Next Court Case to Doom Obamacare?

[TimothyC]

Good call on the part of the first circuit, bad on the part of the fourth.

If you read the text of the law, it's rather cut and dry that the subsidies only apply to people on state exchanges. The fact that the democrats who drafted the bill didn't include the subsidies for those on the federal exchange isn't the fault of republicans. "But the republicans blocked the state exchanges" I hear you cry, to whit I say "So, not our fault you wrote a crappy law and now want the executive to re-write it."

[Crossroads Inc.]

Tim is exactly right on this...
The dems should have anticipated what happened and made allowances...
That said... I find it both funny and sad the amount of people going "ONG Obamacare doomed lol!!!"as they clearly have no idea how things work... Let's consider the effects of this.
To begin about the only states that did NOT set up exchanges are basically conservative states.
So they only places where people are hurt are conservative states.

If anything this will, I'm the long run, strengthen the ACA as it will show people just what things would be like if it WAS repealed... Meanwhile in progressive states, it will tick along fine without many bumps.

[Lord MJ]

It could be argued that the Healthcare.gov is the state exchange for states that did not build their own website. If a state said, we'll just use the federal exchange. And now since Healthcare.gov is in better shape performance wise, some states are opting to scrap their exchanges and simply make Healthcare.gov the default.

The IRS has the freedom to make that interpretation. Of course it's subject to challenge. But I wonder how these plaintiffs have standing to challenge the interpretation?

A simple fix would be a cut and dry bill that says, "The Federal Exchange is the state exchange if the state does not build one themselves." Problem solved. Guess why that won't happen...

[TimothyC]

A simple fix would be a cut and dry bill that says, "The Federal Exchange is the state exchange if the state does not build one themselves." Problem solved. Guess why that won't happen...

The problem in this case is that the president (who gets all whiny when people don't do what he says when he says it) didn't put a bill like that before congress, but started acting in violation of the statute, and even announced (from what I can tell prior to the 4th circuit decision coming down) that he was going to ignore the first circuit even without a stay.

Were a republican president pulling the same shit I dare say every last liberal here would be up in arms.

[Ziggy Stardust]

The problem in this case is that the president (who gets all whiny when people don't do what he says when he says it) didn't put a bill like that before congress, but started acting in violation of the statute, and even announced (from what I can tell prior to the 4th circuit decision coming down) that he was going to ignore the first circuit even without a stay.

What are you even talking about? What statute? When has Obama "whined"? And before you whip out the old strawman, I'm not a supporter of Obama. I just have no idea what you are blathering about.

Were a republican president pulling the same shit I dare say every last liberal here would be up in arms.

Oh, boo-hoo, the poor Republicans are being discriminated against.

[Lord MJ]

There has not been a single time in that I recall Obama "getting all whiny." In fact given the fact that the legislative branch has been non functional for the past 4 years (and was barely workable the 2 years before that) Obama has been quite clear headed in not showing his frustration at the situation. This is being the guy that particularly in the beginning spent most of his time trying to appease Republicans rather than working with Democrats.

Were a republican president pulling the same shit I dare say every last liberal here would be up in arms.

I really doubt that liberals (other than perhaps politicians looking to score points) would be up in arms about preventing millions or low income Americans from losing their subsidies due to a wording issue, even if the president were Republican. In fact if the whole situation were the same, all the players were the same, the only difference is that the President is Republican, liberals would in fact be cheering said president.

[slebetman]

Republicans have been whining so much since Obama got elected that perhaps they've mistaken it as coming from Obama himself.

Indeed, this court case is just another big whine.

[Thanas]

A simple fix would be a cut and dry bill that says, "The Federal Exchange is the state exchange if the state does not build one themselves." Problem solved. Guess why that won't happen...

The problem in this case is that the president (who gets all whiny when people don't do what he says when he says it) didn't put a bill like that before congress, but started acting in violation of the statute, and even announced (from what I can tell prior to the 4th circuit decision coming down) that he was going to ignore the first circuit even without a stay.

Were a republican president pulling the same shit I dare say every last liberal here would be up in arms.

What are you talking about here?

