Obamacare

6 Weak Arguments in the Administration's Obamacare Supreme Court Subsidies Brief

The administration's case is little more than a request for legal permission to rewrite the law.

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Whitehouse.gov

Today, the Supreme Court will hear oral arguments in King v. Burwell, a case challenging the legality of the subsidies in the federally run exchanges set up under Obamacare. The core argument put forward by the plaintiffs is straightforward: The text of the law says that subsidies can only be obtained in an "Exchange established by the State." The federally run exchanges were not established by any state, and therefore the Internal Revenue Service rule allowing them in both state and federal exchanges must be undone.

The government's argument, on the other hand, is rather more complicated, and by necessity, leads to some awkward legal contortions—including the strange notion that an exchange established by the federal government is actually an exchange established by a state.  

Here are 6 of the weakest arguments from the administration's brief defending Obamacare's federal exchange subsidies.

1. Federal subsidies are justified because they are a critical part of Obamacare's policy scheme.

A significant portion of the administration's brief is devoted to explaining Obamacare's basic policy design: Lawmakers wanted to alter the individual insurance market by requiring that health insurance be sold to everyone and limiting the ways that insurers could charge based on preexisting conditions. But the experience of several states made it clear that these regulations alone caused a "death spiral" in which premiums rise and healthy people drop their insurance. To avoid this, Congress looked to Massachusetts, which, along with preexisting conditions rules, had put in place a mandate to maintain coverage. But as the government's brief says, "Subsidies must go 'hand in hand' with an individual mandate because Congress cannot 'mandate people having something they can't afford.'" In addition to the mandate and insurance rules, Massachusetts had subsidies too.

The insurance regulations, the mandate, and the subsidies, then, are critically linked. Wouldn't it be odd for Congress to have allowed for the creation of federal fallback exchanges which don't have the complete set? Or, as the government put it, "Had Congress actually intended to threaten States with death spirals if they declined to establish their own Exchanges, it would not have directed HHS to establish rump Exchanges that would be doomed to fail.

One problem with this argument is that it is largely beside the point. The general policy scheme underlying the law's coverage expansion does not give the government license to ignore the clear language of the statute.

But put that aside for a moment. The government's main point here is that, given the link between the mandate, the preexisting conditions rules, and the subsidies, it would be unthinkable for Congress to have intentionally set up a scheme whereby states in which the federal government set up the exchanges did not still have all three in effect.

Yet it's worth recalling that in lower court briefs, the government explained the relationship between the mandate, the insurance rules and the subsidies by citing Massachusetts Institute of Technology economist Jonathan Gruber. Gruber was arguably the most influential expert involved in designing the Massachusetts law, and who was also an influential adviser to both the White House and Congress on the federal law.

And in January 2012, Jonathan Gruber was recorded on video saying, in response to a question about what happens if a state opts out of creating an exchange and the federal government steps in, that states that choose not to set up their own exchanges lose access to subsidies under the law. Gruber was the chief proponent of the regulations/mandate/subsidies scheme, and even he found it to be compatible with a system that denied subsidies in states that did not establish their own exchanges.

2. Congress would not have threatened states with a drastic and disruptive consequence should they decline to establish exchanges on their own.

Along similar lines, the administration says that it is "implausible" to think that Congress would have "threatened the States with an unworkable regime that would deny their residents tax credits and roil their insurance markets unless the States established Exchanges for themselves."

It's actually quite plausible to think that Congress would have made such a threat, because that's how the law initially structured its Medicaid expansion: States were free to participate or not, because the federal government cannot coerce state action, but those who opted out ran the risk of having all federal Medicaid funds revoked. This threat was ruled impermissibly coercive by the Supreme Court in 2012 because nixing federal Medicaid funding would have been disastrous to state budgets and Medicaid programs.

The original structure of the law's Medicaid expansion makes it clear, then, that Congress was willing to threaten extremely disruptive, even "unworkable," actions against states that opted out of the law's major components.

3. Congress assumed that subsidies would be available in every state.

"During the months [the law] was under consideration," the administration's brief says, "Members of Congress consistently expressed their understanding that credits would be available through 'exchanges,' without limitation."

It's true that Congress assumed every state would have subsidies. But this is because virtually everyone, including Congress, assumed that every state would set up an exchange. As the challengers show in their brief, this was widely reported in the media. The Congressional Budget Office reports the administration often cites to suggest that every state would have subsidies also assumed that every state would participate in building an exchange. The assumption is also evident in the structure of the law, which allocated no money whatsoever to the creation of a federal exchange—while offering unlimited funds to states that chose to develop their own.

4. The administration's rulemaking process determined that subsidies were available through federally facilitated exchanges.

"Through notice-and-comment rulemaking," the government brief says, "Treasury concluded that tax credits are equally available on both state-run and federally-facilitated Exchanges…" The eventual IRS rule allowing subsidies—which take the form of tax credits—in the federal exchange is, of course, the source of the legal dispute.

Here the government's brief leaves out a few inconvenient details about the rule's history. According to a February 2014 report by the House Oversight Committee, an initial draft of the IRS rule from 2011 actually specified that subsidies were available in an "Exchange established by the State." But in March of that year, the phrase was removed and replaced with language allowing subsidies in federal exchanges as well. The same report notes that, following a meeting between Treasury and IRS officials discussing the rule (among other things), Treasury employees sent an email that "expressed concern that there was no direct statutory authority" to allow an exchange established by HHS to receive subsidies. In other words, even the bureaucrats in charge of making the rule were concerned that allowing subsidies in federal exchanges might not be justified.

