Obamacare Loses Major Court Battle

[flockofseagulls104]

I'm just a bill

https://www.youtube.com/watch?v=tyeJ55o3El0

According to SSS, Nancy P was right, we have to pass it to know what's in it.

Well. actually, we don't know what's in it now. It's still being made up as they go.

[silverscreenselect]

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

The question isn't why the states didn't set up an exchange. In many cases, you're correct; they didn't want to participate in Obamacare at all (some of the smaller states opted out for administrative reasons). The question is why Congress passed the law reading the way it did and whether they meant to exclude the Federal exchanges. This is fairly settled administrative law, or at leas it was until two Republican judges decided to rewrite thirty years of Supreme Court and other Court of Appeal decisions to arrive at the result they wanted for political reasons.

[silverscreenselect]

I'm just a bill

https://www.youtube.com/watch?v=tyeJ55o3El0

According to SSS, Nancy P was right, we have to pass it to know what's in it.

Well. actually, we don't know what's in it now. It's still being made up as they go.

Every Federal agency "makes up" the law as they go. That's their job, to interpret and administer federal statutes. Under Republican administrations, agencies have "made up" the law to relax regulatory standards in plenty of cases. You might agree with that version of "making up the law."

[BackInTex]

Obama is the Head of State, so

All your exchange belong to me.

[Bob Juch]

Beebs52 wrote:
But if that's true, it still isn't an exchange established by the state, right? It's established by the feds. Or am I missing something?




What is missing here is the fact that the IRS, which is the agency responsible for administering and enforcing the statute, chose to interpret the language of the statute to include both exchanges established by the state and those established by the federal government. When a federal agency interprets a federal statute, a court will normally go along with the agency's interpretation, unless the language of the statute clearly and unambiguously indicates the agency is wrong. Courts rarely overrule agencies on statutory interpretation unless there's no other way to read the statute, and they look at the statute as a whole and not an isolated phrase or sentence.

What the Fourth Circuit looked at was language that said that if a State failed to establish an exchange, the Federal government was required to "establish and operate such Exchange within the State." Under this interpretation, the federal government is stepping in and creating the state Exchange. Since both interpretations are plausible, and there was no indication Congress intended the language to apply only to state exchanges (which would deprive millions of people of health insurance coverage), and, in fact, all the history indicated that Congress did intend the Act to apply as widely as possible, the Fourth Circuit went along with the IRS's position.

Ironically, the primary Supreme Court case in this area involved Chevron back in the 1980s when the EPA under Reagan loosened up the requirements to comply with emissions laws, in essence, allowing Chevron to meet less stringent standards than under the Carter administration. The Supreme Court said that as long as the EPA's interpretation was reasonable and not clearly wrong, courts should go along with that. As a result, enforcement of a whole lot of federal laws often changes from one administration to the next, depending on the political philosophy of those running the agency.

By the way, the Fourth Circuit decision was 3-0. Two of the judges on the panel were appointed by Obama. The third, who wrote the majority opinion, was originally appointed by Clinton in December 2000 (right before his term expired), then reappointed by Bush Jr. in 2001.

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

That's why states elect congressmen.

[Beebs52]

Beebs52 wrote:
But if that's true, it still isn't an exchange established by the state, right? It's established by the feds. Or am I missing something?




What is missing here is the fact that the IRS, which is the agency responsible for administering and enforcing the statute, chose to interpret the language of the statute to include both exchanges established by the state and those established by the federal government. When a federal agency interprets a federal statute, a court will normally go along with the agency's interpretation, unless the language of the statute clearly and unambiguously indicates the agency is wrong. Courts rarely overrule agencies on statutory interpretation unless there's no other way to read the statute, and they look at the statute as a whole and not an isolated phrase or sentence.

What the Fourth Circuit looked at was language that said that if a State failed to establish an exchange, the Federal government was required to "establish and operate such Exchange within the State." Under this interpretation, the federal government is stepping in and creating the state Exchange. Since both interpretations are plausible, and there was no indication Congress intended the language to apply only to state exchanges (which would deprive millions of people of health insurance coverage), and, in fact, all the history indicated that Congress did intend the Act to apply as widely as possible, the Fourth Circuit went along with the IRS's position.

Ironically, the primary Supreme Court case in this area involved Chevron back in the 1980s when the EPA under Reagan loosened up the requirements to comply with emissions laws, in essence, allowing Chevron to meet less stringent standards than under the Carter administration. The Supreme Court said that as long as the EPA's interpretation was reasonable and not clearly wrong, courts should go along with that. As a result, enforcement of a whole lot of federal laws often changes from one administration to the next, depending on the political philosophy of those running the agency.