[TimothyC]

The problem in this case is that the president (who gets all whiny when people don't do what he says when he says it) didn't put a bill like that before congress, but started acting in violation of the statute, and even announced (from what I can tell prior to the 4th circuit decision coming down) that he was going to ignore the first circuit even without a stay.

Were a republican president pulling the same shit I dare say every last liberal here would be up in arms.

What are you talking about here?

Sure:

"The Statute" : The Affordable Care Act. The ACA only provides for subsidies via the state exchanges, not the federal exchange.

Source for intention to ignore the ruling

The Obama administration immediately declared that those policyholders will keep getting financial aid for their premiums as it seeks review of the ruling. White House spokesman Josh Earnest said the decision would have "no practical impact" on tax credits as the case works its way through further court appeals.

(no notice about them seeking/receiving an injunction)

"Whiny": All of the comments from the President about how congress isn't doing what he wants them to do and how because of that he needs to take action. Seriously, he comes off as whiny.

"Same shit": Shopping for a circuit court that doesn't rule against him and declaring that he's going to ignore laws we have been so often reminded "have been passed by congress and signed by the president."

[Thanas]

TBH that reads more like an intention to exhaust the appeals process, which every administration does. The ruling did not say anything about an emergency stop order, did it?

[TimothyC]

TBH that reads more like an intention to exhaust the appeals process, which every administration does. The ruling did not say anything about an emergency stop order, did it?

Actually, the way I understand it, the court would have needed to grant an emergency stay to allow the subsidies to continue.

[Thanas]

I don't know (and you know I'm no great fan of Obama) but if it would need to do so, I would expect some news article to make mention of that. I mean, Obama is a weakling who is afraid to stand up to congress on issues he campaigned on deeply, so why would he take the radical step to openly defying the courts now?

[Dominus Atheos]

If you read the text of the law, it's rather cut and dry that the subsidies only apply to people on state exchanges.

If only someone had posted an analysis of the law that quoted the relevant portion. Oh wait, I did.

Section 1321 of the ACA says that if a state elects not to establish its own exchange or will not be ready to operate its exchange in 2014, “the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements”

Failure to establish Exchange or implement requirements
(1) In general
If—
(the State does not set up an exchange)... the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.

The federal exchange is a state exchange for all "requirements" including subsidies.

[Gaidin]

To note, in arguments, I believe plaintiffs even had to concede that when the bill says "state exchange" it means both federally and state run. I'm not sure I've seen that in any article. Judge's went 'screw that' anyway.

[Block]

TBH that reads more like an intention to exhaust the appeals process, which every administration does. The ruling did not say anything about an emergency stop order, did it?

Actually, the way I understand it, the court would have needed to grant an emergency stay to allow the subsidies to continue.

You understand it wrong.

[Simon_Jester]

Good call on the part of the first circuit, bad on the part of the fourth.

If you read the text of the law, it's rather cut and dry that the subsidies only apply to people on state exchanges. The fact that the democrats who drafted the bill didn't include the subsidies for those on the federal exchange isn't the fault of republicans. "But the republicans blocked the state exchanges" I hear you cry, to whit I say "So, not our fault you wrote a crappy law and now want the executive to re-write it."

Is it the fault of the legislature that the executive may have to take emergency action to protect the citizens of State X from their own state government's decision not to comply with federal law?

A simple fix would be a cut and dry bill that says, "The Federal Exchange is the state exchange if the state does not build one themselves." Problem solved. Guess why that won't happen...

The problem in this case is that the president (who gets all whiny when people don't do what he says when he says it) didn't put a bill like that before congress, but started acting in violation of the statute,

Well, the president, being head of the EXECUTIVE branch, does have good reason to "get whiny" when the laws he is responsible for EXECUTING are not obeyed.

So I think it very difficult to simply call this 'illegal' as opposed to 'necessary emergency measures to mitigate the consequences of an illegal act by state governments at the expense of their own people.' Previous presidents have had to dispatch infantry divisions to enforce laws at the bayonet, so I think this is relatively small potatoes.

...and even announced (from what I can tell prior to the 4th circuit decision coming down) that he was going to ignore the first circuit even without a stay.

