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I'm stunned... absolutely stunned.

From my twittah feed:

D.C. Cir. decides #Halbig; "ACA unambiguously restricts ... subsidy to insurance purchased on [State] Exchanges.”: http://t.co/vXwo0agp54.

— Steve Vladeck (@steve_vladeck) July 22, 2014

There's the ruling:
http://justsecurity.org/wp-content/uploads/2014/07/Halbig.pdf

So basically anyone who gets their PPACA insurance on the federal exchange, which is a lot if not most, can't get subsidies. This would be a death blow to the PPACA.

Obviously, this will be appealed either to the full Court of Appeals, which Obama has packed with his appointees or directly to the Supreme Court.

EDIT: the administration will ask for en banc review (re-trial):

Obama Adm official on Halbig: "The Department of Justice can, and will, seek en banc review by the full D.C. Circuit"

— Sam Stein (@samsteinhp) July 22, 2014

Man... it's getting weirder:

Breaking: 4th Circuit issues ruling on ACA insurance subsidies, sides with Obama administration. Ruling at odds w DC Circuit from this morn.

— Brent Kendall (@brkend) July 22, 2014

Some serious legalistic whiplash going on here. But feth... when reading the law context matters? O.o

That would be a death knell to the ACA since over half the states refused to set-up their own exchanges.

Just makes a complicated law even more complicated to reasonably enforce.

D.C. Cir. decides #Halbig; "ACA unambiguously restricts ... subsidy to insurance purchased on [State] Exchanges.”: http://t.co/vXwo0agp54.

— Steve Vladeck (@steve_vladeck) July 22, 2014

How unambiguous was it? If it clearly says no federal subsidies then why on Earth didn't they advertise it as such? Or was this one of those 'we have to pass it to find out what's in it' deals?

 Gentleman_Jellyfish wrote:

D.C. Cir. decides #Halbig; "ACA unambiguously restricts ... subsidy to insurance purchased on [State] Exchanges.”: http://t.co/vXwo0agp54.

— Steve Vladeck (@steve_vladeck) July 22, 2014

How unambiguous was it? If it clearly says no federal subsidies then why on Earth didn't they advertise it as such? Or was this one of those 'we have to pass it to find out what's in it' deals?

It was one of those 'we have to pass it to find out what's in it' deals.

It has to be pretty unambiguous, right?

 Easy E wrote:
That would be a death knell to the ACA since over half the states refused to set-up their own exchanges.

Or, it could pressure those states to setup the state's exchange as their citizen being forced to use the federal exchange would be left hanging...

It's definitely FUBAR'ed.

Also all the red state would not release any fed money,so people could not get help in these state,then they are trying to get rid of AHCA,what is funny this is a republican idea,then,the right does not want to insure anybody,you are out on your own,this is so crazy.

 whembly wrote:

It was one of those 'we have to pass it to find out what's in it' deals.

Strictly speaking what was struck down is an IRS regulation (and even that is pending an appeal) not a law. And, as anyone who has spent more than two seconds studying federal law will tell you, it is not unusual for organizations to interpret the letter of the law that pertains to them in ways Congress did not necessarily intend.

 Gentleman_Jellyfish wrote:

D.C. Cir. decides #Halbig; "ACA unambiguously restricts ... subsidy to insurance purchased on [State] Exchanges.”: http://t.co/vXwo0agp54.

— Steve Vladeck (@steve_vladeck) July 22, 2014

How unambiguous was it? If it clearly says no federal subsidies then why on Earth didn't they advertise it as such? Or was this one of those 'we have to pass it to find out what's in it' deals?

source

What's the government's defense?

The government's primary defense hinges on a single word.

Word choice carries a lot of weight in legal interpretation. The part of the Affordable Care Act that creates federally-facilitated exchanges says that when a state doesn't set up its own marketplace, the federal government "shall establish and operate such exchange". According to the administration, the word "such" implies that federal exchanges effectively step into the shoes of state exchanges.

Furthermore, the government argues, if it isn't obvious that the law intends federally-facilitated exchanges be functionally equivalent to state exchanges, then the law is at least ambiguous on the point.

