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Another Legal Threat To The Affordable Care Act

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Ramesh Ponnuru writes at Bloomberg about a legal challenge to the Affordable Care Act currently pending in the Circuit Court of Appeals for the D.C  Circuit that has the potential to completely undermine the financial stability of the Affordable Care Act:

Any day now, a federal court may rule that in 36 states, the federal government can’t offer tax credits to people who buy insurance on Obamacare’s exchanges. That’s because the law, as written, authorizes those tax credits only in states that have set up exchanges — and most states refused to do so.

The law says that when states fail to establish an exchange, the federal government can operate one for the state’s residents. It does not, however, say that people who buy insurance from the federal exchange can receive tax credits.

Obamacare’s foes are in the paradoxical position of insisting that the law be obeyed. If the government can’t offer credits in most states, it also can’t impose various taxes and penalties that are tied to those credits. The Internal Revenue Service is thus threatening to levy taxes that Congress hasn’t really authorized.

And without the credits, Obamacare basically disintegrates: Far fewer people would be able to afford the insurance policies without the subsidies, especially because Obamacare’s regulations jack up their prices.

The White House argues that the law shouldn’t be interpreted in a way that defeats its purpose and renders it unworkable. But it isn’t in principle absurd for the federal government to try to use tax credits as a carrot to get states to set up exchanges. The law’s drafters just miscalculated: Their law ended up being much less popular than they expected it to be, and state-level resistance to cooperating much stronger.

If the law can’t work as written, that’s because it was written in a way that made its success depend on state cooperation that hasn’t been forthcoming. The Barack Obama administration’s decision to pretend that the Affordable Care Act allows tax credits that it doesn’t is the most consequential of its many revisions of that law.

Even as eminent a member of the liberal legal community as Laurence Tribe believes that PPACA supporters should be concerned about this case:

Harvard legal scholar Laurence H. Tribe warned Tuesday of a “very high risk” that a crucial aspect of Obamacare – its government subsidies provision – could fall victim to a major legal challenge being mounted by conservatives. That is why, he also said, that the Supreme Court will almost certainly get “a second bite of the apple” in determining the fate of President Obama’s signature health law, with uncertain consequences.

Tribe, 72, a prominent proponent of the Affordable Care Act – who taught both Obama and Supreme Court Chief Justice John Roberts as constitutional law students at Harvard Law School years ago – warned of the ACA’s prospects for surviving intact during an exclusive, hour-long interview in New York with editors of The Fiscal Times.

(…)

“It looks like the panel is quite divided over what to do with what might [have been] an inadvertent error in the legislation or might have been quite deliberate,” Tribe said. “But it’s very specific that only people that go onto a state exchange are eligible for the subsidies. And if that becomes the ultimate holding of the U.S. Supreme Court, where this is likely to end up – that’s going to have massive practical implications for the administrability of Obamacare.”

Four cases, including Halbig vs. Burwell, have been brought by employers and individuals. The plaintiffs challenge the government’s contention that Congress wanted individuals in both state and federally operated exchanges to qualify for subsidies. On March 25, a three-judge panel of the D.C. Circuit heard oral arguments in the Halbig case. Another panel in Richmond, Virginia, heard arguments in King vs. Burwell on May 14 and is expected to issue a ruling any time.

Michael Cannon of the Cato Institute and Jonathan Adler of Case Western Reserve University argued recently in Health Affairs that eligibility rules for Obamacare’s premium-assistance tax credits “clearly say” eligibility “depends on the applicant being enrolled in a qualified health plan ‘through an Exchange established by the State.” But the administration and other defenders of the law say Congress and the administration never intended to distinguish between state-run marketplaces and federally facilitated marketplaces in this provision.

Tribe, whose new book, Uncertain Justice, takes a deep dive into the Roberts court, said the plaintiffs make a strong argument. The legislative language is clear, he said, that the subsidies apply to exchanges established by states. Yet in drafting the law, Tribe said the administration “assumed that state exchanges would be the norm and federal exchanges would be a marginal, fallback position” – though it didn’t work out that way for a plethora of legal, administrative and political reasons.

