Obamacare

Obamacare Means What Obamacare Says

The most obvious legal interpretation of the health law is the plain meaning of its legislative language.

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Whitehouse.gov

Is it possible to discern congressional intent by what was never said? In the wake of last week's D.C. Circuit court ruling in Halbig v. Burwell, that, contrary to the administration's current implementation, Obamacare does not allow insurance subsidies in federally run health exchanges, supporters of the law and reporters who covered it have argued as much: No one in Congress ever said that subsidies were limited to state-run exchanges, and reporters never heard about a debate. The idea was unheard of before critics of the health law decided to challenge the administration in court.

It's true that the legislative history isn't particularly revealing. The specific issue of whether subsidies would be available in federally established exchanges was rarely if ever brought up prior to the law's passage.

Thankfully, there's no need to infer from what wasn't said. There is a clear record of congressional intent in the plain text of the legislation that Congress voted into law.

Furthermore, the basic idea that federal credits for health coverage should be conditioned on state action was not created by critics. On multiple occasions, Congress previously threatened to withhold coverage credits from states that don't play ball with federal rules. One influential liberal health policy scholar suggested the idea before the bill was passed, and another confirmed it after it became law. Even the Internal Revenue Service (IRS), which produced the rule justifying the administration's issuance of subsidies in federal exchanges, initially believed that the credits were limited to exchanges run by states.

***

Any hunt for the congressional intent behind a piece of legislation should start with the actual language of the law in question. And in this case, the language is unambiguous. Tax credits—that is, subsidies for health insurance—are limited to "Exchanges established by a State." In case there was any confusion, the law defines "State" as "each of the 50 states plus the District of Columbia." These qualifying exchanges must further be established under Section 1311 of the law, the section which deals with state-based exchanges. The federal exchanges are set up under the authority of a different section, 1321.

That's it. That's what the law says. That's what Democratic members of Congress, in both the House and Senate, voted to pass, despite some initial disagreement over whether states or the federal government should be in charge of the exchanges. That's the language that President Obama signed into effect.

Arguably, that should be the end of the debate. The language is clear and direct, and it is repeated several times. There isn't really another plausible interpretation of the text in question.

That's not just common sense. It's also the conclusion of the Congressional Research Service, which wrote in a July 2012 report that "a strictly textual analysis of the plain meaning of the provision would likely lead to the conclusion that IRS's authority to issue the premium tax credits is limited only to situations in which the taxpayer is enrolled in a state- established exchange." Even legal authorities that have ultimately lined up with the administration seem to agree. A separate ruling by the U.S. Court of Appeals for the 4th Circuit last week sided with the administration's interpretation, but admitted that "a literal reading of the statute undoubtedly accords more closely with [the] position" of the challengers.

***

Whitehouse.gov

A literal reading of an unambiguous statute ought to be enough to determine what a law means—and to rule that a regulation that goes well beyond the strict text of the statute is out of bounds. 

Yet the Obama administration has argued otherwise, saying that what matters is not the text itself so much as understanding the language in the context of the "purpose and structure of the statute as a whole."

Senior congressional Democrats have backed the administration up, declaring that to accept that literal reading would somehow be nuts.

"It's absurd to think that Congress intended [Obamacare's] subsidies be available only in the state exchanges," Senate Majority Leader Harry Reid said last week following the rulings. House Minority Leader Nancy Pelosi attacked the challengers' position as a form of "legislative nihilism."

But the idea that the law's insurance subsidies would be conditioned on state buy-in is no more absurd than what Democrats in Congress have repeatedly proposed and enacted before.

As Case Western Reserve Law Professor Jonathan Adler and Cato Institute Health Policy Director Michael Cannon, who helped lay the legal groundwork for the case against the administration, pointed out in an amicus brief, there's plenty of precedent for conditioning health coverage credits on state behavior. The most obvious example is Medicaid, a joint health program in which states each manage their own systems, but which requires states to meet certain specifications, or obtain a waiver, in order to receive federal funding.

Medicaid isn't the only example. In 2002, former Sen. Max Baucus—the elected official most commonly cited as Obamacare's author—proposed legislation paying a portion of health premiums for some individuals. The Health Coverage Tax Credits in his proposal would only be available, however, for certain types of coverage within states that enacted a series of laws required by the federal government.

In 2004, Congress set up a system allowing individuals to set aside money in tax-abated Health Savings Accounts, but only in states that updated their regulatory codes according to federal requirements.

The same general approach can also be found in the final text of Obamacare, which was emerged largely from two earlier health care bills—one created by the Senate Finance Committee, the other by the Senate Health, Education, Labor, and Pensions (HELP) Committee.

