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President Barack Obama delivers a statement announcing the nomination of three candidates for the U.S. Court of Appeals for the District of Columbia Circuit, in the Rose Garden of the White House, June 4, 2013. Nominees from left are: Robert Leon Wilkins,
Be very glad for filibuster reform and that these judges were confirmed.
Back in January, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia dismissed one of the more frivolous challenges to the Affordable Care Act, one that said a plain reading of the law says that subsidies should only be available to people who are getting insurance on the state exchanges, not in the federal exchanges—which have been established for nearly three dozen states. Judge Friedman pointed out that the interpretation of the law central to the challenge "runs counter to this central purpose of the ACA: to provide affordable health care to virtually all Americans," and "would violate the basic rule of statutory construction that a court must interpret a statute in light of its history and purpose."

Clearly, the intent of the full legislation was, and is, to provide affordable health insurance to everyone, no matter what state they lived in. But it turns out, on appeal, that that intent isn't clear to two Republican-appointed judges on the U.S. Court of Appeals for the District of Columbia Circuit, who were part of a three-judge panel that heard the appeal.

One member of the appeals court panel, Harry T. Edwards, a senior circuit judge, agreed with [the government's] argument. Judge Edwards said “it seems preposterous” to suggest that subsidies should not be available in the federal exchange, which serves states with about two-thirds of the nation’s population.

That interpretation of the law he said, would “gut the statute.”

Another member of the panel, Judge Thomas B. Griffith, asked questions indicating that he was skeptical of the Obama administration’s argument. And the third member of the panel, A. Raymond Randolph, a senior circuit judge, sounded downright hostile to the government’s case.

Democratic congressional leadership, and the authors of the law, filed briefs with the court describing the intent of the law, but apparently to no avail with the conservative judges. Should this three-judge panel rule against the government, the good news is that the matter would certainly be taken up en banc, before the full court. The other good news is that filibuster reform restored balance to the court, with the approval of Obama nominees Patricia Ann Millett, Nina Pillard and Robert L. Wilkins. Even so, with the caliber of Obamacare challenge that meets muster with the Supreme Court, this ridiculous case could end up there.

Originally posted to Joan McCarter on Wed Mar 26, 2014 at 11:58 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (17+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Wed Mar 26, 2014 at 11:58:26 AM PDT

  •  Ha, was just about to post about (3+ / 0-)

    this in the open thread, hoping someone could calm my nerves about it.

    It just really makes no sense at all, that Congress would only allow subsidies in the state exchanges, and undermine access to the law among a huge group of people.

    I just cant see how a court could rule any other way, but I guess they might.

    I also wonder if it does get to the SCOTUS, would Roberts strike down this provision, after largely upholding the rest of the law.

    Seems like in the worst case scenario, where the government loses their case at SCOTUS, there would be a lot of pressure on Congress to simply pass a bill clarifying that people in fed exchanges can get subsidies.  

    •  Problem is the text of ACA multiple times provides (3+ / 0-)
      Recommended by:
      coffeetalk, Hesiod, VClib

      for subsidies explicitly through state run exchanges, but not through the Federal exchange.  

      This case has the potential to be far, far, far more important ACA case than Hobby Lobby.

      From my initial readings on this topic:

      Some parts of the history of the law's passage suggests this was done to pressure states to form their own exchanges.  But conflicting versions of history is the norm.

      What is also important about these subsidies through exchanges is their tie to employer mandate penalties.  Without subsidies through the federal exchanges, employers may not be subject to employer mandate penalties in the same states.  This gives employers in Federal exchange states standing to sue against the IRS and HHS regulations that have been written that assume subsidies also apply to Federal exchanges.

      If opponents of ACA win on this case, it could mean that states without state exchanges would have no subsidies for private insurance, and no employer mandate.

      I am still looking into this, so I do not have an opinion as the the validity of either sides arguments.

