The Supreme Court hears an Obamacare fairytale

[werepossum]

There's only one problem with that, and that's the rest of the ACA. The ACA clearly says that only qualified individuals can enroll in exchanges, and defines qualified individuals like this:



http://business-law-review.law.miam...15/02/Jost-Engstrand-Anomalies-in-the-ACA.pdf

If 'state' can only mean individual states, that means that federal exchanges can exist but would be legally barred from enrolling anyone. The only way to get around it is to decide that the ACA means only states in some parts and states and federal in other parts when it references 'state'.

Does that seem like the best interpretation to you?

Seems like the bill was written by schizophrenic idiots to me. Anyone who uses "state" to mean "state" in some places but "state or federal government" in other places has absolutely no business writing law. Or voting on law, interpreting law, reading law, or walking outside without a helmet. But I suppose we now live in Proggieworld, where every single word from "is" on up can mean literally anything you need it to mean at a given time.

Doesn't really matter as however one interprets it, the law is contradictory. In this case (as Scalia has pointed out) SCOTUS must either invalidate it (usually through severability) or interpret it as to the framers' intent. Seems pretty clear that the intent was to have the federal exchange substitute for non-existent state exchanges, and there's nothing clear to indicate the framers intended to penalize citizens whose states did not set up exchanges. Gruber's statement is crystal clear, but has nothing to do with Obamacare's interpretation as while he was its architect, he has no official standing in it. And as Scalia has also pointed out, SCOTUS has no business invalidating a law unless it's un-Constitutional or its intent cannot be reasonable determined.

Also, a non-trivial number of Americans live outside of states, including in D.C. itself. I wouldn't even think it would be legal to write a law which categorically excluded D.C. residents from a defined federal benefit, and no one thinks Congress' Democrats (Gruber obviously aside) would intentionally do so. So there are at least two valid reasons to rule against King, Gruber's clear intentions aside.

 

[Fern]

When he made the remarks there was no Fed exchange.

I don't know what importance you're trying to attribute to the fact that the fed exchange didn't yet exist. It was 2012, no exchange, fed or state, existed at that time.

Furthermore, the questioner was specifically asking Gruber about the fed exchange:

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.

Show me explicitly where he says that if there is a Fed Exchange and the states don't create a State exchange, their residents will be denied tax credits. You won't because you are extrapolating his words in a way to suit ur bias.

Once again:

I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.

What would be the point of a fed exchange if state residents couldn't get subsidies on them?

So those people could purchase an HI plan that qualified under Obamacare.

Fern

 

[Fern]

There's only one problem with that, and that's the rest of the ACA. The ACA clearly says that only qualified individuals can enroll in exchanges, and defines qualified individuals like this:



http://business-law-review.law.miam...15/02/Jost-Engstrand-Anomalies-in-the-ACA.pdf

If 'state' can only mean individual states, that means that federal exchanges can exist but would be legally barred from enrolling anyone. The only way to get around it is to decide that the ACA means only states in some parts and states and federal in other parts when it references 'state'.

Does that seem like the best interpretation to you?

I appreciate the argument that you're trying to make. However, I don't feel that you (or anybody else I've seen so far) has adequately explained the problems caused by the plaintiff's interpretation. (I mean besides the problem of no credits.)

I see many claims of problems, but they are not sufficiently explained.

At this point I do not see why answer to no credits is simply 'no credits'. I.e., the federal exchange is merely there to provide the various options for policies comporting with Obamacare standards, whether they be Bronze, Silver or Gold plans.

Fern

 

[fskimospy]

I appreciate the argument that you're trying to make. However, I don't feel that you (or anybody else I've seen so far) has adequately explained the problems caused by the plaintiff's interpretation. (I mean besides the problem of no credits.)

I see many claims of problems, but they are not sufficiently explained.

At this point I do not see why answer to no credits is simply 'no credits'. I.e., the federal exchange is merely there to provide the various options for policies comporting with Obamacare standards, whether they be Bronze, Silver or Gold plans.

