Why the Supremes Should Scrap ObamaCare's Federal Exchange Subsidies

No one should envy the Supreme Court justices their job as they take up another legal challenge to Obamacare and

rtcosmin / Foter / CC BY-NC-SA

weigh the testimony they obtained during oral arguments yesterday. The only thing the hearings clarified is that the law is one, big, colossal, contradictory mess.

At issue is the legality of IRS's decision to hand subsidies through federal exchanges. Plaintiffs claim that the law authorizes these subsidies only through state, not federal, exchanges. Supporters argue this would make the law unworkable, hardly something that Congress could have intended.

Beyond the statutory arguments, I note in my column at The Week, the two sides are also making federalism claims. But instead of trying to sort out who has the better statutory/constitutional argument, the Supremes should opt for the course that requires the least amount of meddling from them.

This would involve overruling the federal exchange subsidies and advising the administration to go back to Congress to rewrite the mess.

Go here to view the column.

Comments

[kinnath]

Kill it before it grows

[Puddin' Stick]

Shikha still hasn’t cleaned up the virus on her laptop?

[Jordan]

I didn’t realize America had such a nice ass.

[Heroic Mulatto]

American as apple-bottom pie.

[EDG reppin' LBC]

United States of Ay-uss!

[Heroic Mulatto]

Please rise for the National Anthem.

[EDG reppin' LBC]

I gotta’ admit, I love big ol’ titties. That’s why I married my wife. 😀

[EDG reppin' LBC]

She’s also got a gang o’ ass.

[WTF]

Yo, Ima wreck dat ass.

[Libertarian]

The alt text was redundant, unnecessary, and repeated the existing caption.

[Agammamon]

We’re gonna tax the hell out of that ass.

[Sagittarius A*]

Penaltax?

[Agammamon]

Penistax

[Rich]

Supporters argue this would make the law unworkable, hardly something that Congress could have intended.

Emphasis added. Citation needed.

[Dweebston]

Well, it’s true, but hardly relevant to the question of statutory interpretation or Constitutionality.

Unless you’re suggesting Congress intended the bill to capsize? I see a lot of maybe glib maybe serious suggestions that the left considered this the thin edge of the sword to getting single payer instituted, but that relies on, among other things, holding Congress and retaining the presidency. The former’s been disastrous for Democrats and the latter’s looking mighty iffy. Watching their signature achievement of the past decade sink below the surface under its own dead weight won’t do much for their cause.

That said, even given the best of intentions and expertise, this bill is a monstrosity that wouldn’t have looked out of place in the NRA days. If it’s not jettisoned outright in the next few years we’ll be euthanizing it in a few decades.

[Bo Cara Esq.]

“a monstrosity that wouldn’t have looked out of place in the NRA days.”

A perfect description

[Dweebston]

Which, sadly, means we’ll be stuck with the thing for much of my adult life.

Hooray.

[Bo Cara Esq.]

This one’s really, really unpopular with one of the two big parties, and eventually that party is going to be in power. I think this law will not be there ten years from now imo.

[sloopyinTEXAS]

There’s a lot of shit in government that should have disappeared when the opposing party took over. Yet somehow they managed to keep the program’s going and all those good little bureaucrats employed.

I would challenge you to find a single department or even sub-department in the government that has actually gotten smaller in the time after its inception.* Shit, I’d bet we still have farriers on the government payroll.

*Ebbs and flows in military spending not included.

[Brett L]

Has Bureau of Indian Affairs been demoted from a Cabinet post yet.

[sloopyinTEXAS]

It never was, was it? It moved from the War Dept to Interior, but I never thought it was a cabinet-level department.

[RBS]

Well, the Secretary of the Interior is Cabinet level, so technically…

[RBS]

Nope

[Libertarian]

Agreed. I think in 10 or 20 years we’ll be living under a version of this law which will have evolved into an even bigger and uglier mess than it is today.

[Mr. Soul]

Well, you see, the multitronic units one through four were not entirely successful. This one is. M-5 is ready to take control of the ship.

[tarran]

I can find something:

The federal tea tasters and the board of tea appeals. They were the guys who tasted every batch of tea entering the US to make sure it was up to snuff.

They were disbanded in the mid 90’s.