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Wed Mar 26, 2014 at 01:10:46 PM PDT

      [ Parent ]

      •  I agree that it is a significant issue. (2+ / 0-)
        Recommended by:
        VClib, nextstep

        I tend to think that the challengers may even be technically legally correct.   It really looks like the way Congress wrote the law, subsidies only applied to exchanges established by the states, not to any federal exchanges.  

        However, as any lawyer will tell you, being technically legally correct does not always mean you win.  And in this case, a SCOTUS faced with a situation where applying the law as written means that you essentially gut the whole thing may choose practicality over being legally correct.  

        We shall see.  

        •  That goes double when you are trying (0+ / 0-)

          to use a number of laws and precedents to create a synergistic effect that nobody had anticipated.  Here is an example I found of how such a thing could be done.  This involves copyright on music, specifically "subconscious copying" and "substantial similarity" but the idea is that what if by using precedent and simple math you can prove well beyond a reasonable doubt that any independent musician is guilty of copyright infringement even if they picked the notes completely at random?

          LEGAL DISCLAIMER: I MAKE NO WARRANTY that my statistical measure of "substantial similarity" will in any way predict how a judge will rule. I CANNOT BE HELD LIABLE for damages resulting from any defect in the model.

          This writeup is about to be rewritten using a further refinement of the assumptions.

          Abstract: The standard for what constitutes copying or creating a derivative work under American copyright law is so broad that songwriters run a significant risk of accidentally infringing a copyright. An approximate mathematical model of the legal standard is presented, which results in fewer than 50,000 possible melodies given a few assumptions.
          Yes! We have a chilling effect on songwriting!

          The song "Yes! We have no bananas!", first published on March 23, 1923 (putting it under perpetual copyright on the installment plan), has a quite interesting legal history. As soon as it was published, George Frideric Handel's American publisher filed a copyright infringement lawsuit against songwriters Frank Silver et al. for copying four notes from the "Hallelujah Chorus" of Messiah and won, taking some of the profits. (At least it wasn't as bad as the "Bitter Sweet Symphony" case, where the Rolling Stones' music publisher assumed full control of the Verve's derivative work.)

          The important part about that case is that it set a legal precedent that matching even four notes can easily be enough to establish that two songs are substantially similar. Such music copyright infringement cases raise some interesting questions about copyrights and combinatorics, challenging the notion that it is still possible to compose a song that is considered original under copyright law.
          Counting melodies

          A fellow may wonder, how many melodies are there in the universe? A melody is determined by the distances from each note to the next in frequency (intervals) and in time (note duration). A melody of n notes will have n - 1 distance vectors, which can be expressed as an ordered pair (interval, duration). (The last note doesn't count because there is no "next note".)

          Because most judges are not musicians, and because they are looking for substantial similarity rather than exact identity between melodies, they will probably ignore some of the "embellishments" that belong to a particular performance rather than to the underlying musical work. In general, a typical melody will make the most use of three note lengths (such as half, quarter, eighth or quarter, eighth, sixteenth); a judge may ignore slight variations of duration such as triplets or change a dotted quarter note into a half note. To a judge, eighth note + eighth rest + rest of melody equals quarter note + rest of melody because staccato is an aspect of the performance and does not diminish similarity of the underlying songs. Most judges will not be familiar with the Eastern scales used in some later Beatles music, and a judge has the right to round each note to the closest note in a Western scale because just the fact that two melodies belong to different keys or scales doesn't diminish their similarity. Thus, I feel justified in using a simplified model for discussion.

          Assume that all songs use a Western musical scale and that such a scale contains twelve distinct intervals. Assume that a judge (not a musician but a judge) will distinguish three distinct note durations (which roughly correspond to eighth, quarter, and half notes, or through a trivial change in time signature, to quarter, half, and whole notes, or to sixteenth, eighth, and quarter notes). Thus, there are 36 possible distance vectors from one note to the next, and 36(n - 1) melodies of n notes.

          Now, 36 to the third power equals 46,656 distinct melodies. No other melodies are possible in the Western musical scale.