Fern

The problem is that under that reading the federal government would be creating an exchange to enroll people in health insurance that couldn't enroll people in health insurance.

It's not like a Sears catalog where you can just list prices, they differ based on a bunch of different variables. (Which is why your final premium isn't known until you enroll) So basically the federal exchanges would be informational sites only that wouldn't provide the information people needed. The world's most expensive and useless PSA.

It's hard to imagine that's what congress intended, those "your brain on drugs" commercials notwithstanding.

 

[emperus]

I don't know what importance you're trying to attribute to the fact that the fed exchange didn't yet exist. It was 2012, no exchange, fed or state, existed at that time.

Furthermore, the questioner was specifically asking Gruber about the fed exchange:





Once again:





So those people could purchase an HI plan that qualified under Obamacare.

Fern

The Fed exchange didn't exist at that time. Some State exchanges did (CA and MA to name a few). There was debate whether the Fed exchange would be done in time. The Fed exchange was supposed to be a backstop for the State exchange which gave out the subsidy (what does that statement mean to you). The Fed exchanges weren't created yet and there was debate whether they would be created in time. So he was saying that if the States don't create one the State Residents won't get their subsidies because there will be no backstop (Fed exchange). He even thinks the Feds are delaying the exchange (on purpose) to force the States to create their own exchanges so that the residents will get their tax credits.

No one who drafted the bill, no one who was against the bill believed otherwise. What makes you think that this one person who was instrumental in creating a MA exchange would believe otherwise when the subsidies are so instrumental to the act and he understood that?

 

[Gonad the Barbarian]

I appreciate the argument that you're trying to make. However, I don't feel that you (or anybody else I've seen so far) has adequately explained the problems caused by the plaintiff's interpretation. (I mean besides the problem of no credits.)

I see many claims of problems, but they are not sufficiently explained.

At this point I do not see why answer to no credits is simply 'no credits'. I.e., the federal exchange is merely there to provide the various options for policies comporting with Obamacare standards, whether they be Bronze, Silver or Gold plans.

Fern

Here you go, outlined by Micheal Carvin himself:

But Carvin himself sang a very different tune three years ago. Indeed, Wednesday was not the first time he’s stood in the well of the Supreme Courtroom and asked the justices to gut the Affordable Care Act. Carvin was also one of the lead attorneys in NFIB v. Sebelius, the first Supreme Court case attacking the law.

In a brief filed in NFIB, Carvin explained that “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” And, contrary to his more recent suggestion that Congress never envisioned any danger if the tax credits are cut off, Carvin wrote in 2012 that “the insurance exchanges cannot operate as intended by Congress absent those provisions.”

In a subsequent brief, Carvin elaborated that “the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges.” He also seemed to contradict his central claim that different states are treated differently depending on whether their exchange is operated by a state or the federal government. The Affordable Care Act, according to the Michael Carvin of 2012, “enables uniform and acceptable federal premium subsidies” (emphasis added).

 

[Jhhnn]

I appreciate the argument that you're trying to make. However, I don't feel that you (or anybody else I've seen so far) has adequately explained the problems caused by the plaintiff's interpretation. (I mean besides the problem of no credits.)

I see many claims of problems, but they are not sufficiently explained.

At this point I do not see why answer to no credits is simply 'no credits'. I.e., the federal exchange is merely there to provide the various options for policies comporting with Obamacare standards, whether they be Bronze, Silver or Gold plans.

Fern

The central issue is whether Congress intended for subsidies provided thru exchanges to be universal, or not. Obviously, they did not intend for recalcitrant states to deprive their citizens of that benefit or they would not have provided for a federal exchange.

There is no point to exchanges w/o subsidies.

Following the plaintiffs' reasoning, nobody eligible for subsidies need sign up if their state does not provide an exchange. Which means that the rest of us pay should the shit hit the fan for their family. Rates for everybody in that state who does have health insurance will be higher while they skate on by. If forced into bankruptcy, them getting fucked is cold comfort all the way around.

