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View Diary: Supreme Court dismisses challenge to Obamacare mandate (134 comments)

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  •  Halbig v. Sebelius (7+ / 0-)

    Is just one case going through the court system that challenges federal subsidies and tax penalties in states with the federal exchange. If successful, Obamacare will be invalidated in 34 states.

    I think this is a serious challenge and given the conservative makeup of the Supreme Court, I give it even odds that the suit will be successful.

    •  The federal government, as the originator of (16+ / 0-)

      dollars, can do with them what it wants and determine how they are used, to boot.

      If people don't want how they use the currency regulated by Washington, they shouldn't use them. Let them rely on barter and personal IOUs and gentle persuasion to get people to do for them.
      But, if they use dollars, then the "give unto Caesar that which is Caesar's" principle comes into play.
      Taxes, by the way, are merely a means for getting dollars back to the Treasury, so they can be counted and sent out again. The alternative is to keep issuing new, which is very inefficient and vitiates the accounting function.

      Obamacare at your fingertips: 1-800-318-2596; TTY: 1-855-889-4325

      by hannah on Mon Dec 02, 2013 at 10:52:32 AM PST

      [ Parent ]

    •  fairly unlikely (14+ / 0-)

      given the Supremes already rules Obamacare as legitimate
      use of the "Tax" clause, at that point, it's
      a real big problem to challenge either the
      penalties or the spending.

      •  We Have a Goofy Supreme Court (2+ / 0-)
        Recommended by:
        Losty, MichaelNY

        and if you read the literal wording of the law, people can't qualify for subsidies in states that don't set up their own exchanges. If the Supreme Court does  side with the plaintiffs, I'm not sure whether the Court will differentiate states with a partnership with the federal government from those who don't.

        •  General rules of statutory interpretation: (13+ / 0-)

          1. Statutes are entitled to a presumption of legitimacy, and the party arguing that they're invalid has the burden of proof.

          2. If there is an interpretation that complies with common sense (and the assumption that legislatures do not intentionally create nonsense), it gets priority over an interpretation that requires a finding that Congress deliberately planted a trap that would gut the law in two-thirds of the states.

          The Supreme Court is not "goofy;" they are weighted towards a conservative free-enterprise philosophy.

          •  don't see that helps (1+ / 0-)
            Recommended by:

            1. It can be quite legitimate to only offer subsidies through state exchanges. They are not arguing that the law is illegitimate, but that the government simply is not authorized to do subsidies through the federal website.

            2. The alternate interpretation is that congress offered a carrot to get states to build their own sites...expecting all of them to eat the carrot.

            •  Aren't the subsidies linked to the Federal (1+ / 0-)
              Recommended by:

              Income Tax return? If you end up earning more in 2014 than your subsidy is based upon, then the amount due on your income tax return will go up at the end of the year.

              The subsidy is a credit against your federal income tax. So how can it only be legitimate if you purchase your health insurance through a state exchange? It's a federal tax credit.

              “Mitt Romney is the only person in America who looked at the way this Congress is behaving and said, ‘I want the brains behind THAT operation.’ ” — Tom Perriello

              by hungrycoyote on Mon Dec 02, 2013 at 11:54:10 AM PST

              [ Parent ]

              •  because that's how they wrote the law (1+ / 0-)
                Recommended by:

                Sec. 1401.The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or(B) the excess (if any) of

                •  First, if I were you ... (2+ / 0-)
                  Recommended by:
                  ArcticStones, patbahn

                  ... I would pay special attention to rugbymom's excellent restatement of the rules for statutory interpretation above.

                  Second, I would check the actual wording of ObamaCare, which provides, in relevant part:

                  “ ... the Secretary shall . . . establish and operate such Exchange within the State . . . .” PPACA § 1321.
                  Third, each state that failed to set up their own exchange pursuant to § 1311 knew full well what would happen:  The Federal Government would "establish" an exchange for them.

                  Fourth, by failing to set up their own state exchanges under § 1311, these states set up their own state exchanges through the Federal Government under § 1321.  