          How many is 46,656? If only one hundred songwriters in the world were to write one song each week with a unique melodic hook, they would run out of new melodies within nine years. Information theory states that using the preceding model, a melodic hook can be encoded in a number from 1 to 46,656, and that number can be encoded within 16 bits. Applying an estimate of the entropy of English (about 8 bits per 3 letters) gives six letters. Trademarkable? Yes. Copyrightable? Only if entrenched songwriters can buy the judge.

          On the other hand, the four notes threshold is from a quite old case. More recent cases may have expanded this threshold. Allen v. Walt Disney (1941) shows an analysis typical of more recent analyses, finding for the defendant even in the face of several chance resemblances. Campbell v. Acuff-Rose (1993) stated that a small appropriation from "Oh, Pretty Woman" was fair because it was used in a parody of the copyrighted work itself. However, we still have Bright Tunes v. Harrisongs (1976), which shows that chance similarities to a published song may be assumed to be "unconscious copying", but here, at least eight notes (367 = 78,364,164,096 possibilities by the model presented above) were involved.
          There is no originality

          From an amicus curiae brief in support of the Sonny Bono Copyright Extension Act (http://llr.lls.edu/...):

              The fact that creators of new works cannot merely re-use the expression contained in copyrighted work of others without permission forces them to be creative. Composers cannot rehash the melodies created by earlier composers, they must create their own new original melodies.

          How is this possible? As noted above, case law states that copying four notes of another song's "hook" is enough to get a songwriter in trouble with copyright law, and that the standard for copying is not an exact match but merely substantial similarity. Another case (citation omitted) seems to state that there is no unprotected "idea" in music, only "expression".

          Applying such a low standard of originality to melodies can in theory create a situation where nobody can create a new song without using a copyrighted melody because previous songwriters have exhausted the space of melodies. It almost looks as bad as the situation with software patents, which have such a high probability of reinventing a patented invention so as to create a chilling effect on "the progress of science and useful arts" (U.S. Const., Art. 1, Sect. 8, Cl. 8).

          I suggest that the U.S. Congress set down some more reasonable guidelines as to how much of a melody a songwriter can reuse without accidentally creating a derivative work and stepping on some government-granted monopoly. Will future lawmakers use algorithmic information theory to construct an even more precise model?

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

          by Throw The Bums Out on Wed Mar 26, 2014 at 05:30:42 PM PDT

          [ Parent ]

      •  Really? I thought it was the opposite (1+ / 0-)
        Recommended by:
        Drdemocrat

        That other parts of the law make it clear that subsidies were also for the federal exchange.

        I get encouraging states to build their own exchanges, but it would seriously undermine the law to not also allow subsidies to those in a federal exchange.

        I mean, if lawmakers really wanted subsidies in only state exchanges, why even have a federal exchange.

      •  The good news is that the full DC Circuit (1+ / 0-)
        Recommended by:
        bear83

        has 7 judges appointed by Democrats and 4 appointed by Republicans and thus if it went in front of the full DC Circuit then it will most likely be fine.

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

        by Drdemocrat on Wed Mar 26, 2014 at 02:59:18 PM PDT

        [ Parent ]

        •  Even judges appointed by Democrats (1+ / 0-)
          Recommended by:
          coffeetalk

          have to follow the law, not what they would prefer from a political perspective. It will start with a smaller panel which could include judges like Janice Rogers Brown. I can imagine her taking the administration to task ruling on this topic.

          This is actually a very troublesome lawsuit.

          "let's talk about that"

          by VClib on Wed Mar 26, 2014 at 03:27:51 PM PDT

          [ Parent ]

          •  It's already been argued. (1+ / 0-)
            Recommended by:
            VClib

            Griffith, Randolph, Edwards.

            •  Do you have a link to the ruling? (0+ / 0-)

              "let's talk about that"

              by VClib on Wed Mar 26, 2014 at 05:24:14 PM PDT

              [ Parent ]

              •  No. It was just argued yesterday. (1+ / 0-)
                Recommended by:
                VClib

                Here's a Legal Times article on it.

                •  Thanks, that makes me feel better (1+ / 0-)
                  Recommended by:
                  Villanova Rhodes

                  I thought for a while that I was completely out of touch. Thanks for the link to the Legal Times.