“You could argue that as long as a state triggers it by asking the federal government to come in [and establish insurance exchanges] that it’s a state-established exchange, even though it’s a federally run exchange,” Tribe added. That might give some of the justices who aren’t strict constructionists some leeway in looking beyond the law’s specific language, he said.

I have previously written about this issue twice — here and here — and noted some skepticism over the idea that the Federal Courts would apply the kind of statutory interpretation that the Plaintiffs in these cases are asking them to make, an interpretation that would effectively gut the PPACA in the vast majority of the country and likely undercut its financial viability as a whole. Since then, the four cases making this argument have been making their way through the Federal Courts. The most prominent case, Halbig v. Burwell, is currently pending in the Circuit Court of Appeals for D.C. where both sides are anticipating a decision being handed down any day now. In the District Court, the Court rejected the Plaintiff’s arguments regarding the construction of the statute in an opinion issued last January. A second case, King v Burwell, is currently pending before the Court of Appeals for the Fourth Circuit after a decision from the Eastern District of Virginia in February that similarly rejected the Plaintiff’s arguments regarding statutory construction. A third case, State of Indiana v. IRS, is pending in the U.S. District Court for the Southern District of Indiana, and as of now there has been no decision handed down in the case although it does appear that all of the necessary briefing has been completed. Finally, there’s Pruitt v. Burwell pending in the U.S. District Court for the Eastern District of Oklahoma, which appears to still be in the early states based on the available pleadings. By all accounts, it is the Halbig case that will be the first one to be decided by a Circuit Court.

As I note in my previous posts on this manner, the issues before the courts in these cases are significantly different from those that were before the court in 2011 that led to the Supreme Court’s decision in National Federation of Independent Business v. Sebelius in June 2011. Unlike that case, a ruling here in the Plaintiff’s favor would not void the law itself. Instead, it would make it next to impossible for the system that the PPACA established to function because the fact that subsidies would not be available for residents in every state that doesn’t have a state-run exchange would mean that their premiums would be much higher than the would be otherwise, and that would potentially mean that people would start dropping out of the system, thus causing premiums to go up nationwide. Theoretically, the statutory issue that is at the heart of these cases could be fixed by Congress in some way, but, of course, we all know that isn’t going to happen because the GOP isn’t going to do anything to save the President’s health care plan, especially not in an election year.  Realistically, of course, whatever decision we get out of the D.C. Circuit will be stayed pending appeal to the Supreme Court, and the Court could be getting yet another high profile Obamacare case for the October 2014 Term.

Update: The original version of this post stated that the Fourth Circuit case, King v. Burwell, had not yet gone to oral argument. I have been advised that this is incorrect.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Just Me says:

    Personally I think these cases lose but it may be close.

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  2. Gustopher says:

    I would expect that this could be made moot by licensing the federal exchange to the states that don’t have an exchange, for a nominal fee.

    Am I missing something?

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  3. @Gustopher:

    Given the reason most of the states in question are using the federal exchange to begin with is that Republican controlled legislatures deliberately chose not to implement a state exchange, how likely is it that they’re going to agree to license the federal exchange?

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  4. Ben says:

    Maybe it’s been too many years since law school, but what exactly is the basis of standing here? What injury is being alleged? That other people are getting subsidies that aren’t legal? Is that a legally recognized injury?

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  5. jd says:

    Make lemonade: “Republicans in 36 States Create Higher Health Insurance Premiums”.

    I think public frustration with Congress will inexorably nudge us toward single-payer.

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  6. Grewgills says:

    @Stormy Dragon:
    If Gustopher’s suggestion is implemented and they refuse to approve then their states’s residents will face severe, but easily avoidable financial pain. If the voters in those states react rationally (no guarantee) that will cost their legistators at the polls.

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  7. HankP says:

    This is where the dog catches the car. I’m guessing the political effect of 10 million or so people losing their medical insurance isn’t going to play out that well for the GOP.

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  8. Jack says:

    The White House argues that the law shouldn’t be interpreted in a way that defeats its purpose and renders it unworkable.

