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A three-judge DC Circuit Court of Appeals panel is about to rule in Halbig v. Burwell. The case, using unclear legislative language, is challenging the existence of federal insurance subsidies which generally put the "affordable" in the Affordable Care Act.

Two of the judges, both Republican appointees, expressed varying degrees of sympathy for the challengers' case during the open court hearing.

The ACA was left mostly unharmed by the Supreme Court's ruling against its universal contraception mandate if the majority's statement that the ruling is very narrow applying only to a very specific subset of businesses does, in fact, come to pass.

At issue is whether the statute permits the federal exchange (which serves residents of 34 states which opted not to build their own) to dole out premium tax credits. The challengers seized on an ambiguity in the language of the statute which says the subsidies are to be provided by "an Exchange established by the State." The Federal exchanges are not, by definition, state exchanges.

"The administration's loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court." writes George Washington University Law Professor Jonathan Turley. http://www.latimes.com/...
The good news is that the Obama Administration would petition for an en-banc ruling in which the entire D.C. circuit would review the case and vote on it. There are 11 judges: 7 Democratic appointees; 4 Republican appointees.

The bad news is that the conservative think tank, The Cato Institute,  crafted the legal argument that is the cornerstone of the case and is working on three other similar cases wherein language in the complex law is being used to undo it. And, there is no doubt that if the en-banc ruling were to go against the conservatives, they will appeal which means the Supreme Court could get yet another chance to scuttle ACA.

BUT....there may be a silver lining even in the worst of circumstances....

"I have to wonder whether they would continue their refusal to set up state marketplaces just so low- to middle-income residents of their states would be ineligible for federal subsidies. With Medicaid, they at least had the fig leaf that they would be paying 10% of the cost of expansion after a couple of years, and that the federal government might later cut back further, leaving them holding the bag. But I wonder whether even they would be happy having to admit that the ONLY effect of them not setting up their own exchange would be to deprive their own residents of the subsidies." wrote DK diarist leevank in response to my original post.
THIS may explain why the GOP has been so quiet about this case....It's a sword that will cut both ways but the deepest cuts may be to them.

After all GOP governors refusing to take Medicaid expansion mostly hurts the working poor, among the least engaged in the political process but if suddenly the 200,000 plus in my state who got ACA subsidies lost them...hmmmmm.

A side note from leevank and murphthesurf3: Almost every major piece of legislation is followed, within a relatively brief period of time, by "technical corrections acts" to fix thee kind of problems -- because these kind of glitches occursin essentially EVERY major piece of legislation- even the minor ones.  It's not a matter of "not reading the bill before it's voted on," as the simplistic insist. It's a matter of not discovering how some provisions operate, what some provisions actually mean when applied and where errors in text subvert its purpose until the law is implemented.

What is unique in this case is the absolute refusal of the Republicans to go along with ANYTHING other than complete repeal.

Just for fun google "medicare D fixes" and discover how many, how fast and  how significant were the fixes for George W. Bush's Medicare D. See: http://talkingpointsmemo.com/...

Additional References:
http://talkingpointsmemo.com/...
http://www.dailykos.com/...

Originally posted to murphthesurf3 on Sat Jul 05, 2014 at 04:57 AM PDT.

Also republished by PostHuffPost: Connection-Conversation-Community and History for Kossacks.

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Comment Preferences

  •  Tip Jar (23+ / 0-)

    "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

    by murphthesurf3 on Sat Jul 05, 2014 at 04:57:38 AM PDT

  •  This has always seemed to me to be (9+ / 0-)

    the most serious challenge to the ACA.  If you actually read the ACA, it's written so that subsidies only happen on state exchanges.  If the SCOTUS holds that the ACA means what it actually says, that would mean the end of subsidies for everyone who is not buying on a state exchange.  

  •  murph - I wrote a diary about Halbig in May (7+ / 0-)

    You can find it here:

    http://www.dailykos.com/...

    I think it is a very serious challenge to the ACA and will be at the SCOTUS during its next session.

    "let's talk about that" uid 92953

    by VClib on Sat Jul 05, 2014 at 05:25:11 AM PDT

  •  This is a really scary development (5+ / 0-)

    I'm surprised Congressional Republicans haven't been stomping all over it unless they think there's a chance the decision will go against them or, more likely, that the 20 million or so who benefit by the ACA will angrily rise up against them. The latter will happen if this appeal is upheld.