5. An exchange set up by the federal government through the Department of Health and Human Services (HHS) under one section of the law is also an exchange "established by a State" under another section of the law.

According to the government's brief, the reason why the Treasury reached its conclusion about the availability of tax credits is because "an Exchange established by HHS for a particular State qualifies as an 'Exchange established by the State'" under the law and under the rule. This idea—that an HHS established exchange is legally a State established exchange—is central to the administration's argument, and it is repeated throughout the brief.

"Though run by HHS, each federally-facilitated Exchange is the same state-specific Exchange the State otherwise would have established," the brief says. When creating an exchange, the federal government stands in the shoes of the state, so that "for purposes of the Act, therefore, an Exchange created for a particular State by HHS is 'an Exchange established by the State'…"

This is, to put it mildly, a rather strained argument. If Congress meant to say that subsidies are allowed in both state-established exchanges and HHS-established exchanges, then wouldn't it have said so? On the contrary, the law defines "State" as one of the fifty states or the District of Columbia—notably leaving out the federal government.

In addition, the law allows for subsidies only through exchanges established by a state under section 1311 of the law, a section dealing with state-established exchanges. HHS can only establish exchanges through section 1321 of the law.

That distinction itself is notable. It suggests that the two forms of exchange are different, and that the difference is important rather than, as the administration argues, meaningless. As the challengers' brief says, "There is no legitimate way to construe the phrase 'an Exchange established by the State under section 1311' to include one 'established by HHS under section 1321.'"

The government's brief also attempts a version of this same argument by reading far too much meaning into the meaning of the word "such." It notes that the law says that if a state does not or cannot established an exchange for itself, "then HHS 'shall…established and operate such Exchange within the State," then argues that the use of the phrase "such Exchange" is intended to mean that an HHS-established exchange is "a statutory surrogate" for an exchange "established by a State."

This still doesn't make much sense. As the challengers argue, the word "such" is better understood as a describing the type of Exchange. But the IRS rule in question "makes subsidies turn not on the type of Exchange, but on who established it, and the word 'such' does not somehow require HHS to, impossibly, establish a state-established Exchange."

6. The phrase "established by the State" is merely a "term of art" that also means "established by HHS."

Here's what the administration brief says: "Contrary to petitioners' claim, that phrase is a term of art that includes both an Exchange a State establishes for itself and an Exchange HHS establishes for the State. [The law] therefore authorizes tax credits through the Exchanges in every State, not merely in States that establish Exchanges for themselves."

This argument, which only appeared when the case reached the Supreme Court, closely resembles the last one, and it is in some sense the crux of the government's case. Basically, it argues that the phrase "established by a State under Section 1311" also carries with it an unseen addendum: "…or established by HHS under Section 1321."

There is, of course, no mention of this secret addendum in the law, no provision under which the phrase "exchange established by a State" is defined as including an HHS-established exchange. On the contrary, as previously noted, the law defines "State" as one of the 50 states or the District of Columbia. And it fails to explain why, if a reference to one sort of exchange was in fact a reference to both, Congress made the distinction between the two, and, in the relevant part of the law, only pointed to one. 

What the administration's case amounts to is a request that the court ignore what Congress clearly said in the statute that it passed and assume that Congress meant something else, something that is not in the text of the law and something that is difficult to reconcile with what is.

The administration's argument, then, is not that the rule in question follows the law, but that the executive should be allowed to rewrite the law in accordance with how it would prefer the law to be, and that the highest court in the land should give its blessing when it does.

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  1. Winning argument?

    It’s a penaltax!

    1. Justice Roberts, you surely don’t want to be remembered as the man who took health care away from all of those adorable children, do you?

      1. I think Justice Roberts will be remembered as a man who was threatened by the Obamathugs or whose family was threatened by the Obamathugs.

        1. That sure is a nice jacket you are wearing there Roberts. It would be a shame if it got destroyed in a fire. /Guido

  2. THE COURTS CARE NOT FOR YOUR LOGIC

  3. You have to litigate it to find out what’s in it.

    1. You have to Roberts it to make sure what’s in it.

  4. 1. Federal subsidies are justified because they are a critical part of Obamacare’s policy scheme.

    Ignore what it says because we don’t like the result. Lots of statues have provisions that don’t make sense in the larger context of the statute. I have never seen a case where a court refused to apply such a provision when its language was clear. The context is only relevant where the language isn’t clear and there are multiple possible meanings.

    2. Congress would not have threatened states with a drastic and disruptive consequence should they decline to establish exchanges on their own.

    That is not an argument. The language shows they clearly did. You could make this argument for any statute. Congress would never threaten drug defendants with such drastic jail sentences. Congress would never try and regulate political speech in such a drastic way as limiting individual donations to $1000.

    3. Congress assumed that subsidies would be available in every state.

    The statute says otherwise. That is just another exercise in question begging.

    1. 4. The administration’s rulemaking process determined that subsidies were available through federally facilitated exchanges.