    The White House argues that any law it disagrees with shouldn’t be interpreted in a way that defeats this administrations purpose.

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  9. Dave Schuler says:

    Here’s the answer to the standing question asked above. From Jonathan Turley:

    Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn’t establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.

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  10. @Dave Schuler:

    But they haven’t been assessed a penalty, because the mandate isn’t being enforced. Since they’re challenging the law as applied rather than as written, don’t they have to wait until the penalty is applied to sue over it?

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  11. Tyrell says:

    One of the problems from the start was the mandate and penalty. People don’t respond well to threats and heavy handedness. Incentives would have worked better, such as tax deductions, vouchers, discounts on flying, restaurants, theme parks, movies.
    It certainly did not help letting the IRS get in the game.
    So they should just drop the mandate. A lot of people don’t or won’t pay taxes, so it will be difficult to enforce that part anyway.

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  12. Anonne says:

    @HankP:

    This is where the dog catches the car. I’m guessing the political effect of 10 million or so people losing their medical insurance isn’t going to play out that well for the GOP.

    They don’t matter because most of them are poor Medicaid people anyway. And they will still blame Obama.

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  13. @Tyrell:

    Since insurers can no longer exclude preexisting conditions, absent a mandate there’s no reason not to wait until after you get sick to get insurance. So if you eliminate the mandate you end up with a negative cost spiral as more and more healthy people withdraw from the insurance pool.

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  14. David M says:

    This lawsuit is nothing more than giving some Republican judges the chance to cause problems for Obamacare. There is no legal principle involved, and no chance that the evil men bringing the lawsuit (Cannon, Adler, etc) actually believe the nonsense in the lawsuit. White collar criminals, all of them.

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  15. Robin Cohen says:

    @jd: This is what should have been offered in the first place, but, of course the selfish insurance companies and members of Congress who are in their
    pockets(including Obama) are opposed so the Country got screwed. They should have used Medicare as a template. Most of the problems we have seen would have been solved.

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  16. Stonetools says:

    @Robin Cohen:

    THERE WEREN’T THE VOTES THERE FOR SINGLE PAYER.
    I shout this because , unbelievably , some liberals still believe that if the President had used his magical Green Lantern powers to compel Congress, single payer would have happened. No, it wouldn’t have and liberals would now be crying in their beer about another , failed attempt to enact universal health care.
    That said, the House bill ( which created a national health exchange from the get go) was clearly the better way to go. The Senate bill was yet another attempt by liberals to bend over backward to accommodate conservatives , with the result that conservatives are using the concession to screw over liberals once again. This is lesson # 4,572 that appeasement of current conservatives just doesn’t work. It’s like Chamberlain and Munich ( yes, I went there).
    That said, I think the pessimists may be wrong here. So far the argument has failed every where it has been tried and may well fail in the DC Court of Appeals. It goes against the general rule that a statute should be construed in a way that should achieve the purpose of the statute and indeed inverts that rule . I think Roberts would be very reluctant to go with this one. Also too, Roberts is a political animal. The Supreme Court would be directly blamed for taking away a benefit for twenty million people, including many Republican voters. That’s a bomb that Roberts ( and most Republicans) don’t want to set off.

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  17. Robin Cohen says:

    It failed for the reasons I gave, Insurance companies could not compete in pricing, several in Congress were in the pockets of the same Insurance companies. My recollection was that Obama sided with insurance companies just as he did with big pharma so we could not negotiate drug prices as the VA does. Many instances of corporate greed ruined what could have been a much better law.

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  18. Figs says:

    I don’t understand how we forget history so quickly. This happened a few years ago, not a few decades ago. There weren’t the votes for a public option, let alone for single payer. There was briefly a Medicare expansion on the table, but that was single-handedly defeated by Joe Lieberman, because the vote margins left absolutely no room to lose anyone, meaning the most conservative Democrats could demand whatever they wanted (also why the “Cornhusker Kickback” was in the original bill).

