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Cross-posted at ACA Signups
I wasn't planning on cross-posting this one, but given that the topic of Halbig v. Burwell has been front-paged today and given my own domain name-related diary from this morning, I figured it would be worth reposting.

I wrote a week or so ago about the Halbig v. Burwell (formerly Halbig v. Sebelius) case currently pending in the D.C. Circuit Court of Appeals. The short version is that there's a challenge to the IRS doling out tax credits to the 5 million people or so who enrolled in and qualified via Healthcare.gov (the Federal exchange) across 36 states, based on the wording of one particular section of the Affordable Care Act which supposedly refers to subsidies only being allowed for the exchanges run by the state.

At issue is Section 1401, which states:

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...

So, any healthcare exchange "established by" the Federal government is (according to the plaintiffs of this case) not allowed to give out subsidies; only exchanges "established by" individual states can do so.

If it makes it all the way through the court system, there's the potential for absolute chaos; not just politically, but economically, legally, etc, especially since at least 5 million people (and potentially up to 10 million or more, assuming it doesn't make it through to the SCOTUS until, say, next spring) will have presumably already received tax subsidies.

Of course, even if the SCOTUS does rule for the plaintiffs in the end, it's very likely that they'll include a note that basically tells Congress "You know, there's an easy way to fix this; just go over section 1401 with a dab of liquid paper and revise the sentence to read "...enrolled in through an Exchange established by the State or the Federal Government" or whatever.

That would be a completely reasonable solution...if there was a snowball's chance in Hell that Congress would do so. Obviously the GOP would never let it go through (assuming that they hold the House and/or take over the Senate), so the clusterf*ck would ensue.

However, depending on what "established by" and "facilitates" are defined as (see section 1311 as referred to in the passage above), it seems to me that there's a different, equally simple (if utterly stupid) possible resolution which would cost no more than $358.20!

Here's my point: Even the state-run exchanges such as CoveredCA, NYStateofHealth and so aren't run entirely on state resources. I don't know all the technical details, but I'm assuming that they have to hook into the IRS database (to prove federal income tax status), the INS database (to prove citizenship) and other federally-run systems, right? Yes, perhaps 90% of the back end of the start-to-finish "exchange" is handled at the state level, but there's some amount of federal involvement (beyond the actual startup funding, of course) for all of the exchanges.

So, the question becomes, just how much of the "establishment" has to be done by the state, and how much is allowed for by the Feds? For that matter, if "the state" contracts out the actual site development work to a private corporation, that's technically not being done by "the state" or "the Feds"...it's being done by a private company which is simply paid for their services by one or the other (ie, the Oracle debacle in Oregon; CGI Federal at the Federal level; Deloitte or Accenture in other states, etc).

In other words, what do "established by" and "facilitates participation" actually mean?

Depending on the answer to those and related questions, there could be an incredibly stupid-sounding solution.

I'm referring to domain names.

Yes, that's right: For just $9.95 apiece (or less, if you shop around), the United States Federal Government could simply ask the health departments of the 36 states in question to snap up a domain name along the lines of:

--HealthcareAlabama.Gov--HealthcareAlaska.Gov--HealthcareArizona.Gov

...and so forth.

Then, just set up those domain names to repoint to the appropriate sub-section of Healthcare.gov (healthcare.gov/alabama, healthcare.gov/alaska, etc.) Heck, Illinois is already set up this way.

Does that count as "establishing" an exchange? What about if the state threw in a little splashpage before you get redirected to HC.gov?

And no, I'm not being snarky. I'm dead serious...depending on the reasoning of the judges in question.

There may be a few of them who, like the judge at the end of Miracle on 34th Street, want to find some way out of the potential mess, some technicality, however lame-sounding to those who oppose it. After all, that's kind of what happened a couple of years ago when even Chief Justice Roberts (a GW Bush appointee) saved the ACA's bacon by deciding that the individual mandate payment was a "tax" and not a "penalty", and was therefore allowed for by the Congress that passed the law.

Now, the "domain solution" I describe above would still have one more hurdle, of course: You'd still have to get the individual states to agree to pony up $9.95 per year and set up a simple domain redirect. Illinois has already done so; presumably other blue-leaning states would follow. That would leave about 30 states, give or take, including Texas, Florida and so forth.

However, can you imagine the public outcry from residents of those states when they find out that they have to return thousands of dollars to the IRS because their own state government isn't willing to pay the price of a Denny's Grand Slam breakfast (with generous tip) to keep things in place? Somehow I don't think even ACA-hating residents of Oklahoma or Tennessee would stand for it.

Yes, I realize how insanely naive this sounds...but weirder things have happened, and most of them seem to have involved the ACA anyway.

UPDATE: From my comment below, a real-life example which actually sparked this post:

The words "establish" and "facilitate" can be very slippery. When a movie wins Best Picture, the Oscar goes to whoever happens to be legally listed as the Producer of the film, not the director (unless it's the same person), even if the "Producer" didn't actually do a damned thing.

I have a client who had me develop a whole new version of their website, along with the hosting. However, the domain name is still legally registered to their former business partner, preventing the new site from going online. The client is trying to sort it out now to acquire control over the domain, but this raises the question: Who "established" the old website? Who "established" the new one? Who is "facilitating" either one?

Is it the former business partner? They registered the domain name and set up the old hosting which is necessary to "facilitate" visiting the site.