Under the HELP bill, Cannon and Adler write in the brief, "if a state failed to establish an Exchange, or its Exchange fell out of compliance, or the state failed to enact specified insurance laws, the HELP bill withheld and even revoked credits from state residents. If a state neither established an Exchange nor requested a federal Exchange, 'the residents of such State shall not be eligible for credits' until four years after the date of enactment." In addition, they note, the bill permanently withheld subsidies if states did not comply with the law's employer mandate.

The Finance Committee legislation limited subsidy availability to "coverage months"—the months in which an individual would be enrolled in a state-established Exchange. As Cannon and Adler point out, the existing language restricting subsidies to state-run exchanges was eventually amplified further when the bills were combined.

The idea that federal health care benefits would be withheld unless states fulfill certain requirements isn't some kooky idea dreamed up by critics. The pattern here is clear. Congress has often proposed withholding credits for health coverage unless states play by certain federal rules.

Indeed, that explains Obamacare's original Medicaid expansion mechanism, which, prior to Supreme Court intervention, threatened states that did not participate with the loss of all existing federal Medicaid funding. This would have been a huge price, and would have effectively gutted one of the nation's two major health programs had a large number of states chosen not to comply. 

If conditioning subsidies on the state establishment of exchanges was "legislative nihilism," then so too was Obamacare's original treatment of its Medicaid expansion.

The reason that Congress made its Medicaid threat so easily is that it was assumed that every state would eventually play ball and expand the program. Funding for the expansion was generous, and resistance would be catastrophically expensive.

The same assumption of universal state buy-in also applied with Obamacare's exchanges. When the health law was being crafted, legislators and policy analysts assumed that every state would set up its own exchange. The Joint Committee on Taxation, which scored the law's health insurance tax credits, did not examine eligibility in federally run exchanges.

The federal exchange system was such an afterthought that the law provided no funding whatsoever to create it. Federal health authorities had to scramble to rewire funding in order to get it built. In contrast, Obamacare provided nearly unlimited funds for states to set up their own exchanges. The thinking was that no state would turn the government down. 

The total lack of funding for the federal exchange strongly suggests that Congress didn't intend any subsidies to flow through the federal exchanges, because Congress didn't really intend for them to exist.

Supporters of the administration's approach have pointed to a quote from Liz Fowler, who served as the top health care counsel on the Senate Finance Committee while Obamacare was being written. "Of course Congress did not intend to deny anyone in any state access to tax credits to which they are entitled," she said when asked about the Halbig suit. The slippery wording reveals very little. Obviously Congress did not intend to deny subsidies to anyone who is legally entitled to them. The question, though, is who is legally entitled, and under what circumstances. 

Meanwhile, the only hint in the legislative record points in the direction of the administration's challengers. At one point in the congressional deliberations over the health law, Sen. Baucus seemed to suggest that only state-run exchanges are authorized to dispense tax credits. Unlike the text of the law, Baucus' statement isn't terribly clear. But it is, notably, the only statement in the legislative history that deals directly with the question at hand.

***

One reason to be skeptical of Baucus' remarks is that, like other Democrats who supported the bill, he has admitted that he did not actually read the complete text of the law himself. In August, 2010, just a few months after passage, he said at a townhall meeting, "I don't think you want me to waste my time to read every page of the health care bill. You know why? It's statutory language. We hire experts." 

Fair enough. Obamacare is a long and complicated law, and legislators lead busy lives. So it's worth finding out what some of the experts say—and have said.

One of the most prominent experts involved in the crating of Obamacare was Massachusetts Institute of Technology economist Jonathan Gruber. Gruber was paid almost $400,000 by the administration to analyze the legislation. He later served as a consultant for states looking to create exchanges, and he wrote the section of the law dealing with small business tax credits. He helped design the Massachusetts health law that Obamacare was based on. He was perhaps the foremost hired expert involved in the creation of the law.

Last Friday, two videos surfaced showing Gruber explicitly saying, in January 2012, that states that did not build their own exchanges would lose access to subsidies.

"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," he said in one videotaped speech. "By not setting up an exchange, the politicians of a state are costing state residents hundreds and millions and billions of dollars…. That is really the ultimate threat, is, will people understand that, gee, if your governor doesn't set up an exchange, you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens," he said in another speech just a week earlier.

More recently, Gruber has become a vocal defender of the Obama administration's position that it is legal for federal exchanges to dispense subsidies. He said on MSNBC last week that the provision limiting the subsidies to state-run exchanges is unambiguously "a typo. Literally every single person involved in the crafting of this law has said that it's a typo, that they had no intention of excluding the federal states." His own remarks disprove the claim.