    Is it something of a kludgy mess? Yes. Was it the best we could do? Probably not quite, but a lot closer than several amnesiacs would like to believe.

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  19. Jenos Idanian #13 says:

    Unlike OTB’s TOS, which is invoked selectively and never enforced, ObamaCare is the law of the land. As written, passed, and affirmed by the Supreme Court. One does not rewrite it on the fly, by executive fiat, simply because the Democrats effed up and made stupid mistakes in the drafting of their most important piece of legislation in decades.

    They gave states the choice of whether or not to set up exchanges. They offered carrots and sticks over that choice, but they still left it as a choice. And many states chose in ways the Democrats don’t like. Tough crap.

    If the people in those states don’t like how their states have chosen, they can change their minds by changing their elected representatives.

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  20. Figs says:

    @Jenos Idanian #13: do you have any sources from the time of the law’s drafting that back up the assertion that this part of the law was drafted specifically with the intent to deny subsidies to citizens of states that didn’t set up their own exchanges? It’s not as though there was a shortage of discussion of the bill’s contents while it was being debated, and I don’t remember hearing about this piece of things. I’ve done some googling and haven’t been able to find anything. But if you’ve got something, I’d be glad to see it.

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  21. Matt Bernius says:

    @Jenos Idanian #13:

    Unlike OTB’s TOS, which is invoked selectively and never enforced

    @Jenos Idanian #13: last warning, stop complaining about this or it will be enforced in regards to “repeated off-topic postings.”

    You have been warned multiple times.

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  22. Jenos Idanian #13 says:

    @Figs: Look at the law. It clearly defines “state” in one section, and it doesn’t refer to the federal government, but the individual states. And in the section on the exchanges, it refers to “states.”

    That’s how it’s written. That’s how it was passed. That’s how it was signed. That’s how it was affirmed.

    Deal with it.

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  23. Figs says:

    @Jenos Idanian #13: No need to be a jerk. You’re answering a question I wasn’t asking. I’m not asking about the wording. You made an assertion about intent and incentives. I was asking if we have any contemporaneous sources from the time of the bill’s drafting which would lead us to believe that your interpretation was the intent of the drafters.

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  24. Stonetools says:

    @Figs:

    Jenos doesn’t do evidence based discussion so don’t expect an answer. The only way you can come to a decision that the subsidies wouldn’t be available to all is to completely ignore all the discussion that occurred over the law and to interpret the wording in the narrowest and most contrary to good sense manner possible. Now Scalito + Thomas are definitely capable of this and maybe Kennedy might join them.
    If this argument had merit it would have been offered as part of the original anti ACA case. It was not which is in itself telling. It’s really a last throw of the dice.

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  25. Jenos Idanian #13 says:

    @Figs: Halbig v. Sebelius draws attention to a flaw in the law. It’s a bit involved to quote, so here’s a good explanation.

    The short version: federal subsidies are limited to plans purchased through exchanges “set up by the State.” Liberals want to argue that the federal government is included in “the State,” but other sections of the law define “State” as “a state,” in contrast with the federal government.

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  26. Jenos Idanian #13 says:

    @Stonetools: No, Stoney, if you actually read the law (which almost no one who voted for it bothered to do), the subsidies are explicitly intended to be used to get the states to set up exchanges. If the state refuses to do so, then the subsidies aren’t available.

    To say that they are requires redefining “state” in context of the law to mean “the federal government,” when the law explicitly uses it to differentiate the states from the federal government. In other words, to rewrite the law from its clear language into meaning what you want it to mean.

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  27. Figs says:

    @Jenos Idanian #13: Two things.

    1) I said I was not asking about the wording or the case. I understand those things. I’ll assume you have no evidence to say this strained reading was the actual intent of the ACA.

    2) You linked to a Dick Morris column. Automatic loss.

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  28. Jenos Idanian #13 says:

    @Figs: So… you want to know about the flaw in the law, but don’t want to deal with the actual wording of the law. And you don’t like Dick Morris.

    Why don’t you just cut to the chase and stick your fingers in your ears and yell “LA LA LA I’M NOT LISTENING!!!!”

