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Speaker John Boehner blows his nose during the 2014 State of the Union.
Well, that didn't last long—roughly two hours after a D.C. circuit court panel ruled that Obamacare does not allow subsidies in federally-run exchanges, a panel in the Fourth Circuit Court of Appeals, located in Virginia, has unanimously ruled that Obamacare does allow such subsidies.

If you're keeping score at home, that means three courts have ruled that Obamacare does allow subsidies in federally-run exchanges and one has not.

9:40 AM PT: I love this—shortly before the new ruling came out, House Speaker John Boehner celebrated the day's first ruling with a statement saying:

Today’s ruling is also further proof that President Obama’s health care law is completely unworkable.  It cannot be fixed.
Nice try, John. Better luck next time.

9:58 AM PT: From the opinion:

What they may not do is rely on our help to deny to millions of Americans desperately - needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

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Comment Preferences

  •  Hurray! It is hard to keep up with the news... (28+ / 0-)

    "The blackbird whirled in the autumn winds. It was a small part of the pantomime." Wallace Stevens

    by mobiusein on Tue Jul 22, 2014 at 09:40:15 AM PDT

    •  We (including the FP) should hold off... (3+ / 0-)
      Recommended by:
      bluenick, Arun, Mopshell

      ...on our celebration of this decision.

      With conflicting circuit decisions, I'm 99.9% certain that this will go to SCOTUS...and we all know how that has gone the past several times it has heard cases.

      Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

      by Love Me Slender on Tue Jul 22, 2014 at 10:44:12 AM PDT

      [ Parent ]

      •  Fair Point. However, (6+ / 0-)

        SCOTUS actually did uphold most of the ACA previously, so there's some reason to be heartened by that.

        Also getting a case to SCOTUS and getting a decision on it will take time.  And ever since the ACA went into effect, time has been the enemy to the GOP as more and more people get insured under it and all the ACA boogeymen that they the GOP have been predicting don't appear.

        •  I hear you, but to me, the HL case changed... (2+ / 0-)
          Recommended by:
          Heart of the Rockies, Mopshell

          ...everything.

          I think this SCOTUS means to gut that law and its provisions...and I have seen and heard nothing since that 2012 ruling that leads me to believe anything to the contrary.

          Also, the idea that this could take "years" to play out is nonsense. They can hear this case next term and decide it in 2015...just in time for the IRS to do its thing. This is far from over, and we shouldn't be celebrating.

          Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

          by Love Me Slender on Tue Jul 22, 2014 at 11:17:11 AM PDT

          [ Parent ]

          •  HL Did Not Change Everything (1+ / 0-)
            Recommended by:
            Mopshell

            A stupid ruling written by a hack that pretty much all legitimate legal experts know is a sham.

            Lets the Obama-haters and Know Nothing THINK they've won something.  Wait until Muslims use the decision to uphold their practices in the Bible Belt.

            The 4 nutjobs on the high court may want to attack the law, but they still need a legal reason to do so.

            Oh yeah, once of the 5 Republicans on the court leaves....and we have a Democrat in the White House, this will end.  Ginsberg may be frail, but at least two of the conservatives are no spring chickens either.

            In the land of the blind, the one-eyed man may be king.

            by Bring the Lions on Tue Jul 22, 2014 at 12:49:22 PM PDT

            [ Parent ]

            •  Hey, if it makes you feel better... (0+ / 0-)

              ...you are certainly free to think this will all happen.

              To me, it is projection, not reality.

              The reality is, there is a case just like this coming to the 7th Circuit (Indiana) - and in that court, it is 7 R, 3 D.

              Split appeals courts means SCOTUS review...and SCOTUS will hammer this part of the law...bank it.

              Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

              by Love Me Slender on Wed Jul 23, 2014 at 05:51:12 AM PDT

              [ Parent ]

              •  Split Appeals (0+ / 0-)

                ..means the District Court hears it.  As it's expected to.

                A SCOTUS review is not automatic.

                My understanding is that the DC Court that would review would take care of all the lower court rulings.

                In the land of the blind, the one-eyed man may be king.

                by Bring the Lions on Wed Jul 23, 2014 at 01:08:52 PM PDT

                [ Parent ]

        •  Actually, I would prefer it happen quickly. (2+ / 0-)
          Recommended by:
          Infected Zebra, Mopshell

          As in, before the 2014 elections.  I wouldn't be at all surprised if SC(R)OTUS kills the credits.  And when the IRS sends out the bills for recovery of the credits, I want the names, and party, of the people who filed those suits to be prominently displayed.  "Why are you being billed 1000s of dollars?  Because of these guys.  Still want to send them back to Washington?"

          In reading the opinion, I can see how SCOTUS could come up with their own brutally mangled logic to end the credits.  From the opinion, it's not a slam-dunk.

          I am become Man, the destroyer of worlds

          by tle on Tue Jul 22, 2014 at 11:39:54 AM PDT

          [ Parent ]

          •  Like everything else legal, depends on... (0+ / 0-)

            ...interpretation...and at least 4 SCOTUS justices will say that the language of the law is clear. The 5th, John Roberts, basically built in his response to this in 2012.

            He (and the majority) will say that the language of the law is clear...and that, just like the first decision, if you want the law to mean something else, legislate it that way.

            I have a bad feeling about these cases. We only have intent and the common good on our side. The language of the law, if taken literally, is not on our side.

            Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

            by Love Me Slender on Wed Jul 23, 2014 at 06:05:20 AM PDT

            [ Parent ]

        •  SCOTUS didn't "uphold most of" the ACA previously. (1+ / 0-)
          Recommended by:
          Bring the Lions

          They merely found that a few contested aspects of it were not unconstitutional. On almost all aspects of the ACA, they have been silent -- typically SCOTUS only addresses the specific, usually narrow, questions brought to them and that has been the case here as well.

          Hobby Lobby, by contrast, was not a Constitutional question but a statutory question regarding possible conflicts between multiple Federal statutes and HHS regulations. The question was if the regulations promulgated by the HHS (primarily by including four specific types of birth control in the "must cover" list) conflicted with the RFRA when interpreted under the overriding umbrella of the Dictionary Act and as applied to a closely held corporation. The RFRA, by the way, extends religious exercise/freedom above and beyond what is guaranteed by the First Amendment (that's why it was passed -- in response to SCOTUS rulings that took a less expansive view of the First Amendment than Congress and the Administration apparently almost universally believed was appropriate).

          The crux of the subsidy cases, as I understand it, is if the IRS regulations regarding subsidies are faithful to the text of the ACA as passed into law. I don't believe there is really significant question of conflict with other Federal statutes or the Constitution -- it's an interpretation of black letter law recently passed (and not muddied up with subsequent amendments). As such, these cases seem quite a bit simpler to me. At best, the ACA is ambiguous with respect to Federal subsidies being granted to those who utilize the Federal exchange.

      •  No. We should not. (2+ / 0-)
        Recommended by:
        Mopshell, Love Me Slender

        Or at least we should not hold off on trumpeting this on the front page because the mainstream media and places like HuffPoo are hyping it to the highest hills as a MASSIVE! DEFEAT! for OBAMA!!!!!!! And if we do not yell and scream and stomp our feet, that is the narrative everybody hears.

        And this is really truly starting to piss me off in so many ways. We have done a lousy job of promoting the correct narrative on the ACA. In two days:

        A. I talked to a longtime friend of mine who works at a job without benefits and whose wife was recently unemployed for nine months. They have two children, one already in college, one entering in the fall, neither of whom can enroll without heath coverage, which they could not afford. It would have cost them over $1200 a month. Now they are paying  $295 for four people.

        B. Was in court today with a friend getting divorced. It came out she could not stay on her husband's coverage once the divorce was final. She is ten years away from Medicare. She's freaking out — until I reminded her about the ACA and told her she would most likely qualify for a VERY affordable policy, well within her means based on the alimony her lawyer has negotiated for her. Prior to Obamacare, she probably would have had to spend more than half of it on healthcare (she has a number of health issues).