[SusanM]

Taking a wild guess that you don’t mean the 1890’s.

[RBS]

1890’s or 1990’s

[tarran]

They were organized in 1897 and disbanded in *1996*.

Contemplate *that* on the tree of woe.

[The Last American Hero]

If those Crayzee Tea Partiers get their man in the White House, the board of tea appeals may return.

[Agammamon]

We certainly still have *calligraphers*.

[Dweebston]

This same party is actively scotching attempts by its members to counteract the president’s blatantly unconstitutional unilateral action on a matter conservatives find repugnant even on the best of days. I’m not holding my breath on the ACA.

[Rich]

Unless you’re suggesting Congress intended the bill to capsize?

I have no idea what “the intent of Congress” means, particularly when it comes to Democratcare.

[Rasilio]

Actually it is pretty clear what the intended.

The plainly intended the law to specify that only state exchanges qualified for subsidies as a way of compelling states to institute them.

They had no clue just how unpopular the law would be, especially in strong red states and so it never occurred to them that any state would actually refuse to make an exchange.

Basically they played chicken and the other guys didn’t blink and then rather than admit defeat they took advantage of the fact that they controlled the executive branch agencies tasked with writing the rules required by the law to retcon the law to rule them the winner anyway.

[kinnath]

By forcing states to set up exchanges, the cost of the exchanges was not included in the bill so the bill looked “cash positive”. The subsidies were intended to mollify the states and get them to come along peacefully.

This was widely discussed during the debates leading to the vote.

[R C Dean]

Supporters argue this would make the law unworkable, hardly something that Congress could have intended.

Well, Congress never passes a law that they intend to be overturned because its unconstitutional. I think you need a little more than “Congress didn’t mean to violate the Constitution” to win at SCOTUS.

[Sevo]

“Why the Supremes Should Scrap ObamaCare’s Federal Exchange Subsidies”

Because the law is clearly written such that there isn’t much question? How about that?

[Bo Cara Esq.]

I’m not so sure about that. Here’s a good argument regarding that referenced by one of the Volokh Conspirators:

http://www.washingtonpost.com/…..ell-contd/

[R C Dean]

Here’s the argument Bo is so enamored with:

But: Section 1321(c) directs that if the State elects not to establish an “Exchange,” the Secretary of HHS shall “establish and operate such Exchange.” Aha! How can HHS establish and operate an “Exchange,” if an “Exchange” must be something “established by a State”? It must be that HHS is acting, in effect, on behalf of the State ? otherwise, whatever it is that the Secretary of HHS establishes and operates couldn’t possibly be “an Exchange,” and this provision would be nonsensical.

Basically, it says that the word “such” means that an Exchange established by the feds is an Exchange established by the feds “on behalf of a state”.

News flash: lots of people do things “on behalf of” somebody else. What “on behalf of” means is that the somebody else isn’t doing it.

And, of course, the defenders are desperate to have you ignore what comes after the reference to “Exchange established by the State”, namely, a cross-reference to the statutory section that applies only to Exchanges actually established by the States, as distinct from this established by the feds (which have their own section of the statute).

To the extent that “such” and “oh behalf of” have any relevance at all, that relevance is obliterated by the cross-reference.

That’s context that matters. And it pretty well negates any attempt to argue that the statute was drafted to allow federal exchanges to use tax bennies.

[Juice]

The law says that the feds can establish an exchange but that subsidies can only be distributed through exchanged created by the state. It’s not that hard, folks.

[Sevo]

“It’s not that hard, folks.”

For insufferable twits, that’s an opportunity to prove once again you’re an insufferable twit.
Right, Bo?

[Charles Easterly]

“This would involve overruling the federal exchange subsidies and advising the administration to go back to Congress to rewrite the mess.”

I like this idea, especially if Congress repeals/discards the entire Affordable Care Act rather than rewriting it.

Also, and of no importance whatsoever, who is the woman in the picture?

[Dweebston]

That’s the Lady Liberty of our diverse, young, and hot country.

[R C Dean]

Aaaand, cue global warming pissing match.

[Dweebston]

If global warming is responsible for scantier outfits, I’m rooting for global warming.

