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In Four-Word Phrase, Challenger Spied Health Care Law’s Vulnerability

sangha said:
There is no difference between 36B(f)(3) as it currently exists and the bill passed by Congress (aka "‘‘Health Care and Education Reconciliation Act of 2010’’. ")

PPACA did not create Sec 36B(f)(3) of the IRS Code, nor did the IRS. The verbiage was added by the ‘‘Health Care and Education Reconciliation Act of 2010’’ in Sec 1004(c).

http://www.hhs.gov/healthcare/rights/law/reconciliation-law.pdf
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Thank you. I missed that in your previous post.

So, as I have discussed with Greenbeard previously, even taking this changed verbiage of 36B into account that adds the reporting requirement for both 1311 and 1321 exchanges it doesn't prove that the states with federal exchanges were meant to get subsidies. The reporting to IRS by the exchanges had two functions: 1) To gather information on all taxpayers for purposes of enforcing the mandate and 2) for purposes of documenting subsidies. The inclusion of 1321 in this section does not automatically mean both were intended for 1321 exchanges. In fact, since the Health Care and Education Reconciliation Act of 2010 changed the verbiage of 36B with regard to reporting, it seems all the less likely that the intent was to include federal exchanges built for the states in the subsidy program since in the correcting legislation they didn't change the key verbiage in the original legislation that excluded 1321 exchanges from subsidies for the states. Moreover, it still doesn't help that the chief advisor and architect has said numerous times on tape that the exclusion was on purpose.
 
ludin said:
the wrote the intent into the law that is why we have the law. that addresses the intent of what congress is wanting to do.
they don't have to quote it or anything else. this is simply a poor man's argument because you can't defend the bill itself.

the fact is that the bill states plainly without ambiguity that the only people that qualify for tax credits are people in state based exchanges.
it doesn't matter if the sec establishes it on the states behalf that isn't being run by or setup by the state.

which is the key wording in the bill. as it shows intent.
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If it stated it plainly, we wouldn't have a case in front of the SC. And if Congress clearly intended this result, someone somewhere would have found at least ONE quote that demonstrates this intent as the bill was being debated or voted on, and no one can find even ONE such quote by ANY member of Congress.

It took NINE MONTHS for a private sector lawyer to bring this allegedly "clearly intended" result to the attention of AEI. Nine months and not one member of Congress from either party knew about this 'intent.'

It's a laughable assertion, really.
 
jmotivator said:
Thank you. I missed that in your previous post.

So, as I have discussed with Greenbeard previously, even taking this changed verbiage of 36B into account that adds the reporting requirement for both 1311 and 1321 exchanges it doesn't prove that the states with federal exchanges were meant to get subsidies. The reporting to IRS by the exchanges had two functions: 1) To gather information on all taxpayers for purposes of enforcing the mandate and 2) for purposes of documenting subsidies. The inclusion of 1321 in this section does not automatically mean both were intended for 1321 exchanges. In fact, since the Health Care and Education Reconciliation Act of 2010 changed the verbiage of 36B with regard to reporting, it seems all the less likely that the intent was to include federal exchanges built for the states in the subsidy program since in the correcting legislation they didn't change the key verbiage in the original legislation that excluded 1321 exchanges from subsidies for the states. Moreover, it still doesn't help that the chief advisor and architect has said numerous times on tape that the exclusion was on purpose.
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Didn't Max Baucus also say that subsidies were dependant on the existence of State exchanges too ?
 
jmotivator said:
Thank you. I missed that in your previous post.

So, as I have discussed with Greenbeard previously, even taking this changed verbiage of 36B into account that adds the reporting requirement for both 1311 and 1321 exchanges it doesn't prove that the states with federal exchanges were meant to get subsidies. The reporting to IRS by the exchanges had two functions: 1) To gather information on all taxpayers for purposes of enforcing the mandate and 2) for purposes of documenting subsidies. The inclusion of 1321 in this section does not automatically mean both were intended for 1321 exchanges. In fact, since the Health Care and Education Reconciliation Act of 2010 changed the verbiage of 36B with regard to reporting, it seems all the less likely that the intent was to include federal exchanges built for the states in the subsidy program since in the correcting legislation they didn't change the key verbiage in the original legislation that excluded 1321 exchanges from subsidies for the states. Moreover, it still doesn't help that the chief advisor and architect has said numerous times on tape that the exclusion was on purpose.
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It shouldn't matter one way or the other - the standard is Congressional intent and Gruber was not and is not a member of Congress.