He says that both of the 2012 statements, which closely resembled each other, were simply "mistakes." If so, they were mistakes that rather conveniently matched the straightforward language of the law that both he and the administration now reject.

Nor is Gruber the only liberal health policy wonk to have associated with the idea and then come out against it. In 2011, when policy wonks began to discuss the subsidy language, influential legal scholar Timothy Jost dismissed the idea that Congress could have possibly limited Obamacare's subsidies to state-run exchanges. "There is no coherent policy reason why Congress would have refused premium tax credits to the citizens of states that ended up with a federal exchange," he wrote.

Yet just two years earlier, Jost had suggested in a paper that Congress could reform the health system by working through the states by "offering tax subsidies for insurance only in states that complied with federal requirements (as it has done with respect to tax subsidies for health savings accounts)." Not only was there a coherent policy reason, he had imagined it himself just a few years prior.

These statements from both Gruber and Jost reveal not only how easy it is for positions to change over the years, but how permanent the transformation can be. What once seemed a reasonable policy mechanism became an unthinkable possibility—one that was forgotten accordingly.

***

Even analysts at the Internal Revenue Service, which administers Obamacare's tax credits and wrote the rule allowing subsidies in federal exchanges, seem to have initially believed that the credits were available only in state-run exchanges.

According to a February report by the House Oversight Committee, an initial draft of the proposed IRS rule dealing with eligibility for the law's health insurance tax credits explicitly mentioned the law's "Exchange established by the State" language. A later version removed the phrase and replaced it with language allowing exchanges established under Section 1321—the section dealing with federal exchanges—instead. In an email uncovered by the committee, IRS and Treasury staffers reportedly "expressed concern that there was no direct statutory authority" for the more expansive replacement language.

And yet the administration and its supporters persist in arguing that their broader interpretation, which conflicts with the plain text of the law, is not only correct but obviously so.

"You don't need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace," White House press secretary Josh Earnest said last week in response to the rulings.

You don't need a fancy legal degree to understand the clear meaning of the statute either. On the contrary, it's the White House position that the law is not what it plainly says that requires tortured legal rationalizations to understand.  

The administration's defenders argue that the law is difficult to interpret, the statutory language is ambiguous, and the legal particulars are difficult to understand. None of this is true. 

The clearest and most obvious interpretation, and the one that best fits the history, evidence, and context, is that the language of the law means what it unambiguously says, that the legislative incentive for states to comply works broadly like many legislative incentives that preceded it, and that even if members of Congress who didn't read the bill did not understand every detail of the legislatory they voted for, the wonks who helped draft and conceptualize the law did and said so—and have since reversed themselves because their initial understanding is no longer convenient.

It's not necessary to interpret congressional silence to figure out what Obamacare means. As the White House likes to declare, it's the law—and we know exactly what it says.  

NEXT: The Ugly Aftermath of America's Intervention in Libya

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  1. So,Suder-man is a racist too, I see.

  2. This whole article is racist.

    1. Toooooooooo

      Sloooooooooooow!

      1. There’s always room for one more accusation of racism.

        1. If you’re going to quote the Obama2012 campaign, at least cite them.

      2. You and your stupid cyber acorns. I was first when I posted – it displayed the comment on top and everything. The squirrels are just anti-ginger racists.

        1. The squirrels are just anti-ginger racists.

          Their only redeeming quality.

  3. Look, that document was written several years ago, so the text is up for interpretation in these modern times. It’s a living document, people!

    1. +1

      LOL

      1. Right. This is a microcosm of what we face on the broader questions of historical fact.

        Many, mostly on the left, have proven that all things are malleable to shape into whatever is their will.

        Facts and words are only facts and words when they say it is, but if you hold them to them, it doesn’t count.

  4. If the language is unambiguous, you can’t look at legislative history. the Left argues that the language is ambiguous because for some reason we are supposed to assume Congress couldn’t have meant what is said. Of course, it could have meant just that and indeed mean just that with regards to the territories. Guam and PR don’t get subsidies through their local run exchanges. Then of course there are videos of the main author of the bill, Max Bachus, saying the language was put in there to give the states a reason to create their own exchanges.

    You should never forget everything the Obama defenders say is a lie. So when Ezra Klein and company said this was “ridiculous” you knew it was exactly the truth.

    1. And if the language is ambiguous the courts should strike the law from the books.

      Words have meanings. It’s time lawmakers learned that.

      1. And if the language is ambiguous the courts should strike the law from the books.

        Unfortunately, that’s where Chevron deference begins to play a role. I think that one case is chiefly responsible, whether fairly applied, to the growth of the unaccountable administrative state.

