is not a “state.”
5) So when the exchange was established by the Secretary, it was not established by the state.
That’s pretty much it.Patterico (9c670f) — 7/7/2014 @ 7:08 pm
Except there aren’t any. The entire Team R, including Snow, Cochran, Graham, and all the other “RINOs” came through on that vote.Milhouse (b95258) — 7/7/2014 @ 7:34 pm
Um, for it to be law, both houses had to pass it. Which gives them both the same standing to explain what they meant. Which is none, since the leadership has no idea what motivated each individual member.
As for who drafted it, why would their opinions matter at all? The draftsmen have no legislative powers.Milhouse (b95258) — 7/7/2014 @ 7:38 pm
Thanks, appreciate #82.Dana (4dbf62) — 7/7/2014 @ 7:52 pm
“What revenue raising bill originated in the House of Representatives? Can you cite the House bill and tell me what revenue it was going to raise?”
Patterico – The Senate used HR3590 which was unanimously passed by the House in 2009. It gave tax breaks to members of the military buying or selling homes. The Senate stripped out the content and substituted the PPACA. So the bill did originate in the House, just with a different original purpose.daleyrocks (bf33e9) — 7/7/2014 @ 7:57 pm
“Except there aren’t any.”
Milhouse – That was my point Captain Obvious.daleyrocks (bf33e9) — 7/7/2014 @ 7:58 pm
Congress can construe its own statutes. It can say that the HHS/IRS regulations are in accordance with the statute and no further action is required. The same way a law gets passed, by a majority of both houses. Pelosi’s letter is meaningless, for the reasons Milhouse said and more.nk (dbc370) — 7/7/2014 @ 7:58 pm
It was H.R. 3590, then called the “Service Members Home Ownership Tax Act of 2009”.
I don’t think it was intended at the time to raise revenue, though it did increase a minor penalty by $21, and slightly raised some percentage or other. But that doesn’t matter. All the constitution says is that a revenue-raising bill, which HR 3590 became, has to originate in the House, which it did. It doesn’t say that it has to have been a revenue-raising bill at the time it originated.
Consider a normal case, one more like what the framers and ratifiers had in mind: the House passes a bill to reform the dairy industry, and the Senate amends it by adding an excise on milk, and sends it back to the House, which concurs. Would you say that violates the origination clause? I don’t think so. Well, techinically PPACA is just an extreme example of the same thing. A ridiculously extreme example, and if the framers and ratifiers had thought of it they’d probably have admended the clause to prevent it, but they didn’t.Milhouse (b95258) — 7/7/2014 @ 8:03 pm
Also, an exchange established by the secretary was not established under section 1311, which is what the subsidy says it applies to.Milhouse (b95258) — 7/7/2014 @ 8:05 pm
==Milhouse – That was my point Captain Obvious.==
OTOH, daley, it never hurts to repeat the obvious for all our friends who believe and constantly state that there is absolutely no difference between a “RINO” and a Democrat –and that trying to take the Senate is not really all that important.elissa (b62c4b) — 7/7/2014 @ 8:05 pm
Yes, I thought it might be. But the way some people have been raging about the RINO senators lately (and with just cause) I think a lot of pople have forgotten it.Milhouse (b95258) — 7/7/2014 @ 8:08 pm
Here you go, guys. It’s a short opinion. http://www.law.cornell.edu/supremecourt/text/495/385 If you don’t want to read the whole thing, from Scalia’s concurrence: “This Court may thereby have the last word on what constitutes a bill for raising revenue, and Congress the last word on where a particular bill has originated—which seems to me as it should be.”nk (dbc370) — 7/7/2014 @ 8:28 pm
Here’s the thing…Congress expressly waived a severability clause when they passed the ACA. This meant that if any part of it fell to Judicial Review, the entire thing was vitiated – GONE. What did our sainted Chief Justice do? He decided that Congress simply forgot to write in the severability clauses, despite the uncontested briefs to the contrary.
I love you, Pat. But, you are delusional if you think the Judiciary is going to do significant damage to the ACA. Just as Congress is punting the whole thing, so too, is SCOTUS.Ed from SFV (3400a5) — 7/8/2014 @ 2:23 am
Right. The original bill was not one that raised revenue.
Here, I think, we have an actual case of ambiguity. The Constitution says “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Does that require that the bill that originated in the House have been a “bill for raising revenue” in the House? Or can you just take any old bill, even one that doesn’t raise revenue, that originated in the House, and strip it clean and replace it with a bill that does raise revenue?
You portray the only “textual” answer as the latter, but that is not self-evident. I think it’s ambiguous. I don’t think there is a precedent out there for stripping a non-revenue-raising bill and replacing it with one that does raise revenue, as was done here.
And when the language is actually ambiguous, you can (in my view) look to evidence of the original understanding of the language. Which can include expressions of “intent” on the part of the drafters — but only to the extent that such evidence sheds light on the original understanding.
And you can never use the “intent” to rewrite the actual text. You can only use “original understanding” to resolve an ambiguity.
This is all an academic discussion, obviously. The Origination Clause litigation, it seems, is headed nowhere. And if it got to the USSC, it appears from Scalia’s opinion, cited above by nk, that he would not be inclined to invalidate ObamaCare based on it.
I bring it up only to address your claim, which I reject, that the text is clear.Patterico (9c670f) — 7/8/2014 @ 6:47 am
95. What goes on with revenue raising bills is clearly not the original intent, but doing something like that has precedent going back to the 1790s.
It could be the Supreme Court will come up with some way to police this.
Right now the only meaning of this clause is that any bill that raises taxes must be called HR something or otehr and not Sen something or other.
You would think maybe, if the bill is uncontroversial, the Senate would at least keep the original language, instead of discarding a bill.Sammy Finkelman (d22d64) — 7/8/2014 @ 2:01 pm
66. daleyrocks (bf33e9) — 7/7/2014 @ 3:12 pm
Sammy – Still waiting. What is the most important function of an Exchange that you were claiming earlier?
To qualify purchased policies for subsidies and tax credits. Theer’s no other reaosn for anyone to use the exchange, except convenience.
The bill says that only exchanges established under section 1311 can do that. Then section 1321 come alomng and says that if a state does not establish an exchange, or one to the liking of the Secretary of HHS, the Secretary of HHS can establish “such exchange”
But the language about tax credits in Section 1401 is not amended to say Section 1311 or Section 1321. It actually seems to be a SEC. 36B under Section 1401.
Nor is Section 1321 added any other place section 1311 is referenced in other portions of the bill.Sammy Finkelman (d22d64) — 7/8/2014 @ 2:12 pm
If Nancy Pelosi and others have filed a brief saying “we really meant to provide subsidies on federal exchanges”, then that shows that the law does not state that. That is an admission that they made a mistake in writing the law.
The resolution to this supposed oversight isn’t to have a court rule on intent. The solution is for the law to be amended/updated via the Legislative process.
Interpreting based on intent is a slippery slope. Where is the line drawn? How much should the judicial branch delve into this massively gray area?Rex Remes (4cc030) — 7/9/2014 @ 9:33 pm