And the thing is everyone knows Congress as a legislative body intended for the subsidies to be available on all the exchanges. Certainly, if such a draconian penalty was attached to the states deciding NOT to establish exchanges, we'd expect someone to mention this at some point during months of hearings and debate on the floor - not one member of Congress did.

At best they can argue that the ONLY reflection of Congressional intent is the law as written, but the SC has ruled repeatedly that's not the case.
 
Fenton said:
Didn't Max Baucus also say that subsidies were dependant on the existence of State exchanges too ?
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I've never seen any quote along those lines. If you have such a quote, I'd love to see it.

And the problem is there are two categories - exchanges established BY the state and exchanges established BY the Feds on behalf of the states that were to act like state-established exchanges in every way EXCEPT (the argument goes) with regard to credits - the only thing that really matters to the exchanges working as intended. It just makes no sense at all.
 
JasperL said:
If it stated it plainly, we wouldn't have a case in front of the SC. And if Congress clearly intended this result, someone somewhere would have found at least ONE quote that demonstrates this intent as the bill was being debated or voted on, and no one can find even ONE such quote by ANY member of Congress.

It took NINE MONTHS for a private sector lawyer to bring this allegedly "clearly intended" result to the attention of AEI. Nine months and not one member of Congress from either party knew about this 'intent.'

It's a laughable assertion, really.
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it did state it plainly and the case is in front of the SCOTUS because the IRS tried to write into the law something that wasn't there. People have pointed that out and in order to undo what the IRS did (since they won't do it on their own) is to take it to court so that is a losing argument.

yep it did because it was 3000 pages of BS or however long it was, and it takes a while to read all of the BS. of course had congress did their due diligence and read it before they passed it then well things might be different. however they went with the pass it to know what is in it.
 
JasperL said:
The will of Congress was clearly and obviously to extend subsidies to policies offered on both the Federal and state exchanges. That's why it is almost a certainty that the subsidies will be ruled legal and available in all 50 states.

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.
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There's nothing convoluted about "established by a state" - it only becomes convoluted when ACA proponets attempt to explain why we shouldn't accept a clearly written statute.

1) Yes
2) Nothing "odd and unexplainable" about this, the ACA requires these exchanges to work, and since they can't force states to create them, they have to do themselves if they want the ACA to work.
3) They didn't hide anything. It's clearly stated in the law. Why did Congress intend to HIDE the fact that federally established exchanges should receive subsidies?

The will of congress is what they voted on and actually passed.
 
JANFU said:
OK what is the Republican Plan?
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If Supreme Court Strikes Down Obamacare, GOP Says It Has a Plan

As to Laws being overturned - Happens to Dems and Repubs- Bad law is not all from 1 party.
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Oh, for sure. I don't think anyone is saying ONLY Democrats write bad laws. But we are talking about Obamacare...it IS a bad law...and it was written solely by the Democrats.

From the OP.
What will the Republican propose if the Law is overturned. Appears when it comes to Plan B's - plural- Govt shutdowns, they really do not do well.

Last time Cruz and others went for a Govt shutdown over ObamaCare, they were asked what their Plan was. They did not have one. Sound familiar?


Morning Plum: Ted Cruz’s brilliant strategy to help Ted Cruz - The Washington Post

And when Cruuz and his crew were asked about a Plan afterwards. They had none. Facts speak for themselves

United States federal government shutdown of 2013 - Wikipedia, the free encyclopedia
The deadlock centered on the Continuing Appropriations Resolution, 2014, which was passed by the House of Representatives on September 20, 2013.[12] The Senate stripped the bill of the measures related to the Affordable Care Act, and passed it in revised form on September 27, 2013.[12] The House reinstated the Senate-removed measures, and passed it again in the early morning hours on September 29.[12] The Senate declined to pass the bill with measures to delay the Affordable Care Act, and the two legislative houses did not develop a compromise bill by the end of September 30, 2013, causing the federal government to shut down due to a lack of appropriated funds at the start of the new 2014 federal fiscal year. Also, on October 1, 2013, many aspects of the Affordable Care Act implementation took effect.[13] The health insurance exchanges created by the Affordable Care Act launched as scheduled on October 1.[14] Much of the Affordable Care Act is funded by previously authorized and mandatory spending, rather than discretionary spending, and the presence or lack of a continuing resolution did not affect it. Some of the law's funds also come from multiple-year and "no-year" discretionary funds that are not affected by a lack of a continuing resolution.[15] Late in the evening of October 16, 2013, Congress passed the Continuing Appropriations Act, 2014, and the President signed it shortly after midnight on October 17, ending the government shutdown and suspending the debt limit until February 7, 2014.[16]
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I have no idea why you included this stuff. It has absolutely nothing to do with any questions I've asked or statements I've made...unless you assume any response to a Court ruling will be connected to a spending bill. I don't see that as a valid assumption.
 