Would you mind expanding on what he said to that effect? Ah. I see that you did so in a later post, so let me look that over...

Sure:

"The Statute" : The Affordable Care Act. The ACA only provides for subsidies via the state exchanges, not the federal exchange.

Source for intention to ignore the ruling

The Obama administration immediately declared that those policyholders will keep getting financial aid for their premiums as it seeks review of the ruling. White House spokesman Josh Earnest said the decision would have "no practical impact" on tax credits as the case works its way through further court appeals.

(no notice about them seeking/receiving an injunction)

"Whiny": All of the comments from the President about how congress isn't doing what he wants them to do and how because of that he needs to take action. Seriously, he comes off as whiny.

To you, perhaps. On the other hand, he's president of the United States and Congress hasn't been functional in four goddamn years, do you expect him to simply ignore the issue and do nothing as the entire government crashes in flames?

A Republican president in a similar position would have similar grounds to complain. If, say, the Democrats had held the House for four years, and a filibuster-sized minority in the Senate for six, and had spent all that time doing literally nothing but passing Democrat wet-dream bills that they know will realistically never pass, and then refusing to make meaningful compromises.

Thing is, the Democrats did not, in point of fact, do that the last time the situation was reversed.

During the Bush-the-Younger years they repeatedly compromised with Republicans to allow bills the Republicans wanted passed, even if they sometimes acted as a check on letting Republicans have everything they wanted. During the Reagan years, the Democrats held the House the whole time, and yet somehow stuff got done.

This is a basically unprecedented situation, as far as I can tell. And it's one that's so obviously crippling to the function of our government that no reasonable person can expect the president to take it lightly.

"Same shit": Shopping for a circuit court that doesn't rule against him and declaring that he's going to ignore laws we have been so often reminded "have been passed by congress and signed by the president."

Again, precisely what law is being ignored and in what way; would you mind refreshing my memory?

[TimothyC]

Is it the fault of the legislature that the executive may have to take emergency action to protect the citizens of State X from their own state government's decision not to comply with federal law?

The original Senate bill was written in such a way that if states did not set up their own exchanges, then the individuals in said states would not get the subsidies.

Well, the president, being head of the EXECUTIVE branch, does have good reason to "get whiny" when the laws he is responsible for EXECUTING are not obeyed.

So I think it very difficult to simply call this 'illegal' as opposed to 'necessary emergency measures to mitigate the consequences of an illegal act by state governments at the expense of their own people.' Previous presidents have had to dispatch infantry divisions to enforce laws at the bayonet, so I think this is relatively small potatoes.

It is my understanding that States were not actually required to establish exchanges - due to some funky wording that was left in when the bill didn't go through a conference committee. Ergo, the acts were not illegal on the part of the states. You can't blame the faulty language on republicans as none of them wrote the damn thing.

filibuster-sized minority in the Senate for six,

Five. Obama had a full year until the murderous idiot finally died when he had 60 votes in the senate. He got several bills passed in that time, including the clusterfluffel that is the ACA.

Thing is, the Democrats did not, in point of fact, do that the last time the situation was reversed.

Clinton came to the table in good faith, Obama has not. In the same interview when McConnell said he wanted to make Obama a one term president he also said he wanted to work with the man if he was willing to come to the table.

Again, precisely what law is being ignored and in what way; would you mind refreshing my memory?

The ACA. Without a stay, in the first circuit court's area (Maine, as the other states have state exchanges1) no one on the exchange is allowed federal subsidies. The statement I quoted earlier implies that he intends to ignore this ruling.

Oh! How about the whole blow-up over how the Congress won't consider an immigration bill that the president would like, so he's going to allow students to stay here2 in violation of the law.

The federal exchange is a state exchange for all "requirements" including subsidies.

Except the ACA's subsidies are directed to those exchanges established in 1311, not 1321. It's a legal screw-up on the part of the people that passed the bill. I have no doubt that they intended to include the individuals on the federal exchange, but there is at least some serious doubt that they didn't actually do so.