                  I bet I could outline what JRB will write.

                  "let's talk about that"

                  by VClib on Wed Mar 26, 2014 at 06:19:22 PM PDT

                  [ Parent ]

                •  Misread your coment, no JRB on the case (1+ / 0-)
                  Recommended by:
                  Villanova Rhodes

                  Looks like this may not win at the DC Circuit, at least at the three judge panel. Might pass en banc, but the SCOTUS could topple the apple cart on this one. It could be a chance for Roberts to split the baby.  

                  "let's talk about that"

                  by VClib on Wed Mar 26, 2014 at 06:25:06 PM PDT

                  [ Parent ]

                  •  Agreed, but unless something (1+ / 0-)
                    Recommended by:
                    VClib

                    procedurally odd occurs, it'll be a while before it gets there and decided. Probably no earlier than June 2015 for a SCOTUS ruling, I would think, though shortcuts are possible.

                    Meanwhile, facts on the ground start stacking up. Depending on the ruling, either everyone's getting subsidies or only the people with state-based exchanges get subsidies. So the (for convenience) red-state citizens eligible for subsidies either stand to have them taken away after getting them for more than a year, or never get them but see their blue-state brethren doing nicely. Either way, I'm not sure I'd want to be a red-state politician, and having Roberts split the baby by saying blue-state folks get their subsidies sure isn't going to help me. At that point, obviously depending on midterm results, there may well be critical mass to fix the law. If nothing else, the insurance companies will be pressuring them to do so.

                    All of this assumes the DC Circuit decision doesn't invalidate the whole law because of the differential treatment of the states, and I haven't read anywhere near enough to have an opinion on the likelihood of that. And it assumes the death spiral doesn't kick in, but I think the law's other provisions are sufficient to stave that off for a while longer. Anyway, that's how I see it without benefit of reading the briefs.

    •  It is too late to strike down (2+ / 0-)
      Recommended by:
      dedwords, bear83

      Once people are receiving subsidies to buy health insurance, no one is going to take it away.  There is a big difference between taking away future benefits and taking away current benefits.

      Who is going to be the justice responsible for taking away health insurance from millions of Americans?

      Striking down the subsidies would be too much pain for even Republicans to bare.  It might sound good in theory especially when conservatives to believe Obamacare is going to collapse, but once you get into the details, it becomes very ugly.

      •  Ummm...the justices don't give a shit. (2+ / 0-)
        Recommended by:
        dedwords, Beelzebubs Brass Bs

        They will follow the statute. Hell, if I were a judge, I'd follow the statute.

        •  But that's why it does become a problem for (0+ / 0-)

          the GOP.

          I think SCOTUS wont get this case until at least next term, so if they do strike it down, that means anyone in a federal exchange getting a subsidy will lose it. And since the reddest states in the country are in the federal exchange, it means the constituents of many GOP members are going to lose that coverage, so I think there will be pressure on them to pass a fix.

        •  Unfortunatetly, I agree with both mobjack (0+ / 0-)

          and hesiod. It would be a disaster to try to put this toothpaste back in the tube. It is a drafting flaw in the statute but the easy answer is that the federal exchange serves as the state exchange for some states.

          On the other hand, taking hesiod's point, and assuming this goes to SCOTUS, Scalia is a judicial slut who decides what he likes and has his clerks fill in the law (there's always plenty of stuff for both sides). It's like a geometry or logic equation in which the student is given the conclusion and has to piece in the premises.

          So will that great peace maker and seer of all, Chief Justice Roberts, ultimately have to save the world again?

          •  Is this in the statute somewhere? (1+ / 0-)
            Recommended by:
            VClib
            It is a drafting flaw in the statute but the easy answer is that the federal exchange serves as the state exchange for some states.
            A court can't just make us something like that.  The statute, as I recall, clearly distinguishes between federal and state exchanges.  Is there somewhere in the statute where Congress said that, if a state does not establish an exchange, all of the provisions for a state exchange apply to the federal exchange?  

