At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.So... skilled, professional drafters... failing to check the cross-references. That's the story. As opposed to the idea that the loss of the subsidies was supposed to motivate the states to set up exchanges.
But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.
At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. “We failed to include a cross-reference to the federal exchange,” Mr. Condeluci said. “In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.”
The words were written by professional drafters — skilled nonpartisan lawyers — from the office of the Senate legislative counsel, then James W. Fransen. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.
I think the main problem is that if there were a big incentive on offer, it needed to be clearly stated so the states would know what they were giving up if they failed it set up exchanges. But there's still the question whether the Court can remedy that unfairness. If it doesn't, Congress will need to step up.
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73 comments:
You simply can not trust the NYT to write anything that puts Democrats in a bad light.
How does one now, explain Prof Gruber's extemporaneous statements that the text was written the way it was to incentivise participation?
Additionally, remember the rush to pass the bill before anyone had time to read it.
read it and weep...
Yes, only Congress can fix this. I disagree strongly with the Times article because it was known at time of passage the language was there as an incentive to coerce the states to act. This was similar to the Medicaid expansion as an incentive. But there it fell afoul of the law by threatening to lose existing finding if states didn't expand.
What I wrote about HR 3200 (the initial House-generated 'Obamacare' bill) all the way back in 2009:
Software vs. Legislation
First, software is designed for a target or reference system; you can in theory predict or constrain its behavior, and its behavior is largely repeatable.
Legislation, by contrast, is executed by humans, with wide latitude for interpretation and implementation, as well as misunderstandings, disagreements on meaning, and on-the-fly modifications.
Second, software typically has several layers of independent (non-human) syntactic, semantic, and integration checking that it of necessity goes through before deployment (though plenty of defects can and do slip through).
Legislation, by contrast, is written in a natural (human) language, with all its gaps, faults, and ambiguities, and with nothing to force error checking in syntax, semantics, and integration; there’s no way of “compiling“, “linking” and doing a test run of the legislation in a limited environment before it becomes the (largely irrevocable) law of the land.
Third, because of the previous two factors, two or more software engineers can typically reach professional agreement on what a given section of source code will do; if they continue to disagree, there are standard tools and methods by which they can objectively demonstrate how the software will behave, either exactly or within general limits.
By contrast, and due to the corresponding factors with legislation, two or more people (legislators, executives, judges, and citizens) can interpret a given section of legislation quite differently, and each may well have a defensible position, due to the potentially wide latitude of and arena for interpretation.
All pretty much came true, didn't it?
Do we really want courts to decide what a law meant and not what it actually sayz?
The article does not mention Gruber's statements that say the opposite. Perhaps it is true that the idea he mentioned was not used in the Congressional process, but the article had no business leaving his statements out.
If the authors are that determined to present a picture with only one side, how can I know what else they left out? Maybe other Congressional staffers said differently and they left them out too.
Recognizing that the four words they put into the law imperil the law, Drafters now say the four words were a mistake.
It would have been enjoyable to read the comments on that article. Alas, comments there appear to be disabled -- I can't find them, at least.
You know they are nervous about their chances before the court when they roll out Plan B: "It was a typo! It was an oversight! We didn't mean to do this!" The problem is there is a record of the discussions at the time that says they knew exactly what they were doing.
I predict greater success with Plan C: rely on the fecklessness of the Republican majority to save Obamacare.
damikesc said...
Do we really want courts to decide what a law meant and not what it actually sayz?
In theory, this will only happen if the law is ambiguous as written. If the text of the law is clear, the court will defer to the text.
Whether it was a mistake or a foolish gamble to nudge states into building their own exchanges, the fact is the words of the text are plain and courts need to adhere to that--otherwise think about what this opens the door for. Lawyers and the general public would no longer be able to take a statute or regulation at face value, because the words are subordinate to what the drafters "really" meant--and what they "really" meant is usually unclear anyway. For the sake of the rule of law, the Supreme Court can only rule one way on this.