      Regulations don’t trump the plain meaning of the statute. That argument wouldn’t even pass a first year law exam.

      5. An exchange set up by the federal government through the Department of Health and Human Services (HHS) under one section of the law is also an exchange “established by a State” under another section of the law.

      That statue says otherwise. This is also not really an argument. It is just saying “don’t read the statute as written and pretend the offending language isn’t there, because we don’t like it”.

      6. The phrase “established by the State” is merely a “term of art” that also means “established by HHS.”

      Pretend the statute doesn’t mean what it says by pretending words have different meanings that what they do. I can’t think of a single statute dealing with federal and state relations where the term “state” means anything other than a state of the United States. Further, if it was to have such a general and unconventional definition, the statute would have defined it upfront to mean that. This statute didn’t and in fact did the opposite in other contexts.

      This is just pathetic. There is no viable argument for the government here.

      1. All correct, and irrelevant.

        None matters on whit compared to whatever threat is being held over John Roberts.

        1. Yup, logic and the plain meaning of the law as written are irrelevant. The court will decide based on their desired outcome, and try to find some way to reverse-engineer a justification for their finding. As they always do.

    2. There was a recent case in the Third Circuit involving the Dodd-Frank Act that involved a similar “plain language versus what Congress really meant” argument. Virtually the identical arguments raised by the Administration were raised, and rejected, by the Third Circuit, based on established Supreme Court precedent. The court’s reasoning was simple and straightforward: major legislation serves multiple purposes and goals, not just one, and the legislative process involves “give and take” and a series of compromises that are not necessarily consistent with the supposed “primary” goal of the legislation; therefore, ignoring the plain language of a statute in favor of what Congress supposedly “really” intended is actually to ignore the will of Congress as contained in the law it actually passed.

      If this were any issue other than Obamacare, this would be a straightforward statutory interpretation issue based on established legal principles.

      1. Yes. It is called the Chevron Test. The courts can only read the statutes as written. When the language is plain they have to assume Congress meant what it said. Otherwise, no statute, no matter how clear, would be safe from court re-interpretation. You think the law is vague and impossible to comply with now, let Courts start disregarding the plain language of statutes because they don’t think Congress really meant that and see how bad it is.

        Retards like Tony think this case is about Obamacare. No, it is about plain language and how courts read statutes. And that issue has been long settled. Every argument I have ever read, even ones made by people who were lawyers and should have known better, has boiled down to “ignore the plain language of the statute because couldn’t have meant that”. The court can’t rule that way without overturning Chevron and creating chaos. This is why I think Obama is going to lose this case and might not lose it 5-4. The justices are not stupid and certainly understand the stakes here and the impossibility of ruling in favor of the government and limiting the case to its facts so it doesn’t overturn Chevron.

        1. didn’t Roberts already ignore the plain language rule when he declared a Fine a Tax thus allowing Obamcare to continue. if he was willing to do it once there is no stopping him from doing it again.

          1. Which is exactly what I expect to happen. Because making the administration adhere to the law as written would be too “disruptive”.

            1. The Federal government already passed this point a long time ago, where we ignore the plain language of statute in order to do the “right” thing.

              Scalia’s quote regarding Affirmative Action comes to mind where he said

              “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

              Many people in this the US say that the 14th amendment requires AA, which it plainly forbids in plain text. It is the theater of the absurd.

        2. I think you have this exactly backward. If the text is unambiguous, that settles the matter. If it is ambiguous (and it clearly is here, if you take the entire law), then the question is whether the government’s construction is reasonable/permissible.

          1. No Tony you fucking moron. The text is perfectly clear. You are just pretending it is unclear by saying “the rest of the statute doesn’t mean that. That is not how it works. Clear means the words are clear not “but the whole context of the statute doesn’t mane sense” Again,, Tony, you have no argument here. None.

          2. Tony|3.4.15 @ 11:36AM|#
            …”If it is ambiguous (and it clearly is here, if you take the entire law)”…

            It is only “ambiguous” to lefty ignoramuses; the rest of us can read plain English.

          3. To be fair to Tony, it’s ambiguous in the sense that multiple courts don’t agree on it and the Supreme Court was willing to hear the case.

            There’s inherently some ambiguity involved or it wouldn’t be where it is. That being said, it does look like the entire Defense consists of ” We don’t like what we wrote into Law, just ignore it.”

        3. There are, however, some cases where statutory language is clear, but applying it literally would lead to such absurd results that agencies & courts have interpreted it differently. If you look at the FFDCA (or state pharmacy laws) since its 1938 amendments, the language “articles, other than food, intended to affect the structure or any function of the body of man or other animal” in the definitions would, taken literally, turn a great many things into drugs or medical devices that were obviously not intended to be treated as such. Similarly, “articles intended to be applied to the human body or parts thereof for cleansing, beautifying, promoting attractiveness or altering appearance” would make clothing & jewelry “cosmetics”. So neither definition is applied literally.

        4. John do you ever get the feeling that no one is listening?

  5. I used to look at this case and see it as a slam dunk, a big blow to an unpopular program that needs to be dismantled. The more I think about it, this looks like a no win situation. People are already depending on subsidies and will suffer if they are taken away. I’m sure the administration sees these people as a big trump card for them, which is pretty rich because we know more than a few are only in this position because they lost their insurance due to the ACA. Pretty fucked up they’ll essentially be used as collateral here. The blame will somehow fall largely away from the man who the law is nicknamed after and the clowns who passed it. B.O. will demand a quick fix with no other provisions…and what evidence is there to suggest that Congress ultimately will not cave?