[Trigger Warning]

Just don’t pay any attention to what Gruber said. Gruber who? That guy doesn’t matter. He’s a nobody. He contributed nothing to the law. Call it the stupidity of the average voter, or whatever, that anybody would even utter his name in public in connection with this health care law he didn’t help write.

[sloopyinTEXAS]

Speaking of Grubers. Hans Gruber or Simon Gruber in a comparison of pure maniacal genius?

I’m gonna go against the (anticipated) grain here and say Simon. He was just a hell of a lot smarter than his brother.

[RBS]

Simon was way smarter. Every time I see a bunch of dump trucks driving down the road I text a friend of mine to let him know to be on the lookout.

[sloopyinTEXAS]

Agreed. And I also know a lot more about Chester A. Arthur than I would have without Simon.

[kinnath]

I am not a monster . . . .

[Charles Easterly]

Simon had the advantage of using his brother’s death to manipulate his enemies, but his overall plan was still much more complicated, so I’m with you on this one.

[sloopyinTEXAS]

I can’t wait on that imbecile Epi to come on here and erroneously claim that Hans Gruber was the greatest villain ever.

[kinnath]

Even snape was better than hans

[EDG reppin' LBC]

Simon. I mean Hans’ whole plan got queered because he put all the detonators in one bag. When you’re trying to pull off a $600 million heist, you have to build in some safe guards and redundancies. And he’s German, even. Sheesh!

[sloopyinTEXAS]

He could have gotten them back if he started killing a hostage every 30 minutes until John brought them down and turned them over. After, oh 90 minutes or so, they would have been back on schedule.

The real flaw was only having one exit plan involving the choppers. A scheme that elaborate would have demanded a tunnel for when the plans went to shit. Leaving your only out an exposed exit into the sky with a pilot you hadn’t personally hand-picked? Sheer lunacy!

[SusanM]

Wasn’t the real real plan to sneak out with the loot in the ambulance in the parking garage?

[Bones]

Yes. The choppers were always a diversion.

[Rasilio]

Yes, the choppers were a decoy.

The idea was for the choppers to blow up on the roof giving the FBI the impression the terrorists were killed in the explosion, then when no one was paying attention sneak the ambulance out into the mass of them waiting outside

[Hyperion]

Captain Penaltax to the rescue…

That is all.

[Bo Cara Esq.]

It must present quite a dilemma for Roberts. Why save the ACA to turn around a few years later and gut it? He would have spent all that capital for nothing.

[Rasilio]

Oh you know, as much as we might agree or disagree with his rulings maybe the fact the he might just not rule on the basis of political expediency. Me very easily could have ruled the way he did on the basis of his intrepretation of the law in that case and he could very easily rule the other way now on the basis of his intrepretation of the law in this case regardless of how he personally feels about the ACA, President Obama, or anything else.

Also, as Chief Justice of the Supreme Court he is one of the 2 or 3 most powerful men in America and his appointment is for life so he doesn’t need capital because he doesn’t need to compromise with anyone

[Dweebston]

Which doesn’t mean he’s not ultimately shilling for one side on the margin, even if he believes in his own objectivity.

[Grange95]

“No one should envy the Supreme Court … as they weigh the testimony they obtained during oral arguments yesterday.”

There was no “testimony” given yesterday. Appellate courts hear arguments–advocacy. Appellate courts do NOT obtain testimony or take evidence (except in the extremely rare situation of original jurisdiction cases, and even then they usually pawn that role off onto a special master).

Kind of a fundamental blunder right out of the gate when you are trying to give an opinion on the proper jurisprudential approach to resolving the case.

[Jordan]

Hair splitting. *Yawn*

[R C Dean]

More hair splitting:

The only thing the hearings clarified is that the law is one, big, colossal, contradictory mess.

Those weren’t hearings. They were oral arguments.

[Juice]

Did they not hear the arguments? Maybe they didn’t.

[R C Dean]

Occam’s Razor applies to legal arguments as well, you know.

The challenger’s argument is very straightforward: the statute refers to “State exchanges” in unambiguous terms, including a reference to the statutory provisions that apply only to State exchanges. Ergo, the tax benefits are available only through State exchanges, not through federal exchanges. By extending the tax benefits to federal exchanges, the IRS exceeded its authority.

