This is the tradeoff explained by Jonathan Gruber, a professor at MIT and an “architect” of the ACA, who acknowledged that “if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”
'Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake." As evidence that it was not indicative of his beliefs, he noted that his projections of the law's impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.'
Yes, the more I read it, the more I think that that the intent of the law (that is, the intent of the people who wrote it) was for everyone to get subsidies but that the law was written in a such a way as to basically blackmail states to get in line and set up their own exchanges. When that did not happen (that is, when the refusing states banded together and believed they could sink the legislation by doing so), the IRS interpreted it the way they saw fit to make the original intent of the law be in effect.
The more I read it, the more it appears that this is an example of the Democrats having it both ways. The backpedaling sounds like a way of avoiding saying as much.
Thanks, that's a very interesting essay by Thomas Fisher (Solicitor General of Indiana). Whether the result is "right" or "wrong", the path the court takes to arrive here is arguably dangerous and unsettling.
The broader context is extremely important. Some people portray the law as written as a mere typo, or oversight -- that Section 36B providing tax credits / subsidies only for exchanges "established by the states" shouldn't mean what it actually says, because it was never "meant to".
What this essay reminds us of, is in fact there is a legislative balance which was struck here, and a choice which was actually relegated to individual states, similar to the choice to expand Medicaid which each state [currently] makes individually.
The ACA was written such that states could opt-in to ACA taxes on businesses in order to pay subsidies for individual plans by establishing an exchange, or they could opt-out of those same taxes and subsidies by not establishing an exchange. That plain english law has now been throw out to allow the Federal government to impose the subsidies on all states, and likewise, impose the taxes on larger employers. Whether you personally believe in one system over another is a separate matter than whether it's a good thing for the Supreme Court to be calling the shots.
When the IRS decided that the Federal exchange qualified individuals for the subsidies, against the plain English meaning of the actual law, the IRS was also subjugating the states' designated right to decide whether they want to provide subsidies for individuals and likewise taxes/penalities on large employers whose employees end up claiming those subsidies.
Part of the problem is the law is simply too complex for even a concerned citizen to wrap their heads around. How many people understand that large employers (50+ employees) are directly penalized on an employee-by-employee basis for each of their employees who qualify for and claim a subsidy on the marketplace? Believe it or not, the subsidy dollars don't just get printed by the Treasury -- they are assessed directly against the employer.
If you don't understand the dynamics of the law, it may seem like the "established by the state" is a pedantic distinction. If you spend about 80 hours actually studying the law you will more likely come to the conclusion that states choosing Medicaid expansion and states choosing to establish their own exchanges with premium subsidies were both actually intentional and central parts of the legislation.
If these were intentional and central parts of the legislation, how do we square that with predictions that the ACA would be crippled if SCOTUS were to decide the other way, due to unaffordable premiums?
I guess it depends on what you mean by "predictions that the ACA would be crippled". Certainly states which chose not to setup their own exchanges and not to tax businesses in order to subsidize healthcare would have much less universal healthcare. Likewise, states that chose to setup their own exchanges and provide subsidies through taxation would see much more universal healthcare. Citizens would continue to benefit from freedom of movement between states in the union, and at least we could sleep at night knowing the judiciary is marginally beholden to the laws of the land as they are actually written.
We're talking about the Solicitor General of Indiana who filed an amicus brief in support of the petitioners [1] -- these are states whose representatives decided they did not want the subsidies, now having those subsidies forced upon them by an outright red-lining of the law of the land under a novel "broader context theory". Personally, that's terrifying to me. The amicus brief is quite well written and summarizes the counter-argument quite well if you're interested in actually hearing a reasonable argument of both sides (rather than the typical political commentary, which is irrelevant to the actual case at hand)
Next perhaps we'll be talking about the "broader context" of the CFAA when the Feds want to expand the scope of hacking charges, or perhaps the "broader context" of mandatory sentencing minimums. I'm sure there's a "broader context" to go along with just about any ideological ax that may presently need grinding, regardless of the ideological slant of the ax grinder.
Your last paragraph puts it in perspective very well I think.
In his blog, Fisher says he was relieved the court didn't use the Chevron approach, but it seems like that would be preferable to red-lining the law as you say. Do you know why he said that?
EDIT: Nope, nevermind, Fisher didn't say that. Don't know where I read it.
The problem with Chevron is then it's left open for different administrations to interpret the statue differently. So I think Chevron wasn't really seen as an option in this case.
But wouldn't that be true all instances where the court invokes chevron? Including Cevron v. NRDC itself? If that's the case, it seems to me that administrative deference is really just a license for govt. agencies to interpret laws however they see fit (within bounds), in which case isn't that as dangerous as the court's new "broader context" precedent?
Comments
http://www.scotusblog.com/2015/06/symposium-the-magical-powe...
http://www.newrepublic.com/article/118851/jonathan-gruber-ha...
'Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake." As evidence that it was not indicative of his beliefs, he noted that his projections of the law's impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.'
He made an awful lot of "mistakes" of that kind.
Yes, the more I read it, the more I think that that the intent of the law (that is, the intent of the people who wrote it) was for everyone to get subsidies but that the law was written in a such a way as to basically blackmail states to get in line and set up their own exchanges. When that did not happen (that is, when the refusing states banded together and believed they could sink the legislation by doing so), the IRS interpreted it the way they saw fit to make the original intent of the law be in effect.
The more I read it, the more it appears that this is an example of the Democrats having it both ways. The backpedaling sounds like a way of avoiding saying as much.
Thanks, that's a very interesting essay by Thomas Fisher (Solicitor General of Indiana). Whether the result is "right" or "wrong", the path the court takes to arrive here is arguably dangerous and unsettling.
The broader context is extremely important. Some people portray the law as written as a mere typo, or oversight -- that Section 36B providing tax credits / subsidies only for exchanges "established by the states" shouldn't mean what it actually says, because it was never "meant to".
What this essay reminds us of, is in fact there is a legislative balance which was struck here, and a choice which was actually relegated to individual states, similar to the choice to expand Medicaid which each state [currently] makes individually.
The ACA was written such that states could opt-in to ACA taxes on businesses in order to pay subsidies for individual plans by establishing an exchange, or they could opt-out of those same taxes and subsidies by not establishing an exchange. That plain english law has now been throw out to allow the Federal government to impose the subsidies on all states, and likewise, impose the taxes on larger employers. Whether you personally believe in one system over another is a separate matter than whether it's a good thing for the Supreme Court to be calling the shots.
When the IRS decided that the Federal exchange qualified individuals for the subsidies, against the plain English meaning of the actual law, the IRS was also subjugating the states' designated right to decide whether they want to provide subsidies for individuals and likewise taxes/penalities on large employers whose employees end up claiming those subsidies.
Part of the problem is the law is simply too complex for even a concerned citizen to wrap their heads around. How many people understand that large employers (50+ employees) are directly penalized on an employee-by-employee basis for each of their employees who qualify for and claim a subsidy on the marketplace? Believe it or not, the subsidy dollars don't just get printed by the Treasury -- they are assessed directly against the employer.
If you don't understand the dynamics of the law, it may seem like the "established by the state" is a pedantic distinction. If you spend about 80 hours actually studying the law you will more likely come to the conclusion that states choosing Medicaid expansion and states choosing to establish their own exchanges with premium subsidies were both actually intentional and central parts of the legislation.
If these were intentional and central parts of the legislation, how do we square that with predictions that the ACA would be crippled if SCOTUS were to decide the other way, due to unaffordable premiums?
I guess it depends on what you mean by "predictions that the ACA would be crippled". Certainly states which chose not to setup their own exchanges and not to tax businesses in order to subsidize healthcare would have much less universal healthcare. Likewise, states that chose to setup their own exchanges and provide subsidies through taxation would see much more universal healthcare. Citizens would continue to benefit from freedom of movement between states in the union, and at least we could sleep at night knowing the judiciary is marginally beholden to the laws of the land as they are actually written.
We're talking about the Solicitor General of Indiana who filed an amicus brief in support of the petitioners [1] -- these are states whose representatives decided they did not want the subsidies, now having those subsidies forced upon them by an outright red-lining of the law of the land under a novel "broader context theory". Personally, that's terrifying to me. The amicus brief is quite well written and summarizes the counter-argument quite well if you're interested in actually hearing a reasonable argument of both sides (rather than the typical political commentary, which is irrelevant to the actual case at hand)
Next perhaps we'll be talking about the "broader context" of the CFAA when the Feds want to expand the scope of hacking charges, or perhaps the "broader context" of mandatory sentencing minimums. I'm sure there's a "broader context" to go along with just about any ideological ax that may presently need grinding, regardless of the ideological slant of the ax grinder.
[1] - http://www.americanbar.org/content/dam/aba/publications/supr...
Your last paragraph puts it in perspective very well I think.
In his blog, Fisher says he was relieved the court didn't use the Chevron approach, but it seems like that would be preferable to red-lining the law as you say. Do you know why he said that?
EDIT: Nope, nevermind, Fisher didn't say that. Don't know where I read it.
The problem with Chevron is then it's left open for different administrations to interpret the statue differently. So I think Chevron wasn't really seen as an option in this case.
But wouldn't that be true all instances where the court invokes chevron? Including Cevron v. NRDC itself? If that's the case, it seems to me that administrative deference is really just a license for govt. agencies to interpret laws however they see fit (within bounds), in which case isn't that as dangerous as the court's new "broader context" precedent?
I assume because more states were supposed to set up exchanges.