    1. In which case the R’s can come up with something (however asinine), sell it as bipartisan (so they aren’t the Stupid Ones), and all we will hear next year is how Obamacare was a colossal failure and the R’s had to ride in to save the day…and somehow try to tie the failure to HRC.

      We’re all pawns here.

    2. The R’s are proposing funding an 18 month transition wind down bill to get people off the subisidies.

  6. For fun, read the current headline and word cloud on the front page of the Huffington Post:

    OBAMACARE BACK ON CHOPPING BLOCK

    Latest Challenge Over 4 Words… ‘Stakes Dwarf Those Of Most Cases In The History Of The Supreme Court’… 9.6 Million Could Lose Health Care… 37 States Could Lose Tax Credits… ‘Defies Not Just Legal Conventions But Also Common Sense’… ‘Fiction. Provable Fiction’… ‘The Court Itself Is In Peril’… These Lives Hang In The Balance… No ‘Replacement Plan’ From GOP In Sight…

    They don’t seem to understand that you can’t sneer a lawsuit out of court.

    1. NINE MILLION PEOPLE!!!!

      If it is that compelling, then it shouldn’t be a problem to get Congress to fix it, right? And if this act is so great, the Republicans in Congress will be signing their own death warrents by not fixing it. So, even if they don’t, what is two years of no insurance when the reward is a return to Democratic governance?

      Oddly, they don’t seem to be making such arguments. It is almost like the Republicans won’t fix this and won’t suffer for it. Like this bill is unpopular or something.

      1. The interesting question is why you would be perfectly OK with millions of people losing access to healthcare if it means scoring a point against Obama.

        1. You mean unlike the people who lost their insurance BECAUSE of PPACA?

        2. Why is that a relevant question? Are you conceding that even if the government is legally wrong it should still be allowed to break the law?

          Why do you hate rule of law, Tony?

          1. Ends justify the means. The prog way.

          2. ‘Tony’, like most progtards, only cares about getting his desired result, by any means necessary. He is a dishonest little authoritarian troll.

          3. The plaintiff’s case is ridiculous and will lose unless Kennedy decides to naval-gaze his way into being suckered by the rightwing partisans on the court. My question was concerning John’s apparent sociopathy.

            1. ‘Tony’ really believes adhering to the actual written law is ridiculous when it conflicts with his FEELZ. He is the master of derptards.

              1. Adhering to the actual written law means ruling in favor of the government. The law, as you idiots have reminded us so often, is hundreds and hundreds of pages. Not four words.

                1. Tell us where in the statute it says you can get tax bennies through the federal exchange, Tony.

                  1. You’re blind RC…that language is in the same paragraph where T o n y gets his rainbow colored pony!

                2. Adhering to the actual written law means ruling in favor of the government.

                  And you know this to be a lie, you dishonest little shit.

                3. “The law, as you idiots have reminded us so often, is hundreds and hundreds of pages. Not four words.”

                  Well no it’s not four words:

                  “The requirement that tax-credit recipients enroll in coverage “through an Exchange established by the State” appears twice explicitly in the tax-credit eligibility rules, and a further seven times by cross-reference.”

                  If you can’t point to somewhere else in the bill where it actually contradicts this clause which appears multiple times, then you don’t have much of a case on those grounds.

            2. Tony|3.4.15 @ 11:12AM|#

              The plaintiff’s case is ridiculous and will lose unless Kennedy decides to naval-gaze his way into being suckered by the rightwing partisans on the court. My question was concerning John’s apparent sociopathy.

              So anyone who doesn’t run around like a shmoo seeking to be eaten by the likes of you and your ilk must be some sort of sociopath?

        3. Who knows. Go ask them. That doesn’t change the fact that if doing that is such a bad thing, why won’t their be political consequences? If this program is so great and so popular and this case going to hurt it so badly, how could they not fix it without ensuring the Democrats win in 2016 like they did in 08?

          Forget it Tony, everyone but fanatic dead enders like you hates this law and will be happy to see it go down. The only reason the Republicans won’t do anything to fix it is because it is such a political boon to them. Even if they take power, they still might not fix it because the law is so bad and so unpopular that they will hate to see the Democrats finally get some relief for having passed it.

          As a partisan Republican, I really can’t hate Obama too much. How could any Republican dislike someone who is doing such grave damage to the Democratic Party? He is destroying the party you have spent your entire life fanatically supporting and all you can do is defend him and thank him. It is like some kind of abused spouse syndrome or something.

          1. Well, Obama is also destroying what little is left of the constitutional Republic we once had, so that right there is reason enough to hate the smug prick.

          2. As a partisan Republican you no doubt get your facts about the world from twisted right-wing propaganda, which is why you so often get things wrong and embarrass yourself. The parties’ electoral successes or failures will not hinge on the popularity of the ACA.

            1. The parties’ electoral successes or failures will not hinge on the popularity of the ACA.

              Holy shit, did the troll actually type this?! Never change, ‘Tony’, never change!