By the way, the Fourth Circuit decision was 3-0. Two of the judges on the panel were appointed by Obama. The third, who wrote the majority opinion, was originally appointed by Clinton in December 2000 (right before his term expired), then reappointed by Bush Jr. in 2001.

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

That's why states elect congressmen.

Has nothing to do with the discussion.

[themanintheseersuckersuit]

"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--but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this."

Jonathan Gruber, 2012

Gruber two days ago on Chris Matthews show claimed that the very explanation he discussed in 2012 was just a “typo” and that it’s “criminal” to suggest, as he did in 2012, that the law worked the way the Halbig court said it did. (h/t @AG_Conservative) Credibility is a terrible thing to lose just to save a law from its normal,

[jarnon]

"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--but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this."

Jonathan Gruber, 2012

Gruber two days ago on Chris Matthews show claimed that the very explanation he discussed in 2012 was just a “typo” and that it’s “criminal” to suggest, as he did in 2012, that the law worked the way the Halbig court said it did. (h/t @AG_Conservative) Credibility is a terrible thing to lose just to save a law from its normal,

Maybe he was confused. (Is that possible? Obamacare is so clear and straightforward.) What he said is true about Medicaid expansion, but not the exchanges.

[Bob78164]

"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--but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this."

Jonathan Gruber, 2012

Gruber two days ago on Chris Matthews show claimed that the very explanation he discussed in 2012 was just a “typo” and that it’s “criminal” to suggest, as he did in 2012, that the law worked the way the Halbig court said it did. (h/t @AG_Conservative) Credibility is a terrible thing to lose just to save a law from its normal,

Maybe he was confused. (Is that possible? Obamacare is so clear and straightforward.) What he said is true about Medicaid expansion, but not the exchanges.

It's also true about the tax subsidies if the D.C. Circuit's decision ends up prevailing. But SSS is correct about what is known as Chevron deference to administrative interpretation so I'm very skeptical that the decision will survive further review. --Bob

[Bob Juch]

"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--but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this."

Jonathan Gruber, 2012

Gruber two days ago on Chris Matthews show claimed that the very explanation he discussed in 2012 was just a “typo” and that it’s “criminal” to suggest, as he did in 2012, that the law worked the way the Halbig court said it did. (h/t @AG_Conservative) Credibility is a terrible thing to lose just to save a law from its normal,

Maybe he was confused. (Is that possible? Obamacare is so clear and straightforward.) What he said is true about Medicaid expansion, but not the exchanges.

It's also true about the tax subsidies if the D.C. Circuit's decision ends up prevailing. But SSS is correct about what is known as Chevron deference to administrative interpretation so I'm very skeptical that the decision will survive further review. --Bob

Does D.C. have an exchange? It's not a state.

[themanintheseersuckersuit]

"We know that in the late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. And we know that this working group initially decided to follow the text of the law. An early draft of its rule about subsidies explained that they were for "Exchanges established by the State."

Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress's report—to "senior IRS and Treasury officials." The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to "Exchanges established by the State" disappeared from the draft rule.

Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange."

http://online.wsj.com/articles/kim-stra ... 1406244677

[silverscreenselect]

"
Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange."

And the point is?

If you looked at the e-mails of a whole lot of businesses and government agencies, you'd find that they frequently wonder whether or not their actions are allowed under the law. That's why they hire lawyers; to give them advice as to what is and is not permitted. It's a good bet they based their eventual interpretation on what the lawyers told them.

[silverscreenselect]

Does D.C. have an exchange? It's not a state.

D.C. does have an exchange (some federal employees are required by law to buy Obamacare through the DC exchange), but the case didn't arise based on the DC exchange. Anyone suing a federal government official (in this case the Secretary of HHS) has the right to do so in the D.C. district court, because for venue and jurisdictional purposes, the official is considered to reside in the District of Columbia. Appeals from the DC district court go to the DC Court of Appeals. The plaintiffs in this suit resided in states that did not have state exchanges. The vast majority of the DC court's caseload involves federal government officials and agencies, since otherwise the only cases they'd be hearing would be those involving the half million or so DC residents.

[Bob Juch]

Does D.C. have an exchange? It's not a state.

D.C. does have an exchange, but the case didn't arise based on the DC exchange. Anyone suing a federal government official (in this case the Secretary of HHS) has the right to do so in the D.C. district court, because for venue and jurisdictional purposes, the official is considered to reside in the District of Columbia. Appeals from the DC district court go to the DC Court of Appeals. The plaintiffs in this suit resided in states that did not have state exchanges.

You thought I asked that because of the D.C. District Court; I didn't.

I asked because a strict interpretation of the law would say that the D.C. doesn't have a state exchange.