The notion that Congress ever intended such a thing is a product of excellent propaganda applied to willing believers. It's beneath contempt.

 

[Fern]

Here you go, outlined by Micheal Carvin himself:

Thanks, but that does not address the issue raised by Eskimospy.

This guy's arguing that the plaintiff's interpretation would result in Obamacare being poor policy.

Eski is saying the statute has conflicting statements. I.e., in one place credit only if purchased on state exchange, then somewhere else says the opposite (or something? as I've said I haven't seen it explained).

I've seen this in tax law. E.g., in one place it may say the Investment Tax Credit is limited to businesses with less than $1 million in gross income. Then somewhere else Congress accidentally leaves out the word "not". E.g., "Businesses with income in excess of $1 million may receive the Investment Tax Credit". Now you've got a problem. Two different sentences of law saying the opposite thing. Which one is correct? That's the issue here.

I'm pretty sure the SCOTUS, in addressing the Obamacare fine versus tax thing, specifically said they do not concern themselves with whether the policy is good or not, or will be improved or lessened etc. They rule on law.

In this case the legal question is how to interpret the statute. That means what was Congress' intent, not which interpretation makes better policy.

Your guy is arguing that because the govt's interpretation means better policy ipso facto that proves Congressional intent. Personally I think not.

Fern

 

[Fern]

-snip-

There is no point to exchanges w/o subsidies.

That's a silly claim.

It presumes everyone purchasing on the exchange gets a credit. That's clearly wrong.

It presumes the exchange has to nothing of value to offer people who don't qualify for tax credits. If such was the case the exchange should ensure you qualify for a tax credit before processing your claim. If you don't qualify, go get your HI elsewhere.

Fern

 

[Jhhnn]

That's a silly claim.

It presumes everyone purchasing on the exchange gets a credit. That's clearly wrong.

It presumes the exchange has to nothing of value to offer people who don't qualify for tax credits. If such was the case the exchange should ensure you qualify for a tax credit before processing your claim. If you don't qualify, go get your HI elsewhere.

Fern

You presume wrong.

About 87 percent of people who selected federal Affordable Care Act health insurance for 2015 are receiving federal financial assistance to pay for coverage

http://www.bizjournals.com/albany/b...are-act-tax-credits-are-working.html?page=all

If you think "no point" is too strong, substitute "little to no point" to be perfectly accurate.

A primary purpose of state & federal exchanges is to provide assistance. If any of them can't do that, it's patently unfair to Americans, one way or another.

The suit at hand demands that the federal exchange be stripped of that ability. It demands the creation of unfairness where none now exists. It's beyond reasonable belief to think for a moment that Congress actually intended such a thing at the time.

 

[emperus]

Geez, your distortions must be painful.

-The reporter asks him about state exchanges.

No, he was asked about Federal Exchanges if a State doesn't provide a State exchange..

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states

- He answers yes the state exchanges are where people go get their subsidies.

- He says the law says if states don't provide exchanges for people to get HI, the federal govt will.

Wrong. How clever though. In your first line you talk about subsidies when you are referring to the states. In the 2nd where you are referring to the Fed exchange you talk about Health Insurance. Gruber's words are "subsidies for health insurance". His interest are the subsidies.

Here are Gruber's words.

Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will.

Let me rephrase that last line since you seem to be having a hard time with English.

"In the law, it says if the states don't provide these new shopping places that'll be the place that people go to get their subsidies for health insurance, the federal backstop will provide these new shopping places that’ll be the place that people go to get their subsidies for health insurance."

Does that make it easier to see what Gruber is saying?

- He then goes to mention the "squeezing". The "squeezing" is affected by disallowing tax credits.

This is what he says.

The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it.

So, what does this part mean to you? Why would delaying the Exchange squeeze the States to create their own exchanges. What political or financial leverage would the Federal government have? Answer me that. Wouldn't that be what he goes on to explain in his next sentence? The squeeze he believes would be if the Fed exchange aren't set up and the State doesn't set one up they would lose on their citizens tax credits.