                  This is really fourth- and fifth-string stuff, as we've moved past the Tea Party GOP's junior varsity. But, I guess a guy's gotta hope, right?

                  Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

                  by Tortmaster on Mon Dec 02, 2013 at 01:43:42 PM PST

                  [ Parent ]

                  •  Finally, a succinct explanation! (3+ / 0-)
                    Recommended by:
                    delbert, Tortmaster, babyowl13

                    And I think it’s spot on. I think is essentially to be seen as the state exchange, established by the Federal Government, on behalf of the state.

                    By refusing to set up their own exchange, the state authorities left it for the Federal Government to establish one for them.

                    I’m not a lawyer, but I really don’t see any legal difficulties here.

                    “The meaning of life is to find it.”

                    by ArcticStones on Mon Dec 02, 2013 at 02:40:18 PM PST

                    [ Parent ]

                  •  About your second point (0+ / 0-)

                    You left out some very important context in your quote.  Here's subsection (c) of section 1321, with more context:

                    (1) IN GENERAL.—If—
                    (A) a State is not an electing State under subsection (b);
                    the Secretary shall ... establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.
                    Section 1311 is authority for states to form exchanges, and section 1321 is separate authority to form a federally-run exchange if a state opts out.  Section 1401 at issue explicitly and unambiguously refers to an "Exchange established by the State under section 1311", not to any federal exchange established by the Secretary under section 1321.  This is pretty clear language, actually.
                  •  and the courts have to give deference to agency (1+ / 0-)
                    Recommended by:

                    interpretation unless it's arbitrary and capricious

                  •  It's not that simple (0+ / 0-)

                    IRC 36B refers specifically to an Exchange "established by the State under 1311."  The IRS, in the preamble to the regulations promulgated under IRC 36B, acknowledged that:

                    Commentators disagreed on whether the language in section 36B(b)(2)(A) limits the availability of the premium tax credit only to taxpayers who enroll in qualified health plans on State Exchanges.

                    The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges. Accordingly, the final regulations maintain the rule in the proposed regulations because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.

                    The statutory language of IRC 36B manifestly does not support that interpretation;  it is very specific in referring to Exchanges established under 1311.  The Federal exchange is under 1321, and whereas it provides that a Federal exchange is an "Exchagne within the State" it does not provide that it is (or is to be treated as) an "Exchange established by the State under 1311."

                    Now perhaps it is true that the ACA, as a whole, was intended to provide subsidies to enrollees on a federal Exchange.  I don't know of another individual federal tax credit that depends on state action for eligibility, and I think that denying the subsidy would violate Equal Protection.  But I think that Treasury could have explained that in the preamble.

                    The preamble also isn't very convincing when it says that "legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges."  Usually you look for the positive intent, not the negative intent;  and in any event, intent is relevant only when the statute is not clear.

                    In a normal political environment, this would have been fixed in a technical amendment.  But of course Republicans are not going to allow that.

                    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                    by Old Left Good Left on Mon Dec 02, 2013 at 04:15:33 PM PST

                    [ Parent ]

                    •  It took me almost 10 minutes to ... (0+ / 0-)

                      ... provide a reasonable interpretation of the statutory language that would save it from the pearl-clutching tea baggers. I'm afraid it really is that simple.

                      The states established their exchange by choosing not to establish an exchange under § 1311. Thus, they established their exchange via § 1311.

                      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

                      by Tortmaster on Mon Dec 02, 2013 at 09:59:31 PM PST

                      [ Parent ]

                      •  Congratulations (0+ / 0-)

                        I'm not going to say you wasted 10 minutes, but your explanation is certainly simple, but it ignores the statutory language and is simply wrong.

                        I would also note that your simple, wrong explanation is not the explanation given by Treasury.  If it were that simple, don't you think Treasury might have slipped it into the regulation's preamble?

                        "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                        by Old Left Good Left on Tue Dec 03, 2013 at 06:45:39 AM PST

                        [ Parent ]

              •  Oops (0+ / 0-)

                There are no brains behind this Congress. Just look at John Boehner for proof of no brains. But then again, Romney has no brains either.