The administration’s argument is incredibly convoluted and complex. That’s usually a good sign that its weak, relative to the straightforward argument of the challenger.

[F. Stupidity, Jr.]

DAT ASS and the ass.

[Lord Humungus]

+1 Internet Win for the Day

[Libertarian]

Did anything ever happen regarding the argument that, since the ACA penalties have been classified as taxes, the law is unconstitutional because it did not originate in the House?

George Will’s musings on this last year:
http://www.washingtonpost.com/…..story.html

[R C Dean]

Any honest application of the Constitution would mean that the penaltax, as a tax, was wrongly originated in the Senate.

But we left that behind long ago. Now, as long as the bill number is a house bill number, the Senate can gut the bill entirely, replace its contents with a tax, and SCOTUS is perfectly satisfied that is authorized by the Constitution.

[Dweebston]

It’s not the SCOTUS’ job to vouchsafe the Constitution, plebe. It’s the plebes’ job to elect Constitutionalist congressmen.

[fish]

Any honest application of the Constitution would mean that the penaltax, as a tax, was wrongly originated in the Senate.

BUT CHILDREN….and puppies…..flowers. How can they let such beauty die?

[Jackand Ace]

“The least intrusive thing for the court to do would be to overrule the federal exchange subsidies and advise the administration to go back to Congress to clean up the mess. Republicans have every reason to make the rewrite as painless as possible for as many Americans as possible. In fact, they are claiming they already have a plan to avoid major coverage disruptions, and there is no reason the court shouldn’t take them at their word.”

What a fantastical statement…surely you jest. That would be the least intrusive thing to do for the millions who have used the ACA, no less all those who now have insurance when they had none before? Go back to a Congress that has attempted to simply REPEAL it, and not replace it, over 50 times? This alternative you claim the GOP has which will limit disruptions, what is it exactly, and how do you propose it ever gets by all of those GOPers in the House that John Boehner has NEVER been able to control?

The ACA was passed, its been challenged before unsuccessfully, and now once again. Have at it. But sending it back to a Congress controlled by a party that would prefer to do nothing is a very funny suggestion.

[Juice]

all those who now have insurance when they had none before

How about all those (including me) who lost their insurance because of it? Fuck’em right?

[Jackand Ace]

Its meaningless if I say f em. Lets see if the Supreme Court says f u to you. Its all that matters.

[Sevo]

Jackand Ace|3.5.15 @ 3:28PM|#
“Its meaningless if I say f em. Lets see if the Supreme Court says f u to you.”

Yeah, we got it. You’re a fucking thug and if you have the gun, why, everything is just fine.
Were you born a miserable piece of shit, or did you practice long an hard to become one?

[tarran]

If this is who I think he is, he went from being a city planner for Lowell MA (motto: we suck worse than Framingham but do have a A baseball team!!!) to being a substitute English teacher in a private school.

He also left in a petulant huff prophylactically trying to eject from the ridicule he could see coming when, in 2009, the Obama admin started shitting itself right off the gate to a degree that exceeded our most pessimistic predictions.

[Weygand]

Show me a progressive and I will show you a piece of shit.

[Dweebston]

Shorter shill: it’s awfully inconvenient if SCOTUS insists we enforce the language of our law.

Methinks a swift repeal would salvage Dems from the hash Obamacare will make of your party by letting this mess play out. Show a little gratitude.

[Jackand Ace]

Trust me on this, I am looking forward to having insurance reform part of the national debate, as well as the viability of the ACA. The last time it was, in 2012, it was a clear choice…repeal it or keep it. And you lost. It will be fun again.

[Rasilio]

There is no actually evidence for your assertion.

In 2012 the ACA was not part of the national debate because the Republican Challenger basically supported it.

Further that Republican Challenger was hated by large swathes of his own party (partially because of his tepid at best opposition to the ACA) and ran one of the worst campaigns in modern history and yet Obama was barely able to beat him.

You might also want to look are precedents.

Regardless of what you think about the ACA do you really want President Rubio or President Walker or President Cruz to have the power to basically redefine the clear meaning of a law at will?

Because that is what the Supreme Court will be granting of they rule in favor of the defendants in this case

[Jackand Ace]

Mitt Romney said it clearly and often…the very first act he would undertake is full repeal of the ACA. The very first thing he would do the first week in office…he made it clear what his priority would be, and every voter knew that Obama’s signature achievement was the ACA. It was a very clear choice indeed.

