I also looked at Sec 1401 and the text it adds to 36B of the IRS Code does *not* contain an (f)(3).
But (f)(3) was not written by the IRS. It was added to 36B by the Health Care and Education Reconciliation Act of 2010, Sec 1004(c), which says
http://www.hhs.gov/healthcare/rights...iation-law.pdf(c) NO EXCESS PAYMENTS.—Section 36B(f) of the Internal Revenue
Code of 1986, as added by section 1401(a) of the Patient
Protection and Affordable Care Act, is amended by adding at the
end the following new paragraph:
‘‘(3) INFORMATION REQUIREMENT.—Each Exchange (or any
person carrying out 1 or more responsibilities of an Exchange
under section 1311(f)(3) or 1321(c) of the Patient Protection
and Affordable Care Act) shall provide the following information
to the Secretary and to the taxpayer with respect to any health
plan provided through the Exchange:
‘‘(A) The level of coverage described in section 1302(d)
of the Patient Protection and Affordable Care Act and
the period such coverage was in effect.
‘‘(B) The total premium for the coverage without regard
to the credit under this section or cost-sharing reductions
under section 1402 of such Act.
‘‘(C) The aggregate amount of any advance payment
of such credit or reductions under section 1412 of such
‘‘(D) The name, address, and TIN of the primary
insured and the name and TIN of each other individual
obtaining coverage under the policy.
‘‘(E) Any information provided to the Exchange,
including any change of circumstances, necessary to determine
eligibility for, and the amount of, such credit.
‘‘(F) Information necessary to determine whether a taxpayer
has received excess advance payments.’’.
Note how it says that 36B(f) was added to the IRS Code "by section 1401(a) of the Patient Protection and Affordable Care Act" and that 36B(f) is being amended with the paragraph that follows which is identified with the number (3) at the beginning
That's the 36B(f)(3) that you claim was written by the IRS. It's right there in the Health Care and Education Reconciliation Act of 2010 which is a law written and passed by congress
The obvious proof of the intent of Congress is the convoluted path you have to take to conclude the subsidies are NOT available on the Federal exchanges. So what we have to assume is 1) Congress intended to make subsidies contingent on states setting up exchanges, 2) provided for Federal exchanges for some odd and unexplainable reason if the states failed to act or didn't act in time, and most importantly, 3) intended to HIDE the fact that ONLY state established exchanges (but NOT exchanges established FOR the states by the Feds) qualify for the signature component of the entire law.
There was a section titled, "“Failure to establish Exchange or implement requirements.” Surely if Congress intended to gut the entire ACA if a state failed to establish exchanges, it would mention this draconian result here, but it didn't. The law in fact never states that credits will NOT be allowed on the Federal Exchanges. What it does is hinge the qualification for credits on the word "by" and not "by or for" etc. So this 'clear Congressional intent' is so brilliantly and effectively hidden in the weeds of the law that it took months after the bill passed for ANYONE to notice. CBO didn't notice, republicans didn't notice, no Congressman mentioned it during debates that this important and draconian result hinged on the states establishing their own exchanges, etc. It's ludicrous on its face.
The SC might gut the ACA credits, but it will have to ignore decades of precedence to do so, which unfortunately seems well within the realm of possibility.
Last edited by JasperL; 03-03-15 at 12:19 PM.
And if that truly was " the will of Congress " to extend Federal subsidies regardless of the existence of State exchanges it was IGNORED by the Obama administrations willful exclusion of the necessary language just so they could demonize Republican Governors.
They decided to play Politics with people's lives and health care and if they lose this case its ON THEM.
Again, this intent was supposedly made manifest in the law by hiding it so effectively that no one knew of this intent until months later. Give me a break.
Congress drafted the law. And the Obama administration and Congress knew perfectly well that red states wouldn't establish their own exchanges in many cases, which is why they provided a backstop to the state exchanges, and DIRECTED the Sec. to do so on their behalf when they failed to act. Why would they direct the Sec. to establish pointless exchanges?And if that truly was " the will of Congress " to extend Federal subsidies regardless of the existence of State exchanges it was IGNORED by the Obama administrations willful exclusion of the necessary language just so they could demonize Republican Governors.
Well, I guess there is some truth there - the drafting error is on the people who drafted the law. But that wasn't the intent and everyone knows it. It was an error.They decided to play Politics with people's lives and health care and if they lose this case its ON THEM.