1. Under the 4th Circuit the subsidies are to continue - so that's Virginia & the Carolinas. All other states without state exchanges (Ohio, Indiana, Georgia, Florida, Alabama, Mississippi, Louisiana, Wisconsin, Tennessee, Missouri, Texas Oklahoma, Kansas, Nebraska, the Dakotas, Montana, Wyoming, Utah, Arizona, & Alaska) are up in the air.

2.Note, I'm in favor of letting people stay, but there has to be some legal punishment for breaking the law, or else we've made a mockery of our own laws.

[Highlord Laan]

Cato Institute

Why the hell do these bought and paid for shitpieces still have any legitimacy left? Anyone that's paid attention over the last decade knows they're just shills for the Koch brothers.

[Dominus Atheos]

The federal exchange is a state exchange for all "requirements" including subsidies.

Except the ACA's subsidies are directed to those exchanges established in 1311, not 1321.

Yes, and as I quoted directly from the ACA, then 1321 says that if states don't set up 1311 exchanges "the Secretary shall... establish and operate such Exchange within the State". The federal exchange is a 1311 state exchange.

[Dominus Atheos]

Cato Institute

Why the hell do these bought and paid for shitpieces still have any legitimacy left? Anyone that's paid attention over the last decade knows they're just shills for the Koch brothers.

Do you know what the original name of the Cato Institute was? It's almost impossible to find on Google, even Wikipedia only says that it was founded in 1974 and the name was changed to Cato in 1976 with no mention of the original name. If you find it you might be surprised, or not.

[Simon_Jester]

So I think it very difficult to simply call this 'illegal' as opposed to 'necessary emergency measures to mitigate the consequences of an illegal act by state governments at the expense of their own people.' Previous presidents have had to dispatch infantry divisions to enforce laws at the bayonet, so I think this is relatively small potatoes.

It is my understanding that States were not actually required to establish exchanges - due to some funky wording that was left in when the bill didn't go through a conference committee. Ergo, the acts were not illegal on the part of the states. You can't blame the faulty language on republicans as none of them wrote the damn thing.

Well, then there's the question of DA's interpretation which you have not properly addressed, pointing out that while the passage you've quoted does establish the state exchanges, that doesn't mean a later passage in the same law can't establish federal exchanges co-equal with the state exchanges for all legal and taxation purposes.

You can't just stop reading a legal document when you hit the paragraph that provides support for your position; you have to keep chugging through the fine print.

filibuster-sized minority in the Senate for six,

Five. Obama had a full year until the murderous idiot finally died when he had 60 votes in the senate. He got several bills passed in that time, including the clusterfluffel that is the ACA.

Apologies. Five years of deadlock brought about by a disloyal opposition is so much less frustrating and willfully destructive of national interests than six would be.

Thing is, the Democrats did not, in point of fact, do that the last time the situation was reversed.

Clinton came to the table in good faith, Obama has not...

In the same interview when McConnell said he wanted to make Obama a one term president he also said he wanted to work with the man if he was willing to come to the table.

And you believe him?

The evidence does not support this, in my opinion. I mean, to quote the interview you cite:

McConnell: If President Obama does a Clintonian backflip, if he’s willing to meet us halfway on some of the biggest issues, it’s not inappropriate for us to do business with him.

NJ: What are the big issues?

McConnell: It is possible the president’s advisers will tell him he has to do something to get right with the public on his levels of spending and [on] lowering the national debt. If he were to heed that advice, he would, I imagine, find more support among our conference than he would among some in the Senate in his own party. I don’t want the president to fail; I want him to change. So, we’ll see. The next move is going to be up to him.

Thing is, the Democrats in 2011 were in a relatively stronger position than in 1995, and yet McConnell (and other Republican leaders) seem to have expected them to concede more and bend further to the right. It's as though in his mind the 2006 and 2008 elections had never even happened, and that the world of the permanent Republican majority was firmly in place.

So the proposals for compromise that actually passed muster with the Congressional Republicans were, essentially, to do exactly what the Republicans wanted with little or no concession to what the Democrats didn't want. And when Obama repeatedly finds himself having to say "no, I ran as a Democrat, not as a Republican, and I do not believe the American people have commanded me to do exactly what a Republican would do even if you have managed to win back majorities in the House," I don't think that he's somehow at fault for the breakdown of compromise in that situation.