 

[Gonad the Barbarian]

Thanks, but that does not address the issue raised by Eskimospy.

This guy's arguing that the plaintiff's interpretation would result in Obamacare being poor policy.

Eski is saying the statute has conflicting statements. I.e., in one place credit only if purchased on state exchange, then somewhere else says the opposite (or something? as I've said I haven't seen it explained).

I've seen this in tax law. E.g., in one place it may say the Investment Tax Credit is limited to businesses with less than $1 million in gross income. Then somewhere else Congress accidentally leaves out the word "not". E.g., "Businesses with income in excess of $1 million may receive the Investment Tax Credit". Now you've got a problem. Two different sentences of law saying the opposite thing. Which one is correct? That's the issue here.

I'm pretty sure the SCOTUS, in addressing the Obamacare fine versus tax thing, specifically said they do not concern themselves with whether the policy is good or not, or will be improved or lessened etc. They rule on law.

In this case the legal question is how to interpret the statute. That means what was Congress' intent, not which interpretation makes better policy.

Your guy is arguing that because the govt's interpretation means better policy ipso facto that proves Congressional intent. Personally I think not.

Fern

My guy...:rolls:
Is the CBO's principle analyst good enough for you?

Not only did the legislators themselves never intend to cut out subsidies for the federal exchange, the CBO, that all-important arbiter of the law's costs, never once factored it into its analyses.

"It definitely didn't come up. This possibility never crossed anybody's mind," David Auerbach, who was a principal analyst for the CBO's scoring of the ACA, told TPM on Thursday. "If we started to score it that way, they would have known that, and they would have said, 'Oh, oh my gosh, no, no no,' and they probably would have clarified the language. It just wasn't on anybody's radar at all."

No, I still suspect not.

 

[fskimospy]

That's a silly claim.

It presumes everyone purchasing on the exchange gets a credit. That's clearly wrong.

It presumes the exchange has to nothing of value to offer people who don't qualify for tax credits. If such was the case the exchange should ensure you qualify for a tax credit before processing your claim. If you don't qualify, go get your HI elsewhere.

Fern

Again though, under your interpretation the federal exchange literally can't have anything to offer, as it wouldn't be allowed to have any customers.

The petitioners rely on the act describing exchanges in one way in some parts and in another way in other parts, all while using the same terminology. If this were any law but the ACA I doubt it would even be a question that they meant the same thing.

 

[Gonad the Barbarian]

Of course it wouldn't. The fact it took this long after the roll out with how many thousands and thousands of eyes from officials, regulators, analysts during the crafting and implementation for this to get any traction is evidence of it. It's also evidence of just how un-ambiguous the language is. Section 1321, "establish such exchange," case closed. If there was any intent for the federal exchange not to fully substitute for state exchanges it would have been established as an alternate exchange with any variations explicitly stated. This whole drama would be comical if it weren't so scary that so many people are so hopelessly deep in the kool-aid, not to mention jeopardizing the healthcare access of millions of people and whatever integrity is left of this SCOTUS. Regardless of the ruling the fact they even took the case and bypassed the lower court will be a black mark against them historically. I can't believe Roberts wanted any part of this and his lack of engagement during the arguments just reaffirms that belief for me.

 

[fskimospy]

Of course it wouldn't. The fact it took this long after the roll out with how many thousands and thousands of eyes from officials, regulators, analysts during the crafting and implementation for this to get any traction is evidence of it. It's also evidence of just how un-ambiguous the language is. Section 1321, "establish such exchange," case closed. If there was any intent for the federal exchange not to fully substitute for state exchanges it would have been established as an alternate exchange with any variations explicitly stated. This whole drama would be comical if it weren't so scary that so many people are so hopelessly deep in the kool-aid, not to mention jeopardizing the healthcare access of millions of people and whatever integrity is left of this SCOTUS. Regardless of the ruling the fact they even took the case and bypassed the lower court will be a black mark against them historically. I can't believe Roberts wanted any part of this and his lack of engagement during the arguments just reaffirms that belief for me.