You've heard about the TSA incidents where people carrying D.C. driver's licences were held-up at the TSA checkpoints because the law says they must have state issued ID?

[silverscreenselect]

Does D.C. have an exchange? It's not a state.

D.C. does have an exchange, but the case didn't arise based on the DC exchange. Anyone suing a federal government official (in this case the Secretary of HHS) has the right to do so in the D.C. district court, because for venue and jurisdictional purposes, the official is considered to reside in the District of Columbia. Appeals from the DC district court go to the DC Court of Appeals. The plaintiffs in this suit resided in states that did not have state exchanges.

You thought I asked that because of the D.C. District Court; I didn't.

I asked because a strict interpretation of the law would say that the D.C. doesn't have a state exchange.

You've heard about the TSA incidents where people carrying D.C. driver's licences were held-up at the TSA checkpoints because the law says they must have state issued ID?

The definition of "state" under Obamacare specifically includes DC.

[flockofseagulls104]

Beebs52 wrote:
But if that's true, it still isn't an exchange established by the state, right? It's established by the feds. Or am I missing something?




What is missing here is the fact that the IRS, which is the agency responsible for administering and enforcing the statute, chose to interpret the language of the statute to include both exchanges established by the state and those established by the federal government. When a federal agency interprets a federal statute, a court will normally go along with the agency's interpretation, unless the language of the statute clearly and unambiguously indicates the agency is wrong. Courts rarely overrule agencies on statutory interpretation unless there's no other way to read the statute, and they look at the statute as a whole and not an isolated phrase or sentence.

What the Fourth Circuit looked at was language that said that if a State failed to establish an exchange, the Federal government was required to "establish and operate such Exchange within the State." Under this interpretation, the federal government is stepping in and creating the state Exchange. Since both interpretations are plausible, and there was no indication Congress intended the language to apply only to state exchanges (which would deprive millions of people of health insurance coverage), and, in fact, all the history indicated that Congress did intend the Act to apply as widely as possible, the Fourth Circuit went along with the IRS's position.

Ironically, the primary Supreme Court case in this area involved Chevron back in the 1980s when the EPA under Reagan loosened up the requirements to comply with emissions laws, in essence, allowing Chevron to meet less stringent standards than under the Carter administration. The Supreme Court said that as long as the EPA's interpretation was reasonable and not clearly wrong, courts should go along with that. As a result, enforcement of a whole lot of federal laws often changes from one administration to the next, depending on the political philosophy of those running the agency.

By the way, the Fourth Circuit decision was 3-0. Two of the judges on the panel were appointed by Obama. The third, who wrote the majority opinion, was originally appointed by Clinton in December 2000 (right before his term expired), then reappointed by Bush Jr. in 2001.

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

That's why states elect congressmen.

The PEOPLE elect Congress, they are supposed to represent the people of their district. The states elected Senators to represent them until the progressives of the early 20th century changed that. It's a good debate that the many of the problems we have with the operation of the Federal Government result from that change. The original balance of power set up by the FF has been upset by this change. Senators basically don't represent anyone but themselves. I agree that one of the amendments that the States should impose, if we can get a Convention of the States together, is the re-imposition of the original intent, that the Senate is elected by State legislatures and the Senators represent States interests.

[flockofseagulls104]

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

The question isn't why the states didn't set up an exchange. In many cases, you're correct; they didn't want to participate in Obamacare at all (some of the smaller states opted out for administrative reasons). The question is why Congress passed the law reading the way it did and whether they meant to exclude the Federal exchanges. This is fairly settled administrative law, or at leas it was until two Republican judges decided to rewrite thirty years of Supreme Court and other Court of Appeal decisions to arrive at the result they wanted for political reasons.

Why is it that, to you, (and many like you, including the main stream media) republicans are the only entity that ever does anything for 'political' reasons? Anyone else's motives seem to be pure as snow to you....

[jarnon]

That's why states elect congressmen.

The PEOPLE elect Congress, they are supposed to represent the people of their district. The states elected Senators to represent them until the progressives of the early 20th century changed that. It's a good debate that the many of the problems we have with the operation of the Federal Government result from that change. The original balance of power set up by the FF has been upset by this change. Senators basically don't represent anyone but themselves. I agree that one of the amendments that the States should impose, if we can get a Convention of the States together, is the re-imposition of the original intent, that the Senate is elected by State legislatures and the Senators represent States interests.

Senators always think more independently than Congressmen since they're elected for six years. That part of the Founders' intent has remained intact. But with our modern two-party system, the majority party in the state legislature would pick Senators, and they'd represent their party, not the state or the people. At least under the current law, they have to win a general election.