    The sound of one hand clapping is ‘cl’ – unless of course you're left-handed in which case it’s ‘ap’. (◕‿◕)

    by Mopshell on Sat Jul 05, 2014 at 05:35:57 AM PDT

    •  There is no upside in cheering this case (7+ / 0-)

      for the GOP. Their views aren't going to have any impact on the decision and I am not sure they know how they want this to turn out. If the Courts toss this back to Congress the GOP will be under a lot of pressure to fix the ACA and make the federal exchange qualify for subsidies. However, no action by the SCOTUS will happen before the November midterms. There will however, be a ruling by the DC Circuit Court of Appeals which may require an en banc review. The DC Appeals Court is now heavily Democratic and I think they will decide  that the federal exchange qualifies for subsidies. If that happens then the GOP won't be under any pressure to do anything prior to the midterms.

      "let's talk about that" uid 92953

      by VClib on Sat Jul 05, 2014 at 05:49:53 AM PDT

      [ Parent ]

      •  Good analysis (4+ / 0-)

        The GOP are in for the long game anyway- so bringing attention to this now does not serve those interests.

        "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

        by murphthesurf3 on Sat Jul 05, 2014 at 07:48:24 AM PDT

        [ Parent ]

      •  I wouldn't get too comfortable about that (0+ / 0-)

        Democratic majority. Seven of the 11 active judges are Democratic appointees, but twelve judges will be presumptively eligible for the en banc court -- the 11 plus Judge Randolph if he so chooses. (Assuming he's healthy, I certainly would expect him to.)

        So now it's seven of 12.

        I haven't seen anyone write about whether Sri Srinivasan will have to recuse himself on the basis of anything he might have done at the SG's office, or whether he had no disqualifying involvement and can decline to do so as Justice Kagan did. If he does have to recuse himself ... now it's 6 of 12. And an evenly split en banc decision means the panel decision stands.

        And there's always the possibility that one or more of the Democratic judges will actually agree with the unfortunately non-trivial argument of the challengers.

    •  Your analysis seems quite accurate. (1+ / 0-)
      Recommended by:
      anna shane

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 07:46:43 AM PDT

      [ Parent ]

    •  No they won't (1+ / 0-)
      Recommended by:
      ditsylilg

      Americans don't do rebellion.

      People who lose their insurance if this case goes wrong will blame the ACA.

      The media will too.

      You think the dopes who vote in this country even know how judges get on courts?

  •  The name of the case has changed (4+ / 0-)
    Recommended by:
    coffeetalk, leevank, anna shane, ditsylilg

    This case has been litigated as Halbig v Sebelius, but has been changed due to the appointment of a new HHS Secretary and is now referred to as Halbig v Burwell.

    "let's talk about that" uid 92953

    by VClib on Sat Jul 05, 2014 at 05:41:06 AM PDT

  •  The Republicans don't understand blowback. (7+ / 0-)

    Blocking Warren turned her into a Senator.
    Blocking Berwick turned him into a gubernatorial candidate.
    Blocking the ACA - THEIR plan for health care reform - will end in Single Payer.

    They've already gotten a lot of people going "why is this linked to employment anyway?" because of Hobby Lobby.

    Re-Elect Al Gore! Gore/Warren 2016! Eight More Years!

    by aseth on Sat Jul 05, 2014 at 05:43:12 AM PDT

    •  And denying minorities the right to vote (5+ / 0-)

      combined with the conservative oppression of women is stirring up our base.

      Republicans don't understand why hornet nests are not usually poked with sticks.

      If cats could blog, they wouldn't

      by crystal eyes on Sat Jul 05, 2014 at 06:40:02 AM PDT

      [ Parent ]

    •  aseth - there is no Congressional path to single (6+ / 0-)

      payer for the foreseeable future, even if the SCOTUS guts the ACA in states without a state run exchange. There isn't even a consensus among Congressional Democrats for a single payer system. The Dems have been so fearful of single payer they have never even drafted a thoughtful single payer legislative proposal.

      Single payer will start in the states, most likely with Vermont, and how the first few states execute the program will have a big influence on how quickly other states follow. The fact that Vermont was one of the states who spent tens of millions and couldn't develop a working ACA exchange isn't a good sign.