What I saw brought up today is a really simple but devastating question to the petitioners' argument. If the goal of the ACA truly was to force states to build their own exchanges, why not just not include a federal exchange at all?

I think this sums it up well:

The goal of the Affordable Care Act was simple: cover as many people as possible. The secondary goal was also pretty simple: slow the rise in health-care prices so more people can afford insurance.

The plaintiffs' contention is that there was a goal Congress cared about more than either of those two: punish states that didn't build their own exchange. This is not something any member of Congress said during the drafting or voting of the Affordable Care Act, it is not how any state interpreted the Affordable Care Act, and it is not how the federal government implemented the Affordable Care Act — but the plaintiffs holds that this was, nevertheless, the clear intention of the Affordable Care Act.

There was a version of this case that didn't insult the intelligence of everyone involved. In this version — the original version — Congress' intent was clear, but the statute was poorly worded, and Republicans were going to try to use that mistake to cripple the law. Fair enough.

But somewhere along the way, the case's advocates decided that wasn't enough. They needed to prove not just textual ambiguity, but also legislative intent. The result has been an effort that looks more like an extended attempt at a Jedi mind trick than a serious argument over the law. It's left pretty much everyone who either was involved in Obamacare's passage or who watched it closely agog.

What Kennedy's comments speak to is that when you zoom out for a minute and look at what is actually being alleged, it is a mechanism so insane, so draconian, that it may well be unconstitutional. It is also a mechanism that everyone involved in Obamacare swears up and down they never considered, a mechanism that no one implementing Obamacare ever used or even mentioned, and a mechanism that no state was ever told about.

So the argument, basically, is that Congress and the Obama administration booby-trapped the law and then never brought it up. They cared so deeply about forcing states to build their own exchanges that they created a doomsday device against states that didn't, but they didn't care enough about convincing states to build their own exchanges to tell the states about it.

 

[Jhhnn]

Of course it wouldn't. The fact it took this long after the roll out with how many thousands and thousands of eyes from officials, regulators, analysts during the crafting and implementation for this to get any traction is evidence of it. It's also evidence of just how un-ambiguous the language is. Section 1321, "establish such exchange," case closed. If there was any intent for the federal exchange not to fully substitute for state exchanges it would have been established as an alternate exchange with any variations explicitly stated. This whole drama would be comical if it weren't so scary that so many people are so hopelessly deep in the kool-aid, not to mention jeopardizing the healthcare access of millions of people and whatever integrity is left of this SCOTUS. Regardless of the ruling the fact they even took the case and bypassed the lower court will be a black mark against them historically. I can't believe Roberts wanted any part of this and his lack of engagement during the arguments just reaffirms that belief for me.

They're kinda stuck taking the case because of contradictory rulings in the lower courts.

The problem with modern Repubs is that anything they don't like is never settled. Whatever the issue, they want another bite at the apple, and another, and another ad infinitum. A lot of very narrow rulings from the SCOTUS just encourages such behavior.

You'll notice than none of them here or in the SCOTUS is willing to address the central issue at all, but rather choose to argue the minutiae of law and the meaning of past testimony by people who aren't even legislators. They lead away from the intent of congress in a totally dishonest way. It's unsurprising when we think about it at all. What is surprising is that anybody allows them to frame discussion in such terms.

If Congress did not intend for the federal exchange to have the same powers as state exchanges, they wouldn't have created it. Anything else is Dogbert tail wagging.

 

[senseamp]

Sure thing Obi Wan Kenobi. Except that most people don't give a rats ass that someone else's subsidies go away especially when the parts of the law they do like are staying around. People dislike welfare no matter what name it goes under and what format it takes, whether food stamps, direct payments, or Obamacare subsidies. Democrats will roll out the sob stories of people without insurance, GOP will point out how much Obamacare takes out of middle class taxpayer pockets to "fix" that and most people will say "sorry, you poor folks are on your own."

