<p>Threat is a little strong. They may have been seen as an incentive. Personally, I imagine they were seen both ways by different lawmakers most of whom had no idea specifically what was in this law when they voted for it which is why we now have such a mess. I recall a lot of democrats saying a lot of things that turned out to be false. I don’t pretend to know what the court will do or if they will even take the case. I also think that giving legislative power to the IRS or HHS is a very bad idea.</p>
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<p>Flossy, the intent of the writers of the law is extremely important to courts. In this case, we don’t have to guess at intent; the writers are still among us. And they are emphatic. They did not intend that subsidies be denied to people whose state governments refused to establish an exchange.</p>
<p><a href=“http://www.cnn.com/2014/07/23/opinion/gorod-obamacare-ruling/”>http://www.cnn.com/2014/07/23/opinion/gorod-obamacare-ruling/</a></p>
<p>This is interesting. </p>
<p><a href=“http://www.c-span.org/video/?c4504852/senate-hearing-tax-credits-available-state-exchanges”>http://www.c-span.org/video/?c4504852/senate-hearing-tax-credits-available-state-exchanges</a></p>
<p>This is also interesting…</p>
<p><a href=“RealClearPolitics - Election Other - Public Approval of Health Care Law”>http://www.realclearpolitics.com/epolls/other/obama_and_democrats_health_care_plan-1130.html</a></p>
<p>Obama adviser’s remarks lend credence to non payment of subsidies to federal exchange states…<a href=“Adviser's past remarks could give Obamacare a headache”>Adviser's past remarks could give Obamacare a headache;
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<p>One of the architects of the program seemed pretty clear on the ‘intent’ but of course we can now massage and rework the words and come up with a new intent.</p>
<p>Have you read the friend of the court brief, dietz? Those are the people who had the intent in the first place, so they should know what it was/is. And as calmom detailed yesterday, it takes more than massage to make the law say what Halbig says it says. It takes willful misreading.</p>
<p>It seems the intent was to make it very uncomfortable (politically) for States to opt out of creating their own exchange and instead punt to the Feds. It’s pretty easy to see why this would be the case. The intent was to corner States into creating their own systems of face (expected) voter backlash when the population realized the costs of going to the Feds. Since subsidies are now given independent of exchange model, that painful effect has not been felt, thus not encouraging (coercing?) States into running their own exchanges. IF those effects were felt…arguably all States would fall in line and make their own exchanges. And, isn’t that the model the ACA established?</p>
<p>There was a time when States forfeited highway funds if they refused to set their max speed limits to 55 mph. This really isn’t any different.</p>
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<p><a href=“http://theusconstitution.org/media/releases/members-congress-state-officials-file-appeals-court-brief-latest-aca-legal-challenge”>http://theusconstitution.org/media/releases/members-congress-state-officials-file-appeals-court-brief-latest-aca-legal-challenge</a></p>
<p>(The brief itself is linked in that article, if you’d like to read it for yourself.)</p>
<p>Sorry, but there was no intent whatsoever to exclude the millions of people who bought on the federal exchange.</p>
<p>Well, that’s one reason they pay lawyers the big bucks. But all joking aside, the law was passed before it was really understood as even one of it’s main proponents (accidentally) announced. This bill was passed via reconciliation thereby sidestepping the regular review process. So, it’s just as easy to say SOME wanted the subsidies to only go to the State exchanges and SOME wanted it to go to all. </p>
<p>Personally, we have no horse in this race. We already know we will be forced out of the group market and into the individual market. We know our network will be narrower (via ANY carrier available) than it is now and we know our deductible will go up (at last check by about 65%) as will our premiums. So really, it’s just an argument for arguments sake. </p>
<p>Time to make popcorn and watch the side show. And with that, I will attempt yet again to wean myself from this thread. It makes me dizzy.</p>
<p>It’s not “argument for arguments’ sake” for the millions of low-income Americans who will lose their insurance if Halbig is upheld. </p>
<p>And there is no evidence, anywhere, for your idea that some wanted the subsidies to go only to State run exchanges. Even the most virulent opponents of the law never remotely suggested that. </p>
<p>LasMa the opponents are opponents. It was the crafters of the law that probably thought incentivizing states was a great idea. Not opponents. But, too many cooks have made a very predictable mess.</p>
<p><a href=“http://jonathanturley.org/”>http://jonathanturley.org/</a></p>
<p>LasMa if you are really interested in the details take a look here…</p>
<p><a href=“http://www.aallnet.org/main-menu/publications/llj/llj-archives/vol-105/no-2/2013-7.pdf”>http://www.aallnet.org/main-menu/publications/llj/llj-archives/vol-105/no-2/2013-7.pdf</a></p>
<p>The gyrations needed to pass the bill make it very difficult to track the thought process.</p>