      "let's talk about that" uid 92953

      by VClib on Sat Jul 05, 2014 at 07:00:07 AM PDT

      [ Parent ]

      •  I don't think single payer CAN start in the states (3+ / 0-)
        Recommended by:
        TopCat, murphthesurf3, ditsylilg

        Vermont is apparently having lots of trouble trying to set their system up. Among many other questions, what do you do about large national employers (including the federal government and large national corporations) that have their own national employee health insurance plans. Whatever they manage to set up in a single state, it won't be true single payer.

        Bin Laden is dead. GM and Chrysler are alive.

        by leevank on Sat Jul 05, 2014 at 07:32:45 AM PDT

        [ Parent ]

        •  Vt. is a an example in small of what the federal (2+ / 0-)
          Recommended by:
          leevank, VClib

          government would face in large.

          While jaundiced, Bloomberg does a good job pointing to an obvious problem....overall cost.

          http://www.bloombergview.com/...

          "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

          by murphthesurf3 on Sat Jul 05, 2014 at 08:09:58 AM PDT

          [ Parent ]

          •  There are even more problems for a state (5+ / 0-)

            Do you require people who get their health insurance through a large national employer to pay the tax, even though they won't be getting much benefit from it? Or do you somehow prohibit your own citizens who work for large national employers to benefit from the health insurance available through that employer, even though it may provide better coverage than what is available through your state single-payer system.

            And what do you do about providing coverage for residents of your state who require out-of-state medical treatment? This could arise either if they become ill while traveling, or if they require treatment that simply isn't available in your state. The second factor may not be terribly significant if you live in a large state, or even a small one such as Maryland that have large teaching hospitals, but it's a very significant one for smaller states, including Vermont. For example, from what I could discover, there isn't a single hospital in Vermont that does heart, lung, liver, or bone marrow transplants.

            Bin Laden is dead. GM and Chrysler are alive.

            by leevank on Sat Jul 05, 2014 at 08:30:52 AM PDT

            [ Parent ]

            •  You, my friend have done your homework!!!! (0+ / 0-)

              Recc'd obviously and I have copied and archived your contribution here under "Vermont Health Insurance Plan" Pretty overwhelming.

              "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

              by murphthesurf3 on Sat Jul 05, 2014 at 02:53:18 PM PDT

              [ Parent ]

        •  It started in Canada in the provinces (6+ / 0-)

          and it is the only practical way it will start in the US. There will not be the political will at the national level, even among the Democrats, to implement single payer in the foreseeable future. For the GOP this is a line in the sand that they feel passionately about, maybe more than gun rights. Regan warned them that universal healthcare was the ultimate surrender of freedom.

          I do think a thoughtful single payer plan could bring a lot of Republican voters, if not politicians along. However, I fear that single payer plans, even in the states, will start with two fatal flaws, a financing plan that tries to use single payer to change the progressive tilt of taxes (trying to make the wealthy pay for most of it), and trying to force everyone not just to pay for it (which they must) but to use it, which shouldn't be required. No patient or physician should ever be required by law to participate in a single payer plan. Every national single payer plan in the G8 has a private option where people can see their own private pay physician.

          "let's talk about that" uid 92953

          by VClib on Sat Jul 05, 2014 at 08:12:43 AM PDT

          [ Parent ]

          •  This is really a thoughtful approach to single (5+ / 0-)

            payer.  I agree that a system that forces people into one government controlled system where the top 10% or so of taxpayers essentially finance the system for others has absolutely no chance whatsoever of being enacted any time in the foreseeable further.  

            I do think that certain states may very well experiment with a sort of modified single payer where that's an option for people, leaving intact a perhaps more expensive private system for those who opt for it.  The success of those efforts may well determine the direction of our health care system for the next generation.  

            •  I disagree (0+ / 0-)

              Provided certain cost assumptions can be proven on the state or municipal level, you might see single-payer offered as a less expensive compromise with other incentives on the table (i.e., the end of FICA).

          •  Depends on the cost (2+ / 0-)
            Recommended by:
            VClib, ditsylilg

            If healthcare costs drop sufficiently (and given that the US spends twice as much as say...Japan...there's a lot of room to fall), you could conceivably narrow the tax base for healthcare expenditure while reducing the cost to those left with the bill.

            I say try it out in the states; let's see what happens.