            Language like that would (if it exists) have made this whole lawsuit moot.  

            If the law does not contain a provision like that somewhere, that's problematic.  The Court can't write that into the law.  

            •  Yeah, and as for the people who will end (0+ / 0-)

              up on the street trying to pay back those subsidies with interest and penalties I guess it just sucks to be them.  After all, by law they can take everything except ~$400-$500 a month and good luck find any place to live on that amount.

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

              by Throw The Bums Out on Wed Mar 26, 2014 at 05:41:48 PM PDT

              [ Parent ]

          •  dedwords - it takes no magic at all by the clerks (1+ / 0-)
            Recommended by:
            Beelzebubs Brass Bs

            to interpret the black letter law as written. The language here is very clear. That's an easy place for any Justice to hang their hat.

            It would also give Roberts a chance to split the baby.

            "let's talk about that"

            by VClib on Wed Mar 26, 2014 at 09:30:14 PM PDT

            [ Parent ]

          •  If Congress makes a typo it makes sense (0+ / 0-)

            for the Court to interpret it away.

            But if they make a logical error - including a provision that works against the overall objectives of a bill - I do not think that applies.  

            In this case, it just seems that Congress wanted to push states to establish exchanges and no one realized that the combination of the different sections would result in eliminating the employer mandate in states with federal exchanges.

            It isn't the Court's job to amend the law to fix a problem like that.  It is Congress's.

        •  Roberts does give a shit (3+ / 0-)
          Recommended by:
          Drdemocrat, LordMike, bear83

          If he wanted to kill the ACA, he had a much better opportunity to do that a while back.

          This is the last ditch Hail Mary pass from the ACA opponents that have little chances of succeeding even before the subsidies were enacted.

          Taking away insurance from millions of Americans because a judge is too strict reading a statute is the sure way to damage the legitimacy of the Supreme Court.  It isn't going to happen.  The consequences are too great.

          •  Maybe he is smarter than you realize (0+ / 0-)

            Crippling ACA and turning it into a disaster will hurt the Democrats far more than overturning ACA would.

            If ACA was overturned Democrats could run on it and against the Roberts Court that took healthcare away from America.

            If the court just cripples ACA and makes it fail Democrats will be tarred with it for the next twenty years.

      •  mobjack - I think the SCOTUS strikes down the (0+ / 0-)

        the IRS' view and limits the subsidies to state exchanges.  The language in the ACA statute is very clear on this point. It's not the role of the courts to fix errors in the law. This may not even be an error. It may have been intended as a stick and carrot to encourage the development of state exchanges.

        If the Court rules against subsidies for those not in state exchanges it will toss the ACA back to Congress where there will be a negotiation to fix this and other parts of the ACA that need fixing. Depending on who controls the House and Senate in 2015, the negotiations will have different outcomes.

        "let's talk about that"

        by VClib on Wed Mar 26, 2014 at 09:40:41 PM PDT

        [ Parent ]

    •  Sorry I couldn't calm your nerves (3+ / 0-)

      I can't believe this case has gone so far.

      "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

      by Joan McCarter on Wed Mar 26, 2014 at 03:20:08 PM PDT

      [ Parent ]

      •  Joan, excuse the hijacking, but: (0+ / 0-)

        could you pressure the Kaiser polling people - surely, they need to conduct a poll among only those who know what's actually IN ACA, and exclude those who are misled about what's in it; ie the 44% who still think there are death panels.

        We need to see real polling. I can't understand why they don't break it out between the informed and the misinformed.

        Thanks Democrats! My Obamacare is permanent coverage no one can take away - and saving $3,000 is nice too

        by sotiredofusernames on Wed Mar 26, 2014 at 07:37:42 PM PDT

        [ Parent ]

    •  Sure it does (0+ / 0-)
      It just really makes no sense at all, that Congress would only allow subsidies in the state exchanges, and undermine access to the law among a huge group of people.
      Congress wanted the states to implement exchanges.  This was one of the strongest incentives for them to do so.