Somehow you all think that those of us who supported the ACA are worried about whatever any Republican will do once in office. We’re not. Lets first see if they can win a Presidential election, and let’s see what they clearly are running on for health care reform. Simple repeal? I doubt it, even they are backing away from no replacement.

If they win, they can attempt to define it anyway they want. I have no problem with all the procedures that exist in this country to define it…all the way up to the SC. Have at it.

[Sevo]

Jackand Ace|3.5.15 @ 3:43PM|#
“Somehow you all think that those of us who supported the ACA are worried about whatever any Republican will do once in office. We’re not.”

No, murderous thugs are hardly ever worried about using coercion, right, thug?

[Juice]

Somehow you all think that those of us who supported the ACA are worried about whatever any Republican will do once in office.

Aren’t you worried that it made insurance worse and more expensive?

[Jackand Ace]

Another funny quote from you:

“The only thing the hearings clarified is that the law is one, big, colossal, contradictory mess.”

No it didn’t. It only clarified that some will go to any lengths possible to continue challenging the ACA, ad nauseum. I’ll tell you what is a real mess…the Congress you want the law to be sent back to, particularly a Congress currently controlled by a GOP that can’t even agree among themselves on nearly anything, even their own precious DHS. All proved so stunningly last week. And that is where you want health care reform to back to. Hilarious.

The ACA has worked much better than anyone here at Reason predicted…more and more use it, the young use it, the uninsured use it, and the uninsured rate has come down, and the rate of health care cost increases has lessened. Not much of a mess.

[This Machine]

More people have it because the State has them at gunpoint, you totalitarian shithead. And I love the “lower rate of cost increase,” which is totally not the same as “more affordable.”

[Jackand Ace]

“Start with the basics. On average, the cost of employer-sponsored health insurance increased 26 percent from 2009 to 2014. But costs increased faster before the law was enacted: From 2004 to 2009, costs increased 34 percent. From 1999 to 2004, they went up 72 percent”

http://www.bloombergview.com/a…..sts-really

[This Machine]

Seems to me like cost increases were already on the way down before the ACA was enacted, no?

And let’s not forget the millions that lost their insurance after the passing of this dumpster fire of a law (see Juice, above). They’re now forced to buy more expensive plans or plans with less coverage than before. What about them?

Of course, I shouldn’t expect a straight answer from a statist shill. Mendacity is thy name.

[Jackand Ace]

What about them? They have choices. I didn’t invent representative government in the US…so many had no health care choices before the ACA, and now they do. What about them? The ACA exists only because elections matter…I would suggest they win an election with those who will speak for them. Harsh? Life in America.

Here is the simple fact…Reason and many here predicted health care costs would RISE because of the ACA. And in fact they didn’t. You want to claim the costs would have come down anyway? Go for it…but I can tell you this…you all were wrong that they would rise.

[This Machine]

But they did rise, and you noted that yourself in the response to my first post.

And might makes right, huh? The majority can enslave the minority if it so chooses? Of course you’d agree with something like that, you miserable excuse for a human being.

[Jackand Ace]

You’re depending on a “majority” from the SC. You like majorities as long as they side with you.

The costs have risen slower than before the ACA…try reading again.

[This Machine]

Projecting much? I’m depending on nothing. Denial and optimism do not constitute a strategy (see: 2014 midterm elections). I care about what is moral and logical; the majority has nothing to do with it and I won’t laugh with glee if and when the gun ends up the other thug’s hands.

Re: Cost increases- how do you know they wouldn’t have gone down? Or increased by less than 24%? You don’t, and you can’t. Much like the beloved “jobs created or saved” quote you and your ilk are so fond of. You don’t have a goddamned clue and you know it.

[Juice]

What about them? They have choices.

*facepalm*

Yeah, my choices were to buy insurance with 2x the premium and 2x the deductible or 3x the premium with the same deductible. Thanks, Obama.

[Sevo]

Jackand Ace|3.5.15 @ 3:55PM|#
“Start with the basics. On average, the cost of employer-sponsored health insurance increased 26 percent from 2009 to 2014. But costs increased faster before the law was enacted: From 2004 to 2009, costs increased 34 percent. From 1999 to 2004, they went up 72 percent”

Does cherry picking pay enough to satisfy a thug?