    •  I think the overall demographic shifts (2+ / 0-)
      Recommended by:
      leevank, ditsylilg

      favor the Democrats and that the shift in public policy opinion within the electorate leans left...but the GOP is fighting a structure based game and they are working to amend that structure at all levels so that a minority is a majority....thus I see all of this as a drag on the Single Payer movement.

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 08:07:21 AM PDT

      [ Parent ]

      •  and the courts favor them (0+ / 0-)

        and that's a problem, but there are probably creative solutions, and we're going to find them.

        plus ça change, plus c'est la même chose

        by anna shane on Sat Jul 05, 2014 at 09:20:41 AM PDT

        [ Parent ]

        •  the courts favor the GOP? (1+ / 0-)
          Recommended by:
          Mrick

          I agree...since the only court that really counts is at the top....creative solutions....I have an uncreative one....vote Democratic for every office and vote against every Republican (even the moderates). The party needs to be brought low to put them in a position where a return to compromise is necessary for survival, or to a time when true and deep reform of that party takes place.

          "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

          by murphthesurf3 on Sat Jul 05, 2014 at 02:34:02 PM PDT

          [ Parent ]

    •  Single payer? How? When? (1+ / 0-)
      Recommended by:
      Mrick

      Unless there are 60 liberal Senators and a solid Dem House, there's no magic wand.

      I truly don't get this line of argument.

      If this case goes bad the ACA is gone and so is any hope for any true reform, for decades.

      The hope is the en banc decision Obama will ask for after the three-judge panel fucks him over -- and it will --  and after that, the hope is the Supremes won't take the case.

      •  What choice will we have? (0+ / 0-)

        If they upend the conservative plan, then eventually we'll have to admit that employer based medical insurance simply makes no economic sense. Obamacare is a patch, to attempt to make a dysfunctional system significantly less horrible, but if they keep ripping apart the patch, the system will fail.

        Re-Elect Al Gore! Gore/Warren 2016! Eight More Years!

        by aseth on Sat Jul 05, 2014 at 11:19:13 AM PDT

        [ Parent ]

  •  This has the potential to cause some (3+ / 0-)

    problems for a few Republicans in Congress.

    •  how so? (0+ / 0-)

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 08:10:17 AM PDT

      [ Parent ]

      •  There are states which haven't established (1+ / 0-)
        Recommended by:
        murphthesurf3

        exchanges,  which have significant numbers of citizens who are receiving subsidies.

        If the courts hold these subsidies illegal, one of three things could happen:

        (a)  The state establishes an exchange;
        (b)  The people lose their subsidies;
        (c)  The Republicans have to pass an amendment to the ACA permitting these subsidies.

        (a)  takes time.
        (b) leaves lots of angry people in red states
        (c) gives Republicans problems with their base

        •  My thinking as well (0+ / 0-)

          but you summed it up very, very neatly. Thanks.

          I like the matching lists...

          if this....then this....

          "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

          by murphthesurf3 on Sun Jul 06, 2014 at 06:16:58 AM PDT

          [ Parent ]

  •  I don't put much past Republican Governors ... (3+ / 0-)
    Recommended by:
    murphthesurf3, anna shane, ditsylilg

    but even I have to wonder whether they would continue their refusal to set up state marketplaces just so low- to middle-income residents of their states would be ineligible for federal subsidies. With Medicaid, they at least had the fig leaf that they would be paying 10% of the cost of expansion after a couple of years, and that the federal government might later cut back further, leaving them holding the bag. But I wonder whether even they would be happy having to admit that the ONLY effect of them not setting up their own exchange would be to deprive their own residents of the subsidies.

    The other thing that gives me some hope is that while 2 of the 3 judges on this panel are Republican appointees, a clear majority on the entire D.C. Circuit which could rehear any decision by this panel in an en banc rehearing are Democratic appointees.

    Bin Laden is dead. GM and Chrysler are alive.

    by leevank on Sat Jul 05, 2014 at 07:30:06 AM PDT

    •  Terrific point...novel and insightful (3+ / 0-)
      Recommended by:
      jrand, anna shane, ditsylilg

      So much so that I am going to amend my post to reflect it with credit to you....

      THIS may explain why the GOP has been so quiet about this case....

      It's a sword that will cut both ways but the deepest cuts may be to them.