Taylor said:
There's nothing convoluted about "established by a state" - it only becomes convoluted when ACA proponets attempt to explain why we shouldn't accept a clearly written statute.
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But where the law mentions "established BY a state" simply isn't where they defined who qualifies for credits. And there is not one statement in the law that clearly describes the GIGANTIC consequences of states failing to set up their own exchanges, no one in Congress knew about this result, and it took NINE MONTHS for a private sector lawyer to discover this obvious drafting error.

1) Yes
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But you have NO EVIDENCE for this - none. Not one quote by a member of Congress, not one second of debate on this HUGE issue. Nothing.

2) Nothing "odd and unexplainable" about this, the ACA requires these exchanges to work, and since they can't force states to create them, they have to do themselves if they want the ACA to work.
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But that's the whole point - without the credits, the exchanges and the ACA in those states will fail overnight. So you're proposing Congress established a provision to make them work, then deliberately wrote those backstops into the law in a way that guarantees the exchanges and ACA WILL FAIL.

Heck, ACA opponents are clear on this point at least - the lawsuit is intended to kill the ACA. The lawyers can't admit this of course in their pleadings to the SC - they'd be handing the SC the rope to hang their absurd argument - but we all know this is the case.

3) They didn't hide anything. It's clearly stated in the law. Why did Congress intend to HIDE the fact that federally established exchanges should receive subsidies?
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So clearly stated it took nine months for someone NOT in Congress to discover this element of the ACA. Come on - at least make a believable argument, such as "it was a drafting error and too damn bad. Should have read it more carefully!!" That at least doesn't require me to believe something obviously false.

The will of congress is what they voted on and actually passed.
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That's just not true - see this article for an explanation about the law and how it applies here.
 
JasperL said:
I've never seen any quote along those lines. If you have such a quote, I'd love to see it.

And the problem is there are two categories - exchanges established BY the state and exchanges established BY the Feds on behalf of the states that were to act like state-established exchanges in every way EXCEPT (the argument goes) with regard to credits - the only thing that really matters to the exchanges working as intended. It just makes no sense at all.
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IF the Obama administration and the key architects involved in creating this monstrosity sincerely forget to add in the needed language to allow the Feds to offer up subsidies to States that refused to set up exchanges, then at least the ObamaCare apologist could make the case that it was " always intended " and " of-course thats what Congress intended ", blah blah blah..

Of-course it wouldn't make the Law any less of a Train wreck or any less destructive. I mean ObamaCare is a substantial drag on the economy and at the same time removes more and more discretionary income out of the pockets of Americans who haven't seen their median income levels rise past 2007 levels.


Its substantial tax increases are also passed onto to the Consumers.

But we now know, thanks to Gruber that their intention was to purposefully omit the language that would provide the needed subsidies.

So it deserves to be litigated, and it deserves to be gutted and the ONLY one who should shoulder the blame if that happens is the Democrat party and this President.
 
Mycroft said:
If Supreme Court Strikes Down Obamacare, GOP Says It Has a Plan



Oh, for sure. I don't think anyone is saying ONLY Democrats write bad laws. But we are talking about Obamacare...it IS a bad law...and it was written solely by the Democrats.



I have no idea why you included this stuff. It has absolutely nothing to do with any questions I've asked or statements I've made...unless you assume any response to a Court ruling will be connected to a spending bill. I don't see that as a valid assumption.
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If overturned people will be looking to the Republicans for a plan. Reason I included the links is they never had a plan after the shutdowns.
Now after the hoopla backtracking on DHS shutdwon.
 
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Fenton said:
Didn't Max Baucus also say that subsidies were dependant on the existence of State exchanges too ?
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Yes. It wasn't until 36 states didn't take the bait that the Democrats decided to reinvent what the legislation actually meant.
 