      2. In the opinion of the current government, the only words that have meaning are uploaded to a teleprompter and read out by Obama. And the meaning of these words is subject to change at any time in the future.

        1. “What would Carney say?”

      3. This is the conundrum.

        I go off to college and learn philosophies steeped deeply in semantic literalism. Words have meanings, words are what they function to be, and without this instrument, meaning was simply an emotion with no ability to articulate it. And here we are, living in a political and cultural soup of duplicity and non-meaning. Emoters rule and those who hunger for articulation and as best a defined reality as we can determine are fanatics and extremists. Just “feel the love” and do as you are told. Pass legislation even though you couldn’t have read it much less under stand it. It’s about feeling correctly. We’ll figure it out all later, when we continue to re-describe what was meant. It’s all a warm fuzzy.

    2. I believe the specific language at issue was added during the (rushed) reconciliation process. This came about from politicos like Senator Nelson to entice them to vote for it.

      I would just say it’s strange these subsidies would be such an integral part of the law if the point of the law to begin with was to decrease the cost of health care. Weren’t the young and healthy supposed to essentially subsidize the old and sick by being forced by the individual mandate to purchase overpriced health insurance, it being overpriced in order to subsidize said old and sick?

      1. The point of the language was to give the states an incentive to build their own exchanges. They never planned on the states calling their bluff. There is no rational way to read the statute as anything other than what it says.

        1. Exactly.

          One angle the left has been trying to take is that denying the federal exchanges get subsidies leads to an absurd outcome per the the plain-language canon of statutory construction.

          Of course, what they’re really saying is that the result isn’t what they really want, so it must be absurd. They misinterpret what “absurd” means in the context of plain meaning.

          1. Essentially, they want the Executive Branch to reinterpret a Congressional statute any way the president sees fit to meet the purported goal of the statute, and they want the Judicial Branch to let the president do it.

            Unfortunately for them, most Congressional statutes, especially giant ones like the ACA, don’t tend to have one overarching purpose: the statutes go through the give and take process that is Congressional negotiation, where many interests have a say in what gets put into the final bill.

            Cato had an excellent amicus brief detailing this point, as well as dozens of SCOTUS cases finding the plain-language canon superior to the others.

        2. Here’s something very basic that I still don’t understand.

          Why are there two separate exchange systems (state and fed) to begin with? If the federal exchange can exist as a backstop, why couldn’t it be the whole field from the very beginning? What’s in it for the feds if the states build the exchanges?

          Was it a way for the feds to shift the costs and labor down to the states? Is it more complex for the feds to administer an exchange on behalf of states because insurance regulations vary from state to state?

          I can see why neither of these reasons make sense either, so I’m still curious about the feds’ whole effort to not build a gigantor federal exchange.

          1. The best explanation I’ve heard is that this is an example of cooperative federalism: since states themselves largely regulate their respective insurance markets, it makes sense to also let them be the ones to “experiment” with a state-run exchange instead of a single federally-run exchange.

            But who really knows? There seem to be plenty of laws on the books that just don’t make much sense.

          2. Because the states were mostly run by Republicans, who hated it. Thus, the Dems reasoned, either they get to force themselves on those prissy little GOPers who keep turning them down, or else they fuck over enough poor people in red states that red staters get angry and vote for Dems.

            Belatedly, they realized that even the media couldn’t spin enough to trick people getting fucked into ignoring that it was the Democrats that fucked them, and now they are trying to weasel out of the mess they made for themselves without having to relegislate the law, since they would almost certainly have to make many other concesssions to get a bill through the House.

            1. Heh, we’re in the uber liberal state of Oregon. Our governor, who wasted $250 million bucks on the state exchange, is still slated to win the upcoming election. What’s a guy got to do to get fired in liberal la la land?

          3. Because one of the ways to “lower” the cost of the bill was to have the states run and pay for the exchanges. They then used the subsidies as both carrot and stick thinking not even the Republicans would turn down “free” money. Too bad for the admin the GOP governors called their bluff.

            1. Aha. “Lowering” costs. It’s not going to be a $100 billion project. It’s going to be fifty separate $20 billion projects.

        3. They’re finding out what’s in it isn’t what they wanted.

          I hope they find the section where it says Nancy Pelosi’s mouth gets filled with cement in October 2014.

    3. How many other laws actually mean something other than what they say? I think we really need to go back and reinterpret them all.