Is it the current owner/client? They hired me to develop the new site and hosting.

Is it ME? I'm the one doing the actual work and setting up the new hosting account, therefore "facilitating" the ability of people to visit the site...including the client.

A tiny example, but you get my point.

UPDATE x2: Jamey Harvey, an IT team lead who (I just learned, even though he's been following me on Twitter for awhile!) apparently heads up the DC exchange, just informed me (I'm splicing together two tweets, so forgive the abrupt wording):

To answer your question, state exchange rely on "federal hub" as the first source of data for applicants' APTC eligibility; the SBE sends unique identifier for the person, right upfront, and the IRS sends back estimated APTC based on previous year
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Comment Preferences

  •  stupid question (3+ / 0-)
    Recommended by:
    Brainwrap, Lujane, Mopshell

    Isn't the federal government the domain registrar for .gov? dotgov.gov suggests so.  The domains should be free if the federal government wants them to be.  Well it might cost the GSA a couple of cents more a year to adminster a couple extra domains.

    •  also (2+ / 0-)
      Recommended by:
      Brainwrap, Lujane

      I think every state already has a .gov and a .us so they could just make it healthcare..us fairly easily for free.

    •  Oh, absolutely; I was just being snarky. (2+ / 0-)
      Recommended by:
      bluenick, Mopshell

      Obviously the official .GOV domains are owned by the government directly already; my point is simply that it could theoretically be as simple as slapping up a domain name and a bare-bones portal site to comply, that's all.

      •  you have no clue how movies are made (0+ / 0-)
        When a movie wins Best Picture, the Oscar goes to whoever happens to be legally listed as the Producer of the film, not the director (unless it's the same person), even if the "Producer" didn't actually do a damned thing.
        The producer may have found the original book, hired a series of screenwriters to get it to a filmmable script, hired and paid to research the subject, got a workable budget, got investors to pay for the whole thing, hired set designers and cameramen and grips/electrics, drivers, craft service, etc.  He might have kept the director from going over budget with his neurotic perfectionism.  Raised even more money to keep the actors on the project after the movie did go over budget and ran out of money when that storm flatten all the sets.  It's silly to say, they do nothing and it's also false to say a producer does nothing creative.  Some don't.  Some do.

        See the book Final Cut for what can happen when a director, even a recent Oscar-winning director, gets what he wants without oversight.

        •  Actually, I know exactly what a producer does... (0+ / 0-)

          ...seeing how I was one on several film projects and worked my ass off in doing so.

          I didn't say that producers don't do anything, I said that there are some cases where the person LISTED as the producer doesn't do anything, which I've also run into.

          Now, this is usually more common with EXECUTIVE producers, who are sometimes listed purely as a marketing tool, but it does happen with the "producer" credit at times as well.

  •  ah. untwisted, (2+ / 0-)
    Recommended by:
    Brainwrap, Mopshell

    then ... THEN wrapped.

    such a smart cookie.
    (tech talk)

    TRAILHEAD of accountability for Bush-2 Crimes? -- Addington's Perpwalk.

    by greenbird on Thu Jul 10, 2014 at 06:09:29 PM PDT

  •  I think the legal argument may (1+ / 0-)
    Recommended by:
    Lujane

    demand, "In the phrase 'established by the State under 1311,' what did Congress intend to limit by including 'by the state' ?"

    I believe it's a fundamental principle of legislative interpretation that any approach treating controversial words as superfluous, can't stand.

    •  How does that apply to Brainwrap's solution? (0+ / 0-)

      Please note that lamps in the Magic Lamp Emporium are on a genie time-share program so there may be a slight delay in wish fulfillment. (◕‿◕)

      by Mopshell on Fri Jul 11, 2014 at 03:08:52 AM PDT

      [ Parent ]

      •  If Brainwrap's solution (1+ / 0-)
        Recommended by:
        Mopshell

        can be described as painting every ACA exchange as "established by the state," by viewing an exchange operated by the feds as an outsourced state function (perhaps based on the name or location of the web site), opponents might argue that the interpretation makes the "by the state" qualifier meaningless.

        I'm not sure I fully understand Brainwrap's solution.  Maybe my concern is misplaced.  But I've run into the problem I describe in trying to interpret state laws, before.

        •  I think you can relax (0+ / 0-)

          The solution Brainwrap is suggesting is in line with what happens now re state exchanges. Each one of the state websites is essentially just a portal linked back to the federal exchange. If they pass muster then his solution will too.

          Please note that lamps in the Magic Lamp Emporium are on a genie time-share program so there may be a slight delay in wish fulfillment. (◕‿◕)

          by Mopshell on Fri Jul 11, 2014 at 12:37:19 PM PDT

          [ Parent ]

  •  ...the head spins...'n' spins...'n' spins... (0+ / 0-)

    Poverty is not an accident. Like slavery and apartheid, it is man-made and can be removed by the actions of human beings. —Nelson Mandela

    by kaliope on Thu Jul 10, 2014 at 10:04:33 PM PDT

  •  I'm so glad you did republish this (1+ / 0-)
    Recommended by:
    Brainwrap

    I've been sending everyone to this article via link to your site! So much easier when it's right here. (◕‿◕)

    Please note that lamps in the Magic Lamp Emporium are on a genie time-share program so there may be a slight delay in wish fulfillment. (◕‿◕)

    by Mopshell on Fri Jul 11, 2014 at 03:10:17 AM PDT

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