        C. Another couple of close friends, approaching 60, she with no health issues, he with minor ones. Both freelancing/independent entrepreneurs. They completely depleted their savings paying $1500 a month for coverage — until Obamacare came along. Now they aren't on pins and needles each month as to whether they can make their health insurance payment. Unfortunately, their entire retirement cushion is gone.

        These are just stories that immediately come to mind among close friends of mine. I'm sure I could think of more I've heard from acquaintances and about friends of friends.

        What the fuck will it take to stop this false, cruel, destructive narrative that somehow Obamacare does anything bad for anyone? Yes, we all know it could be better. But it is saving  millions of lives and bank accounts.

        I personally want to kick in the butt assholes like Boehner who has world-class health care yet lies through his teeth that Obamacare is "unworkable' and "can't be fixed." It is working for these friends of mine. Boehner should be forced to eat golfballs until he pukes. I am so sick of this.

        Ed FitzGerald for governor Of Ohio. Women's lives depend on it. http://www.edfitzgeraldforohio.com/

        by anastasia p on Tue Jul 22, 2014 at 04:18:30 PM PDT

        [ Parent ]

        •  Now how can I NOT rec a comment... (0+ / 0-)

          ..that has THIS as a part of it?

          I personally want to kick in the butt assholes
          Carry on strong, my lady :)

          Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

          by Love Me Slender on Wed Jul 23, 2014 at 06:03:17 AM PDT

          [ Parent ]

  •  Hmm. On MSNBC not mention of 3-1 in # of (7+ / 0-)

    rulings for the federal subsidy. Just a fair and balanced report (including Boehner's droning).

  •  But only your SCrOTUS knows for sure.. n/t (6+ / 0-)

    The ground for taking ignorance to be restrictive of freedom is that it causes people to make choices which they would not have made if they had seen what the realization of their choices involved. A.J. Ayer, Sir. "The Concept of Freedom "

    by Memory Corrupted on Tue Jul 22, 2014 at 09:40:51 AM PDT

    •  It'd be nice to get some legal opinion (8+ / 0-)

      ... on whether these rulings are taking proper accounting of SCOTUS' previous ACA ruling, and where that ruling leads us to think they'll go when taking up these questions.

      I stand with triv33. Shame on her attackers.

      by Dallasdoc on Tue Jul 22, 2014 at 09:51:45 AM PDT

      [ Parent ]

      •  from what i can tell (4+ / 0-)

        this was a set of litigations on the IRS implementing
        regulations, citing the APA and balancing deference to
        constitutional standards for what the bounds of the
        agency rules can be.

        ACA is constitutional, doesn't mean all the rules are, and
        even if the rules are doesn't mean the implementation actions are.

        •  Thanks (5+ / 0-)
          Recommended by:
          ColoTim, jds1978, dagnome, patbahn, JesseCW

          I do recall the IRS regulation arguments and subsequent suits.  

          Back around 2003 or so, National Breast Cancer Coalition came up with a set of guidelines for quality health care reform.  One of those was that any federal system to provide affordable health care for all must be as simple as possible, easy to understand, easy to oversee, to implement and to navigate.

          It could have been much simpler, especially with the public option.  DC Dems share much of the blame for the final result, since the GOP fought ACA.

          Too many tweaks, too much delegated out to states and too many tiers, rules, exceptions and delays will make this version of ACA a moving target for criticism for years to come.

          Medicare for All, ASAP is the best solution.  Screw the insurance industry lobbyists.

          Money is property, not speech. Overturn Citizens United.

          by Betty Pinson on Tue Jul 22, 2014 at 10:24:19 AM PDT

          [ Parent ]

      •  I don't think I have ever been more confused (2+ / 0-)
        Recommended by:
        drmah, Mopshell

        by what this means and will it ever end?

        •  No, it won't end (5+ / 0-)

          until we implement Medicare for All.

          ACA, as passed and implemented, is something of a Rube Goldberg contraption.  It will really only serve as a temporary remedy until we pass universal health care.  The scary part is that this slightly unwieldly system has to keep costs under control and eventually pay for itself.  

          I worry that, due to our ongoing shitty economy, with wildly vacillating employment and income status for most uninsured/underinsured Americans, ACA will experience a lot of problems with over payments to private insurance companies, coming directly out of the federal treasury.  Ugh.  A lot of uninsured Americans are going to keep falling in and out of ACA, in and out of jobs, but the federal tax money will keep flowing to the insurance companies as the paperwork catches up.

          Public Option where the federal government manages its own health insurance plan for uninsured Americans would have been much easier to manage - no middleman, no need to go through the "rebate" aka tax credit accounting gymnastics.

          This is the plan that Reid, Baucus and Obama wanted, so they'll have to deal with it.

          Money is property, not speech. Overturn Citizens United.

          by Betty Pinson on Tue Jul 22, 2014 at 10:37:34 AM PDT

          [ Parent ]

      •  I have always found this Court to be (4+ / 0-)

        …consistant and predictable.

        They always come down on the side of large capital earnings, monopolies, and capitalist political influence. The Hobby Lobby ruling was a little odd -- but in this case the financial/insurance sector will get their pound of profitable flesh from the commonwealth or directly from the people.


        _______________
        For an idea that does not at first seem insane, there is no hope.
                    -- Albert Einstein:  far left, emo-prog, socialist.

        by Pluto on Tue Jul 22, 2014 at 10:19:36 AM PDT

        [ Parent ]

      •  The diary explains that the courts have upheld (0+ / 0-)

        subsidies three other times.  In terms of hierarchy, the ciruit court said "no subsidies allowed" but immediately after an appeals ciruit court (one level higher) said "subsidies allowed".  I believe next stop is SCrOTUS.

        The ground for taking ignorance to be restrictive of freedom is that it causes people to make choices which they would not have made if they had seen what the realization of their choices involved. A.J. Ayer, Sir. "The Concept of Freedom "

        by Memory Corrupted on Tue Jul 22, 2014 at 12:29:56 PM PDT

        [ Parent ]

    •  R.I.P. - Rule of Law in the U.S. (3+ / 0-)
      Recommended by:
      Betty Pinson, drmah, Mopshell

      Thanks to Republican rebellion, decisions are no longer based on rules, existing laws, or legal precedent. Decisions are made up from purely ideological beliefs in order to bypass our entire process of law and government. I've said it before; welcome to fuqing anarchy, errbody.

      "What could possibly go wrong?" - United States Supreme Court Justices

      by Fordmandalay on Tue Jul 22, 2014 at 10:20:24 AM PDT

      [ Parent ]

  •  So where does that leave us? (3+ / 0-)
    Recommended by:
    shades at midnite, TofG, Mopshell

    Does the Fourth Circuit Court of Appeals govern the D. C. Circuit court or is the other ruling still alive?

    "The smartest man in the room is not always right." -Richard Holbrooke

    by Demi Moaned on Tue Jul 22, 2014 at 09:42:11 AM PDT

    •  The two courts are in separate judicial circuits. (14+ / 0-)

      This would, it seems, represent a split in the Circuits, which is a strong (but not compelling) reason for the Supreme Court to take the case.

      But unless some very urgent action is taken, it is highly unlikely SCOTUS would decide it before the election in November.

      That's OK, because it keeps the issue alive for the GOP ... and that means it keeps it alive for Democrats campaigning in 2014. And that is the best news ever!

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Jul 22, 2014 at 09:52:23 AM PDT

      [ Parent ]

      •  not quite yet (20+ / 0-)

        If the full DC circuit rules the panel judgement is likely to be reversed. At that point all lower courts will have concluded the same thing.

        •  Yes, if the DC enbanc ruling goes in our favor, (6+ / 0-)

          which is highly likely, then it means all lower courts have ruled in favor of subsidies. I can't see the SCOTUS even taking the case with that kind of record.

          •  SCOTUS might hear it, though (0+ / 0-)

            All it takes, IIRC, is for four justices to grant certiorari - Scalia, Alito, Thomas, and either Roberts or Kennedy.

