<p>“I did decide to change our coverage to my employer coverage because the individual market has gotten too expensive for us full pay folks. But… our health care remains unchanged.”</p>
<p>Well, this is a big one since most individual market folks do not have this option.</p>
<p>^^ So it’s a good thing they have a guaranteed market option, or they’d have no option at all, eh? </p>
<p>Calmom, I always understood “shall” to be the most unambiguous and powerful legal word in existence 
I think we need you on the Supreme Court!
Clearly, “shall” is the new term for “if we feel like it.” ;)</p>
<p>Good. Then that should be taken care of quickly, and as long as a woman doesn’t work for a company owned by a religious fundamentalist? She should be able to get the health care coverage she wants.</p>
<p>And, yes @Flossy . The individual market seems to be the place where the healthy are going to have to pay a very hefty price for that mandatory insurance. It’s less than ideal for many. </p>
<p>I’m glad I had other options, but I know how insanely expensive that insurance is for someone who is never ill.</p>
<p>@kmcmom13 – I agree that the law is very convoluted and poorly worded. I think it has something to do with making sausage.</p>
<p>It makes a little more sense for me when I look at the various sections and titles. My guess is that back in the drafting stage, there were separate committees or groups tasked with working with different stakeholders and then writing sections to address their concerns. Section 1311 is in a section called “Consumer Choices and Insurance Competition Through Health Benefit Exchanges”. Section 1321 is in a different part, called, “State Flexibility Relating to Exchanges”. </p>
<p>The law does not set up two types of exchanges, state & federal. Rather it says that all states need to set up exchanges, and if a state doesn’t, then the federal government can step in and "(directly or through agreement with a not-for-
profit entity) establish and operate such Exchange within the State " (“such” referring back to the required state implemented exchange).</p>
<p>Then there is a section 1334 called “Multi-State Plans”, which specifically authorizes the development of “multi-State qualified health plans through each Exchange in each State.” and then specifies that “An individual enrolled in a multi-State qualified health plan under this section” is eligible for tax credits in the same way as someone enrolled in a “qualified” plan - without a specific reference to type of exchange. </p>
<p>Then there is another section of the law that specifically directs the Secretary of HHS to create an internet portal for people to buy insurance, and requires that the portal have a mechanism for calculating the amount of premium tax credit they are likely entitled to. </p>
<p>Then the reference to an “Exchange established by the State” which is the source of the litigation comes up in Section 1401, in a section labeled “Premium Assistant Amount” – and that whole section is about how the tax credit is calculated or pro-rated.</p>
<p>So, yeah, the statute is inartfully worded… but you have to go through quite a lot of contortions to come up with the theory that the one phrase buried in the one paragraph is meant to preclude eligibility for premiums for people who live in states that are allowing the federal government to operate their exchanges for them.</p>
<p>You can red a summary or full text of the law here:
<a href=“https://beta.congress.gov/bill/111th-congress/house-bill/3590/text”>https://beta.congress.gov/bill/111th-congress/house-bill/3590/text</a></p>
<p>So calmom, why did the DC panel come up with its ruling? </p>
<p>Judges are people, too And the politicization of the courts is not an accident. Occasionally you get a judge who does the unexpected, like Roberts with the tax thing that saved ACA in the beginning. But, not usually, anymore. They rationalize based on the favored outcome, like everyone else.</p>
<p>The law says all states shall set up exchanges. But they didn’t. How is that possible? It’s in the law.</p>
<p>In this case, calmom is right–there is no way, reading the law as a whole, to believe anything other than that the drafters of the law intended subsidies to be available to anybody buying insurance on an exchange, whether it was run by the states or by the federal government. This was a selling point of the whole package, and the legislative history must be clear on it as well. It’s not that the law is ambiguous–rather, there is an apparent inconsistency in the law, and courts often do have to deal with those. When they do, they look at the intention of the law as a whole, which is pretty clear here. Still, I can’t predict what the Supreme Court might do if it takes the case. It might be a little bit more hesitant to create a disastrous crisis than a couple of Circuit Court judges, though.</p>
<p>
That’s easy to answer. The two judges who ruled that the law doesn’t provide subsidies are Republican appointees, and they allowed politics to overcome their duty to rule on the law. I’ve heard some people refer to this as judicial activism.</p>
<p>Dstark, I think its one of those result-oriented rulings where the Judge let a political viewpoint dictate the outcome. I don’t want to get too fare OT, but as far as wrong-headed decisions go, I think this one’s rather tame compared to deciding that corporations have religion, etc. Also – my opinion only – but I think that the DC case almost went the other way – I think that because almost all of the dissent is written as if it were the majority opinion – and it only comes around to being a “dissent” in the last paragraph – so I think that out of the 3 judges, the concurring judge must have switched positions somewhere along the way. </p>
<p>But it really won’t get past the en banc panel. </p>
<p>Re disastrous crisis – Right, I can’t believe the Supreme Court would actually throw millions of people off their insurance with no recourse, people who by then will have had coverage for more than two years. Well, some of the Justices would do it, but I don’t believe a majority will. Hopefully the administration will have someone to argue the case as well as calmom does. </p>
<p>Wasn’t there another case that came down the same day as this one which ruled just the opposite? I thought I read that somewhere. Will both cases be appealed by the respective losing sides? </p>
<p>
Probably, but one of the things that goes into whether the Supreme Court takes a case is whether there is a split in the Circuits on the issue involved. If the DC Circuit en banc reverses the panel decision, there won’t be a split in the Circuits any longer.</p>
<p>When is the en banc decision supposed to come down?</p>
<p>The three judges on the DC Court of Appeals ruled 2-1 that people on the federal exchange DO NOT get subsidies. On the same day, a three judge panel on the Fourth Circuit ruled unanimously that people on the federal exchange ARE eligible for subsidies.</p>
<p>The government has already asked for an en banc (all of the justices) review of the DC Court ruling. It’s widely expected that the en banc review will reverse the DC Court decision, and say that people on the federal exchange ARE eligible for subsidies.</p>
<p>The plaintiffs could ask for an en banc review of the Fourth Circuit decision. They probably won’t, though, because court watchers think the full panel would reaffirm the three judges’ decision.</p>
<p>So, most likely, by the time the Supreme Court would have a chance to have a look at the issue, both the DC Court and the Fourth Circuit will have agreed that people on the federal exchanges can be eligible for subsidies.</p>
<p>The en banc decision would come in Fall of 2015, I’ve read.</p>
<p>Gotcha. Thanks. </p>
<p>So, when the full DC circuit reverses the 3 Judge panel then the plaintiff’s will appeal it to the SC? </p>
<p>Thanks Fang. </p>
<p>There are similar cases in other states, too. Indiana and Oklahoma for starters.</p>
<p>Assuming an en banc holding in favor of the government – I don’t think SCOTUS would accept the case. It’s too easy of a dodge under Chevron, which is dispositive. It’s pretty easy to discern legislative intent as to this issue, and there is no Constitutional issue involved… so probably no something the court wants to bother with. </p>
<p>Unless they’ve decided they want to gut ACA.</p>
<p>ETA – Who decides? The Chief Justice, vote? </p>