Obamacare supporters should take heart though--Congressmen from non-exchange states would almost surely be pressured to either change the federal law, or the legislatures of those states would almost surely move quickly to establish their state exchanges--otherwise, their constituents' subsidies disappear. And if they don't act--that means more subsidy money available for the states with exchanges, and making the law a little cheaper to implement anyway.
If it was intentional then States would have been urged to adopt exchanges to avoid losing subsidies. Were they?
See the "clowns" posting on Althouse to gain insight on this Democrat fiasco. Do we really want Democrats running the country for another generation?
C'mon, you know what they meant. What's wrong with not codifying legislation and just winging it if Leftists are too incompetent to earn $50,000 much less the $500,000 or $5,000,000 or $50,000,000 or $500,000,000 or $5,000,000,000 they were paid? THEY ARE GOOD PEOPLE WITH GOOD INTENTIONS WINGNUT! Not like you tax cheaters whose ass ought be in jail for the foreseeable future.
Cheapies in America always demand cut-rate prices on Federal projects and then demand perfection. Not a single person in the history of existence could have improved Obamacare because 1) Bush mucked everything up, 2) racism, and 3) the original sin America's existence.
In theory, this will only happen if the law is ambiguous as written. If the text of the law is clear, the court will defer to the text.
Except the law here is rather clear...and I have zero faith in Roberts ruling in that manner.
As long as the question is about repeal, All the Democrats need to keep the law in place is 41 Senators or the presidency.
If this decision goes against them, something will need to pass, with the new Congress the American people sent to reform the law.
Steve Uhr said...
If it was intentional then States would have been urged to adopt exchanges to avoid losing subsidies. Were they?
Whose intention are we talking about. The bill was written by many people over many months, and pulling pieces from a variety of proposals. It may have been the intention of some, but not of others. The drafters would not have seen it as their job to urge the states to do anything, and the congressmen didn't bother to read the law.
I don't suppose that mistakes would be the logical outcome of rushing a bill through without people being allowed time to read it and without input from the other party? Nancy? Harry? What do you think?
The other thing that the drafters failed to consider was that many states would try to implement exchanges but fail. Turns out a simple web site isn't so simple after all.
If it doesn't, Congress will need to step up.
Congress doesn't need to do anything. I assume, however, that it will feel enough pressure that it will choose to do something. If congress does step up, and passes a change that extends the subsidies to federal exchanges, but also includes a repeal of the individual mandate, does that put enough pressure on President Obama that it forces him to step up?
As MikeR alluded, smart person Gruber said it was intentional, to use a "carrot" to get the States to foot part of the cost. NOT A DRAFTING ERROR.
Hey, they lie to the public. Why not lie to the Supreme Court?
What is this about senators in the plural?
My impression is that only one senator was allowed to see that bill, and I do not know that he bothered to look.
The NY Times article said "non-partisan" lawyers drafted the law.
Oh, how I laughed when I read those words. The 100% Democrat-supported law was written by non-partisans. Riiiight. I laughed so hard a monkey flew out of my butt.
Four Words That Imperil Health Care Law...
In what way do they imperil the law? They are a part of the law as much as any other words. Ignoring them imperils the law, and the rule of law in general.
Remember how these same scolds, like those at the NYT, were scolding us that reading the bill was a waste of time?
"Fucking Teatards want us to read the bill! Fuck them!"
The fact NYT is writing this and not threatening Justices Kennedy and/or Roberts is telling.
As Nancy Pelosi would say:
Congress needed to pass this law so that the Supreme Court could figure out what was in it.
If I were a Democrat I would be praying for this to go down. There will be an endless stream of stories about people dying/going bankrupt because of the loss of coverage and it will expose deep schisms in the right on this issue.
As a moderate, who cares about health insurance, I hope it survives.
AReasonableMan said...
As a moderate...
Thanks, ARM! That will keep me chuckling all day.
Really? Congress will need to 'step up' to remedy this mess of a law that was INTENTIONALLY worded in the way that it was worded? Really? The Republican-controlled congress needs to step up to 'fix' a law passed by Democrats without so much as a single vote by Republicans? Really?
Argh!