Fenton said:
IF the Obama administration and the key architects involved in creating this monstrosity sincerely forget to add in the needed language to allow the Feds to offer up subsidies to States that refused to set up exchanges, then at least the ObamaCare apologist could make the case that it was " always intended " and " of-course thats what Congress intended ", blah blah blah..
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If you're talking about Gruber, he's not a member of Congress, and doesn't have the authority to draft any law. If you want to cite Gruber, you have to (at a minimum) poll all the rest of the consultants who worked on ACA, get their opinions, see if they all agree with Gruber, and then you'd still have nothing of note because it's Congressional intent, not the opinions of outside consultants, that matters.

But we now know, thanks to Gruber that their intention was to purposefully omit the language that would provide the needed subsidies.
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No, we don't know the intent of people-not-Gruber by asking what Gruber thought and Gruber was not and is not a member of Congress.

So it deserves to be litigated, and it deserves to be gutted and the ONLY one who should shoulder the blame if that happens is the Democrat party and this President.
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No argument really that it should be litigated or that if it is, the blame rests with those who drafted the law. And there is no Democrat party....
 
JANFU said:
If overturned people will be looking to the Republicans for a plan. Reason I included the links is they never had a plan after the shutdowns.
Now after the hoopla backtracking on DHS shutdwon.
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Like I said...your links are irrelevant because they now have a plan.

Come on, dude...stop living in the past.

And the DHS shutdown thing also has no bearing on this topic. What's up, dude...you throwing **** against the wall to see what sticks?
 
jmotivator said:
Yes. It wasn't until 36 states didn't take the bait that the Democrats decided to reinvent what the legislation actually meant.
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No, you can't quote him saying anything of the sort. Lawyers have interpreted some off the cuff comments on a totally unrelated issue to IMPLY that. Here's a Forbes article addressing this point:

The Halbig Cases: Changing My Mind On The Baucus-Ensign Colloquy - Forbes

The author made this argument initially, but reconsiders and comes to this conclusion:

His remarks do not shed any light one way or the other on the question presented in Halbig.
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JasperL said:
If you're talking about Gruber, he's not a member of Congress, and doesn't have the authority to draft any law. If you want to cite Gruber, you have to (at a minimum) poll all the rest of the consultants who worked on ACA, get their opinions, see if they all agree with Gruber, and then you'd still have nothing of note because it's Congressional intent, not the opinions of outside consultants, that matters.



No, we don't know the intent of people-not-Gruber by asking what Gruber thought and Gruber was not and is not a member of Congress.



No argument really that it should be litigated or that if it is, the blame rests with those who drafted the law. And there is no Democrat party....
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Gruber may have not been a member of Congress, but he was a key ACA architect who's contributions were celebrated by " Congress " until he got caught telling the truth.

Then the Democrats all contracted acute amnesia, ( Gruber who ? ) and tried desperately to mitigate away his comments.

Gruber's contributions to the ACA went allot further than offering up " opinions " and regardless what the other contributors say, his comments on State subsidies are absolutely relevant to this discussion and this lawsuit.

Omitting the language that would allow subsidies to be extended regardless of State exchange participation was ALLOT more than just a typo. It was allot more than just a goof.

What was ommitted in the original law would gut it. It was done for a reason and thanks to Gruber we know what that reason was.
 
Mycroft said:
Like I said...your links are irrelevant because they now have a plan.

Come on, dude...stop living in the past.

And the DHS shutdown thing also has no bearing on this topic. What's up, dude...you throwing **** against the wall to see what sticks?
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Nah, I am awake and smeling the coffee. How is your day going.
Freezing my butt at work.
 
Fenton said:
Gruber may have not been a member of Congress, but he was a key ACA architect who's contributions were celebrated by " Congress " until he got caught telling the truth.

Then the Democrats all contracted acute amnesia, ( Gruber who ? ) and tried desperately to mitigate away his comments.

Gruber's contributions to the ACA went allot further than offering up " opinions " and regardless what the other contributors say, his comments on State subsidies are absolutely relevant to this discussion and this lawsuit.

Omitting the language that would allow subsidies to be extended regardless of State exchange participation was ALLOT more than just a typo. It was allot more than just a goof.

What was ommitted in the original law would gut it. It was done for a reason and thanks to Gruber we know what that reason was.
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It's fascinating that so much hinges on the intent of CONGRESS, and no one can quote any member of CONGRESS. The best they have is a person-not-in-Congress to indicate CONGRESSIONAL intent.

We'll see how the SC rules, but it's a major problem for the litigants that there is simply NO evidence Congress intended this result.
 
JasperL said:
It's fascinating that so much hinges on the intent of CONGRESS, and no one can quote any member of CONGRESS. The best they have is a person-not-in-Congress to indicate CONGRESSIONAL intent.