      After all GOP governors refusing to take Medicaid expansion mostly hurts the working poor, among the least engaged in the political process but if suddenly the 200,000 plus in my state who got ACA subsidies lost them...OMG....

      Brilliant point on your part.

      I have just integrated your comments in the post....thanks again.

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 08:18:52 AM PDT

      [ Parent ]

      •  The ads against GOP Governors who continued ... (3+ / 0-)
        Recommended by:
        jrand, anna shane, ditsylilg

        to refuse to set up state exchanges, or against GOP Representatives and Senators who refused to vote for the very minor legislative fix that would solve this problem sort of write themselves, don't they?

        Bin Laden is dead. GM and Chrysler are alive.

        by leevank on Sat Jul 05, 2014 at 08:39:53 AM PDT

        [ Parent ]

        •  They do but the GOP has proven remarkably able (1+ / 0-)
          Recommended by:
          leevank

          at the smoke and mirrors that turn the crystal clear into the murkey.

          "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

          by murphthesurf3 on Sat Jul 05, 2014 at 02:47:05 PM PDT

          [ Parent ]

    •  Would you expect Democratic appointees to (2+ / 0-)
      Recommended by:
      rduran, VClib

      decide the case based on politics or based on the actual written law?  

      •  I would expect them to decide it based upon ... (3+ / 0-)

        implementing the intent of Congress, rather than reaching an absurd result based upon an overly literal reading of the law's language.

        See the following:  http://www.theruleslawyers.com/...

        Bin Laden is dead. GM and Chrysler are alive.

        by leevank on Sat Jul 05, 2014 at 09:07:41 AM PDT

        [ Parent ]

        •  See also the following: (2+ / 0-)
          If the language of a statute is plain and unambiguous it must be given effect ...

          UNLESS a literal interpretation would lead to absurd or mischievous consequences or thwart the manfest purpose.

          http://www.law.georgetown.edu/...

          Bin Laden is dead. GM and Chrysler are alive.

          by leevank on Sat Jul 05, 2014 at 09:15:54 AM PDT

          [ Parent ]

        •  What intent of Congress? (3+ / 0-)
          Recommended by:
          ditsylilg, VClib, nextstep

          Apparently the intent of Congress was to use subsidies as a way to entice states to set up their own exchanges.  That's why the law was written only to have subsidies on state exchanges.  As Jonathan Turley says,

          In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges "established by the state."

          But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so.

          The fact that states didn't react to the law as Congress intended does not change the intent of Congress in passing the law.

          So, if the intent of Congress was to have subsidies apply only to state exchanges, I'll ask again:  do you expect judges appointed by Democrats to decide the case based on the law as written or based on political leanings?  

          •  The intent of Congress as found by Judge ... (2+ / 0-)
            Recommended by:
            jrand, closerange

            Paul Friedman, a very respected judge, in the U.S. District Court.

            Plaintiffs' proposed construction in this case that tax credits are available only for those purchasing insurance from state-run Exchanges — runs counter to this central purpose of the ACA: to provide affordable health care to virtually all Americans. Such an interpretation would violate the basic rule of statutory construction that a court must interpret a statute in light of its history and purpose.
            You and Jonathan Turley both seem to accept at face value the plaintiffs' assertions about Congress' intent. The only problem is, as Judge Friedman pointed out, there is absolutely no evidence to support that position:
            Plaintiffs' theory is tenable only if one accepts that in enacting the ACA, Congress intended to compel states to run their own Exchanges — or at least to provide such compelling incentives that they would not decline to do so. The problem that plaintiffs confront in pressing this argument is that there is simply no evidence in the statute itself or in the legislative history of any intent by Congress to ensure that states established their own Exchanges. And when counsel for plaintiffs was asked about this at oral argument, he could point to none. See Dec. 3, 2013 Tr. 8-18. Indeed, if anything, the legislative history cuts in the other direction and suggests that Congress intended to provide states with flexibility as to whether or not to establish and operate Exchanges. See infra at 35-38.