            2. The parties’ electoral successes or failures will not hinge on the popularity of the ACA.

              I have Minority Leader Pelosi and Reid and hundreds of out of work Democratic politicians at the state level who say otherwise. You are right in the sense that Obama is such a monumental fuck up that he is giving the public more than just Obamacare as a reason to hate the Democrats. It is, however, a large one and going to be probably the biggest single reason why you and your ilk are going to be in the political wilderness for a long time.

              How does it feel to be in the minority Tony? The Republicans control most of the elected offices in the country. All you have is Obama and he is leaving in two years. You are only two years away from waking up every day knowing your political enemies run the entire country outside of a few bankrupt blue states.

              1. Republican control in governments across the country relies on a very clever concerted effort by them to rig democracy in their favor. They are not popular, and their ideas are even less so.

                1. Politicians’ control in governments across the country relies on a very clever concerted effort by them to rig democracy in their favor. They are not popular, and their ideas are even less so.

                2. Remember folks: When you win elections, it’s an honest expression of the will of the people, and when you lose them it’s due to sabotage or other malfeasance by the opposition.

                  1. “Remember folks: When you win elections, it’s an honest expression of the will of the people, and when you lose them it’s due to sabotage or other malfeasance by the opposition.”

                    It’s typical for a partisan to feel that way immediately after they lose a hard fought election. But when the election was five months ago, it’s just delusion.

              2. Don’t worry yourselves about Tony. You can tell he’s worried since he bothered showing up to piss on the parade.

        4. Who said anything about losing access to healthcare, Tony?

          We are talking about losing subsidies, which may or may not cause some to drop their insurance, which may or may not affect their access to healthcare.

        5. “Emergency Rooms barred and Doctor’s offiices close as millions of people lose access to Healthcare!” screams the frivolous headline.

        6. The interesting question is why you would be perfectly OK with millions of people losing access to healthcare if it means scoring a point against Obama.

          Obamacare provides zero access to health care. It provides a subsidy to 9 million people to buy health insurance. Health insurance does not equal healthcare.

          1. Health insurance does not equal healthcare
            .
            But what if Tony was hit by a bus!?

            1. The nations collective IQ would increase by a small fraction.

            2. Let’s not drag abortion into this.

        7. The interesting question is why you would be perfectly OK with millions of people losing access to healthcare insurance if it means scoring a point against Obama.

          FIFY

        8. Tony|3.4.15 @ 10:50AM|#
          “The interesting question is why you would be perfectly OK with millions of people losing access to healthcare if it means scoring a point against Obama.”

          That’s a very interesting question. Why don’t you ask the slimy bastards who wrote the law?

        9. Insurance and healthcare, or even access to health care, are not the same. People can go to the ER and get treated, law prevents the hospitals from turning them away. It might not be the best option, but people will get health care.

    2. Same type of headline on page 2 of U.S.A. Today, describing “what’s at stake” in today’s case. Apparently the only things at stake are all the people who will lose benefits that they may very well have been receiving illegally (the rule of law and executive overreach apparenly not being at stake at all in this case, and not being issues that U.S.A. Today cares about), and the “reputation” of the Supreme Court, which Chief Justice Roberts supposedly “recognized” when he voted to sustain the individual mandate.

      It is funny to me the the Court’s “reputation” is only “at stake” when it strikes down laws Team Blue supports, but it was perfectly OK for the Court to strike down, by a 5-4 vote generally along party lines, a different statute that Team Blue opposed.

      1. I heard the NPR report last night by Nina Totenberg. It was hilarious in a, “We don’t even pretend to not have an agenda” way.

        It opens with:
        “In one corner is the Obama administration, backed by the nation’s hospitals, insurance companies, physician associations and other groups like Catholic Charities and the American Cancer Society.

        In the other corner are conservative groups, backed by politicians who fought in Congress to prevent the bill from being adopted.”

        http://www.npr.org/2015/03/03/…..ourt-again

  7. Everything Suderman just wrote is entirely logical.

    Which is exactly why the Chief Justice won’t follow it.

  8. The progs ought to be careful with the argument that the executive branch can simply ignore the plain language of a law based on some utilitarian excuse. They might want to remember that they won’t hold the executive branch forever.

    Aw who am I kidding. They don’t ever remember it, and neither do their cousins on the right.

    1. This exactly. None of the dumb asses in government can see past the next election cycle. And none of them ever expect their side to lose. Once again, we are better off picking names from a phone book.

      1. I’d argue that they see well beyond the next election cycle and realize that since the political class is not bound by the law, this will have no affect on them other than expanding their power. The left-right struggle is an illusion. The truth is, they all have all the power.

    2. A prog can be identified by their ignorance of the Irons Laws, including:

      Me today, you tomorrow.

      1. The progs believe they have some protection against that law in form of mainstream media actively promoting the prog agenda.

  9. If you value your sanity, do not click here.

    1. Shit…….here goes…….

      fish jumps head first into the derp….

      1. Well not quite as loopy as I expected…….

        Of course the obligatory “striking the boogieman” was repeatedly on display…..

        Kyle Weidleman ?@kweidleman 2m2 minutes ago

        What does Koch $$ get you? A better sound system.

        What does people power get you? Community.