  5. OT: Jewish lobbyist for the NRA makes remarks about gun control in relation to the Holocaust, Jewish Federation of Seattle demands his resignation.

    http://seattletimes.com/html/l…..tsxml.html

    1. You know who else supports kosher firearms?

      1. Moisha Remington?

      2. The Sepoy Mutineers?

      3. Hamas?

        1. Congress, not Conference.

    2. I’m having a hard time finding the wrong with what that guy said.

    3. So is the Jewish Federation of Seattle going to demand the resignation of the entirety of the Israeli Defense Force as well?

    4. I hope Judy stands his ground because it’s about time the gun rights advocates started bringing up the past to remind certain groups how their forebears got fucked because their guns were taken away.
      1. Nazi Germany
      2. Blacks during reconstruction
      3. Mexican cartels running wild
      4. Multiple,other Latin nations with the same issue
      5. South African apartheid

      The list goes on…

      1. Yeah, but…other than that! Guns are totally against children and wimminz and mynoriteez!

    5. Should have known better than to spout hatefacts.

      1. That’s what non-liberals call “disagreeing with a liberal”.

      1. Why did I immediately think of Dennis Miller when I read that?

    6. I hope his answer was: “Or what?”

    7. Failure to adhere to Revolutionary Truth is grounds for exile from The Party, comrade.

      Please remember that before I’m forced to report you.

  6. Obamacare is what we thought it was! Now if you want to crown it, then crown its ass!

    *slams podium*

    1. +1 Playoffs!!

      1. Playoffs? P…Playoffs? Who said anything about….PLAYOFFS?

        PLAYOFFS??

        *looks at John like he’s from Mars*

    2. We couldn’t do diddly poo offensively…We got our ass totally kicked in the second half. That’s what it boils down to. It was a horseshit performance in the second half. Horseshit.

      Jim Mora summed up the story of Obamacare post passage.

  7. What will Obamacare mean when a mean, nasty Republican gets into office? Will the “laws” er, bill writing finally mean something?

    1. But Rethugs are NEVER getting office again, LH. Democrats have won history! Progtards are ascendant! We are in a new, glorious age! A Fourth Rei…

      You know who else thought we were in a New Age….

      1. The 5th Dimension?

      2. Yanni?

      3. Wham, Phill Collins, Depeche Mode…. Or that other German gentlemen who we shall not Hasslehoff?

      4. The 5th Dimension?

        1. Dammit, need to refresh

          1. I am the Walrus?

  8. btw, this is damn scary:

    A separate ruling by the U.S. Court of Appeals for the 4th Circuit last week sided with the administration’s interpretation, but admitted that “a literal reading of the statute undoubtedly accords more closely with [the] position” of the challengers.

    The message: Rule of Law? Fuck that.

    1. Wow – FYTW actually in practice, for all to see.

      That is frightening, indeed.

      *cleans M1, checks ammo stash*

    2. That is scary. Just as scary as Roberts’ claim to be able to read a law as whatever he damn pleases.

      1. Chief Justice Humpty Dumpty

    3. In their defense, they’re just following Roberts’ lead from the initial O-care ruling.

      1. it’s just one big bucket of shit all the way down.

        1. That’s right Mr. Lahey.

          https://m.youtube.com/watch?v=5R8At-Qno_o

        2. What’s the difference between the Supreme Court and a bucket of shit?

          The bucket.

    4. The turn of the screw in that decision is that the Court found that it must defer to the IRS. THE IRS.

      THE COURT

      had to defer

      to the

      I

      R

      S

    5. Sounds like a ruling by Oliver Wendell Holmes, Jr?

  9. These statements from both Gruber and Jost reveal not only how easy it is for positions to change over the years, but how permanent the transformation can be.

    Or they reveal that they’re both fucking liars.

    1. Those guys are lucky their chosen career places a negative value on integrity.

      1. ^ Love it!

        Integrity is an obstacle to a successful career in government.

  10. Why don’t they go all in? Since they are making up new rules anyhow, why not say “What that clearly meant was that subsidies were only available to registered Democrats in states with no exchange of their own.”?

    You have already taken the hard step. The step where you just come out blatantly lie about the clear meaning of the law, now all you have to do is tweak the message.

    1. “Just the tip”

    2. Or just say, “Look this law clearly means that HHS shall set up single-payer healthcare and this court directs HHS to do so as soon as practicable.”

  11. The statute says what it says, and what it says is “State exchanges.”

    Reading it literally is consistent with a rational explanation: that this was done in order to incentivize the states to set up exchanges, and to provide a bootstrap for the feds to impose requirements on the states.

    There’s no reason to look at legislative history at all. When a statute creates incentives that fail to achieve the desired result (which is the case here), the only proper judicial result is to uphold the statute as written, strike down ultra vires rulemaking, and remind the legislature that if they aren’t happy with how things are working out, they need to amend the statute.