      One thing to remember is that the whole ACA was slapped together in a mad rush and then passed at light speed since Scott Brown was on his way to the Senate, which would have killed it.  There was no time for debate, analysis, detailed consideration of how all the parts would work together, and adjustments to solve the problems.  So it is hardly surprising that the law has glitches like this.

      Now, the proper way to handle that is for Congress to amend the law as necessary.  But, of course, that is unlikely to be possible until 2017 at the earliest, and if meanwhile ACA continues to be a cluster f--k, in part because of the mutilations to it caused by these challenges, then it is highly unlikely that the Democrats will have the majorities they need to fix it in 2017 either.

      If this challenge wins (and I think there is a 50/50 chance it will) then what is the impact?  

      Presumably the employer mandate will no longer exist in states that do not establish exchanges.  Companies that do not want to offer health insurance will migrate to those states.  Companies that do want to offer health insurance will be indifferent.  Net, you would expect higher employment in states without exchanges, prompting a classic race to the bottom in which only the bluest states retain their exchanges and the ACA is seen as a job killing monster based on the employment differential between states with and without state exchanges.

  •  Nitpick: It's "en banc" not "en band." nt (0+ / 0-)

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Wed Mar 26, 2014 at 01:04:43 PM PDT

  •  It's not "completely frivolous" (1+ / 0-)
    Recommended by:
    Kickemout

    It's a situation where the law's plain language says "A," But because of the changes to the law (specifically, the SCOTUS ruling striking part of the ACA and the decisions of states not to establish exchanges) enforcing the law as written is hugely problematic.  So the question is, Does the Court rewrite the law to fix a problem?  Or can a court simply say whether the law is valid or not, without rewriting the language of the law to make the law valid.  As one judge said,

    "There doesn't seem to be any clear legislative history here," he said. "If [Congress] didn't legislate clearly enough, is it our job to fix the problem?"

    Here's the problem.  The ACA itself by its plain language says that health insurance subsidies are available  “through an Exchange established by the State.”  If you look at the statute, it's clear that the exchanges "established by the State" mean State exchanges.

    The IRS Rule allows subsidies not only on state exchanges, but also on the federal exchange, which is not authorized on the plain face of the statute.  

    The government's argument is that of course Congress meant to say both state and federal exchanges, even if it didn't say both federal and state exchanges:  

    The plaintiffs challenging the IRS rule said that the statute clearly refers to people accessing subsidies "established by the state" and makes no reference to the federal government providing subsidies. Griffith focused on this distinction, repeatedly questioning the administration's attorney, Stuart Delery, on the language. Delery argued that a full reading of the law indicates that Congress intended for HHS to set up fully operating exchanges, complete with subsidies, if the states didn't - but Griffith seemed skeptical on this point.

    Delery also argued the congressional debate on the law more than four years ago shows that Congress always meant for federal-run exchanges to provide subsidies. Michael Carvin, arguing for the plaintiffs, said the distinction between state- and federal-run exchanges was clear at the time.

    It may be that the government wins, and that the Courts, in effect, rewrite the statute to actually say what the government now says Congress meant.  But that's not automatic.  A court is only supposed to interpret the intent of Congress over the plain language of the statute if the words used in the statute are ambiguous.  

    I think that there's a good chance the government ultimately prevails here -- perhaps not with these three judges, but with a full panel of the D.C. Circuit, and perhaps even with the Supreme Court.  That wouldn't be because the opponents' argument is frivolous -- technically, the opponents have a point, that if Congress said that subsidies are available for exchanges "established by the State," a court can't change that to exchanges "established by the State or the federal government."  I suspect, however, that this may be one of those times that being technically legally correct (which the opponents may be if you read the literal words of the statute) will give way to the argument that the applying the statute as Congress wrote it would essentially gut the law, so the Courts can't apply the statute as Congress wrote it.  

    The problem is that the clear intent of the ACA was for every state to have its own exchange.  That's why Congress wrote what it did -- it believed that each state would run its own exchange, so it provided subsidies for the exchanges "established by the State."  Ultimately, after the ACA was signed into law, some states declined to set up state exchanges.  So, what happens to a law written under the assumption that states would establish exchanges?    