            That said, given that the mandate survived in 2012, the subsidies could also survive. Who knows?

            Michigan, you're beautiful - but your politicians stink. You need a Schauer.

            by ScottyUrb on Tue Jul 22, 2014 at 11:31:47 AM PDT

            [ Parent ]

        •  True. And en banc review is certainly possible. (1+ / 0-)
          Recommended by:
          TofG

          (No wonder the Senate Republicans didn't want the President to fill vacancies on the DC Circuit.)

          But review by the full court isn't a foregone conclusion, is it? And I doubt the Fourth Circuit would take a 3-0 panel decision on en banc review.

          However, if as you say, the full DC Circuit turns its panel's decision around, there's no conflict. The losing challenger still is likely appeal to SCOTUS. What would you put the likelihood of the Supreme Court taking such an appeal in the face of no split in the circuits?

          (I'd say unlikely, but not impossible. Maybe 25%, because five justices might want to sustain ACA on a silly point like this and they'd want to seize the day?)

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Tue Jul 22, 2014 at 10:42:53 AM PDT

          [ Parent ]

        •  Doesn't matter...I'll bet all the money in my... (3+ / 0-)
          Recommended by:
          slinkerwink, WillR, Mopshell

          ...pockets versus yours that SCOTUS takes this case. It is a matter of black-letter law versus intent - and with Roberts as the justice presiding over the D.C circuit, the stage is set for the next round in this legal fight.

          Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

          by Love Me Slender on Tue Jul 22, 2014 at 10:46:20 AM PDT

          [ Parent ]

          •  I disgree. If both the 4th Circuit and the DC (7+ / 0-)

            Circuit En Blanc rules in favor of the government, there is a good chance that the Supreme Court doesn't take up the case.

            President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

            by Drdemocrat on Tue Jul 22, 2014 at 10:50:43 AM PDT

            [ Parent ]

            •  Well, that certainly is your opinion... (2+ / 0-)
              Recommended by:
              notagain, Mopshell

              ...but this is THIS SCOTUS we're talking about..you know, the one that took away women's rights a few short weeks ago?

              Be careful that your hope does not overrule your reality. It leads to far less disappointment in life...and with this SCOTUS, ANYTHING is possible.

              Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

              by Love Me Slender on Tue Jul 22, 2014 at 11:03:59 AM PDT

              [ Parent ]

              •  But SCOTUS already had its chance (3+ / 0-)

                to destroy the ACA already and upheld it as Constitutional.

                So that leads me to believe that the idea that the conservatives on the court are all waiting to feast on ACA's guts might not be a foregone conclusion.

                •  The subsidies weren't being argued in that case... (1+ / 0-)
                  Recommended by:
                  WillR

                  This is an issue with a sloppily-written provision in the law...one that pits black-letter law with an interpretation of what that provision means. It is tailor-made for SCOTUS...which scares the hell out of me.

                  Plus, I think John Roberts means to redeem himself in the eyes of conservatives. If he could, he'd probably go back and change that vote given the hell he caught for it...and I think the conservative wing of the court means to gut the hell out of this law.

                  This battle is far from over.

                  Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                  by Love Me Slender on Tue Jul 22, 2014 at 11:20:06 AM PDT

                  [ Parent ]

                  •  I disagree. If Roberts wanted it destroyed he (3+ / 0-)

                    could have done that years ago yet he did not.

                    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

                    by Drdemocrat on Tue Jul 22, 2014 at 11:44:08 AM PDT

                    [ Parent ]

                    •  Courts, even those you disagree with,... (0+ / 0-)

                      ...do usually base their decisions on law not just opinion. Within the ambiguity and vagueness of the law (including the Constitution), there is much room for interpretation of course (penumbras and all that).

                      Robert's did bend over backwards (he must be double jointed) to craft logic that he was comfortable with and found that the ACA didn't conflict with the Constitution. I think this was likely colored by his interest in status quo and his realization that to overturn the ACA as unconstitutional would have had ripple effects across broad swaths of Federal control and he wasn't comfortable being bold and upsetting the apple cart.

                      This is not a constitutional issue -- and it's easily remedied by legislative action. I'm not sure Roberts is so deferential in such cases.

                      •  And that is EXACTLY what he will say in this case. (1+ / 0-)
                        Recommended by:
                        OrganicChemist

                        In fact, I think he'll write the decision.

                        He (and the majority) will say that the language of the law is clear...and that, just like the first decision, if you want the law to mean something else, legislate it that way.

                        The subsidies for plans through the federal exchange are doomed. It's just a matter of time.

                        Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                        by Love Me Slender on Wed Jul 23, 2014 at 05:48:43 AM PDT

                        [ Parent ]

                    •  Of course you disagree... (0+ / 0-)

                      You WANT something to happen. But what WILL happen is that SCOTUS will hammer this law...and we'll be back to (almost) square one.

                      I'll bet you a thousand dollars (to the charity of our choice) that this case ends in SCOTUS...and that the subsidies for plans through federal exchanges will vanish. Again, I don't WANT that to happen, but I live in a reality-based world, not a normative Land of Oz.

                      Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                      by Love Me Slender on Wed Jul 23, 2014 at 05:47:19 AM PDT

                      [ Parent ]

                  •  Again the Supreme Court may not take it up the (2+ / 0-)
                    Recommended by:
                    Jakeston, Bring the Lions

                    case for both the DC Circuit and the 4th Circuit en Banc will rule for the subsidies.

                    In the end it won't be a split decision.

                    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

                    by Drdemocrat on Tue Jul 22, 2014 at 11:46:47 AM PDT

                    [ Parent ]

                    •  You do know that there is a case in Indiana... (0+ / 0-)

                      ... arguing this very topic which, when appealed, will go to the 7th Circuit Court of Appeals?

                      The make-up of that 7th Circuit: 7 Republican-appointed justices, 3 Democratic-appointed justices...with 4 overall justices appointed by Reagan.

                      Nearly every legal expert says this one ends at the High Court. I understand that our side doesn't want it there, but you have to embrace reality, not fantasy, when dealing with cases of law.

                      Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                      by Love Me Slender on Wed Jul 23, 2014 at 05:45:05 AM PDT

                      [ Parent ]

          •  Hmm. I disagree. (2+ / 0-)
            Recommended by:
            TRPChicago, ColoTim

            "Black letter law" also includes statutory construction principles that require a court to construe a statute as a whole.  The ACA is full of explicit statements that it applies to "all" Americans; the outlier is the provision providing for subsidies for those on "state" exchanges. That provision has to be read in a vacuum, to be taken completely out of context, to destroy subsidies for those who buy insurance on federally-established state exchanges.

            Black letter law also includes the provision that, if a statute is ambiguous, the courts will defer to the agency that implements its provisions (here, the IRS handles the tax credit portion).  The agency ruled that subsidies are available to all Americans in all exchanges, and "deference" to that agency's rule is the basis of the 4th Circuit's opinion.  (I like the concurrence in that opinion, in which the judge said he'd have ruled on the basis that the statute itself, read as a whole, mandates approval of nationwide availability of subsidies.)

            The D.C. Circuit's cramped ruling takes one short provision out of about 900 pages that would defeat the purpose of the entire statutory scheme.  Everybody and his dog knows, and has known, that the subsidies are meant to be available nation-wide.  If they aren't, the thing does not work, and everybody and his dog knows that too.

            "If there are no dogs in heaven, then when I die I want to go where they went." - Will Rogers

            by Kentucky DeanDemocrat on Tue Jul 22, 2014 at 11:10:21 AM PDT

            [ Parent ]

            •  That wasn't at all the point of my comment... (1+ / 0-)
              Recommended by:
              Kentucky DeanDemocrat

              I simply said that SCOTUS would take this case...and that it represented the next round in the fight.

              Man, people here sure are going to extreme lengths to convince themselves that there is no way on Earth that SCOTUS would take the case.