        #DontTakeMyCare

        Hey Tony…..another proglodyte nitwit who uses the term “people power” unironically…..you to should hook up.

  10. Allow me to summarize the Obama Admin’s argument: BUT TEH FEELS!!!11one

  11. Congratulations for being one of the only political commentary sites that doesn’t see the plaintiffs’ case as completely ludicrous.

    1. Congratulations on being one of the many, many progs that think they can sneer a legal argument out of court.

      I haven’t read any convincing legal arguments to support the government’s position on this matter. Instead, I’ve read a bunch of hysterical pleas to think of the children and the poor as if that has any bearing on what the law says.

      1. Try more reading.

        1. Try more^Wsome^Wany thinking.

        2. Why read, I can watch Gruber on YouTube explain how it was EXACTLY the intention of this law to force states to build exchanges or lose subsidies?

          Or am I supposed to believe you and not my lying eyes?

          Face the fact that the Feds tried to bluff the states and they got called on it.

        3. Extremely ironic statement.

    2. Speaking of weak arguments…

      1. What else would we expect from such a weak intellect?

        1. Guest of honor at a Bukkake party…..

    3. When appeal to ridicule is all you have, appeal to ridicule is what you use.

    4. Yes Tony, you have no argument. Thanks for confirming that. This case is so weak, they didn’t even give you talking points to support it. All you have is “well that is ridiculous” as if that is an argument.

      1. A reading of the entire law, that is, the context of the four words in question, makes it absolutely clear that subsidies are meant to be available regardless of the nature of the exchange. That’s very simply why the case is ridiculous on the merits, leaving aside the fact that the plaintiffs don’t even appear to have standing.

        1. And what you’ve just stated is a lie. But you already know that, you dishonest little shit.

        2. Why bother reading the entire law cumspot? You’re almost certain to get your way on this one as we are a post-constitutional just making it up as we go along entity at this point.

          I must admit I’m a little shocked though that you are endorsing such a poor system….no, strike that…I’m not!

        3. It is one thing to say that the Adminstration has a better argument. But to say that the plaintiffs’ argument is “ludicrous” is itself, well, ludicrous.

          I would suggest that Tony read the arguments in support of plaintiffs’ position, and the rules of statutory interpretation generally. Unfortunately, that would involve teaching Tony how to read.

          1. He is only saying it is “ludicrous” because the exact opposite is true. If the plaintiffs and their shills like Tony had any arguments, they wouldn’t just say the other side is ludicrous, they would explain why. The reason they don’t is in Tony’s case because he has a very low IQ but in other cases because there are no arguments.

            You have to make arguments before the Court, so the briefs couldn’t just dismiss the plaintiff’s arguments. And you see above how stupid those arguments are. Notice Tony doesn’t even try to defend them. That is because he doesn’t have any talking points to defend them. There are no talking points to defend them because they can’t be defended.

            1. Better legal experts than I have shot down the plaintiff’s arguments. I suggest you read some of them. Or stay in your rightwing bubble, I don’t give a shit.

              1. By “better” you mean people who agree with you more.

                1. Here’s another fun Tony twist of logic: the only true experts are the ones who agree with Tony. Except that Tony is an admitted layman on just about every topic. So somehow Tony knows who the right experts are despite not being one himself or really having any way to assess their quality apart from their level of agreement with himself. Thus making Tony the ultimate expert on every topic, but allowing him to weasel out of any need to prove it.

                  In honor of coining the “Noam Chomsky paradox” the other day, I would like to coin this the “Jon Stewart paradox”.

              2. This statement boils down to, “you must not have read an opposing view because you don’t agree with me.”

                It is witless analysis.

        4. Again, Tony, you have no argument. Sorry but “it couldn’t mean that” isn’t an argument. Context only matters where the meaning is unclear. Here the meaning is clear.

          You are too stupid to understand it but this case involves bigger issues than Obamacare. It really isn’t even about Obamacare. The case concerns how courts read statutes. And there isn’t a single case that supports the notion that courts should disregard the plain language of a statute because it thinks in the context Congress didn’t mean it that way. Courts don’t consider what they think Congress might have meant. They read the statutes and apply them as written. They only wade into the muck of legislative intent where the language is ambiguous. Here, the language is clear.

          You have no argument Tony. You are so stupid you can’t even grasp why that is. But trust us, you don’t.

          1. The meaning is fairly clear–the subsidies are meant to be in place regardless. Kennedy brought up the point established in the prior ACA ruling that the federal government can’t coerce states into acting by promising severe economic consequences–as would be the case if the subsidies were struck in federal exchange states.

            I realize it’s easier relying on the “the law only has 4 words in it suddenly” desperation of right-wing arguments, but try going to other sources, however painful. You’ll be better off in the end.

            1. The meaning is fairly clear–the subsidies are meant to be in place regardless.

              That is not what the statute says. If it didn’t say “no subsidies for states that don’t comply”, there wouldn’t be an issue. You are just ignoring the language and begging the question.

              Kennedy brought up the point established in the prior ACA ruling that the federal government can’t coerce states into acting by promising severe economic consequences–as would be the case if the subsidies were struck in federal exchange states.