If the govt was setting up a federal exchange, why would any state spend (tens/hundreds of) millions of dollars making their own exchange?
As a moderate, who cares about health care, I hope it dies a foul and horrible ( but quick ) death.
Gosh, I bet there are some typos too. That whole 'mistake' BS would sell better if Jonathan Gruber hadn't boasted of the cleverness of putting the squeeze on the states.
If I were a Democrat I would be praying for this to go down. There will be an endless stream of stories about people dying/going bankrupt because of the loss of coverage
I have no doubt that ARM's leftist politics have led him to relish the idea of people dying and/or going bankrupt so his team can score some political points, but I think most Democrats are actually well-meaning folks who just don't understand economics.
If I were a Democrat I would be praying for this to go down. There will be an endless stream of stories about people dying/going bankrupt because of the loss of coverage and it will expose deep schisms in the right on this issue.
They'd PREFER stories about double digit increases in premiums that have been submitted in multiple states this year? I bet an increase of 50% in NM alone in 2016 would help Dem chances.
And why is nobody punished by the states when their hundreds of millions of dollars exchanges go belly up? Does NOBODY audit?
Why should the GOP "step up" to rescue the Democrats from their pompous idiocy and utter disregard for the will of the people in crafting and passing the shitty law that is the ACA?
Gruber was right. The incentives were clear and deliberate.
The Democrats are nothing if not the party of creating new laws so people don't have any consequences for their own mistakes.
Does anyone doubt that SCOTUS will save Obamacare with the "right" ruling? SCOTUS is as enamored of Big Government as any other governmental entity.
Sgt Ted has it right. There is no need for Congress to step up and fix the law. Repealing it would be the best fix.
"Why should the GOP "step up" to rescue the Democrats from their pompous idiocy and utter disregard for the will of the people in crafting and passing the shitty law that is the ACA?"
I don't think they should "rescue" the Democrats at all--and by fixing the law (by replacing it with something workable, I mean) that wouldn't rescue the Democrats either. The law is poisonous enough now that only in the bluest areas are Democrats even taking credit for it, and even there their best argument is that the law is flawed but has good parts.
But Obama will be out of office soon, as will many of the ACA's architects--but the American people are still suffering under this--employers dealing with mandates, health plans made more unwieldy and expensive, individuals seeing their policies get pricier and crappier while still being subject to a mandate if they don't buy this garbage. And the GOP has an opportunity to take advantage of public opinion and offer an alternative to replace this mess with, and force the Dems to explain why the ACA is better than that alternative.
If the GOP "rescues" the country (not the Democrats) from this law, it can benefit them politically while removing a burden from the backs of the people. And maybe in the process address some of the crappier aspects of health care that the ACA didn't even touch (such as why you have no idea what your health plan will cover and what you'll owe ultimately for routine procedures).
That's better than the "it doesn't mean what it says!" excuse.
One other point that is not made in these types of articles is the current insurance business is all state based. I have licenses for Ohio, Kentucky, and North Carolina since I have clients in those three states. The law was written with the history and background that all states have strong insurance commissioners who wanted authority over their state plans.
I retract my comment doubting that the quoted healthcare lobbyist was hired by Republicans. Now that I read the whole NYT piece, I realize that of course the Republican revolving door lobbyist/ consultants are as craven as their Democrat counterparts. Big healthcare (Pharm, Hospitals, AMA and insurers) all need this thing to rake in the dough, so of course they all (like Gruber now) dance to the same tune.
'As MikeR alluded, smart person Gruber said it was intentional, to use a "carrot" to get the States to foot part of the cost. NOT A DRAFTING ERROR.' I think it's quite possible that it was a drafting error, and that Gruber's statements were not (the front of) people's minds during drafting. But how can I know? How can I know if the NYT is clearly leaving out any contrary evidence?
"I think it's quite possible that it was a drafting error, and that Gruber's statements were not (the front of) people's minds during drafting. But how can I know? How can I know if the NYT is clearly leaving out any contrary evidence?"
