<p>The other two cases are apparently in federal district courts, which means that it’s unlikely that there will be circuit court decisions in those cases any time soon. So it’s most likely that opponents of the law will have to go to the Supreme Court with the 4th and DC Circuit decisions.</p>
<p>
“Apparent” is right - its not even a clear inconsistency, because of the wording of 1311 and 1321, and the specific reference to 1311 in the 1401 clause at issue. </p>
<p>And the bottom line: if the statute is ambiguous, then the courts have to defer to the administrative agency’s construction if that is a permissible interpretation. </p>
<p>So “inconsistency” doesn’t win the plaintiff’s case – they need to be able to show that their view is the only possible interpretation. </p>
<p>Four Justices have to agree to grant certiorari (to bring the case to the Supreme Court) in order for it to be heard by the Court.</p>
<p>“I don’t think SCOTUS would accept the case. It’s too easy of a dodge under Chevron, which is dispositive.”</p>
<p>I can see the gang of 4 who dissented in the mandate case voting to grant certiorari - but I think Robert’s wants to be on the right side of history and would vote to uphold the circuit courts decision on the subsidies. </p>
<p>Mother Jones disagrees with me. They think Roberts will join the 4 if the Supreme’s take the case. </p>
<p><a href=“An Extreme Court Decision Threatens Obamacare – Mother Jones”>http://www.motherjones.com/politics/2014/07/halbig-burwell-dc-circuit-court-obamacare</a> </p>
<p>Well, Roberts saved ACA with his weird tax ruling. He may regret that. Or not. I have no clue. But, I agree with MJ that SCOTUS has not been favorable to the administration of late so there is cause for supporters to be concerned. </p>
<p>I think Roberts is thinking about the Court’s reputation and legacy. He doesn’t want the history books 100 years from now to be talking about "the Roberts Court, the most political Court in American history. " That’s not a good rep in judicial circles apparently. </p>
<p>True. But, we are supposed to have three equal branches of government. That’s currently not happening and SCOTUS has acknowledged it over a dozen times.</p>
<p>You’re right, it is currently not happening.</p>
<p>I also agree with Hunt that they would probably rather not take the case if they don’t have to. But, that is the end of my two cents for today.</p>
<p>The court is political, and the politics will change. It is going to be a very different political landscape in 2015-2016 when the case might come before them. ACA will be entering its third year, there are going to be shifts in how the exchanges are being run, there will then be a 2+ year history of people getting insurance. There will be expanded participation in the exchanges by insurance companies, and an entrenched system for buying insurance. </p>
<p>There just won’t be the political will. It won’t just be the people who have insurance, the insurance companies are also going to be very much wedded to the new system and dead set against change. Keep in mind that a better title for ACA might have been, “the insurance company enrichment act” because all of those subsidy dollars are going straight to the insurance companies. The insurance companies were terrified that they would be left holding the bag when only sick people signed up … that didn’t happen. Now they have a ton of new customers and probably will have a bump in claims for year #1, but by year #2 that will level out. </p>
<p>And again --SCOTUS doesn’t have to render a decision on the merits. All they have to do is apply the Chevron standard. (There’s room for a plenty of bloviating along the way). </p>
<p>That makes sense, calmom, but what about the political pressure coming from the other direction, the elected officials and others who continue to agitate for repeal? The folks to whom they owe their seats on the Court and to whom they have political allegiance and in whose interests they often rule? Do you think pressure from the insurance industry will outweigh that?</p>
<p>“The folks to whom they owe their seats on the Court”</p>
<p>Once they are on the SC - they owe no allegiance to anyone since the appointment is for life. I think it’s often ideology that determines how a lot of justices decide a case - and one can pretty much decide either way on almost every case and find a constitutional justification for it. Of course, it doesn’t always come down to a vote based on ideology - but in the big cases it’s usually not to difficult to figure out which justices are going to decide which way and it usually comes down to the swing voter on the court - and there usually is one - at least as far back as I can remember. </p>
<p>I will be surprised if the SC doesn’t take this case. </p>
<p>Calmom,</p>
<p>What do you think of this? </p>
<p><a href=“Supreme Court already said DC Court was wrong on Obamacare subsidies | Pollways”>http://pollways.bangordailynews.com/2014/07/24/national/supreme-court-obamacare-subsidies/</a></p>
<p>“<br>
The Supreme Court has already spoken on the DC Circuit’s three judge panel’s 2-1 decision that subsidies are only available for insurance purchased through state exchanges. This decision contradicted the decision of a unanimous three judge panel for the 4th Circuit Court of Appeals (Virginia).”</p>
<p>Awesome!</p>
<p>That’s pretty funny.</p>
<p>@dstark: it’s dicta. It’s useful in argument, but a point made in a dissent that is not even essential to the reasoning of the dissent is not legally binding.</p>
<p>But as I’ve noted, Chevron is dispositive. There is a reasonable possible interpretation of the statutory language to be read restrictively, but it can’t rationally be held to be unambiguous. And if it’s ambiguous – and if the IRS interpretation is merely “possible” – then the courts must defer to IRS. </p>
<p><a href=“What Kagan And Scalia Might Say About Halbig v. Sebelius (Updated)”>http://www.forbes.com/sites/michaelcannon/2014/06/23/what-kagan-and-scalia-might-say-about-halbig-v-sebelius/</a></p>
<p>Calmom, thanks.</p>
<p>If anyone is reading this thread because they actually want practical advice, the IRS has issued a memo explaining how we self-employed people can do the math to reconcile our self-employed health insurance deduction with premium tax credit (or not – the math is pretty tricky):
<a href=“http://www.irs.gov/pub/irs-drop/rp-14-41.pdf”>http://www.irs.gov/pub/irs-drop/rp-14-41.pdf</a></p>
<p>Also, if anyone here is super wealthy and isn’t buying health insurance because you’ve got enough money in the bank to pay for any possible contingency-- IRS has issued the numbers which determine the maximum possible penalty for the coming year if you didn’t buy insurance (or get it from your employer/business).
<a href=“http://www.irs.gov/pub/irs-drop/rp-14-46.pdf”>http://www.irs.gov/pub/irs-drop/rp-14-46.pdf</a></p>
<p>Flossy, about that Forbes article.</p>
<p>Hmm, we have Michael Cannon, the head of the Cato Institute and Halbig case chief advocate, explaining that Halbig is correctly decided, and delivering a Proof by Vigorous Assertion that the suit “fails to identify any specific textual or structural features of the statute to support its proposed result.” What a shocker. Stop the presses.</p>
<p>I also find particularly amusing Cannon’s assertion that the legislators intended to threaten state legislators that if they didn’t establish a state exchange, their residents would not be eligible for premium subsidies. Cannon needs to study Mobsters 101: It’s not a threat if you don’t tell the person. </p>
<p>If I order a pizza, and secretly plan to shoot the delivery guy if the pizza is cold when it arrives, that’s not a threat. To threaten, I have to <em>tell</em> the pizza guy that if he shows up with a cold pizza he’s a dead man. At the time when states were deciding whether to establish exchanges, does anyone recall any Democrat saying, “But if you don’t set up exchanges your residents won’t get subsidies”? No, you don’t recall that, because it didn’t happen, because this alleged threat is a post-hoc invention.</p>