              You are so stupid Tony you actually don’t understand how contrary that is to established law and how much that would reduce federal power. Kennedy brought that up because the idea that the feds shouldn’t be able to use the threat of withholding money to extort the states into doing something has been floating around conservative legal circles for decades. No liberal justice is every going to make such an argument or write an opinion affirming it.

            2. All arguments in favor of the government of this case rest on the presumption that the law itself is legitimate. But the Mafia has guns so I guess that makes its “insurance” program legitimate. If you argue against it the Mafia will have its “judges” rule on the case and will find against you. After all, they have guns, so they are legitimate.

            3. Tony|3.4.15 @ 11:45AM|#
              “The meaning is fairly clear”

              Yes, it is, and the meaning is the opposite of what you claim.

            4. You seem somewhat obsessed by the fact that the argument revolves around four words in the law. “Separate but equal” was only three.

        5. Are you really claiming you read the entire law Tony? And after this reading you think that the case is ridiculous?

          Or (and I’m going out on a limb here) you read a lot of other prog sites that made this claim? You are simply repeating the claims that others have made.

          I’m tired of this “if you read the entire law” argument. I want there to be a register where people can get certified as having actually read all 10K pages of the law. I’ll listen to them. Anyone else yammering about context gets flushed.

        6. Re: Tony,

          A reading of the entire law, that is, the context of the four words in question, makes it absolutely clear that subsidies are meant to be available regardless of the nature of the exchange.

          The law would have said so and would’ve been written to say so. Instead, it doesn’t; it says something completely contrary and straightforward, without equivocation: only those states where state-run exchanges exist will receive the subsidies. That is clear and unequivocal language. It means those states that did not create and are not running state exchanged are ipso facto excluded for those subsidies.

          What is interesting is reading the words of a little red Marxian who argues from the intentions of the law rather than the words, exactly the contrary position the same little red Marxian takes when interpreting things like the 2nd Amendment in the Bill of Rights, or the Interstate Commerce clause. Who said little red Marxians are not consistent, uh?

        7. Tony|3.4.15 @ 11:15AM|#
          “A reading of the entire law,”…

          Pick them cherries, shitbag.

        8. ” the context of the four words in question”

          I know your not exactly super bright, but surely you can fraking count to six.

          “The fight is about six pesky words in one section of the law. Those words stipulate that for people who cannot afford health coverage, subsidies are available through “an exchange established by the state.”

        9. So reading the entire law while ignoring the part that decides the issue is going to settle this how?

  12. I have noticed one argument that has not been raised against the proposition that Congress would not have intended to withhold subsidies to those in states that refuse to establish their own exchange. The SCOTUS has already ruled against the Administration in its attempt to withhold ALL Medicaid funding if a state did not go along with the ACA demand that they expand eligibility. Meaning, not only would said state not get new funds, but it would also lose funds for the existing program. Now, surely Congress did not mean to cause the collapse of the entire Medicaid program! Yet, they held out that stick in order to coerce states to come to heel. Now, SCOTUS put a stop to ALL funds being removed, but they were perfectly fine with the feds withholding new funds. How are the subsidies different?

    1. The medicaid funding ruling was a mess. There was no single justification for striking it down.

      Here is what is interesting about that decision, the sides were reversed. It was liberal justices (Sotomayor and Ginsburg) who upheld it and said the feds had every right to withhold all funding from states that didn’t comply. The conservative justices (Alito, Kennedy, Scalia, and Thomas) struck it down but I don’t think addressed the issue because they thought the commerce clause invalidation of the mandate struck down the entire statute and made the issue moot. Roberts and Kegan said that the expansion was only permissible if states could opt out without losing their medicaid funding.

      You make an interesting point about the Constitutionality of the Feds punishing states forcing them to do things. The problem with that position is that it is generally a conservative position and such a precedent would lead to all kinds of things liberals would hate. This is why three of the four liberals voted to uphold the medicaide expansion in full.

      This case might produce a very unexpected majority and separate opinions. I could see one of the conservatives deciding the statute means what it says but that the Feds can’t coerce the states like that. I could also see Kegan and one of the other Liberals deciding that they just can’t get around Chevron and don’t see a problem with the coercion and voting against the government.

      1. I can’t get past the “surely Congress didn’t mean to exclude citizens from subsidies or destroy the law.” I am off the mark in the understanding that in those states where the Medicaid expansion was refused, that Congress, under its original intentions and the letter for the law, would have yanked the Medicaid rug out from under that state? And if that is so, why is it such a stretch to think that Congress would not have done the same with the premium subsidies?

        1. Because that is not what was going on there. First, that is not why the four conservative justices struck down the provision. They struck it down because in their opinion the fact that the mandate was unconstitutional rendered the entire statute moot. Second, Breyer, Roberts and Kegan ruled the feds couldn’t coerce the states by withholding funds. The ruled that the Feds can’t do that at all not “this is so bad we can’t allow it”. More importantly, Ginsburg and Sotomayor saw no problem with the feds coercing the states at all. So it is going to be a little difficult for them now to come back and say it is not okay to do this when they were perfectly fine with the feds withholding all medicare funds from non hacker states.

          For the court to rule on this, Breyer Roberts and Kegan will have to all decide that withholding from citizens is the same as withholding from the state government and two of the four conservative justices will have to join them. I can’t see that happening.