            •  Chevron Deference applies (0+ / 0-)

              if they are trying to argue IRS regulations
              vs statutory interpretation, the courts
              are obligated to defer to agency regs.

              if the IRS issues a rule, it's going to stand.

              •  Not clear that it does (0+ / 0-)

                Treasury issues IRS regulations without following the notice and comment procedures of the APA because it claims that they are merely "interpretive" (and not "legislative) regulations.  In such cases, Chevron deference doesn't apply--National Muffler applies instead.

                Further, the first part of the Chevron test is whether the statute (IRC 36B in this case) is ambiguous.  It would be easy, in my opinion, for a court to hold that the statute is not ambiguous, since it refers only to exchanges "established" by a state, and the ACA does not otherwise refer to the federal exchange as being established by a state.  

                "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                by Old Left Good Left on Mon Dec 02, 2013 at 04:48:42 PM PST

                [ Parent ]

                •  treasury issues advisory notices (0+ / 0-)

                  without comment

                  but they can issue an informal rule after notice/comment
                  or they can skip the whole smash and go straight
                  to a rule if it's "Good Cause".

                  But the Treasury issues a rule that a federal exchange
                  is to be treated like a federal exchange, who is going to sue?
                  Who has standing?

                  even if the rule gets blocked, i can imagine all those folks in the southern states getting their premium support pulled because their governor or legislature is a bunch of dickheads?

                  personally i'm okay with southenrers not getting this tax credit. More for those of us in progressive states.

                  •  Standing (0+ / 0-)

                    I thought standing was a tough one, but the plaintiffs came up with a creative injury.  They claim that because the regulation provides them with a subsidy, health insurance is affordable.  Because it is affordable, they have to purchase coverage or pay the individual mandate penalty.

                    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                    by Old Left Good Left on Tue Dec 03, 2013 at 06:42:16 AM PST

                    [ Parent ]

            •  But that's not what the law says :-) (0+ / 0-)

              Read that excerpt of the law again.  

              Only (A) refers to state exchanges.  (B) specifically does NOT...because all the law is saying is that IF you got your insurance through a state exchange, then the premium assistance is calculated based on one thing BUT, if you didn't get it through a state exchange, it's calculated based on another thing!  That's all!!  

              There is absolutely ZERO in it that says you can only get premium assistance if you signed up through a state exchange.  

              Look at how it's worded again.  If (A), then the premium assistance is calculated one way...If (B), then it's calculated another way.  That's ALL it says!

          •  This was a carrot the Dems thought no state (2+ / 0-)
            Recommended by:
            divineorder, Nice Ogre

            could resist. I think it was the intention of the law to not provide subsidies to residents in states that didn't set up an exchange. It would be easy to see this going either way at the SCOTUS.

            "let's talk about that"

            by VClib on Mon Dec 02, 2013 at 12:12:38 PM PST

            [ Parent ]

            •  It was obvious that some states weren't (0+ / 0-)

              going to set up exchanges, just based on the ferocity of opposition.  The idea that they intended to set up substandard exchanges for those people is nonsensical, and contrary to the legislative intent of providing insurance to all Americans.

          •  I have little respect for the Supreme Court (4+ / 0-)
            Recommended by:
            ahumbleopinion, ferg, Losty, Berkeley Fred

            Yes, they are goofy. The chose Bush to be president because that's who they wanted to win. They're philosophy of strict scrutiny versus intermediate scrutiny has the goofy result that the worse the discrimination is, the less anti discrimination laws can be enforced. And they are goofy to claim that corporations have more rights than individuals. I can go on and on why they are goofy.

        •  That would be goofy, inasmuch as the law (8+ / 0-)

          also sets up provisions for Federally run exchanges.

          I'm on a mission! Testing the new site rules.

          by blue aardvark on Mon Dec 02, 2013 at 11:27:47 AM PST

          [ Parent ]

        •  Actually, you need to read what it says again... (0+ / 0-)

          As I've posted previously, it very clearly states that only section (A) applies to states that set up their own exchanges.  Section (B) does not make any such restriction...and is the alternative to section (A).