    Its a 50/50 tossup at the Supremes, in my book.

    1. It would be nice to see Roberts vote it down 5-4 and salvage some part of the Supreme Court’s power in the triumvirate.

      1. If it’s upheld, Roberts will cast the deciding vote. Mid,it’s voted down, I could see it going 7-2. Say what you want about Ginsberg, but she would likely vote against a blatant misinterpretation of a word.

        1. It would be truly sweet to see Ginsberg kill it, considering libs have been clamoring for her to get her spindly little frame out of there so Obama can get a healthy young statist on the court.

      2. If you go by Roberts’s logic in upholding O-Care, he has to vote to strike this down. His entire point was that it is not the Court’s role to save Congress from the consequences of their own political choices. Upholding the subsidies would be doing exactly that.

        1. If I was writing the SCOTUS brief, I would feed him several lines from his appalling Sebelius decision making that exact same argument.

          “Hey, Roberts, you remember all that deference to the legislature crap you spouted? Well, you sowed the wind. Here, have a faceful of whirlwind. Asshole.”

          Probably be more diplomatic, though. Maybe throw in some Latin.

    2. I would like to see Roberts split down the middle. Then quartered.

  12. It’s not a typo, but if it was I guess that’s is why Congress should read laws before passing them.

    The law says what it says. There are lots of absurd laws at all levels of government. Periodically they get enforced and folks go “but wait, wasn’t that written to go after Al Queda and not low level drug offenders?”. To which the Administration says “Hey sorry, the law is the law.”

    1. This part of the law isn’t even that absurd. They specifically put it there to punish states that didn’t create exchanges. Now that states decided that they’d rather take the punishment than the burden of the exchange/employer mandate they are changing their tune. Punishing those states without their own exchanges isn’t an absurd application of this clause, it’s the specific intention of it.

      1. It never even entered their minds that so many state legislatures would call their bluff. Just shows how out of touch they are.

    2. That “typo” is being used as a defense and that people are buying it is really sad. They are openly admitting that they passed a bill that massively interferes with a huge part of the U.S. economy and, more importantly, with the deeply personal choices that people make regarding their health and well being, and they didn’t even proofread the goddamn thing. On what planet is that acceptable???

      1. Of course, the remedy is to pass legislation to undo the typo.

        But they’d rather throw a hissy fit.

  13. “A literal reading of an unambiguous statute ought to be enough to determine what a law means.”

    Tell that to John “penalty means tax” Roberts.

  14. I’m a little surprised a legislative fix hasn’t been proposed at Congress already. You’d think the Dems would see it as a mousetrap for Repubs.

    1. I,think where they’re fucked is that they can’t propose a tax bill in the Senate, and the House Dems can’t get it to the floor.

      The “O-care is,a,tax” gambit,worked,before,but,it’s fucking them in the case of a legislative fix.

      1. Did you steal db’s phone?

        1. I blame apple and their,touchscreen.

    2. You’d think the Dems would see it as a mousetrap for Repubs.

      It would open Pandora’s box. Even the Stupid Party would demand so many other changes that it would be a disaster to pass, but the House could easily vote out a bill that the Senate failed to take up that did extend subsidies to Federally run exchanges — and gutted the law.

    3. Elections in November. I really don’t think the Dems want to remind people about Obamacare right now.

  15. You know, it doesn’t say that if I like my health care plan I can keep it – but I think that’s what was INTENDED so we should just assume that’s what the law meant, right?

    1. They also intended for my premiums to do down, so I’m just going to start paying less and assume the courts will straighten it out.

      1. Good call. On that note, I was also supposed to be able to keep my doctor. I guess I’ll just keep showing up at his office and demanding care.

      2. lol, awesome

  16. not only how easy it is for positions to change over the years, but how permanent the transformation can be

    You’re being too kind Suderman. What it shows is how easy it is for people to lie and not get called on it (by most).

  17. Sounds like a pretty solid plan to me dude. Wow.

    http://www.WentAnon.Tk

  18. And fuck Baucus. You have to be a real asshole to list yourself as primary author of a law and not even bother to read and understand every bit of it. It is negligence of the highest order. He and everyone else who voted for it without reading it and understanding it (which would be all of them) should be impeached and tarred/feathered. Not necessarily in that order.

    1. I recall Baucus calling the law a disaster. He was right.

  19. The only people who are claiming Congressional intent is something other than what Congress, experts, and common sense say it is are people who want to kill the law for partisan reasons and think they’ve found the silver bullet. Call it textualists vs. originalists?

    I did like someone’s bit about how rightwing judicial activists who claim to know the minds of people dead for 200 years can’t figure out what people were thinking in 2010 and who are still alive and saying what they were thinking.