              People, think about what THIS SCOTUS represents. Stop with the happy-happy echo chamber and embrace reality. John Roberts has been excoriated by the RW media and politicians for his vote on the original case...and he already sided with the others on the Hobby Lobby case. To think they would defer to an appeals court (or two) when they can be the last word on these (and two other cases coming up through the courts just like them) is wishful thinking.

              Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

              by Love Me Slender on Tue Jul 22, 2014 at 11:14:36 AM PDT

              [ Parent ]

              •  it's like there is precedent.. (1+ / 0-)
                Recommended by:
                Mopshell

                or logic, or legality to be taken into consideration. This court can, will, and has done whatever it wants. No reason to stop now.

              •  Love Me, would SCOTUS take the case if the ... (0+ / 0-)

                ... outcome weren't somewhat clear?

                I wouldn't be so sure that the five justices you mention would agree on this. For example, if C.J. Roberts waffled at the last moment and switched to uphold ACA (which he did), is it likely he would vote to take a case that hangs so heavily on that one strained interpretation?

                Now true, it takes only four votes to agree to hear the case, but if you were Scalia, Thomas or Alito, would you be willing to risk a bigger loss on Roberts changing his mind? And can that group count on J. Kennedy on this?

                I am doubtful that unless the circuits were split (certainly a possibility if the DC Circuit doesn't take this case en banc) the Court would take this on.

                As for Roberts and the Right Wing media, they utterly missed the big subtlety underlying that Roberts switch - the Commerce clause. He's got more in mind even than ACA. J. Thomas may care about his constituency, but Roberts will care more about his legacy.

                2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                by TRPChicago on Tue Jul 22, 2014 at 02:11:12 PM PDT

                [ Parent ]

                •  But this time, he will be arguing the same thing.. (1+ / 0-)
                  Recommended by:
                  TRPChicago

                  Remember, what he basically told Republicans in 2012 was to repeal the law if you don't like it.

                  Well now we have language in the law that doesn't seem to support giving subsidies to those with plans through the federal exchanges. We want the court to basically agree that the spirit of the law was an intent to provide subsidies for all.

                  Roberts can write an opinion that tells our side "If the language of the law isn't accurate or is ambiguous, legislate clearer language...don't expect us to interpret meaning that isn't in black and white in the law."

                  Now, our side knows there is no chance in hell of that happening with this congress...and Roberts knows that too, but that isn't his problem. It's OURS.

                  I'm sorry...but every realistic scenario I see ends poorly for our side.

                  Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                  by Love Me Slender on Wed Jul 23, 2014 at 05:55:06 AM PDT

                  [ Parent ]

                  •  You're right, that is what Roberts could do. (1+ / 0-)
                    Recommended by:
                    Love Me Slender

                    I wouldn't put that kind of cramped, self-defeating uber-textual construction beyond Scalia, Thomas and Alito.

                    Scalia chooses carefully the words he likes, then parses through a text that read sensibly, doesn't really say what he wants, and blunderbusses his way to his desired result, laying waste to sensible analysis.

                    Thomas brings his agenda to the fore and sees the case, whatever case it is, through that filter. (He decides, but I suspect his clerks have a lot to do with "his" opinions.)

                    Alito does what comes to mind, lavishes in faux naïveté, then denies the practical effects and near-certain impact of an outcome he likes.

                    But to send ACA packing will take two more justices: one more to vote to hear the appeal and two more to decide it. Much as those three might want to toss the law, they'll have to be sure they have two more justices with them.

                    [For analytical completeness: if the DC Circuit's decision holds and someone on the Court recuses himself or is unable to vote, say for health reasons, the Court could be 4-4, in which case the lower Court's opinion would stand. If one is cynical - and you seem to be - that is not an entirely unreasonable possibility. There is more than one way to skin ACA alive. But let's assume no justice is that disingenuous.]

                    Kennedy, I believe, would be indisposed to ignore the reasonable application of a statute by fastening on a few inartful words in - what? - 1000 pages. And it will take C.J. Roberts. He could and almost did kill Obamacare before ... and thought better of it. The language at issue here is a nit. I don't see Roberts doing in 2014-15 what he wouldn't do in 2013. I think he feels deeply that this is "the Roberts Court" and he will press his undeniably conservative views in more subtle ways.

                    Still, I see your concern. Roberts could find no ambiguity at all, shrug and say the result is driven by an addled Congress.  If he did ...

                    ... he couldn't do it before November, with the practicalities of the briefing and argument cycle. If the Court then decided it in its typical deliberate fashion sometime close to mid-2015 - and killed ACA - I believe it would decide the 2016 Presidency.

                    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                    by TRPChicago on Wed Jul 23, 2014 at 07:58:31 AM PDT

                    [ Parent ]

              •  Point taken. (0+ / 0-)

                I couldn't help but point out that the term "black letter law" isn't synonymous with the plain-meaning rule.  Sorry I was so pedantic.

                "If there are no dogs in heaven, then when I die I want to go where they went." - Will Rogers

                by Kentucky DeanDemocrat on Tue Jul 22, 2014 at 02:42:39 PM PDT

                [ Parent ]

                •  I agree (0+ / 0-)

                  that the Supreme Court may very well take the case even if the circuits are in the end all in agreement.  There's not much limit on what this court can rationalize.

                  "If there are no dogs in heaven, then when I die I want to go where they went." - Will Rogers

                  by Kentucky DeanDemocrat on Tue Jul 22, 2014 at 02:43:38 PM PDT

                  [ Parent ]

                  •  But the circuits WON'T be in agreement... (0+ / 0-)

                    Remember, there are 2 other cases like this making their way through the courts...and one is in Indiana, where the 7th Circuit (7 R, 3 D) would likely side with Republicans.

                    This one is going to SCOTUS...and I don't see it ending well for us.

                    Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                    by Love Me Slender on Wed Jul 23, 2014 at 05:56:40 AM PDT

                    [ Parent ]

            •  Careful with statutory construction! (0+ / 0-)

              The Fourth Circuit decision actually concluded that the court couldn't determine the outcome based solely on "statutory construction":

              Having examined the plain language and context of the most relevant statutory sections, the context and structure of related provisions, and the legislative history of the Act, we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run Exchanges. We note again that, on the whole, the defendants have the better of the statutory construction arguments, but that they fail to carry the day.
              •  Yes, it did. (0+ / 0-)

                That's why I thought the concurrence better-reasoned.  The basis for the ruling was actually Chevron deference.  

                "If there are no dogs in heaven, then when I die I want to go where they went." - Will Rogers

                by Kentucky DeanDemocrat on Tue Jul 22, 2014 at 02:41:46 PM PDT

                [ Parent ]

                •  If it had been able to decide the case... (0+ / 0-)

                  ...solely via statutory construction, why the court even consider the second step of the Chevron Test? And, why did the court explicitly say that "statutory construction" was insufficient to decide the case? Doesn't "statutory interpretation" go beyond construction when construction is insufficient (as in this case)?

                  Anyway, our difference of statement seems to be one of vocabulary, not substance. I'm not a lawyer, but I figured the judges were and would use the term correctly (and it's not inconsistent with my understanding of the term -- but on searching around, there is some ambiguity in general use about the extent of "statutory construction").

              •  That court is arguing context... (0+ / 0-)

                Another court with a different interpretation (again, the 7th Circuit will hear a case just like this one...with 7 R and 3 D make-up) will be more strict constructionist.

                This one ends at SCOTUS.

                Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

                by Love Me Slender on Wed Jul 23, 2014 at 06:01:14 AM PDT

                [ Parent ]

        •  ^Yes^ (2+ / 0-)
          Recommended by:
          Mopshell, i understand

          This is the most important point that seems to be getting lost in all the noise.

          We could very well end up with the full D.C. Circuit agreeing with the 4th Circuit.

          "The truest measure of compassion lies not in our service of those on the margins, but in our willingness to see ourselves in kinship with them." Father Gregory Boyle, Homeboy Industries

          by Mr MadAsHell on Tue Jul 22, 2014 at 02:04:43 PM PDT

          [ Parent ]

      •  if it's a ruling in the DC circuit (1+ / 0-)
        Recommended by:
        MPociask

        it's a funny one, clearly the sued the IRS
        but it's a battle over how the IRS acts in the field.

        they can probably get the ruling stayed pending
        either an en-banc hearing or a
        appeal.