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  29. Figs says:

    @Jenos Idanian #13: No. I fully understand the Halbig case. I was asking you a different question, which you’ve ignored.

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  30. Jenos Idanian #13 says:

    @Figs: I was asking if we have any contemporaneous sources from the time of the bill’s drafting which would lead us to believe that your interpretation was the intent of the drafters.

    OK, now I see what you’re saying.

    And no, I don’t. Because “intent’ takes a back seat to the letter of the law. The law, as written, clearly provides incentives and penalties for states in regards to setting up exchanges. And if a state refuses to set up an exchange, then the incentives are not available. Period.

    The states were given a choice. Many chose the way that the ObamaCare backers don’t like. Tough. If they didn’t want that to happen, then they shouldn’t have offered the states the choice in the first place.

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  31. rudderpedals says:

    The way it was explained to me is that 1) the states are required to set up exchanges, 2) the HHS is required to set up a state exchange for each state in violation of the mandate, 3) the resulting exchange is the state exchange, indistiguishable from a state created exchange in that it is fully qualified to receive subsidies.

    The alternate constructions break the bill.

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  32. Figs says:

    @Jenos Idanian #13: Not asking for an indignant lecture, chief. But thanks.

    Part of Cannon and Adler’s assertion is that this part of the bill is not a drafting error, but was inserted intentionally to give states incentives to set up their own exchanges. I assume they make this assertion because with something like this, which would basically cripple the law, many judges would take intent and legislative history into account. But there are no contemporaneous sources saying that this provision was inserted to do the thing they’re saying.

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  33. Jenos Idanian #13 says:

    @rudderpedals: The way it was explained to me is that 1) the states are required to set up exchanges, 2) the HHS is required to set up a state exchange for each state in violation of the mandate, 3) the resulting exchange is the state exchange, indistiguishable from a state created exchange in that it is fully qualified to receive subsidies.

    There is NO requirement for the states to set up exchanges.

    Please cite the section of the law that spells out that states are required to set up exchanges.

    Or apply a little common sense. If it wasn’t optional, then we’d see the Obama administration suing states who had refused to set up exchanges. And there wouldn’t be provisions for the federal government to set up exchanges if the states were required to do so.

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  34. bill says:

    @Stormy Dragon: couple that with the failed state exchanges (mass., nev, or & md) that have cost a half billion $ of federal tax dollars and see why they don’t want to create their own. so far the main beneficiaries of obamacare are web designers, and the black hole is growing not because of republicans.

    back to the blog- maybe they should have read the bill before they passed it? almost seems cut n dried that this should be enforced instead of being “interpreted”.

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  35. rudderpedals says:

    @Jenos Idanian #13:

    There is NO requirement for the states to set up exchanges.

    Please cite the section of the law that spells out that states are required to set up exchanges.

    I can’t, I don’t remember where I read the explanation. I’ll post it back here when I find it.

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  36. David M says:

    @Figs:

    Part of Cannon and Adler’s assertion is that this part of the bill is not a drafting error, but was inserted intentionally to give states incentives to set up their own exchanges.

    And that assertion is so baseless, and so completely devoid of supporting evidence that I believe that Cannon and Adler are making an argument they know isn’t true.

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  37. anjin-san says:

    @ Jenos

    As written, passed, and affirmed by the Supreme Court. One does not rewrite it on the fly,

    Why don’t you try rubbing two brain cells together and seeing if you can create an actual thought?

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  38. anjin-san says:

    @ bill

    so far the main beneficiaries of obamacare are web designers

    Ah, I guess the millions of previously uninsured who have insurance now are not really benefiting…

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  39. Jenos Idanian #13 says:

    @anjin-san: …the millions of previously uninsured who have insurance now…

    And what about those millions who had insurance that they liked who had it canceled on them?

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  40. anjin-san says:

    @ Jenos

    And what about those millions who had insurance that they liked who had it canceled on them?

    I was one of them. Kaiser offered me a new plan. Took about 15 minutes on the phone to get the new plan they offered me in place. There was a slight increase in the premium, not any larger than year over year increases I have seen before. I have been on the new plan for 6 months, no problems, no complaints.