            Nor does plaintiffs' theory make intuitive sense. A state-run Exchange is not an end in and of itself, but rather a mechanism intended to facilitate the purchase of affordable health insurance. And there is evidence throughout the statute of Congress's desire to ensure broad access to affordable health coverage. See, e.g., 42 U.S.C. § 18091(2)(D)-(G). It makes little sense to assume that Congress sacrificed nationwide availability of the tax credit — which plaintiff David Klemencic previously described as critical to the operation of the Exchanges, Brief for Private Petitioners on Severability, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (Nos. 11-393 & 11-400), 2012 WL 72440, at *51-52 (Defs.' SJ Mot., Ex. 14) — in an attempt to promote state-run Exchanges.[12]

            In sum, while there is more than one plausible reading of the challenged phrase in Section 36B when viewed in isolation, the cross-referenced sections, the surrounding provisions, and the ACA's structure and purpose all evince Congress's intent to make premium tax credits available on both state-run and federally-facilitated Exchanges. Thus, the intent of Congress is clear at Chevron step one. See Nat'l Cable & Telecomms. Ass'n v. FCC, 567 F.3d 659, 663, 665 (D.C. Cir. 2009) (employing all "traditional tools of statutory interpretation," including "text, structure, purpose, and legislative history," to ascertain Congress's intent at Chevron step one); Catawba County, North Carolina v. Envtl. Prot. Agency, 571 F.3d 20, 35 (D.C. Cir. 2009).

            The entire opinion is well worth reading, which you can do at this link:

            http://scholar.google.com/...

            Bin Laden is dead. GM and Chrysler are alive.

            by leevank on Sat Jul 05, 2014 at 10:27:56 AM PDT

            [ Parent ]

            •  Here is the trap.... (0+ / 0-)

              The conservatives on SCOTUS have shown no loyalty to fundamental legal principle, rules of evidence or procedure. In other words because Friedman is right it does not mean that the SCOTUS will cooperate ....... even with the truth....

              His is a legislative intent argument...whereas we known that three of the judges are on the record as textual literalists with one other having ruled in that direction several times.

              "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

              by murphthesurf3 on Sat Jul 05, 2014 at 03:59:01 PM PDT

              [ Parent ]

              •  Huh (2+ / 0-)
                Recommended by:
                nextstep, VClib
                The conservatives on SCOTUS have shown no loyalty to...
                fundamental legal principle
                Which "fundamental legal principle" are you referring to? And how were they "disloyal" to it?
                rules of evidence
                "Rules of evidence"? At the SCOTUS? Which "rule of evidence" did the SCOTUS violate?
                or procedure.
                Which legal procedure to you think they were "disloyal" to?

                Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                by Pi Li on Sat Jul 05, 2014 at 04:59:57 PM PDT

                [ Parent ]

                •  The entire Corporations are the equivalent of (0+ / 0-)

                  natural persons meme is a good place to start.

                  "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

                  by murphthesurf3 on Sun Jul 06, 2014 at 06:21:53 AM PDT

                  [ Parent ]

          •  That is the CATO argument..... (0+ / 0-)

            Of course such a finding will not be good news for those states without exchanges but with lot of people insured thanks to those subsidies.

            The legislation was framed with the assumption that no state would turn this down....wrong.

            "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

            by murphthesurf3 on Sat Jul 05, 2014 at 04:00:55 PM PDT

            [ Parent ]

  •  Another flaw! (1+ / 0-)
    Recommended by:
    anna shane

    Another flaw in the law.  Too bad the reps are stuck in repeal mode and the dems are circling the wagons around the flawed law.
    Wouldn't it be grand if they would decide to fix the flaws?
    Make Obamacare all Swiss instead of half Swiss and solve the problems!

    •  Many suggest that is the way to go... (1+ / 0-)
      Recommended by:
      emelyn

      but how does one assemble the political coalition to make this happen...especially in light of GOP aggressiveness.

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 08:20:06 AM PDT

      [ Parent ]

      •  How? (1+ / 0-)
        Recommended by:
        ditsylilg

        Given the current state of silliness on the reps part it won't come from them.  Even though much of the Heritage plan is Swiss, I don't see any leadership on the part of the reps to fix Obamacare into the Swiss.  The leadership will have to come from Harry Reid.  That's not likely either.
        Oh well Murph, I'll continue my tilt with the windmills of the world!

    •  Good point (6+ / 0-)

      Almost every major piece of legislation is followed, within a relatively brief period of time, by a "technical corrections act" to fix this kind of problem -- because this kind of glitch occurs in essentially EVERY major piece of legislation.  That even happens with many relatively minor pieces of legislation. It's not a matter of "not reading the bill before it's voted on," as the simplistic fools on the right insist, it's a matter of not realizing how some provisions would operate until people start trying to implement the law, or other people start trying to pick holes in it.