      •  Using ACA as a political chew toy (5+ / 0-)

        is not the best idea, but the worst.

        Neither party should be using ACA as a political toy.  It's a disgrace and a tragedy for the millions of Americans who die due to lack of affordable health care.

        Money is property, not speech. Overturn Citizens United.

        by Betty Pinson on Tue Jul 22, 2014 at 10:40:27 AM PDT

        [ Parent ]

        •  But Betty, if that's true, it argues to have ACA (3+ / 0-)

          ... upheld in every manner possible, and to make political hay out of it being in place.

          If we can't tout legislation that is as important as The Patient Protection and Affordable Care Act, Democrats are practically unilaterally disarming.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Tue Jul 22, 2014 at 10:46:41 AM PDT

          [ Parent ]

          •  ACA still leaves many uninsured (0+ / 0-)

            As enacted, its a flawed system.  

            The current court brouhaha over state vs federal tax credits is partly the result of the Obama WH's decision to hire an insurance industry vice president to write the rules for ACA.  That executive was paid by Reid and Baucus to write the Senate version of ACA.  

            GOP leadership must accept the worst possible criticism for their fights to kill uninsured Americans by fighting health care reform, but DC Dem leadership has its hands dirty as well.  Their obsession with triangulation with the insurance, hospital and pharma industries on HCR also caused many uninsured to remain that way.

            Money is property, not speech. Overturn Citizens United.

            by Betty Pinson on Tue Jul 22, 2014 at 11:26:15 AM PDT

            [ Parent ]

            •  At The Moment (1+ / 0-)
              Recommended by:
              Mopshell

              The fight has to be clearly FOR the (flawed) ACA and AGAINST these knuckle-draggers trying to kill or maim it.

              Because...please note....a disgusting percentage of this country's citizens are okay with a bunch of their fellow citizens not having health care coverage at all.  If they're too poor or are "losers."

              When 40% to 50% of the country feels THAT way, and they are backed by the usual cranky billionaires, the common sense notion of single payer health care for all becomes like asking for cake instead of bread for the starving masses.  I hate it, but listen to these nuts: a compromised, insurance-friendly law that doesn't cover everyone is TOO MUCH for them!

              In the land of the blind, the one-eyed man may be king.

              by Bring the Lions on Tue Jul 22, 2014 at 12:59:01 PM PDT

              [ Parent ]

            •  I don't share your pejoratives, but Yes ... (1+ / 0-)
              Recommended by:
              Mr MadAsHell

              ... to the flaws in the law.

              Still, ACA is the game in town. The only one for now and in the foreseeable future. If it gets limited, we all lose, and it is an absolute certainty that it could not get replaced - in whole or in part - by anything better in this political climate.

              We screwed up in off-year 2010 by letting the Republicans kick Obamacare around with little pushback from many Democratic congressional candidates. We must not make that mistake in off-year 2014.

              Bring Lions is right. We do not compromise our integrity by defending ACA against those who would tear it apart. There is no realistic third alternative on this at this time.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Tue Jul 22, 2014 at 01:55:14 PM PDT

              [ Parent ]

        •  So what do you want? (0+ / 0-)

          Would you rather see this disappear from the conversation altogether?

          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 Tue Jul 22, 2014 at 10:30:10 PM PDT

          [ Parent ]

    •  The D.C. Circuit ruling is still alive (3+ / 0-)

      They're separate Circuits.

      Bin Laden is dead. GM and Chrysler are alive.

      by leevank on Tue Jul 22, 2014 at 09:53:19 AM PDT

      [ Parent ]

    •  I don't think it's definite yet... (2+ / 0-)
      Recommended by:
      patbahn, Mopshell

      But more likely not that the D.C. circuit court of appeals would grant a motion staying its order, pending appeal to the full appeals court or the Supreme Court.

      Sometimes a split circuit just means that different areas have different rules.  Conflicting circuit case law can go along merrily for some time - and is even encouraged, to some extent.  Blame Erie if that seems off to you.  But in this case, the D.C. Circuit court has remanded the case to the district court with orders to vacate the regulation - with a national effect like that, this will be on the fast track for resolution.  

    •  Rock, paper, scissors. nt (0+ / 0-)
  •  Whew.....Sanity Prevails! (4+ / 0-)
    Recommended by:
    TofG, drmah, Bring the Lions, Mopshell

    Imagine the panicked distress if the Supreme Court guts Obamacare & Republicans have to come up w/ something.

    Anything.  They literally haven't got a clue what to do, how to implement healthcare for millions & would get their behinds
    walloped at the polls if they succeed in taking healthcare away from MILLIONS.  

    Please proceed, Republicans.  

    •  or partisanship.. these are Dem appointed judges. (0+ / 0-)

      2 Clinton and one Obama.

      •  Unfortunately... (1+ / 0-)
        Recommended by:
        Samer

        ...it has frequently been the case that we can determine which way a judge will rule by who appointed that judge.

        To label this particular decision as partisanship, you need to note the role that partisanship has played on the part of Republican appointees, as well.

        If Democrats proclaim the the Earth is round and Republicans insist it is flat, we will shortly see a column in the Washington Post claiming the the earth is really a semi-circle.

        by TexasTom on Tue Jul 22, 2014 at 10:44:32 AM PDT

        [ Parent ]

      •  It's not necessarily "partisanship" (1+ / 0-)
        Recommended by:
        Bring the Lions

        People are Democrats or Republicans because of their philosophy, after all.  Sometimes it's just a legitimate disagreement.  I have those with my Republican friends all the time.  It's just a matter of where you're coming from.

        "If there are no dogs in heaven, then when I die I want to go where they went." - Will Rogers

        by Kentucky DeanDemocrat on Tue Jul 22, 2014 at 11:14:57 AM PDT

        [ Parent ]

  •  Lets not get excited yet ... (10+ / 0-)

    since this is going to the Supremes .. and The Five have shown themselves to be just as stupid as these two clowns in the DC Circuit

  •  Seriously (19+ / 0-)

    Do conservatives hate poor people that much that they would try to literally kill them by doing what ever they can to do deny them health care?  Just wondering...

  •  Judge's affiliation? (5+ / 0-)

    Am I correct that the 3-0 decision in the 4th were by 3 Dem appointed judges?

    And that the 2-1 decision in the DC Circuit were 2 GOP's voting one way, and the Dem voting the other way?

  •  Wow!!! This is getting interesting (7+ / 0-)

    Does the Baggers/GOPers really want this type of attention just a few months ahead of the 2014 elections?  

    Will the gerrymandering still work if a majority of Baggers/GOPers really like their ACA?

    We will soon see.

    A government afraid of its citizens is a Democracy. Citizens afraid of government is tyranny! Thomas Jefferson

    by wbishop3 on Tue Jul 22, 2014 at 09:42:52 AM PDT

  •  Which ruling do you think made the front page of (5+ / 0-)
    Recommended by:
    Capt Crunch, MPociask, TofG, nadd2, PorridgeGun

    the "liberal" NYT site?

    "Valerie, why am I getting all these emails calling me a classless boor?"

    by TLS66 on Tue Jul 22, 2014 at 09:43:22 AM PDT

  •  Note, the bad ruling only effects (5+ / 0-)
    Recommended by:
    TofG, KJB Oregon, patbahn, Pluto, Losty

    people in states that refused to set up state exchanges.

    Time to move to a competent state.

    P.S. Conflicting decisions means this will be on the fast track to SCOTUS.

    "Work for something because it is good, not just because it stands a chance to succeed." -- Vaclav Havel

    by greendem on Tue Jul 22, 2014 at 09:44:14 AM PDT

    •  Exactly. Or like PA and ME will do in Nov., get a (2+ / 0-)
      Recommended by:
      nadd2, Mopshell

      new governor (and state legislatures?).