    1. Just keep stamping those tiny feet. It’s cute.

    2. So the expert who is contradicting himself is just, what, confused?

      And my sense tells me that the law means exactly what it says, and when it became inconvenient, Congress and the experts started lying. I don’t care if my sense is common or not.

      1. He means that the only people interpreting the law the way it’s written are doing so only because they really like it that way.

        As opposed to the people interpreting the law they way they want it to say, that it doesn’t say, which are motivated only by a strict sense of honor and duty, to ensure that laws are faithfully executed.

        You know… morons.

    3. Do you EVER admit it when you’re wrong? If not, you’re a just a hack.

      1. Who’s wrong? I’ve got 4 circuit court judges to your 2.

        1. Fuck your appeal to authority. We have the English language, the historical record, and logical reasoning on our side.

        2. You are the one of the few people on this board who is a true partisan. Most people will call out others, left, right, or center.

          You, on the other hand, lick the ass of the blue people no matter what they do, even if they’re shitting down your throat.

          1. I don’t consider it a bad thing to be partisan as long as you know why you are.

            1. Partisanship is just intellectually laziness. It’s religious attachment to party despite the inevitable party failures. IOW, it’s unthinking devotion.

              Therefore, you are an unthinking partisan hack.

              1. I’m a pragmatist. If you’re not doing something useful (such as working for a party that actually has a chance to effect policy changes you care about) then you’re just jerking off to your own brilliance.

                1. You need not worry about the brilliance thing…

        3. Yeah, but our 2 come from the Circuit that is primus inter pares, and specifically oversees administrative rule-making.

    4. We know your ilk perfectly well, it’s why we despise you.

    5. “…claim to know the minds of people dead for 200 years”

      It’s called the Federalist and Anti-Federalist papers. The founders wrote extensive opinion pieces on how the constitution/government should be structured, which amendments should be added, and (importantly) WHY.

      We don’t have to guess what their intent was – they literally took detailed notes as to their intent for every single piece of the constitution and bill of rights.

      1. Go ahead, Tony. Don’t take my word for it, you can read them all right here.

        http://www.constitution.org/afp/afpchron.htm

        I’m still waiting for the detailed notes as to the intent of every part of the Obamacare bill…. I guess our founders had better foresight. What am I saying “guess”…

    6. Tony:

      I did like someone’s bit about how rightwing judicial activists who claim to know the minds of people dead for 200 years can’t figure out what people were thinking in 2010 and who are still alive and saying what they were thinking.

      But, that cuts both ways.

      If original intent is good enough for Obamacare, why not the constitution?

      The only consistent argument I can get from this, is that, now, we’re supposed to interpret Obamacare to mean what socialist democrats tell us it was supposed to say, rather than what it says, while we pretend that the constitution says whatever socialist democrats think it’s supposed to say, but it doesn’t.

      And, I’d be much more critical if originalists were trying to interpret the constitution the way socialists want to interpret Obamacare. When originalists start talking about what the constitution is supposed to say because of the founders, but clearly doesn’t, get back to us.

      1. I personally find it all to be a bunch of self-serving bullshit. Originalists and textualists are just people who think they are entitled to affix to their personal opinions the stamp of approval of the founders. They just say it. The only difference between them and the liberals means of interpretation is that they have the gall to do that.

        Just read the opinions in these cases. The reasoning is easily on the side of those not trying to fully gut a law of Congress on a typo.

        1. How about just declaring everything you don’t like a typo?

          What do we call that? Typoists? Typoism?

          I’m sure we can think of the appropriate “ism”.

  20. The main thrust still seems to be “but…intent! We know they all intended for everyone to get all the subsidies!” (I have yet to really see actual quotes to that effect, just a continued assurance that ‘everyone said it’.)

    Ok..what ever happened to “If you like your doctor, you can keep your doctor, if you like your plan you can keep your plan”? That was clearly Obama’s intent. And the Dems who supported him as well backed that statement in public many times. But when we found out that wasn’t the case with the law AS PASSED, no one tried to use this clear ‘intent’ to summarily rewrite the law on that basis. They had to use the system to try and change it via Congress.

    1. Rewrite it? No. They just arbitrarily ignored the parts that became politically inconvenient.

  21. Obamacare says EVERYTHING.

    When you say “Obamacare”, you’ve said it all.

  22. Yeah, it’s a typo. Just like they meant to write “tax” when they said “penalty”. Someone should really be proof reading these things.

  23. No one in Congress ever said that subsidies were limited to state-run exchanges, and reporters never heard about a debate. The idea was unheard of before critics of the health law decided to challenge the administration in court.