      What is unique here is the absolute refusal of the Republicans, at least in the House, to go along with ANYTHING other than complete repeal. I strongly suspect that the ACA is BY FAR the most important piece of legislation since World War II that hasn't already been followed by a technical corrections act. It's really amazing that there haven't been more of this kind of glitches.

      Bin Laden is dead. GM and Chrysler are alive.

      by leevank on Sat Jul 05, 2014 at 08:54:56 AM PDT

      [ Parent ]

      •  It can be (1+ / 0-)
        Recommended by:
        ditsylilg

        If the willingness to fix happens then it can be fixed.  We are getting the short end of two parties that are more concerned with power than doing the right thing.
        I am conservative but see the benefits of the Swiss Universal system  It allows for markets, covers all and is affordable.  It's even endorsed by Forbes and Krugman.  That's pretty diverse opinion.

      •  Nailed it to the wall...Recc (0+ / 0-)

        I am going to be adding this into the post and giving you appropriate credit.

        Have you written on this extensively and recently? If not, you should ---- you pull a lot of threads together very well.

        "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

        by murphthesurf3 on Sat Jul 05, 2014 at 03:36:43 PM PDT

        [ Parent ]

        •  Thanks (0+ / 0-)

          I just try to get my message out where I can.  I have found some who will bother to research my points and return with more common ground comments.  A good system that covers all, has market elements a conservative could love, covers the poor in an economical way to the taxpayer and gets employers out of the insurance business.  
          All that stands in the way is two parties too busy butting heads to actually do something that they could easily come together on.  Fixing it!

          •  It boils down to who is working for who.... (1+ / 0-)
            Recommended by:
            ausmth

            and the power that comes with electoral victory.

            "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

            by murphthesurf3 on Sun Jul 06, 2014 at 06:25:43 AM PDT

            [ Parent ]

      •  The Bush Medicare D had 31 such fixes (1+ / 0-)
        Recommended by:
        leevank

        "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

        by murphthesurf3 on Sat Jul 05, 2014 at 03:37:28 PM PDT

        [ Parent ]

  •  Don't sweat it (2+ / 0-)

    The legal argument the government will make is that another subsection of the law clearly states that the federal exchanges become functionally state exchanges should the state refuse to set up its own exchange. If Roberts wasn't willing to gut the ACA two years ago, he won't now.

  •  Maybe... (1+ / 0-)
    Recommended by:
    ditsylilg

    this court ruling will be the alarm clock waking up millions of conservative voters to the reality of being someone with the proclivity to deem others unworthy of healthcare.

    GOD don't like ugly.

  •  That Turley Op/Ed in LA TImes is troubling (4+ / 0-)

    Turley goes over some other cases that were decided on how the legislation was written:

    In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that "this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address." In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that "an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms."
    Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.
    He also notes that the administration seemed to struggle in oral arguments with its interpretation.

    If this decision goes against the administration, I certainly don't see this Congress doing anything to fix it.

    Even if the D.C. Circuit rules for the administration, I don't see it getting by this Supreme Court.

    •  And then the GOP will face millions who (0+ / 0-)

      had insurance for many months (the Supremes do not meet again until Nov. ) and now do not.....Govs will be setting up their own exchanges where there are none now....they will not have a choice.

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 03:27:25 PM PDT

      [ Parent ]

    •  Solicitor General Verrilli isn't very good (0+ / 0-)

      Barack didn't find us a great person to argue the case.  Heck - Barack could have done it better himself.  And probably should. do it himself.

  •  The SC Will Dump This Right In Republican Laps.... (2+ / 0-)
    Recommended by:
    ditsylilg, murphthesurf3

    If the ruling guts Obamacare, MILLIONS will be left high & dry.
    Republicans will have to come up w/ the fix.  They wanted this.
    If they get what they wanted.....the ball will then be in their court to provide insurance for MILLIONS.  

    And.....insurance companies just got MILLIONS & MILLIONS of new customers because of Obamacare.  They are going to bitch like they have never bitched before if the SC takes away all their
    new customers.  