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<p>I don’t see how anyone could possibly read [url=<a href=“https://sites.google.com/site/healthreformnavigator/ppaca-sec-1321]section”>https://sites.google.com/site/healthreformnavigator/ppaca-sec-1321]section</a> 1321<a href=“%22STATE%20FLEXIBILITY%20IN%20OPERATION%20AND%20ENFORCEMENT%20OF%20EXCHANGES%20AND%20RELATED%20REQUIREMENTS.%22”>/url</a> and come to that conclusion. And if there was any intent to make it difficult for states to defer to feds, then logically THAT would be the section where any penalty or limit would be specified. That is, IF Congress had meant to deny subsidies to states that did no set up their own exchanges, THEN the logical place for that restriction would be in Section 1321(c). (I’d expect it there would have been a 1321(c) (1)(C) that would have clearly stated that subsidies would not be available for exchanges created under that authority). </p>
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Yes, and the law said so unequivocally. </p>
<p>This did not happen with ACA. ACA did have a clear, unequivocal, state-coercive provision in it: the law specified that if states did not expand Medicaid in accordance with the act’s provision, they would lose their existing federal Medicaid funding. SCOTUS held that part unconstitutional.</p>
<p>dietz, I’m at work, so I can’t scan through that at the moment. Could you point to the page which says that Congress intended to withhold subsidies from non-exchange states?</p>
<p>Nope…can’t point to it. That’s the point…it doesn’t seem to say either way. It does bring to light how convoluted the process was and how many different and unreconciled parts were smashed into one final product. And, that IS the point.</p>
<p>Calmom: re 55 mph speed limit
Yes. And the ACA doesn’t state the issue unequivocally. Hence the lawsuit.</p>
<p>And FWIW…as small business owners we have been on both sides of lawsuits and court processes. We learned very early on that the law is not about fairness or even equality. It’s about how it’s interpreted, who is doing the interpretation and frankly who is more likeable - defendant or plaintiff.</p>
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<p>Dietz, laws have structure. You can look at a complex piece of legislation, and it will have a table of contents th follows an outline structure, with titles for all of the sections that say what each section deals with. That structure also exists within the statutory schemes where the provisions end up. It’s no just a random mashup. </p>
<p>If there was a restriction on the exchanges operated by the federal government in lieu of state exchanges when the states failed to comply with the mandate to set up their own exchange, then it would have been specified in the section of the law that authorized the creation of those exchanges. It’s no going to be randomly buried somewhere else. There could be a cross-referenced provision – but then the cross-reference would be to the correct section.</p>
<p>So if the provision of [url=<a href=“https://sites.google.com/site/healthreformnavigator/ppaca-sec-1401]1401[/url”>https://sites.google.com/site/healthreformnavigator/ppaca-sec-1401]1401[/url</a>] which refers to enrollment via an “Exchange established by the State under 1311” had been meant to exclude exchanges established under 1321(c)-- it would have specified that. If 1311 had created a two-headed system, such as a scheme of both state and federal exchanges – then there might be an argument. But it didn’t. Section 1311 creates a single system whereby EVERY “State” has an exchange. By definition, if a person lives in a State, then under 1311 they have a “State” exchange they can buy from. </p>
<p>1311, by its express terms, requires that every “State” have an exchange.</p>
<p>A totally separate section, 1321 – provides that if the “State” doesn’t operate its own exchange, then the federal government will do it for them – but the federal government is then in the position of running the “State” exchange. That’s why when people in Texas go onto Healthcare.gov they don’t have the option of choosing health insurance plans sold in other states. It’s one software platform, but each person is directed to the section for their own state. The very first step on Healthcare.gov is “select your state” – and every state is listed there. </p>
<p>Dietz, see calmom’s post 15072. If they really wanted to do this, they would have made it unequivocal, just as they did with the Medicaid provision (which the court struck down). They would have made dang sure that every state legislator knew the dire consequences. If they really were trying to use this to force states to set up exchanges, why would they confine it to one phrase of one sentence deep in the law? They wouldn’t. Of course.</p>
<p>Use your common sense. Every congressman and senator who signed onto the law supported it, or they wouldn’t have voted for it. Under your scenario, every one of them thought, “Oh boy! I wonder how long it will take someone to find that one sentence which will kill this historic law I just voted for.” The argument makes no sense.</p>
<p>I am using my common sense. And common sense tell me if this very large, intricate and complicated bill was parsed, pieced and kludged together as indicated by the link I posted, common sense tells me the intent was unclear. </p>
<p>Really, it will simply boil down to who gets to decide. And ‘judicial activism’ has been alive and well ever since at least the Johnson administration and the passage of the civil rights bill. </p>
<p><a href=“How LBJ Saved the Civil Rights Act - The Atlantic”>How LBJ Saved the Civil Rights Act - The Atlantic;
<p>There is no restriction but there is also no authorization. I like Jonathon Gruber’s latest comment on the matter.</p>
<p>“I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.”</p>
<p>Speakos and typos. Oops.</p>
<p>The intent of the law as a whole is crystal clear. Every single word in the law points to the goal of near-universal coverage. Why would they intentionally insert this little bombshell which would blow up everything else in it? They wouldn’t. </p>