You can't examine the part of the statute that sets up federally-facilitated exchanges in isolation; you have to look at it in the broader context of the reform law. Since affordable coverage is a core tenet of the law, to say that people in state and federal exchanges aren't equally entitled to tax credits would set the law at war with itself. That could be enough to call it ambiguous on its face.

When a law is ambiguous, the courts defer to the interpretation of the agency responsible for implementation. Obviously implementation has moved forward under the assumption that residents of every state are entitled to subsidies, regardless of what kind of exchange the state uses.

It's basically the YMDC of healthcare law. "It clearly is INTENDED to mean ______!" "BUT IT DOESN'T SAY IT!"

 whembly wrote:

 Gentleman_Jellyfish wrote:

D.C. Cir. decides #Halbig; "ACA unambiguously restricts ... subsidy to insurance purchased on [State] Exchanges.”: http://t.co/vXwo0agp54.

— Steve Vladeck (@steve_vladeck) July 22, 2014

How unambiguous was it? If it clearly says no federal subsidies then why on Earth didn't they advertise it as such? Or was this one of those 'we have to pass it to find out what's in it' deals?

It was one of those 'we have to pass it to find out what's in it' deals.

Initiate protocol RSG 4.5b, Blame Republicans

 dogma wrote:

 whembly wrote:

It was one of those 'we have to pass it to find out what's in it' deals.

Strictly speaking what was struck down is an IRS regulation (and even that is pending an appeal) not a law. And, as anyone who has spent more than two seconds studying federal law will tell you, it is not unusual for organizations to interpret the letter of the law that pertains to them in ways Congress did not necessarily intend.

The IRS regulation simply stated that "states" meant encompasses all US states, federal and territorial lands.

Which is odd, because just recently, the HHS granted permanent waivers to the US territories. Because, after all, HHS has discovered that “State” really does just mean states after all, and not any other level of government.

The Halbig case at the DC appellate court hinges on the definition of “state” in the statutory language. The sudden shift in HHS’ interpretation toward the literal sense of the word is in diametric opposition to its position in Halbig... who argued that “state” is more or less a generic term for government at any level.

HHS lost in DC appellate court and won at the 4th district.

This is going to land at the Supreme Court as the premiere case that'll have some serious implications. One of which would be how the courts interpret the laws. Contextualism or Strict interpretation.

The only thing I want to know is what will Justice Roberts come up with to make this all Constitutional? Will he decide that the Federal Government is actually a State?

 Breotan wrote:
The only thing I want to know is what will Justice Roberts come up with to make this all Constitutional? Will he decide that the Federal Government is actually a State?

All he has to do is rule that "such" means just that and it's done.

Which is what a few other courts have already done, I believe.

 whembly wrote:

The IRS regulation simply stated that "states" meant encompasses all US states, federal and territorial lands.

Which is odd, because just recently, the HHS granted permanent waivers to the US territories.

Well, not really. The IRS wasn't going to back down unless it was forced to do so, which is basically par for the course in all matters of Federal law.

 whembly wrote:

This is going to land at the Supreme Court as the premiere case that'll have some serious implications.

Oh, I have no doubt it will end up at Supcom, but there is a good chance they'll just punt; meaning there will be no serious implications.

 Breotan wrote:
The only thing I want to know is what will Justice Roberts come up with to make this all Constitutional? Will he decide that the Federal Government is actually a State?

Constitutionality isn't the issue. The interpretation of PPACA is the issue.

Or you know, the Congress could actually work together to patch up the ACA kind of like the Massachussetts Legislature did after RomneyCare's launch was found to have some issues.

Oh wait, what kind of fantasy world do I live in. This is a TOTAL WAR!

 Easy E wrote:
Or you know, the Congress could actually work together to patch up the ACA kind of like the Massachussetts Legislature did after RomneyCare's launch was found to have some issues.

Oh wait, what kind of fantasy world do I live in. This is a TOTAL WAR!

How 'bout a "do-over"?

Keep in mind that it takes just four votes of the Court to grant cert and agree to hear a case from a circuit court, which means that even if all five justices who votes to uphold the mandate two years ago would rather pass on this one, Scalia, Thomas, Alito, and Kennedy could force them to take it up by voting for cert. Will they do it?

 Easy E wrote:
That would be a death knell to the ACA since over half the states refused to set-up their own exchanges.