We'll see how the SC rules, but it's a major problem for the litigants that there is simply NO evidence Congress intended this result.
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In the OP I posted a previous case, similiar points as this that SCOTUS ruled on.
 
JasperL said:
It's fascinating that so much hinges on the intent of CONGRESS, and no one can quote any member of CONGRESS. The best they have is a person-not-in-Congress to indicate CONGRESSIONAL intent.

We'll see how the SC rules, but it's a major problem for the litigants that there is simply NO evidence Congress intended this result.
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It's a major problem for the plaintiffs, too...and for the same reason. There is no evidence that Congress didn't intend this result...the result they deliberately wrote into the law. Except after the fact...after the Supremes ruled on the Medicaid thing.
 
Mycroft said:
It's a major problem for the plaintiffs, too...and for the same reason. There is no evidence that Congress didn't intend this result...the result they deliberately wrote into the law. Except after the fact...after the Supremes ruled on the Medicaid thing.
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That's just not correct. The entire idea of a Federally established backdrop makes no sense unless those exchanges also qualify for credits. First of all, the more straightforward stick is to just not set up an exchange at all for those states who elect not to do their own. Second, without credits, the exchanges WILL FAIL as the opponents of the ACA fully realize. So the assumption is the statute sets up a backstop that the drafters know will fail, and didn't debate this at all.

And Gruber's comments as I recall were along the line that the credits were the carrot for states establishing their OWN exchanges. There is simply no evidence for that, and nowhere in the law is this carrot and stick trade-off explained. Here's a relevant part of the government's brief:

To accept petitioners’ account, moreover, the Court would have to conclude that Congress sneaked these consequences into isolated phrases in subclauses of Section 36B, rather than giving States clear notice in Section 18041 itself of what would follow if they did not establish their own Exchanges. But Congress “does not * * * hide elephants in mouseholes.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001). It would display considerable disrespect for state sovereignty for Congress to hide the ramifi- cations of a State’s election in subclauses setting forth the technical formula for calculating the amount of an eligible individual’s tax credit. And it makes little sense to conclude that Congress would have communi- cated these consequences in so oblique a manner if— as petitioners insist—its purpose was to ensure that every State got the message that it needed to establish its own Exchange to avoid harms to its citizens and its insurance market.
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Etc.
 
jmotivator said:
Hey look, JasperL found an opinion he agrees with... that must make it fact. :roll:
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I'm trying to have a civil debate. If you have some quote of Baucus that is on point, the normal way this works is you'd provide a link with maybe a bit of text highlighted to prove your point or debunk mine, or maybe explain why I'm wrong, etc.

BTW, I think the guy I quoted is the person who made YOUR argument - that's why I quoted him and not someone else. But maybe I'm wrong - can't tell, you haven't linked to anything.
 
JasperL said:
I'm trying to have a civil debate. If you have some quote of Baucus that is on point, the normal way this works is you'd provide a link with maybe a bit of text highlighted to prove your point or debunk mine, or maybe explain why I'm wrong, etc.

BTW, I think the guy I quoted is the person who made YOUR argument - that's why I quoted him and not someone else. But maybe I'm wrong - can't tell, you haven't linked to anything.
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Well, no, your idea of having a civil debate is stating that I am wrong because a Forbes article had a different opinion. That isn't debating.
 
JasperL said:
That's just not correct. The entire idea of a Federally established backdrop makes no sense unless those exchanges also qualify for credits. First of all, the more straightforward stick is to just not set up an exchange at all for those states who elect not to do their own. Second, without credits, the exchanges WILL FAIL as the opponents of the ACA fully realize. So the assumption is the statute sets up a backstop that the drafters know will fail, and didn't debate this at all.

And Gruber's comments as I recall were along the line that the credits were the carrot for states establishing their OWN exchanges. There is simply no evidence for that, and nowhere in the law is this carrot and stick trade-off explained. Here's a relevant part of the government's brief:



Etc.
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shrug...

All of your spin, after the fact, doesn't mean that's what the Democrat's intention were at the time. It is more likely that Gruber was correct. The language of the bill was intended to pressure the States to comply with the law. They didn't. Now you are left with trying to spin the whole thing.

Kind of sucks, doesn't it?

In any case, all this spin is academic...kind of like masturbation. The only thing that matters is how the Supremes rule. I, for one, make no predictions...especially after their ruling in the LAST Obamacare case they heard.
 
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