[themanintheseersuckersuit]

The tax credit was the incentive to create state exchanges.

http://www.c-span.org/video/?c4504852/s ... -exchanges

[themanintheseersuckersuit]

Speako #2

http://www.breitbart.com/InstaBlog/2014 ... -Exchanges

Hey, lying liars lie

[silverscreenselect]

The tax credit was the incentive to create state exchanges.

http://www.c-span.org/video/?c4504852/s ... -exchanges

If you can listen to that exchange and interpret that as a statement by Sen. Baucus that Congress intended the tax credit as an incentive to create state exchanges, then you've gone way past even Sean Hannity and his bunch in fabricating facts about Obamacare.

[Bob Juch]

What's missing here is the fact that there most probably is a REASON that the state did not set up an exchange. It was probably not an oversight, or something someone missed, but BECAUSE THEY SPECIFICALLY DIDN'T WANT TO. And there are what, 36 of them? Maybe that should have been considered before this monstrosity was 'passed'.

That's why states elect congressmen.

The PEOPLE elect Congress, they are supposed to represent the people of their district. The states elected Senators to represent them until the progressives of the early 20th century changed that. It's a good debate that the many of the problems we have with the operation of the Federal Government result from that change. The original balance of power set up by the FF has been upset by this change. Senators basically don't represent anyone but themselves. I agree that one of the amendments that the States should impose, if we can get a Convention of the States together, is the re-imposition of the original intent, that the Senate is elected by State legislatures and the Senators represent States interests.

You must have flunked American History. The progressives had nothing to do with the 17th Amendment. William Randolph Hearst and William Jennings Bryan were two of the strongest supporters. They'd be in the Tea Party today. The reason for wanting to change was that too many Senators were "bought and sold". Remember that 3/4 of the states have to ratify amendments.

[silverscreenselect]

Speako #2

http://www.breitbart.com/InstaBlog/2014 ... -Exchanges

Hey, lying liars lie

One would think that if Congress had intended the bill to be read that way, there would have been some discussion of that in the Congressional Record before the legislation was passed.

And this article, which includes statements by a noted expert in the area, pretty much debunks what the critics have to say:

http://www.vox.com/2014/7/24/5931067/wh ... ting-wrong

Money quote:

In one register you have the Michael Cannons of the world, who seem to genuinely believe that Congress intended to deprive tax credits to people with federally-established exchanges. Almost no one else adheres to that view. People who were around during the debate over the ACA don't recall anyone mentioning any such threat and there's no such threat that's manifest on the face of the statute. The notion that Congress intended to level this threat is fictional.

Again, the administrative law question isn't whether Congress could have intended a literal meaning. It's whether it's whether Congress, in the absence of one single word in the Congressional Record to that effect, clearly and unambiguously expressed an intent to limit the tax subsidies to the States. A couple of off-the-cuff statements by an economics professor after the bill was passed and at a time in which the Obama administration was still hoping to get states to sign up isn't evidence of a clear Congressional intent.

[tlynn78]

The tax credit was the incentive to create state exchanges.

http://www.c-span.org/video/?c4504852/s ... -exchanges

If you can listen to that exchange and interpret that as a statement by Sen. Baucus that Congress intended the tax credit as an incentive to create state exchanges, then you've gone way past even Sean Hannity and his bunch in fabricating facts about Obamacare.

Unless someone was standing right behind Baucus whispering in his ear, I wouldn't put much stock in whatever it was he said.

[themanintheseersuckersuit]

Speako #2

http://www.breitbart.com/InstaBlog/2014 ... -Exchanges

Hey, lying liars lie

One would think that if Congress had intended the bill to be read that way, there would have been some discussion of that in the Congressional Record before the legislation was passed.

And this article, which includes statements by a noted expert in the area, pretty much debunks what the critics have to say:

http://www.vox.com/2014/7/24/5931067/wh ... ting-wrong

Money quote:

In one register you have the Michael Cannons of the world, who seem to genuinely believe that Congress intended to deprive tax credits to people with federally-established exchanges. Almost no one else adheres to that view. People who were around during the debate over the ACA don't recall anyone mentioning any such threat and there's no such threat that's manifest on the face of the statute. The notion that Congress intended to level this threat is fictional.

Again, the administrative law question isn't whether Congress could have intended a literal meaning. It's whether it's whether Congress, in the absence of one single word in the Congressional Record to that effect, clearly and unambiguously expressed an intent to limit the tax subsidies to the States. A couple of off-the-cuff statements by an economics professor after the bill was passed and at a time in which the Obama administration was still hoping to get states to sign up isn't evidence of a clear Congressional intent.

I note that the Vox article lacks any contemporaneous quotes supporting that the tax credits were available for policies purchased on the Federal exchanges. Yet Gruber said in his prepared statement in January 2012, that the tax credit was not available except in the State Exchanges.