You'd think that if the American people were behind the Republican leadership on this, and really had given the Republicans a collective mandate to pursue this strategy, that the 2012 elections would have reflected that. Instead, Obama won handily and the popularity of Congress plummeted.
____________________________________

Moreover, you never addressed my point. The Democrats have been in a position comparable to what the Republicans are in today for at least four or five separate congresses by my count. During all of them, they showed willingness to work together and create bills that would be at least palatable to the party that held the White House- the Republicans.

Meanwhile, the House Republicans today keep trying to make Obama swallow what are, for him, political poison pills. And if he doesn't bite, they blame him for not compromising. What's he supposed to do, sign off on the Ryan budget and agree to the repeal of the ACA?
_________________________________________

Again, precisely what law is being ignored and in what way; would you mind refreshing my memory?

The ACA. Without a stay, in the first circuit court's area (Maine, as the other states have state exchanges1) no one on the exchange is allowed federal subsidies. The statement I quoted earlier implies that he intends to ignore this ruling.

Oh! How about the whole blow-up over how the Congress won't consider an immigration bill that the president would like, so he's going to allow students to stay here2 in violation of the law.

I am going to withhold comment on these for a bit because the details of the legalese are more than I can handle this close to bedtime. I acknowledge that you have attempted to answer my question, but cannot shake the feeling that the story is more complex than you make it out to be...

1. Under the 4th Circuit the subsidies are to continue - so that's Virginia & the Carolinas. All other states without state exchanges (Ohio, Indiana, Georgia, Florida, Alabama, Mississippi, Louisiana, Wisconsin, Tennessee, Missouri, Texas Oklahoma, Kansas, Nebraska, the Dakotas, Montana, Wyoming, Utah, Arizona, & Alaska) are up in the air.

And should Obama preemptively stop the payouts, when his own Justice Department feels there is grounds to continue paying, in states where no court with jurisdiction has ruled that there's a problem?

You can, if you want to make a VERY narrow interpretation based on a VERY specific assumption about how the appeals court case in the 1st Circuit works, INFER that Obama is declaring the intent to disobey the court ruling. The specific ruling of the 1st Circuit. But that is far from proving that Obama is being a scofflaw with regards to the nation in general here.

2.Note, I'm in favor of letting people stay, but there has to be some legal punishment for breaking the law, or else we've made a mockery of our own laws.

Well, perhaps we should wait to ascertain exactly what laws have been broken, since other people quoting the very same laws seem to perceive no problem?

I mean, this is definitely a case that hinges on technicalities and is hard to unravel, or at least it is if I give you the benefit of the doubt and assume Paragraph 1321 is completely irrelevant no matter what it appears to say about the role of federal exchanges. So maybe we should at least refrain from jumping to conclusions about how executive officials are EVIL SCOFFLAWS for trying to keep a major national program that provides health care to millions running and functional in the face of widespread obstructionism from people who are ideologically opposed to the program.

[Thanas]

Cato Institute

Why the hell do these bought and paid for shitpieces still have any legitimacy left? Anyone that's paid attention over the last decade knows they're just shills for the Koch brothers.

Do you know what the original name of the Cato Institute was? It's almost impossible to find on Google, even Wikipedia only says that it was founded in 1974 and the name was changed to Cato in 1976 with no mention of the original name. If you find it you might be surprised, or not.

What was it?

[Edi]

Do you know what the original name of the Cato Institute was? It's almost impossible to find on Google, even Wikipedia only says that it was founded in 1974 and the name was changed to Cato in 1976 with no mention of the original name. If you find it you might be surprised, or not.

What was it?

Thinkprogress

Charles G. Koch and David H. Koch, the deep-pocketed conservative activists, launched a court fight yesterday over control of the Cato Institute, one of the nation’s best-known free-market think tanks. The Washington-based public-policy group was founded in 1974 as the Charles Koch Foundation. The name was changed to Cato in 1976, with the Koch brothers as longstanding contributors. The group had four shareholders until last year: Charles Koch; David Koch; Edward H. Crane III, Cato’s president; and William A. Niskanen, who died in October.

[Thanas]

Thanks.