    I seem to recall reading either here or at Cato a list of “bugs” in the Obamacare law. This was one of them.

  24. A rebuttal.

    Reason magazine’s health care writer, Peter Suderman, doesn’t quite fall into line for Halbig Truthers. But he infuses Gruber’s remarks with the kind of monumental significance he does not accord to any of Gruber’s other statements, or the statements of dozens of other key Democratic aides, the director of the Congressional Budget Office, or this former Republican Finance Committee staffer?an “inverse Gruber” if you will.

    1. You guys don’t get it. It doesn’t matter what they said then, it only matters what they say now. In other words, we have always been at war with East Asia (forgive me for the quote screwup).

    2. Oooh, Halbig Truthers!

      So smears is all the left has. I guess that means we’re winning!

      1. The state exchange only denialists are really in a tizzy, aren’t they?

      2. The point of making this equivalence has an important implication for you: you’re going to be just as successful at this as the real Truthers have been.

        Mindless partisan rage stops being useful when it turns you too stupid to appreciate political reality.

        1. Tony, “You’re” not doing anything.

          Unless you think that, somehow, this wouldn’t all be rolling on as it would be without you.

          I mean, I’m really happy that you got your BA in English, and figured out how to correctly think about economics, politics, social theory, etc. I’m sure you walk into that voting booth with all that information and pull your levers with perfect correctness.

          Too bad that’s practically worthless.

    3. Mendacious twat posting mendacious drivel…yawn

    4. By contrast, there’s plenty of evidence for the conventional wisdom that, irrespective of statutory text, Democrats intended for subsidies to flow everywhere no matter what, and that Halbig Truthers came to their position out of convenience.

      So the intent was for subsidies to flow without explicit limitations?

      I am not able rightly to apprehend the kind of confusion of ideas that could provoke the above statement.

    5. That rebuttal amounts to “no one talked about it like that at the time”. It doesn’t address the statements to the contrary. That makes it a pretty piss poor rebuttal.

      Also, this

      failed in the most basic execution of duties as reporters, analysts, government officials and so on.

      seems totally plausible.

    6. “But he infuses Gruber’s remarks with the kind of monumental significance he does not accord”…

      Cites The cites are interesting.
      The first is a memory of what ‘congress wanted’, not a statement at the time
      The second is an admission that the slimy dems, in a rush to pass the thing wrote a rotten law; so we should now allow them to go back and correct it?
      Stuff it, Tony.

      1. “…so we should now allow them to go back and correct it?”

        And not correct it by passing legislation but by executive diktat.

  25. If this stands, it’s the end of law in this country. Nothing but political power has any meaning anymore. Then it’s one step from violence as legislative policy.

  26. If a stats don’t set their own exchange (or refuse to accept medicare expansion), then the state is exempt from ACA penaltax? I think that’s what Michael Cannon said in Forbes.

  27. If a stats don’t set their own exchange (or refuse to accept medicare expansion), then the state is exempt from ACA penaltax? I think that’s what Michael Cannon said in Forbes.

  28. Roberts said that elections have consequences.

    I wonder if he thinks the law has consequences.

  29. Anyone want to share their popcorn with me? I seems to has runs out. =/

  30. My personal favorite: “In the preamble it says,’the ACA will achieve near universal coverage'”. Thom Hartmann of RT. So therefore the Feds can subsidize without the State exchanges.

    So what couldn’t be done legally under that criteria? These people are evil.

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  32. While this is a case of plain text with plain meaning, the Administration has previously shown it is quite willing to ignore even more plain, virtually unambiguous language in the law because it is inconvenient.

    Consider the text at the end of Section 1513 of the law, which Section defines the “SHARED RESPONSIBILITY FOR EMPLOYERS REGARDING HEALTH COVERAGE.” i.e., the employer mandate. After defining large employer, small employer (less than 50 employees), and the penalties (or as Justice Roberts calls it, the taxes) involved, the Section ends with the text

    “(d) Effective Date- The amendments made by this section shall apply to months beginning after December 31, 2013.”

    But we know that the administration simply waved their hands and waived that particular date. Any number of similar dates written into the text of the law have simply been “interpreted” by the administration.

    1. Further, the penalties (taxes, yes, Justice Roberts) from the employer mandate were counted on to bring in $100B over the ten-year span over which Obamacare was evaluated. Now that the Administration has simply made them go away for two years (at least), where’s that cost accounting?

  33. It is not so easy to get the required medical help even if your insurance covers the cost. That is why it would be more beneficial to refuse from throwing money to what doesn’t help and to create a health fund or to use Installment Credits online service.

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