          If they did, there would be a huge upside for small government advocates. It would create one hell of a precedent for going after pretty much every federal mandate out there. I don’t think Progs are going to like that very much.

          1. How is the federal government extorting the states over the subsidy and/or Medicaid legally different than withholding highway funding from states with a drinking age lower than 21? Or has that just never been challenged in court?

            1. Its not. And those things have all been challenged in court and been ruled just fine. That is why the court ruling this is unconstitutional coercion would be a very big deal.

          2. So basically, if the IRS’s interpretation stands, this confirms that any agency in the executive branch can interpret a law, and as long as the interpretation is within the realm of possibility, and especially if enough money has already been spent/promised and enough people are impacted, the interpretation stands. Seems the FEMA scenario in House of Cards isn’t too far fetched in that case…

  13. You know, it might be easier for the courts to determine what the true intent of Congress was if this bill had – I don’t know – actually been debated in public and studied prior to passage by the legislators.

    Who wouldathunk that a bill passed via parliamentary tricks, with virtually no debate and no review would end up having some inconsistent passages?

    Maybe a few committee hearings might have brought this issue to the forefront prior to passage and been resolved?

    1. Looks like Josh and Toby should have more coffee when they drafted this clusterfuck.

    2. J Sanchez (Hispanic American) ? 7 months ago

      Your statement that America has the worst healthcare system is simplistic in the extreme. Perhaps if your a prolific cherry picker you can say that but just barely. The fact of the matter is that here is America we have the best medical care with the best possible outcomes. Your talking about access and that’s what the ACA is trying to remedy. The problem is trying to chart a course where the system can turn a profit which you are obviously against. Most liberal progressives are but funny thing is that that are hordes of very very rich liberal progressives who used the American system to get to where they are today. Go figure. Perhaps if when they wrote this law and passed it with some input from those that opposed major parts of it of the law it might have been more widely accepted. Unfortunately it was ram rodded through congress and passed in the senate using a parliamentary trick.
      The ends never justify the means in a nation of laws and hence the problem with the law itself.

  14. “Though run by HHS, each federally-facilitated Exchange is the same state-specific Exchange the State otherwise would have established,” the brief says. When creating an exchange, the federal government stands in the shoes of the state, so that “for purposes of the Act, therefore, an Exchange created for a particular State by HHS is ‘an Exchange established by the State’?”

    Then why bother at all with State established exchanges in the first place?

  15. Re: Tony,

    The interesting question is why you would be perfectly OK with millions of people losing access to healthcare if it means scoring a point against Obama.

    Theirs were lousy plans to begin with.

    See how that works, little red Marxian?

    1. The law is extremely destructive. One minor victory here will not eliminate the remainder of the destructive potential.

  16. If we’re going to rule by intentions rather than what the law says, can I get my old insurance and my old doctor back, as well a big refund? After all, that’s what the President said his intention was.

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  18. “Weak’s got nothin’ to do with it.” To paraphrase Bill Munny.

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  20. Class, repeat after me:

    “The Constitution does not prohibit legislatures from enacting stupid laws.”

    -Supreme Court justice Thurgood Marshall

  21. Party on Wayne!

    If the SCOTUS rules in favor of the administration that text doesn’t count. I hope the states will force that “logic” onto other topics. Example: The federal highway fund is for building roads. The text that cuts highway funds for any state with a drinking age below 21, harms the general goal of building roads. Thus ignore the plain text and states are free to lower the drinking age to age of majority and get highway funds… 18 or better yet 16.

    Party on Garth!

  22. Wasn’t it Justice Roberts who said following the 2012 decision that it wasn’t the SCOTUS duty to save people from poorly-worded legislation?

    Not that it makes a lick of spit here….I just seem to remember that statement from back then

    1. If Roberts sticks to that, then intention doesn’t matter, just the text. If Congress pass a poorly worded bill, it’s still law.

  23. What is totally missed on all of this back and forth is the fact that the word “state” slipped out before the state was truly established-the totalitarian state, that is. The process has been ongoing, and they meant to have that state established whereas they needed no legal basis for enforcing whatever they damned well pleased. I’m sure we all know who “they is”!

  24. The “most transparent administration….”

    Transparently dishonest.

    1. Amen, to that!

  25. I read this post from a year ago on the site http://www.pewresearch.org/fac…..-exchanges

    People who can’t afford it are subsidized by the expanded medicaid that has been central to the law from the start, yet many critics don’t mention it, and consequently nearly half of Americans aren’t even aware it exists (according to a recent pew study). This has allowed several mostly southern red state governors to opt out of the expansion with impunity, despite there being no benefit in doing so, which is at least partly why the bill appears to be so bad to citizens of those states. They simply aren’t getting the benefits of Bill at all, but rather see a skeleton variant. Sad.

    Is the poster implying ignorance, or attempted sabotage.

  26. The truth is the Democrats thought once they rammed it through and Obama signed it, no state would openly refuse to create an exchange. They thought that once there was a mandate, the states would submit and do as they were told. Democrats believed their own press and forgot about the people of the red states or as they like to call them ” fly over country”. In their arrogance, they thought once they passed it, the people would just accept it and move on. When that did not happen, the cracks appeared and then when the date of implementation arrived, it started to fall apart. Even if this challenge fails, there are still others based on origination clause which the bill clearly violates.

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