    Any other questions?

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  41. Jenos Idanian #13 says:

    @anjin-san: So, because it didn’t happen to you, it doesn’t matter? Ain’t you just a special snowflake.

    So since it’s all good for you, to hell with people like Holly Fisher.

    And I thought you were the compassionate side… instead, since you got yours, to hell with everyone else.

    “If you like your health care plan, you can keep your health care plan — period.” Four Pinnochios.

    But back on topic… the DEMOCRATS wrote a law with a LOT of flaws in it. This is just one of many. They wrote it, they passed it, they fought for it before the Supreme Court (which involved inverting their “it’s not a tax” argument into “of course it’s a tax,” among other mendacities), they kept saying “it’s the law of the land.”

    So live with it. As written, as passed, as signed, as affirmed.

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  42. rudderpedals says:

    Here’s a pretty good (evenhanded) executive summary of the issues. It does mention the standing and anti-injunction act issues. http://www.mwe.com/Court-Challenges-Threaten-ACA-Premium-Tax-Credits-in-State-with-Federal-Facilitated-Exchanges-01-02-2014/

    I can’t cite the mandate because it isn’t there. Point Jenos. There are real problems in the law.

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  43. anjin-san says:

    @ Jenos

    Get back to me if you feel like you are up to adult conversation. If you just want to throw one of your tantrums, you will have to do it without my participation.

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  44. socraticsilence says:

    @Tyrell:

    If you drop the mandate then you have to start doing the one thing that even the vast majority of GOP ACA opponents don’t want to do– start booting people with pre-existing conditions. You can’t have both no mandate and no pre-existing condition ban, as much as people love one and hate the other.

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  45. David M says:

    @Figs:

    I was asking if we have any contemporaneous sources from the time of the bill’s drafting which would lead us to believe that your interpretation was the intent of the drafters.

    The answer to that question is no. We have Republicans making that argument long after the law was passed, as part of their attempt to repeal the law.

    So it means that this particular interpretation is only held by people who are on record opposing the law and trying to repeal it. Common sense should tell people that this claims is as credible as a bigfoot sighting.

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  46. Jenos Idanian #13 says:

    @David M: So it means that this particular interpretation is only held by people who are on record opposing the law and trying to repeal it. Common sense should tell people that this claims is as credible as a bigfoot sighting.

    Funny you can’t find any sources that are refuting the interpretation with anything resembling actual arguments. The language is very clear.

    The only argument the other side is “it doesn’t make any sense, that we’d pass a law with such a big flaw, so obviously it doesn’t mean what it says it means.”

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  47. Jenos Idanian #13 says:

    @rudderpedals: I can’t cite the mandate because it isn’t there. Point Jenos. There are real problems in the law.

    Yes, there are. And the coalition that passed the bill was destroyed in 2010 (largely as backlash to the law), so getting the law amended in a way to fix this one problem simply isn’t going to happen.

    So the options are to try to make the law work as written, knowing that it’s pretty much doomed, or find some kind of compromise that will allow some of these fixes to go through without totally gutting the bill.

    And personally, I think that gutting/repealing the bill is probably the best for most Americans.

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  48. anjin-san says:

    It’s worth noting that Medicare D faced many of the same problems that Obamacare has encountered. Botched rollout followed by pleas for patience from the GOP while bugs were fixed, the need for on-the-fly tweaking to deal with various implementation issues.

    Funny there was no outrage from the right.

    Obamacare is, like all human endeavors, imperfect. There have been some serious screw ups. Welcome to the world of implementing a large program. Much of the squaking from the right is simply knee jerk stuff, they have been told by Fox and Limbaugh to be outraged, and they are carrying out their marching orders. A lot of folks OTR have bought into various BS being force fed them – unconstitutional, death camps, etc. As one lie is debunked, another takes its place.

    I am more than willing to hear principled, reasoned oppo arguments to Obamacare, but they seem to be very hard to find.