[Juice]

What happened to saving every family $2500?

[RAHeinlein]

Actually, the only healthcare “reform” I want is for individuals to be responsible for their own health choices and pay for same. This includes eliminating employer-mandated (and taxpayer subsidized) insurance coverage, phasing-out Medicare, and eliminating Medicaid.

[Jackand Ace]

Fair enough, have at it if you can win the next election with the right candidate who says that.

[This Machine]

I can’t believe you want the old, young, poor, and unemployed people to die in the streets!

/slaver

[Jackand Ace]

The old are using government sponsored health care, now the young with the ACA, as well as the uninsured, and the unemployed aren’t losing their health insurance.

Just making sure fewer are dying in the streets.

/fascist

[Juice]

I had individual coverage. When I became unemployed I kept my individual coverage that was relatively cheap. It was pretty easy to keep it. That is until the Affordable Care Act made it unaffordable. The prices were basically COBRA prices.

Now, within the last month I’ve gotten a new job and I’m on their insurance plan. But the portion I pay (and total premium) is higher than I’ve ever paid for insurance in my life. I’m on the cheapest plan and my contribution is $120/mo of a total premium of about $250/mo. Before I was paying about $80/mo for the whole premium.

Insurance prices are nuts now. Higher than they’ve ever been. We were promised savings, but…

[This Machine]

You were a necessary casualty for the Progress of the Masses! Bear your burden proudly, for it is for all America that you suffer so nobly! What better legacy could you hope to leave behind you?

[Jackand Ace]

By the way, what did you think of them making a movie of “The Moon is a Harsh Mistress?” I’m a big Philip K. Dick fan, and I have to admit I was not disappointed in “The Adjustment Bureau” and “Minority Report.” It can be done!

[Sevo]

Jackand Ace|3.5.15 @ 4:10PM|#
“By the way, what did you think of them making a movie of “The Moon is a Harsh Mistress?” ”

BTW, I think you’re a slimy excuse for humanity; did it take practice to become so?

[RAHeinlein]

I introduced my sons to Heinlein via “The Moon is a Harsh Mistress” – definitely an approachable and timely story. Although, I have to admit I’m gun-shy after the “Starship Troopers” debacle…

[Jackand Ace]

Yeah, that was bad. Good luck with it, I hope they do a good job.

[Rum is Yum]

Here is what I don’t get about the whole thing.

Under Citizen United cash is speech. Therefore the mandate is coersive of speech and forces one into speaking the way the government wants and is unconstitutional. How many people have only bought insurance because they were forced to buy it by the penaltax?

Who gave the administration the right to authorize the spending of the subsidies?

Why don’t the States have the right to destroy their insurance markets if they so desire? That is what they are trying to do in the case of e-cigs.

[tarran]

Under Citizen United cash is speech.

No it’s not, but carry on.

Therefore the mandate is coersive of speech and forces one into speaking the way the government wants and is unconstitutional.

I think we need to stop this trainwreck of an argument right now.

Citizens United said that the government couldn’t prohibit groups of people from exercising their freedom of the press merely because they chose one method pooling the resources to acquire the means to produce and distribute their message.

Anyone who tells you they ruled money=speech or corporations=people is either an idiot or lying to you.

The mandate is unconstitutional in that nowhere in the constitution is the govt granted the power to force people to purchase *anything* let alone a financial instrument that isn’t a part of interstate commerce. As in the prohibition of drugs, the feds are just doing what they want, with the apparatchiks pretending that what they are doing is legal – thereby proving Lysander Spooner’s arguments in No Treason.

But compelling people to buy something is not in any way the same thing as compelling them to say something.

[Rum is Yum]

Thank you for the correction.

[See Double You]

[The] language […] invites complaints and class action lawsuits, and suddenly a regulation claimed to ensure “just and reasonable” conduct becomes a rent-seeking free-for-all.

Broad and ambiguous standards were written with lawyers in mind. Is it any wonder that lawyers’ groups support just about any expansion of the state?

/future lawyer

[woundlagnaia]

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[superuser]

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