Middle class will notice when they don't get tax subsidy, insurers pull out of their state, and hospitals close.
All in red states with Republican senators up for reelection in 2016. None in states with Democrat senators running for reelection in 2016. Those all have state exchanges. So Senate Democrats can filibuster any bill they don't like, and the Republicans will be the ones getting hammered for it. Eventually GOP will fold and pass a clean fix. And if not, whatever, their problem in 2016.

 

[Mxylplyx]

Middle class will notice when they don't get tax subsidy, insurers pull out of their state, and hospitals close.
All in red states with Republican senators up for reelection in 2016. None in states with Democrat senators running for reelection in 2016. Those all have state exchanges. So Senate Democrats can filibuster any bill they don't like, and the Republicans will be the ones getting hammered for it. Eventually GOP will fold and pass a clean fix. And if not, whatever, their problem in 2016.

Considering how generally uninformed voters are, particularly the frothing at the mouth red state primary voters that the red state Republicans are truly beholden to, I don't believe the GOP would fold. I'd be willing to bet a solid majority of their supporters that are on exchange plans have no idea that they are even benefiting from Obamacare, and furthermore, I'd bet most of them would believe that they lost their subsidies BECAUSE of Obamacare.

 

[Fern]

Again though, under your interpretation the federal exchange literally can't have anything to offer, as it wouldn't be allowed to have any customers.
-snip-

Yeah, that would clearly be a problem with the plaintiff's position.

Do you have the relevant statute handy so we can verify that claim?

TIA

Fern

 

[Jhhnn]

Yeah, that would clearly be a problem with the plaintiff's position.

Do you have the relevant statute handy so we can verify that claim?

TIA

Fern

And now, we get the coyness. How cute.

The "relief" sought by the plaintiffs is an end to subsidies provided through the federal exchange. Their alleged harm is that federal subsidies force them to pay a portion of their income for insurance but the law doesn't allow the federal exchange to pay subsidies. That's based on the reading of a single phrase in thousands of pages of the law.

The truth of the matter is that Congress clearly intended for subsidies to be applied to all qualified applicants & chose not to force state exchanges by providing a federal exchange. Taking in the totality of the law, that's indisputable.

Confronted with the contradiction of that single phrase, the executive branch set it aside to do what it & any reasonable person would want- provide subsidies fairly to all as Congress clearly intended.

It's important to remember that the plaintiffs are just poster children for a broader effort to break the ACA. Basically nobody who qualifies for healthcare subsidies has the money to pay for appeals to the SCOTUS. It's a set up job from the beginning.

I rather suspect that a lot of statues contain such inconsistencies but they really don't seem to matter unless there's a larger political goal w/ lots of base pandering opportunities.

 

[the DRIZZLE]

I rather suspect that a lot of statues contain such inconsistencies but they really don't seem to matter unless there's a larger political goal w/ lots of base pandering opportunities.

And if it were a less politically contentious statute most people would shrug and say that the executive has to follow the law as written and Congress should fix the mistake instead of insisting that the words mean something else.

 

[fskimospy]

Yeah, that would clearly be a problem with the plaintiff's position.

Do you have the relevant statute handy so we can verify that claim?

TIA

Fern

Yes, please go read the ACA.

TIA.

 

[Jhhnn]

And if it were a less politically contentious statute most people would shrug and say that the executive has to follow the law as written and Congress should fix the mistake instead of insisting that the words mean something else.

Yes, the executive should follow the letter of the law rather than the obvious intent of the law even if it means destroying the program that the law created, but only in Glenbeckistan.

You presume that Repub leaders & the current Congress intends to fix the ACA rather than destroy it. Lacking the power to achieve their ends directly, they wage a proxy war in court instead.

 

[Paratus]

I'm going to get my bet in.

Minimum of 6-3 against the plaintiffs, preserving the ACA.

Both Kennedy and Roberts will vote with the majority to uphold.

 

[werepossum]

I'm going to get my bet in.

Minimum of 6-3 against the plaintiffs, preserving the ACA.

Both Kennedy and Roberts will vote with the majority to uphold.

I'm going to go out on a limb and say majority decision.