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  49. Tyrell says:

    @anjin-san: I find your answer interesting in that I am looking for coverage for my wife. I have started the application process but the question if there is insurance available through my employer’s plan. The answer is “yes, but” it is way too expensive – close to $600 a month, out of the question. Which is exactly why she is not already on it. We do want to keep eating.
    So I don’t know what to do. Has anyone else gone been in this situation?

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  50. anjin-san says:

    @ Jenos

    Holly Fisher.

    Let’s see. Reposted tweets by a woman who claims her baby lost a doctor because of Obamacare. No documentation, no proof that the baby’s care actually suffered, no facts at all.

    In other words, a fact free screed on the internet. Is this the best you can do? Yes, I suppose it is.

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  51. anjin-san says:

    @ Tyrell

    Personally, I pay $604 a month to carry my own insurance. I have pretty robust coverage, not Cadillac, but one notch below it. Every situation is a bit different. Obamacare does have subsidies for people who meet certain criteria. Have you spent any time looking at your state exchange or the fed site is your state does not have one?

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  52. Grewgills says:

    @Tyrell:
    That seems really high for an employer plan. I pay 200 a piece to have my wife and daughter on my plan. The Kaiser plan we have is pretty comprehensive. We paid less than $100 to have our baby and all of the post partum visits.

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  53. David M says:

    @anjin-san:

    Regarding Holly Fisher, her complaint is about a change to a policy through an employer, so it’s not relevant.

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  54. Jenos Idanian #13 says:

    @anjin-san: Let’s see. Reposted tweets by a woman who claims her baby lost a doctor because of Obamacare. No documentation, no proof that the baby’s care actually suffered, no facts at all.

    In other words, a fact free screed on the internet. Is this the best you can do? Yes, I suppose it is.

    As opposed to…

    I was one of them. Kaiser offered me a new plan. Took about 15 minutes on the phone to get the new plan they offered me in place. There was a slight increase in the premium, not any larger than year over year increases I have seen before. I have been on the new plan for 6 months, no problems, no complaints.

    I gave you back exactly what you offered. One “fact free screed on the internet” for another. Tit for tat, if you will.

    If you wanted to argue on another basis, then you shouldn’t have offered your own “fact free screed” as an arguing point. As your only point.

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  55. anjin-san says:

    @ Jenos

    Ummm. Do you know what a “fact” is? I am talking about my own experiences. And unlike you, I am not a known liar.

    Damn, are you getting stupider?

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  56. anjin-san says:

    @ David M.

    Mz. Fisher also appears to have aspirations to become a professional right wing media hack, her twitter page is full of impeach Obama and Benghazi rants.

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  57. Figs says:

    Guys, also, this:

    http://oversight.house.gov/wp-content/uploads/2012/08/Jost-Testimony.pdf

    It’s about 9 pages, but pretty quick and easy to read and digest. Basically it lays out the anti-Halbig case quickly and concisely. Read it.

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  58. Jenos Idanian #13 says:

    @anjin-san: Ummm. Do you know what a “fact” is? I am talking about my own experiences. And unlike you, I am not a known liar.

    And I’ve caught you in a few… well, let’s be generous and call them “inaccuracies.” And I notice a pattern — it’s only after I’ve smacked you down a little that you trot out the “known liar” argument. It seems that you only use that when you can’t win the actual argument.

    Which is pretty damned often, as i recall.

    You offered a personal anecdote, with zero supporting evidence. Big whoopty. Color me impressed. Gobsmacked, even. The sheer number of people who’ve lost their insurance due to ObamaCare is quite significant, and not just anecdotal.

    Likewise, the collapse of several state exchanges this fast also shows what a bad idea this law was.

    I was always convinced that the law would fail. The only variables were when, and what would be the final straw.

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  59. anjin-san says:

    @ Jenos

    So what you are trying to say is you are getting stupider :)

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  60. ringhals says:

    @Tyrell: Have you spoken to a PPACA navigator? Conversing with a knowledgeable human being might help. Just a thought. Good luck!

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  61. Jenos Idanian #13 says:

    @ringhals: Have you spoken to a PPACA navigator? Conversing with a knowledgeable human being might help.