There's no way to know for sure, absent some memo at the time among the aides who wrote that part saying "don't forget to change the language so that people get subsidies if they're on the federal exchange" or "this provision is important as it will encourage states to set up their own exchanges in order to get subsidies". Anyone now will change their story to fit whatever narrative they need now, and there were likely several individuals involved with each part of that language. It could have been an intentional inducement for the states, and it could have been a drafting error. But what we do know for sure--and why it is important for courts to adhere to the plain language of a statute when it is clear like this--is what the language actually says.
A greater principal is at stake here--more important than whether people lose their subsidies until politicians restore them. The text of the law matters.
damikesc: They'd PREFER stories about double digit increases in premiums that have been submitted in multiple states this year? I bet an increase of 50% in NM alone in 2016 would help Dem chances.
Then add the financial cold-sweat inducing, relentless increases in deductible and OOP maximums, and...everybody's happy and healthy, right? Nothing says "affordable health care for lower-and middle-icome people" like being forced to buy health insurance and still not being able to afford health care. But their premiums are subsidized! And we can go right on jacking up the premiums, deductibles, and OOP maximums of higher-income people and businesses year after year after year in this insanely distorted market because it's...well, it says "affordable care" right there on the can, right? So it's affordable. By definition. Why do you want poor people to die?
What supporters of Obamacare never seem to grasp is that the ACA was written, not to make medical care accessible and affordable to all, but to open up new sources of growth and profit for the unholy shambolic racket that is our "health-care/insurance industrial complex". You know, those villainous corporations. To be fair, a lot of anti-Obamacare types seem to have the equally quaint belief it's all about "socialists" interfering with free-marketeers of Randian purity, instead of the cosy little joint venture of demagogues and corporate interests that it is. They also think the Republicans really really want to dismantle the mess, bless their hearts.
This drafting error was so convincing that Jon Gruber went around the country for months before that part of the law was even written proclaiming that its intent was precisely now what All Smart People say it wasn't.
So convincing that none of Gruber's colleagues noticed he was making remark after remark that turned out to be, according to All Smart People now, the exact opposite of what all of them intended.
Words are very powerful to progressives. Even the words that haven't been written yet.
The article provided an interesting peek inside the sausage factory otherwise known as Congress, but nothing in the article (accepting all of the claims as true) has much relevance to the pending Supreme Court case. The point of the article is that the senators responsible for drafting the statute didn't pay attention to what the various drafts said, in part because (they say) they never do that kind of detail work (the legislative staff is supposed to do the heavy lifting in their world),and in part because when they voted, all they had was a 'conceptual' outline of the statute. If that's true, it's surely a bizarre way to run the legislative branch of any government. But it hardly matters if some of the senators intended to draft a different statute (even less does it matter whether the 'legislative staff' intended to do so), since all the Court can deal with at this stage is the text of the law that was actually adopted and signed by the president.
The process of statutory interpretation does not involve an inquiry into what individual legislators thought they were doing in enacting a statute, and even less does it concern whether they paid attention to the words they used to frame that statute. Instead, a court will read the statute as a whole, giving the words used by Congress their usual and ordinary meaning, unless the text and context directs otherwise. If that process results in a clear and unambiguous statutory command, the interpretive analysis is at an end. If that process results in a conclusion that the statute is ambiguous, other factors come into play.
The case thus turns on whether the phrase "established by the state," as used in key provisions of the statute, is ambiguous, in a statute where the differing roles of the states and the federal government are central to the statutory design. From the oral argument, I had the sense that the Gov't was having a hard time convincing 5 justices that this statute didn't mean what it pretty clearly said. Normally, all that the proponent of an 'ordinary language' construction of a statute needs to show is that there is a rational reason explaining that the statute as adopted by Congress makes sense (i.e., serves a rational legislative goal) if it is read to mean what its words say. The Gruber videos obviously provide such a rational explanation, and it makes no difference whether any legislators are willing to say now that they signed on to it at the time.
Of course, the Supreme Court is a different kind of sausage factory, and there's no telling what their unique meat grinder will produce.