Even in states that do have their own exchange (such as mine) if you go onto the state exchange you're receiving federal subsidy.


Automatically Appended Next Post:

 Easy E wrote:
Or you know, the Congress could actually work together to patch up the ACA kind of like the Massachussetts Legislature did after RomneyCare's launch was found to have some issues.

As a guy who works in the health insurance industry, you may be amused to know that Massachusetts has either already switched off of their own exchange to the Federal one, or is preparing to make the switch (not that their system is failing, but I'm guessing costs, and a mindset of "hey, if we can get someone else to administer this mess, more power to them")

Does it bother anyone that matters that should be decided on abstract, technical definitions seem to constantly end up falling down along strict partisan lines?

 sebster wrote:
Does it bother anyone that matters that should be decided on abstract, technical definitions seem to constantly end up falling down along strict partisan lines?

Yep, especially given that the Judicial Branch is meant to be independent; he says laughing maniacally.

Can we update the Thread Title to reflect that the 4th Circuit Court in Virginia has declared the subsidies legal?

Or would that be too non-partisan?

 d-usa wrote:
Can we update the Thread Title to reflect that the 4th Circuit Court in Virginia has declared the subsidies legal?

Or would that be too non-partisan?

The DC decision was first. Then a few hours the 4th came in... so I updated the OP post.

I'm trying to be a good steward here...

You can also update the thread title you partisan hack

If only there was some simple system of providing free at the point of use healthcare that cut out employers refusing to fund certain healthcare because invisible friends told them it was bad, states trying to underfund things, insurance companies sucking wealth out of the system and that everyone contributes towards...

 d-usa wrote:
You can also update the thread title you partisan hack

Fine you whiny bish!

Republicans are looking less and less like they are against Obamacare, and more and more like they are just against health care coverage in general.

These 2 judges probably just lost the GOP a couple seats (at least) in heavy red states. Whether or not the judges decision was sincere, and whether or not their decision is upheld, you don't take benefits that already exist away from millions of people (and scare the bejesus out of them) without serious political consequences (think Social Security, and access to healthcare is probably more important to young-middle age people than Social Security, which has already been written off as doomed in any serious persons' retirment plan).

If I am a poverty stricken dude in lets say Kentucky, and I vote for an incumbent GOP representative, its hard to get around the fact that I'd be voting against my own prospects for healthcare coverage.
.

 jasper76 wrote:
its hard to get around the fact that I'd be voting against my own prospects

And yet, millions do, every single election.

Everyone gets upset about Watter's World

SilverMK2 wrote:If only there was some simple system of providing free at the point of use healthcare that cut out employers refusing to fund certain healthcare because invisible friends told them it was bad, states trying to underfund things, insurance companies sucking wealth out of the system and that everyone contributes towards...

Thing is, Insurance companies aren't in some conspiracy to drive costs up. In the US, the individual State Insurance Commission (they all take various names, but they all govern insurance boards of some sort) is the regulatory body that determines the price of insurance on a sliding scale....For example, in health insurance, a 32 year old man, who smokes is going to pay the exact same rate of insurance, no matter the company he goes through... he may have a different premium, depending on carrier per month, but the actual insurance itself is the same price.

The 4th Circuit's rule is sorta fascinating...

There’s some legal-eagle folks going apegak over this decision because, if it survives a SC challenge... this decision emphasizes that, in theory, a Republican president could undo ACA without the need for Congressional action, or even a favorable Supreme Court ruling.

How’s that? The answer is contained in the logic of the 4th Circuit's opinion.

The 4th Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary”... even though it argues that the plantiff has the stronger argument. (seriously, go read their ruling)

This sounds like the 4th relies on something called “Chevron deference,” which applies the philosophy that courts must defer to reasonable agency interpretations of ambiguous statutes. (not all courts uses this... this goes back to the Textualism vs Contextualism interpretations)

If Obama’s IRS can issue one rule, then hypothetically President Ted Cruz’s IRS can issue a different one. The U.S. Supreme Court’s Chevron case that created “Chevron deference” said:

The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.

In other words: agencies can change their minds, and we will continue to defer to them.

So, applying the 4th's reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz's administration, could say: “No it doesn’t.”



Intent doesn't matter... words have meaning.