          So the calculations for those states with federal exchanges would simply be based on (B) as this portion of the law, as literally written, is an or situation, not an and situation.

          It literally reads as "if (A) applies, then "this" happens...if not, then (B) applies, and "that" happens".  

    •  not that it would be invalidated (3+ / 0-)
      Recommended by:
      FiredUpInCA, VClib, Esjaydee

      but that no one who gets their insurance outside of the state exchanges would be able to have the cost subsidized.

    •  I don't. Roberts would see this as a personal slap (1+ / 0-)
      Recommended by:

      at him.

      •  TofG - I don't think so (0+ / 0-)

        Roberts could view this as a perfect way to "split the baby". He has been brutally demeaned by his friends in the Federalist Society for his swing vote on the ACA. He owes no loyalty to see that the ACA is effective and widely adopted.

        "let's talk about that"

        by VClib on Mon Dec 02, 2013 at 12:15:45 PM PST

        [ Parent ]

        •  You're assuming (3+ / 0-)
          Recommended by:
          TofG, mikejay611, misslegalbeagle

          he needs friends in the Federalist Society.

          He doesn't. He's already got the last job he'll ever have. He can't get fired (unless he does something monumentally stupid), he has more prestige than the entire Federalist society combined, and his word carries more force than any of them ever could.

          Why the hell should he care what they say? I think it's much more likely they care what HE says about THEM.

          •  But he wants their approval (0+ / 0-)

            The Chief wants to be invited to their events and be treated as a rock star. The right vote in this case (from the perspective of the Federalist Society) would help mend the wounds. It would be easy to vote in favor of Halbig. The language in the ACA is very clear.

            "let's talk about that"

            by VClib on Mon Dec 02, 2013 at 12:43:54 PM PST

            [ Parent ]

            •  I'm quite certain that the Federalist Society (3+ / 0-)
              Recommended by:
              mmacdDE, MRobDC, VClib

              isn't going to turn away the Chief Justice of the United States Supreme Court from any soiree they hold.  

              •  misslb - I am sure that is true (0+ / 0-)

                but they were very unhappy with his vote on the ACA. They were sure if Kennedy would swing their way the ACA would be deemed unconstitutional. They liked the Commerce Clause part of the decision, but couldn't imagine Roberts would approve it on the taxing power after both Speaker Pelosi and President Obama stated dozens of times that the mandate was not a tax, and that the federal government was relying on the Commerce Clause.

                "let's talk about that"

                by VClib on Mon Dec 02, 2013 at 03:16:52 PM PST

                [ Parent ]

    •  Nope. (7+ / 0-)

      The penalties were already declared constitutional in the initial challenge case.  There is no constitutional question about the subsidies.

    •  If you challenge federal subsidies for ObamaCare (2+ / 0-)
      Recommended by:
      mmacdDE, sotiredofusernames

      then why not same for medicaid, foodstamps, sec-8 housing etc etc...

      "When fascism comes to America, it will be wrapped in a flag and carrying a cross." Sinclair Lewis, 1935 --Talk of foresight--

      by tuma on Mon Dec 02, 2013 at 12:17:18 PM PST

      [ Parent ]

      •  tuma - no one is challenging the constitutionality (1+ / 0-)
        Recommended by:

        of the subsidies. This is a case dealing with the language of the ACA law, as written. In the law it plainly states that subsidies are only available to people who sign up through state exchanges. Halbig is asking that the law be enforced as written.

        "let's talk about that"

        by VClib on Mon Dec 02, 2013 at 12:46:28 PM PST

        [ Parent ]

        •  No, it does NOT "plainly" say that... (0+ / 0-)

          Read it again.  Look at the placement of (A) and (B).   And the word "or".  

          The only way both (A) and (B) would require a state exchange would be if that state requirement occurred before (A),  not just within it...which restricts it to (A).

    •  Nope (0+ / 0-)

      I seriously doubt it.

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