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View Diary: Split federal appeals judges hear arguments on Obamacare subsidies (64 comments)

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  •  This is far from frivolous (2+ / 0-)
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    coffeetalk, Beelzebubs Brass Bs

    The plaintiffs are likely legally correct that the law, as written, only provides subsidies on state exchanges.  It creates two kind of exchanges (federal and state) and only applies the subsidies to exchanges established by a state.  Were it not for the political and policy ramifications, I don't think anybody would read the statute any other way.

    What will likely save the government's interpretation is Chevron deference, in which the rule-making agency gets deference in the rules it creates to interpret a statute.  That is not a sure thing, though.  This is not a frivolous challenge at all-- it is likely the most serious challenge to the ACA.

    •  That's problematic as well (0+ / 0-)
      in which the rule-making agency gets deference in the rules it creates to interpret a statute.
      The case law in this area clearly distinguishes between interpreting a law through rule-making (i.e., clarifying unclear terms, explaining how the law applies in specific situations) and rewriting the law.  The agency clearly cannot change a law through rule-making.  That's a separation of powers issue.  The agency is part of the executive branch of government, and the executive branch can only carry out the laws as written by Congress -- the agency cannot change the law because Congress did not foresee how people would react to the law (i.e., so many states declining to establish exchanges).  

      Like I said, the challengers may well be correct here -- if it's true that the law as written by Congress states that subsidies only exist for the state-established exchanges, then the agency has no authority to write a rule saying that subsidies also exist on the federal exchanges.  

      A court would have to find that the language saying that subsidies apply to exchanges established by the states is ambiguous enough so that it could also mean  subsidies apply to exchanges established by the federal government as well.  That's the only way that an agency could issue a rule saying that subsidies apply to the federal exchanges.  

      •  Yes. (0+ / 0-)

        The only way this law survives is if there's enough ambiguity for Chevron to kick in (which, itself, will require the judges to ignore the text and consider policy).  The OP does a disservice by characterizing this argument as frivolous.  

    •  it does NOT create two kinds of exchanges (1+ / 0-)
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      There are only state exchanges in the law. The law specifically says that if the states don't set up a compliant exchange the federal government will set one up for them.

      Specifically, it says that if a State is unwilling or unable to set up a compliant exchange (for a variety of reasons)...

      ...the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.
      As far as the law is concerned, there's only one kind of exchange. A state exchange.

      The only question is whether the phrase "Exchange established by the State in under 1311" is meant to create a hierarchy of exchanges by excluding the federal-run exchanges. (It should be noted that the provisions for the federal government to create and run a state exchange are also laid out in section 1311.)

      You can make that case, I suppose, the same way you can make the case that the 2nd amendment is about the individual right to bear arms: blindly clinging to your predetermined outcome.

      •  Good points! (1+ / 0-)
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        I swear I did not read your comments before posting mine!

        There are other sections allowing states to establish (join) interstate "state" exchange that also seem consistent with your interpretation of 1321.

      •  By what alchemy... (2+ / 0-)
        Recommended by:
        nextstep, Beelzebubs Brass Bs

        ... does an exchange established by the federal government under 1321 become an "exchange established by the State under 1311?"  Even if you argue that by reference it is authorized by 1311, it is plainly not established by a state-- as the DOJ lawyer was forced to concede at oral argument, it was established by the federal government.  The only hope for the government is for the judges to ignore the text of the law and consider the purpose/policy.

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