    Those are two different solutions. The navigators have already been caught giving horrifically bad advice, and in some cases the government hired on as navigators who were convicted felons. Hell, in at least one case, they hired as a navigator a guy with an outstanding arrest warrant.

    Plus, there’s the IRS precedent. If you have a tax question and call the IRS for help, and they give you bad advice, you’re still liable for the error, even though you did what the IRS told you to do. Do you honestly think that will be different when you depend on the navigator for help? Especially since the IRS will be involved in enforcing ObamaCare.

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  62. Matt Bernius says:

    @anjin-san:

    Ummm. Do you know what a “fact” is? I am talking about my own experiences.

    Actually, Jenos has a point here.

    Yes, you are talking about your experiences. But you also just dismissed Holly Fisher’s talking about her experience because there’s no way of verifying her identity or the truth of her story. Given the relative anonymity of OTB we (the folks reading your comments) in the end have no more way of verifying your experience than you have of verifying Holly Fishers.

    That isn’t to say I don’t believe what you wrote. But we both can think about OTB commenters past and present that tend to set off the BS detector when they write about their personal and professional lives.

    But ultimately, in terms of an argument, what you and Jenos both did was offer up anecdotal and unverifiable data points. Which also demonstrates the problem of arguing from anecdotes.

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  63. wr says:

    @Jenos Idanian #13: “And I notice a pattern — it’s only after I’ve smacked you down a little that you trot out the “known liar” argument.”

    Interesting bit of logic there. Actually the real sequence is that when you start flailing around desperately because everyone here is laughing at your latest claims you start to post bigger and more obvious lies to defend yourself, which is when people start calling you a liar.

    You, somehow, believe this means you’ve “smacked down” your opponents.

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  64. Jenos Idanian #13 says:

    @wr: Get back to me when you feel like actually discussing the topic at hand.

    Which I figure ought to be around… let’s see… carry the seven… rounding to the nearest whole number…

    Just about never.

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  65. al-Ameda says:

    @Jenos Idanian #13:

    ObamaCare is the law of the land

    I believe it is the “Affordable Care Act,” that is the law of the land. The very same law of the land that over 30 Republican governors have refused to implement, and the same one that the Republican House has voted to repeal over 50 times.

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  66. Jenos Idanian #13 says:

    @al-Ameda: If you wanna get really anal about it, it’s the Patient Privacy and Affordable Care Act. But “ObamaCare” is the shorthand.

    Whether or not it’s a “smear” seems to depend on whether one is touting its successes or failures. Obama himself has embraced the term on occasion.

    I use it because it’s a useful shorthand term for what we’re talking about here.

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  67. Grewgills says:

    @Jenos Idanian #13:

    I use it because it’s a useful shorthand term for what we’re talking about here.

    Because it’s so much quicker and easier to write than PPACA or ACA. Why not just admit what you are doing. Obama(any word here) amounts to a slur for you and that is why you are using it. It’s like the people that feel the need to use his middle name all the time as though that is a slur.

    @Jenos Idanian #13:

    Those are two different solutions. The navigators have already been caught giving horrifically bad advice

    Any large group is going to have poor exemplars. Your argument here is akin to, if you call in for tech support you may get very bad advice, so if you have computer problems never call tech support or some doctors have committed malpractice, so never go to a doctor.

    @Jenos Idanian #13:
    Your interpretation ignores states like Hawaii that did not set up their own exchange, not in opposition to the law, but because the state is small and it is more cost effective to use the federal exchange than to create another from whole cloth. The history of court decisions on cases like this is to interpret the language in a way that takes the context of the language and the intent of the lawmakers into account. You will notice that the court decisions that have come in thus far support that interpretation, not yours.

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  68. anjin-san says:

    Any large group is going to have poor exemplars.

    As customer support reps for large corporations prove on a daily basis.

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  69. An Interested Party says:

    Get back to me when you feel like actually discussing the topic at hand.

    That’s rather rich coming from someone who brought up OTB’s TOS on this very thread…

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