    Like I said, I suspect that ultimately, even though the opponents technically and legally have a point,  the Courts will flinch from using this kind of back door argument over what was clearly a Congressional screw-up (that's what you sometimes get when a huge law is passed without a whole lot of people pouring over it to catch these kinds of things)  to gut the entire law.  

    •  You're wrong. (2+ / 0-)
      Recommended by:
      enemy of the people, dunsel

      Subsidies through federal exchanges are in extreme jeopardy. No Court is going to throw out the rules nof statutory construction to save the statute from bad drafting. The intent of Congress is expressed by the language of the statute. Unless the Government can show via some other portion of the statute that a narrow construction contradicts other portions of the statute, then it's toast.

  •  This is really fucking bad. (1+ / 0-)
    Recommended by:
    Joan McCarter

    The stupidity and lack of forethought that went into the drafting of Obamacare is astonishing. Truly.

    No severability clause for constitutionality. And now this. I guarantee you federal run exchanges will have their subsidies yanked.

  •  The SCOTUS will disallow federal subsidies. (1+ / 0-)
    Recommended by:
    dedwords

    This will actually cause a massive political headache for...Republicans. People in states without state exchanges will, now, be extremely angry to see their health care premiums go up because Republican fuckheads screwed them over.

    •  Agree with your first point, not the second (1+ / 0-)
      Recommended by:
      sotiredofusernames

      Political cases have to be made to the idiocracy and Democrats are lousy at it.  And the media?  Do we even need to imagine?

      The damned courts in this age have become nothing more than a legislature in robes.  If you have a GOP majority, we know what the ruling will be.

    •  If this presents a problem for Republicans (1+ / 0-)
      Recommended by:
      sotiredofusernames

      Some grandstanding Democrat should start publicly campaigning for the obvious legislative fix that would make this case irrelevant.

      Start applying pressure now instead of waiting for things to work their way through the courts.

    •  Well if they disallow the subsidies then (0+ / 0-)

      anyone who received such federal subsidies will be forced to pay them back, with interest and penalties since they were never legal to begin with.  And since by law the government can take everything except ~$400-$500 a month that will mean lots of people who will be out on the streets.  Sounds like a good way to start a (violent) revolution to me.  After all, if you are going to be out on the streets for the rest of your life or even possibly in prison over it what do you have to lose by taking out some Republican state representatives?  After all, what's the worst they can do, execute you?

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

      by Throw The Bums Out on Wed Mar 26, 2014 at 05:45:30 PM PDT

      [ Parent ]

  •  This must be used as a bludgeon against (3+ / 0-)

    Republicans.

    Those attorneys general are taking away my insurance, because I CANNOT afford my insurance without my subsidy

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Wed Mar 26, 2014 at 02:04:44 PM PDT

  •  It's much worse than that (0+ / 0-)

    I'm a Vietnam Era vet. I'm also an Erma Bombeck Era vet. When cussing me out and calling me names please indicate which vet you would like to respond to your world changing thoughts.

    by Just Bob on Wed Mar 26, 2014 at 02:06:29 PM PDT

  •  On an en banc... (1+ / 0-)
    Recommended by:
    LordMike

    It would likely be 8-5 for the Gov:

    7 Dem Judges + Sr Judge Edwards (who was on the panel)
    4 GOP Judges + Sr Judge Randolph (who was on the panel)

    Still, we all know this is going to SCOTUS and Robert's vote.

  •  So what? If they rule that this 'phrasing' does (1+ / 0-)
    Recommended by:
    scott jones

    not exist in the law, then Congress amends the law to include it. I'm not seeing the crazy fear here.

    The GOP may be dinosaurs, but I know they don't want their constituents in red states who use the federal exchanges to vote their asses out...that they understand. Getting rid of all of Obamacare is one thing for them, because it would mean nothing for anybody, but only hurting those that vote GOP, different ballgame. Sick and twisted? Yes. Plausible? Yes.