      •  We need to hang this around the GOPs neck (3+ / 0-)
        Recommended by:
        Yonit, TofG, Mopshell

        The only people they are hurting are their own residents.

        What a bunch of fucking assholes.

        Guess what poor working class conservatives?
        Republicans fucked you, not Liberals.

        "Work for something because it is good, not just because it stands a chance to succeed." -- Vaclav Havel

        by greendem on Tue Jul 22, 2014 at 10:02:14 AM PDT

        [ Parent ]

    •  I'm glad my state opted for the federal (0+ / 0-)

      exchange.  The state exchanges are subject to a lot of mismanagement, etc. at the state level.

      In a GOP run state, I'd prefer we handle our ACA through the federal exchange.

      Money is property, not speech. Overturn Citizens United.

      by Betty Pinson on Tue Jul 22, 2014 at 11:09:00 AM PDT

      [ Parent ]

    •  Does that exclude Kentucky? (0+ / 0-)

      If this court is going to be pedantic then a "commonwealth" is not a "state" so bye bye Kynect. Wonder how McConnell would handle this?

      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 Tue Jul 22, 2014 at 10:43:32 PM PDT

      [ Parent ]

  •  Forgive my ignorance of the US judicial system (3+ / 0-)
    Recommended by:
    Hlinko, shades at midnite, TofG

    Which court's ruling taking precedence? Obviously the Supreme Court has the final say, but which ruling would they be examining (assuming there aren't more layers of the court system to go through first)?

    •  No precedence, just confusion. (3+ / 0-)
      Recommended by:
      RabbleON, patbahn, Mopshell

      SCOTUS can look at both, or neither, although this particular issue cries out for the Supremes to take it.

      It seems to me that since the DC Circuit's decision suspends the action of Federal law (within its limited territory), a very strong case can be made for a stay.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Jul 22, 2014 at 09:55:13 AM PDT

      [ Parent ]

    •  Well (12+ / 0-)

      Neither ruling will really have precedence over the other. If (and it's a big if) the D.C. Circuit ruling stands, then there would be a conflict between the circuits. The Supreme Court would pretty much have to take it at that point since it is such a big issue. They could take either case, or both and consolidate them. If they only took one or the other, then that (with a bit of tea leaf reading) may signal which way they are leaning. IIRC, SCOTUSBlog did an interesting analysis around the end of the term in June showing that the Supreme Court is more likely to take a case that they are going to reverse. So if they took the 4th Circuit case only, then it might be a hint that they're going to rule against the subsidies on the federally-run exchanges; if they take the D.C. Circuit case, then the other way. Again, though, that is all just speculation based on past behavior.

      However, there is the possibility of en banc review first, which the Obama Administration apparently intends to seek on the D.C. Circuit case. That would involve the full court and not just a 3-judge panel hearing the case. The consensus seems to be that such a hearing would favor the administration based on the make up of the full court. If the administration prevails there, then there is no conflict unless yet another circuit follows the D.C. Circuit panel decision. It probably decreases the odds the Supreme Court wants to touch it if there's no conflict, though I'd put nothing past Scalia & Co.

    •  neither, they are "equal" courts (6+ / 0-)

      DC circuit governs DC and Fourth Circuit governs Virginia, Maryland, West Virginia, North Carolina, South Carolina

      Worth noting that both rulings were by panels of the court, not the full court, so in theory they could be appealed to each full circuit by the losing parties.

      Want a progressive global warming novel, not a right wing rant? Go to www.edwardgtalbot.com and check out New World Orders

      by eparrot on Tue Jul 22, 2014 at 10:07:16 AM PDT

      [ Parent ]

  •  Activism becoming Absurdism (1+ / 0-)
    Recommended by:
    TofG

    Activist judges interpret the law by filtering with their personal views on intent of the lawmakers.  They must do this because the lawmakers who wrote the law are dead.  The judge relies on the judicial record and judicial precedent to render a decision.

    Absurdist judges interpret the law by filtering with their personal views.  That's why they usually don't need to ask questions.

    West. No further west. All sea. --Robert Grenier

    by Nicolas Fouquet on Tue Jul 22, 2014 at 09:46:57 AM PDT

  •  LMAO at baggers on the left, right and center... (0+ / 0-)

    they want to take health coverage from 5 million Americans in the worst way.

  •  so now it goes to the Supremies . . . ? /nt (0+ / 0-)

    In the end, reality always wins.

    by Lenny Flank on Tue Jul 22, 2014 at 09:52:30 AM PDT

  •  Can't be fixed? (9+ / 0-)

    As I understand it, it could be fixed easily by Congress passing a law to declare all  state exchanges exchanges under the ACA. But IANAL.

    It is not the private interests of the individual that create lasting fellowship among men, but rather the goals of humanity. ~ The I Ching, 13th Hexagram

    by Blue Intrigue on Tue Jul 22, 2014 at 09:53:36 AM PDT

  •  Firing up the base (2+ / 0-)
    Recommended by:
    TofG, TheDudester

    If this ruling doesn't get all those apathetic Democrats who can't be bothered to vote out to the polls this fall, we deserve every bad thing that happens.

  •  Is the Roberts' court system as run amuck... (1+ / 0-)
    Recommended by:
    red rabbit

    ...out of control, mismanaged, and seemingly untethered to principle as it seems?  Or is this simply the "judicial activism" we've been hearing about for so long?

  •  Paging Nelson Muntz, (0+ / 0-)

    your ridicule is needed in the Speaker's office, stat.

    1. Books are for use.

    by looty on Tue Jul 22, 2014 at 10:00:59 AM PDT

  •  Boehner's comment is so aggravating (12+ / 0-)

    "Further proof that... it cannot be fixed."

    The problem with the law is a glorified typo; even if the judges who issued the Halbig decision were correct, it could be fixed by Congress in 10 minutes by passing a bill containing a single provision to correct it.

    A bill that Boehner would never allow to pass.

    The only "proof" here is that Boehner is a heartless, soulless, tendentious ass. This is like someone recklessly driving their car down the sidewalk, and then using that to claim that walking was unsafe.
     

  •  These repeated legal.... (7+ / 0-)

    attempts by republicans to derail the ACA, (and the price-tag that accompanies them), really must stop.
    What part of The Law Of The Land do these politicians, sworn to uphold the Constitution, not understand?

    "These 'Yet To Be' United States" --James Baldwin--

    by kevinbr38 on Tue Jul 22, 2014 at 10:03:17 AM PDT

  •  Making best of a tough situation (3+ / 0-)
    Recommended by:
    Losty, MPociask, mwm341

    Conflicting circuit decisions means it's going to the Supreme Court, unless the DC Circuit reverses en banc and the plaintiffs don't petition for cert (very unlikely). It's not impossible Roberts as the swing judge (!) will uphold the subsidies, but I wouldn't bet on it. That being the case, the Obama Administration should insist that subsidies remain in place until the issue is finally decided. If the courts argue otherwise, then it's time to go Andrew Jackson on them.

    Politically, Democrats in the Senate should immediately offer legislation to fix the so-called 'error'. If Republicans filibuster, then repeal the filibuster for legislation as well - the stakes are now too high. We have to make the House take a stand on the ACA before the elections. I'd like to think this will provide extra motivation for Democratic voters for 2014, but I don't think it will have a major effect on the elections for good or bad. Hopefully it will redound to our benefit!

    Assuming we don't regain the House while retaining the Senate, and further assuming the Supreme Court guts the subsidy provision, we have to go all-out to win the House in 2016 along with the Presidency; I assume we retake the Senate even if we lose it this fall.

    2016 is for all the marbles now. Let's do our best this fall, but keep planning for 2016.