    •  Not to mention the cusomters themselves (2+ / 0-)
      Recommended by:
      snapples, murphthesurf3

      who will be forced to repay all the subsidies with interest and penalties.  Of course, since many if not most of them won't be able to repay them I guess that means lots of people in jail.

      You have watched Faux News, now lose 2d10 SAN.

      by Throw The Bums Out on Sat Jul 05, 2014 at 01:34:05 PM PDT

      [ Parent ]

    •  No wonder the GOP is not hooting this up and down (0+ / 0-)

      the hill.....and the governors of those GOP states will be besieged by their own voters who discovering that coverage is good.

      Recc!

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 03:24:11 PM PDT

      [ Parent ]

  •  Maintaining the VA system (and fixing it) and (0+ / 0-)

    Medicare for all others is the best way to go in my opinion.  Eliminating the cap on SS would pay for this and resolve many of the issues we face.  SS should maintain their eligibility requirement as it stands (adjusted for cost of living if we could ever align that with the true cost of living).  

    I always find it so interesting that we required healthcare coverage for all in the Marshall Plan and then again most recently with the Iraq Constitution.

    "We know too much to go back and pretend" - Helen Reddy (humble cosmos shaker)

    by ditsylilg on Sat Jul 05, 2014 at 12:03:50 PM PDT

    •  That's because the Executive Branch was in charge (0+ / 0-)

      of both efforts and did not have to get Congressional buy-in point by point. ....

      As to how to handle our medical care expansion needs- all you say makes sense IF you are focused on meeting middle class and lower class needs....if you are not...then not so much.

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 03:20:39 PM PDT

      [ Parent ]

      •  Well wouldn't that be the point. Those who make (0+ / 0-)

        over $117K (2014) don't pay ss taxes after they hit that limit.  That's a lot of CEOs and upper management who probably hit the limit after one paycheck.  We need some leveling of the playing field and that should be the place we start.

        "We know too much to go back and pretend" - Helen Reddy (humble cosmos shaker)

        by ditsylilg on Sat Jul 05, 2014 at 04:40:56 PM PDT

        [ Parent ]

        •  agreed, but gettng them to go along with it.... (1+ / 0-)
          Recommended by:
          ditsylilg

          that' another matter entirely and that is what it will take.

          "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

          by murphthesurf3 on Sun Jul 06, 2014 at 06:14:40 AM PDT

          [ Parent ]

  •  If the SC agrees (1+ / 0-)
    Recommended by:
    murphthesurf3

    I will move to Minnesota from Wisconsin so fast it will make my family's heads spin.

    Wisconsin will lose my taxes and spending "income", meaning it will fall further behind the Midwest in terms of economic growth.

    Does Walker care?  Most likely, no.  But the Republicans in Wisconsin who rely on business income do.

    Republican tax policies have led to financial conditions which have caused Republicans to demand cuts to programs they have always opposed.

    by AppleP on Sat Jul 05, 2014 at 01:21:37 PM PDT

    •  Now if we can multiply you times 100,000! (0+ / 0-)

      Strong strategy....make sure THEY know your plans....

      "It is better to light one candle than curse the darkness." (Adlai Stevenson in praise of Eleanor Roosevelt) (Glowing Candle Avatar Adopted in 1986)

      by murphthesurf3 on Sat Jul 05, 2014 at 03:17:50 PM PDT

      [ Parent ]

  •  FWIW, I've written a couple of diaries on This ... (0+ / 0-)

    FWIW, I've written a couple of diaries on This case over at acasignups.net.

    Even in a worst-case scenario, there may be an insanely simple workaround, but even that is very iffy.

  •  Admittedly a long-shot, but... (0+ / 0-)

    ....the Court could also interpret the phrase "an Exchange established by the State." to include delegation of the State Exchange to a Federal Exchange. The Constitution requires Congressional districts to be established and re-established by state legislatures, but many states delegate that function to districting commissions. The legislatures then (usually) rubber-stamp the districting plans crafted by the commissions.

    Here's a map of how districting, supposedly the responsibility of state legislatures, is delegated in different states.

    Like I said, admittedly a long-shot, but not impossible.

    If it fails, then I believe the Democrats can leverage the hell out of this in the Fall, demanding that the Republican Governors and Legislatures who refused to set up exchanges do so immediately, and campaigning furiously against those who still refuse.

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