  •  A sad and frustrating turn of events (0+ / 0-)

    for those of us who support UNIVERSAL healthcare (or at least universal health insurance coverage).  Hopefully someday we'll join the rest of the civilized world.

  •  The good news is that DC circuit has 7 judges (0+ / 0-)

    appointed by Democrats and 4 judges appointed by Republicans so the DC Circuit will rule in Obama's favor for sure.

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

    by Drdemocrat on Wed Mar 26, 2014 at 02:57:18 PM PDT

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

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

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

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

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

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

      •  Yes. (0+ / 0-)

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

    •  it does NOT create two kinds of exchanges (1+ / 0-)
      Recommended by:
      rolodomo

      There are only state exchanges in the law. The law specifically says that if the states don't set up a compliant exchange the federal government will set one up for them.

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

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

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

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

      •  Good points! (1+ / 0-)
        Recommended by:
        sweatyb

        I swear I did not read your comments before posting mine!

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

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

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

  •  Seems frivolous to me.... (2+ / 0-)
    Recommended by:
    sweatyb, scott jones

    SEC. 1321(c) Failure To Establish Exchange ...

    If the State "will not have any required Exchange operational by January 1, 2014" then the "the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State...."

    That can only read has the State must establish a state exchange by January 1, 2014 or the federal government will establish "such Exchange".

    That means an "Exchange within the State," ie., "such exchange," i.e., state exchange can be established by the Federal government.  

    The notion of a federal exchange being distinct from a state exchange (e.g., for the purpose of subsidies) seems to be red herring.  Can someone please point to the sections of the law that discuss federal exchanges and their differences from state exchanges?  All I'm seeing are state exchanges, which can be established by the state or the federal government.

    •  Law does not say... (0+ / 0-)

      If a law said an exchange within the state, sure.  But it does not: The subsidy clause says it applies to an "exchange established by the State under 1311." As the DOJ conceded at oral argument, the exchange was not established by a state; it was established by the federal government.

      •  Where are you looking? (0+ / 0-)

        I see this stock phrase "exchange established by the state under 1311..." over and over again.  If we read this phrase to mean established by the state not by the federal government then there are all sorts of interesting pieces of the ACA that apply only to exchanges established by the state, like requiring coverage for low income children?  Why would that be?  There are many mundane provisions too that apply only to state created exchanges, why?

        The answer is all of these provisions do not just apply to state created exchanges.  There is no policy or leglislatve reason to do so.  The phrase is a shorthand referral to excanges created by the state with the understanding that the federal government would create the state exchange if the state did not.  Interpreting this phrase otherwise would produce absurd results throughout the law.

        Ironically though I can't find where this repetitious phrase is applied to the subsidy?

        •  Here you go (1+ / 0-)
          Recommended by:
          coffeetalk

          http://www.law.cornell.edu/...

          Relevant portion (they call it a premium assistance amount, not subsidy)

          "(2) Premium assistance amount
          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 [1] of the Patient Protection and Affordable Care Act"

          The federal exchanges were not established by a state.  Under the plain text of the statute, the subsides should not be available to those who bought on federal exchanges.  As stated above, the government is essentially asking the courts to ignore what the law says and allow subsidies on federal exchanges as well for policy reasons.  

  •  All right. So, states without exchanges better (1+ / 0-)
    Recommended by:
    scott jones

    get moving fast to create them. We should know now which states ran the best health insurance delivery systems -- CA, KY, NY (are those the best?) Obama should create a template based on those exchanges and give it to the states that need/want it.

  •  wasn't this already decided? (1+ / 0-)
    Recommended by:
    scott jones

    Or like Roe V Wade will we see challenges for ever and ever?

  •  Well, this is terrifying... (1+ / 0-)
    Recommended by:
    scott jones

    I really thought we'd settled the issue already.


    ODS results in Obama's amazing ability to humiliate his biggest critics, on the right and the left.

    by NoFortunateSon on Wed Mar 26, 2014 at 09:10:48 PM PDT

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