    •  SCOTUS ruling not definite (5+ / 0-)
      Recommended by:
      TofG, Jakeston, mwm341, jj32, KJB Oregon

      actually it's just as likely that both of these circuits rule en banc against the plaintiffs, and the SCOTUS denies review.  I could definitely see how the four liberals and Roberts who upheld the ACA would rather not deal with it again if there's no conflict between the circuits.

      you can shit on my face but that doesn't mean I have to lick my lips

      by red rabbit on Tue Jul 22, 2014 at 10:18:47 AM PDT

      [ Parent ]

      •  Hope so, but... (0+ / 0-)

        ...first it's not out of the realm of possibility that the en banc DC Circuit affirms this result. Unlikely but not impossible. We'd have to appeal to the Supreme Court in that instance, and I wouldn't bet much on our chances then.

        Second, it only takes 4 SC justices to grant cert. Out of the KRATS, I sure the KATS would be willing to do so and gamble they can persuade Roberts to switch sides.

        The good news is that this can be easily fixed legislatively. The bad news is that we don't have the House. I would not be opposed to the Obama Administration cutting a deal with the House Republicans to fix it, so long as they don't give away the store. Barring that, our only hope is to win back the House and keep the Senate in 2014, or 2016.

      •  Again, you are HOPING this happens... (1+ / 0-)
        Recommended by:
        PorridgeGun

        You are conveniently forgetting that we're dealing with THIS SCOTUS.

        Adequate health care should be a LEGAL RIGHT in the U.S without begging or bankruptcy. Until it is, we should not dare call our society civilized.

        by Love Me Slender on Tue Jul 22, 2014 at 10:50:02 AM PDT

        [ Parent ]

  •  Boehner: "Ass of the Day"...AGAIN! (3+ / 0-)
    Recommended by:
    red rabbit, TofG, mwm341
  •  this rocks! (3+ / 0-)
    Recommended by:
    varii, TofG, jamott

    I was so upset by the last bit of news that I was considering leaving the US..

    www.tapestryofbronze.com

    by chloris creator on Tue Jul 22, 2014 at 10:07:55 AM PDT

  •  my take on the DC. Cir case (14+ / 0-)

    I don't think this plays out as some think (0+ / 0-)
    The DC Cir. majority, before it got to it's ruling on the merits of the subsidies in the ACA, had to find that the challenging party had standing to bring the suit in the first place. It found standing for only one plaintiff. That plaintiff had standing only because his income was high enough that-with the subsidy-he had to buy a policy (at $21 a month) from the exchange in his state. If no subsidy then he didn't have to buy insurance. That was the injury in fact that gave him standing to bring the suit. But, and here is the problem for the majority, he is from West Virginia. W. Va. adopted a state exchange by law and then decided not to create one but to enter into a partnership with the feds using the federal exchange in place of the state's own exchange. In other words in W. Va the federal exchange is the state agreed upon exchange. Given that fact, the only party with court found standing was not affected by the part of the law at issue since W. Va's exchange is not simply the federal exchange-the invalidity of subsidies flowing from is the basis for the case. I predict that the en banc panel will vacate the decision on lack of standing and remand back to the trial court. This would keep the merits from being reached and likely forestall a Supreme Court review for several years.

  •  I do hope more states start building their own (4+ / 0-)
    Recommended by:
    TofG, drmah, mwm341, jj32

    exchanges just in case though.

    there is no deadline for that

    •  Once we get rid of Christie ... (1+ / 0-)
      Recommended by:
      TofG

      One way or the other - either term limits or impeachment over his misdeeds, I predict that NJ will elect a Democrat who will setup an exchange.  But that will take 3 years.
      It's a damn fine issue though to run on because NJ has one of the most costly insurance (even with ACA) in the nation.  We need more competition.  I think a state run exchange would bring more competition.

      "The real wealth of a nation consists of the contributions of its people and nature." -- Riane Eisler

      by noofsh on Tue Jul 22, 2014 at 10:34:40 AM PDT

      [ Parent ]

  •  DC Circuit hates America (3+ / 0-)

    Federalist Society whores working on behalf of creating a US banana republic and preserving Republican political power.  Obama has gotten to make a few appointments I guess but the vermin remain in the barn.

  •  Good News (0+ / 0-)

    Unfortunately, this is going to be settled by the Supreme Court, and I'm not confident they are going to rule in our favor.

  •  ha. Boehner is now down in the dumps? (2+ / 0-)
    Recommended by:
    TofG, mwm341

    Conservative propaganda is blowing this way out of proportion. Liberal media (haha) needs to calm the waters and once again place the appropriate interpretation of events where reasonable minds can find it.

    I would rather spend my life searching for truth than live a single day within the comfort of a lie. ~ John Victor Ramses

    by KayCeSF on Tue Jul 22, 2014 at 10:17:42 AM PDT

  •  Scary stuff (5+ / 0-)
    Recommended by:
    Pluto, roycej, Losty, zorp, closerange

    I have "Obamacare" and I'm saving $255 per month and my boss is saving $400 per month (compared to what I used to pay.) Same coverage. Losing it would be devastating.
    I do not think Obamacare is perfect but it is positively definitely better than what we had. Although removing the profit motive altogether via single payer would be ideal.  until we get president Bernie Sanders I think that is a bridge too far for the time being.
    Republicans/conservatives don't like helping everyday people. They rather help CEOs of health insurance companies

  •  On en banc in the DC Circuit... (4+ / 0-)
    Recommended by:
    Losty, mwm341, jj32, closerange

    It's a 7-4 Dem court among active judges:

    http://en.wikipedia.org/...

    Some/most circuits allow the judges on the initial ruling to be part of the en banc even if they're Sr Judge. In this case, the two Sr Judges on the panel are a wash: Edwards is a Dem and Randolph is a GOPer. If they get a set at the en banc table, it just pushes it to 8-5. My guess is that no Dem judges will uphold the opinion, and frankly all will be pissed off in seeing it as a political decision rather than a legal one.

    •  Let's do it and get this foolishness out of way (1+ / 0-)
      Recommended by:
      mwm341

      Between the DC panel ruling, and Hoibby Lobby ruling, this should give Dems motivation to run on putting a public option into the ACA that can not be messed with by the courts.

      "The real wealth of a nation consists of the contributions of its people and nature." -- Riane Eisler

      by noofsh on Tue Jul 22, 2014 at 10:28:20 AM PDT

      [ Parent ]

  •  How do these four small business have standing? (0+ / 0-)

    When it comes to lawyering, I'm clueless, but it struck me as odd that the four small businesses that brought this suit have standing to do so.

    Can someone explain why this is?

  •  Gawd this country is sick (2+ / 0-)
    Recommended by:
    TofG, drmah

    Right wing judges running rough shot over everything.

    Okay it's good that this ruling countered the other ridiculous ruling.

    Why the hell are we still debating this in the courts when the Supreme Court already found ACA to be constitutional?
    Disgusting.

    "The real wealth of a nation consists of the contributions of its people and nature." -- Riane Eisler

    by noofsh on Tue Jul 22, 2014 at 10:26:48 AM PDT

  •  I love it when judges put in a jab at idiot (0+ / 0-)

    plaintiffs.

  •  Well, that makes me feel better! (3+ / 0-)
    Recommended by:
    TofG, TheGreatLeapForward, mwm341

    Hopefully en banc decisions in the lower circuits will be enough and SCOTUS decides not even to take the case. Really don't want to take chances with SCOTUS.

    So are the Koch brothers financing these small business owners who have brought the case? It seems like such a petty thing to sue over as an individual, unless of course you're being bankrolled because the real point is to try to gut Obamacare.

    And the pennywise pound-foolish ways of conservatives never cease to amaze me. We save more money overall by subsidizing health insurance for people of lower incomes than having them go without insurance, because they can access preventive care, thus not allowing serious medical conditions to develop that are far more expensive to treat than the preventive care cost. So these subsidies benefit us all directly or indirectly. Just so short-sighted of people to oppose subsidies.

  •  The Obama hating continues....... (1+ / 0-)
    Recommended by:
    TheGreatLeapForward

    People like and need this law.  So, now republicans are trying to take it away from people.  November can't get here fast enough..............

  •  guardian: (0+ / 0-)

    hope it's up to date.

    "three-legged-stool"

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

    by greenbird on Tue Jul 22, 2014 at 10:42:35 AM PDT

  •  Both 4th Circuit and DC Circuit (1+ / 0-)
    Recommended by:
    jj32

    have the majority judges appointed by Democrats if the cases go En Blanc which means in front of the FULL circuit.

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Tue Jul 22, 2014 at 10:48:51 AM PDT

  •  Insurance Industry may have the last word (4+ / 0-)

    Have not posted in a while but my question is how the insurance industry will react. ACA was always a  gift to the insurance industry. How are they going to react to losing over 4 million paying customers. Remember Repukes are not offering any alternative. Seems they may be a tad  miffed

  •  Once this reaches the Inquisition... (0+ / 0-)

    It doesn't matter that most of the lower courts are siding with Obamacare...

    Once it reaches the Inquisition $5 (SCOTUS) its doomed. They'll side with the partisan judges in D.C.

    With logic equally stretched...

    OMG, like, gag them with a multi-colored spoon. Like, ya know.

    by Jyotai on Tue Jul 22, 2014 at 11:06:33 AM PDT

  •  In the event this hasn't been posted, (2+ / 0-)
    Recommended by:
    TofG, Inkan1969

    I think there is some clarification here:

    No, the Halbig case isn't going to destroy Obamacare (Ezra Klein)

    http://www.vox.com/...

    Ari is doing a good job on MSNBC to explain and calm the confused.  ,)

    I would rather spend my life searching for truth than live a single day within the comfort of a lie. ~ John Victor Ramses

    by KayCeSF on Tue Jul 22, 2014 at 11:17:28 AM PDT

    •  Ezra Klein makes a good case for the ACA being (1+ / 0-)
      Recommended by:
      KayCeSF

      safe, as this excerpt argues (bold bits are mine):

      For Halbig to unwind Obamacare the Supreme Court would ultimately have to rule in the plaintiff's favor. And they're not going to do that. By the time SCOTUS even could rule on Halbig the law will have been in place for years. The Court simply isn't going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar.

      For five unelected, Republican-appointed judges to cause that much disruption and pain would put the Court at the center of national politics in 2015 and beyond. It would be a disaster for the institution. Imagine when the first articles come out recounting the story of someone who lost their insurance due to the SCOTUS ruling and then died because they couldn't afford their diabetes or cancer treatment. Imagine when every single Democrat who had any hand at all in authoring the law says the Court is completely wrong about what the law meant. Imagine when every single Democrat runs against the Court.

      Chief Justice John Roberts realized that in 2012 when he ruled the individual mandate constitutional. All evidence suggests he didn't want to rule the mandate constitutional. But he thought it would harm the Court to do otherwise. Deciding for the plaintiffs in Halbig would do far more damage to the law than striking down the mandate and it would do so when the law is actually providing insurance to people. It's not going to happen.

    •  Well, gee (1+ / 0-)
      Recommended by:
      KayCeSF

      It was Ronan Farrow who said on his MSNBC show that this case would be like a nuclear bomb to the ACA

  •  There is nos such thing as a Federal Exchange. (1+ / 0-)
    Recommended by:
    More Questions Than Answers

    There is nos such thing as a Federal Exchange. All exchanges are State Exchanges whether "hosted" by the State web site or the Federal web site.

    Barack Hussein Obama is OUR President and OUR Commander-in-Chief - Deal with it!

    by TekBoss on Tue Jul 22, 2014 at 11:18:03 AM PDT

  •  The quote is not from the opinion (0+ / 0-)

    but from a concurrence.

  •  I certainly don't want to be lying on operating (0+ / 0-)

    room table while the federal judges are debating whether or not I'm insured for this operation. This is really confusing.

  •  Careful celebrating the Fourth's Appellate... (1+ / 0-)
    Recommended by:
    OrganicChemist

    ...decision too quickly. Many have dismissed the entire subsidy question as nonsensical, and I believe they are incorrect in that position. This is not to say that the courts should/will not ultimately uphold the IRS regulations. But, the question is very legitimate due to the ambiguity in the ACA's wording and the decision celebrated in this diary seems to support this.

    The decision states:

    Having examined the plain language and context of the most relevant statutory sections, the context and structure of related provisions, and the legislative history of the Act, we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run Exchanges. We note again that, on the whole, the defendants have the better of the statutory construction arguments, but that they fail to carry the day.  Simply put, the statute is ambiguous and subject to at least two different interpretations. As a result, we are unable to resolve the case in either party's favor at the first step of the Chevron analysis.
    and
    As explained, we cannot discern whether Congress intended one way or another to make the tax credits available on HHS facilitated Exchanges.
    I.e., this is not an "open and shut" case as many have purported over the months. This court found it necessary to move to the second test of Chevron because (and I'm paraphrasing here:) the ACA is fucked up in the details.

    Also, note that earlier this opinion includes:

    Additionally, we note that the Supreme Court has recently reiterated the admonition that courts  avoid  revising  ambiguously  drafted legislation out of an effort to avoid "apparent anomal[ies]" within a statute.  Michigan v. Bay Mills Indian Cmty., No. 12-515, 572 U.S. _, _, slip op. at 10 (May 27, 2014).
    (BTW, this was a 5-4 opinion authored by Justice Kagen with Scalia, Thomas, Ginsburg, and Alito dissenting and was only issued recently so hasn't had much exposure to interpretation.) I've not looked at this case, but I assume this court correctly quoted and summarized that aspect of it.

    The second Cheveron test requires the court deciding if they should defer to an agencies interpretation of an ambiguous statute because such an interpretation is "permissible" under the statute. This decision makes a good argument for such deference, but decisions on granting such deference is much more subject to interpretation of a particular court or panel.

    Interestingly, although little discussed, if even ONE Senator who agreed not to filibuster the ACA did so relying on the interpretation that a state could opt out -- including from penalties on employers not offering compliant insurance and residents not buying such insurance -- simply by not establishing an exchange, the bill would not have succeeded. It's not relevant if the other 59 failed to spot or base their decision on the opt-out clause.

    If forced to make a bet, I'd make an even money wager that SCOTUS will strike down the IRS's interpretation on the theory that the legislative process is free to amend the ACA to match the IRS's interpretation but as currently enacted, the IRS's regulations don't conform to the ACA and are not permissible under it. This is not a case, as far as I can tell, where the SCOTUS is compelled to make a decision on which of two conflicting statutes is overriding (where disruptive ambiguity would remain if the legislative process doesn't resolve it) or because it's a Constitutional issue (which, of course, the legislative process can't override via statute). But, like most people betting on Supreme Court decisions, if I actually made such wagers I'd probably be penniless.

    •  Thanks for writing the only accurate (0+ / 0-)

      description of the legal issues in this whole thread.

      I have gotten the sense that the Roberts Court isn't very interested in cleaning up Congress' messes for them... If they take the case, and I think they will, we might want to look at the majority's reasoning in Shelby County... which I took mostly as saying, "The statute is broken, and it's Congress' job to fix it."

      The fact that Congress seems to be incapable of either fixing their fuckups, or not fucking up in the first place, hasn't been a relevant consideration in any of the statutory interpretation or statute / agency rule conflict cases I've read about lately.

      And you know what? Given my preference for a divided government wielding (and even fighting over) limited powers, I can't disagree with the Court on that. If Congress passes fucked up laws, the solution is a better Congress, not a Court doing their job for them.

      Of course, I'd do away with the whole notion of "deference..." I don't want the branches of the government deferring to each other, I want them fighting among themselves for power, instead of fighting us for it. There are people I'd trust with power, but (a) there aren't enough of them around to run a government and (b) the reason I'd trust them with power is the same reason that they don't end up with any... because they don't want it.

      --Shannon

      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Tue Jul 22, 2014 at 03:14:56 PM PDT

      [ Parent ]

    •  I agree.... (0+ / 0-)

      SCOTUS majority will do whatever will help the Catholic cause or the Republican cause, as long as it does not cause a Constitutional Crisis.

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