Then add the financial cold-sweat inducing, relentless increases in deductible and OOP maximums, and...everybody's happy and healthy, right? Nothing says "affordable health care for lower-and middle-icome people" like being forced to buy health insurance and still not being able to afford health care. But their premiums are subsidized! And we can go right on jacking up the premiums, deductibles, and OOP maximums of higher-income people and businesses year after year after year in this insanely distorted market because it's...well, it says "affordable care" right there on the can, right? So it's affordable. By definition. Why do you want poor people to die?
That's the damning part. If your deductible is $5,000, your insurance is absolute crap, no matter what the premium may be. Everybody is focusing on the premiums (which aren't that great EITHER) and ignoring the really bad OOP expense that is deductibles. Honestly, they aren't appreciably better than catastrophic care plans that were just not sufficient for a modern society or something.
They also ignore access (doctors don't like Medicaid patients for the same reason they don't like ACA patients) or that, shocker of shockers, that ER usage is unchanged because the "newly insured" have the same unaffordable coverage that they had in the past.
What supporters of Obamacare never seem to grasp is that the ACA was written, not to make medical care accessible and affordable to all, but to open up new sources of growth and profit for the unholy shambolic racket that is our "health-care/insurance industrial complex".
How many STILL don't believe that the law was written to bailout insurers for going along? This Progressive bill was a giveaway to the insurance companies that were once highly evil but, lately, you haven't heard much bad about them. Odd how that works.
To be fair, a lot of anti-Obamacare types seem to have the equally quaint belief it's all about "socialists" interfering with free-marketeers of Randian purity, instead of the cosy little joint venture of demagogues and corporate interests that it is. They also think the Republicans really really want to dismantle the mess, bless their hearts.
The GOP is the most pathetic party in existence. Their failure theater performances are so obviously designed to lose that it baffles the mind that anybody buys it.
A greater principal is at stake here--more important than whether people lose their subsidies until politicians restore them. The text of the law matters.
Agreed. If it was a drafting error, so be it. They wrote the law as they wrote it. We should not be in the business of deciding what they REALLY meant.
But the GOP will rush to "fix" it. Because its failure, clearly, has to be their fault, given that they didn't write it or vote for it.
Remember people hopping up and down shouting "rule of law, rule of law!" throughout the W. Bush administration? I do. One aspect of the rule of law on which I think everyone agrees is the need for laws to be clear, stable, and well-publicized so that citizens can correctly order their affairs to comply with the law. Arbitrary changes to written laws violate the concept of a rule of law, since no individual (or group of individuals) can know with certainty which actions are legal and which are not under such a regime. The law in question here was (once passed!) published widely. Individuals and indeed States took action based on the law's text and plain meaning. To decide now, after the fact, that the law's meaning must be changed in order to achieve some political end (not to prevent a violation of rights, etc) would undermine the very idea of the rule of law. What is the limiting principle for such a legal "do-over?" It can be ambiguous language, since the language here is clear. It can't be to prevent an outcome that can't be otherwise prevented nor addressed by the political and legislative process, since clearly Congress could pass any number of laws to fix or modify the current law.
Anyway add "rule of law" to the list of concepts covered by Fen's Law--when it was a useful cudgel with which to beat Republicans upholding the rule of law was existentially important to the Republic, but now that it should prevent the Court from rewriting a duly-enacted piece of legislation the Left is all to happy to ignore the very existence of any problems with the rule of law.
Affordability through subsidy, and availability through dilution. Reform in lieu of progress. In lieu of positive progress.
I agree with Hoodlum. Unless there is a typo, the language should be interpreted as written. A drafting "error" (i.e., they forgot to change it to make it more consistent with other newer provisions) is not a legitimate excuse in my mind unless there is a clear and direct conflict. Whether it is subjectively "unfair" as written is not relevant and not for the Court to decide.
damikesc said...
That's the damning part. If your deductible is $5,000, your insurance is absolute crap, no matter what the premium may be.
If your deductible is $5,000 your insurance is insurance, not a medical care prepayment plan. Set aside maybe $3,000 for your expected medical expenses for the year, figure out where you could save/borrow the other $2,000 if your expenses run that high, and count on the insurance only if something majorly bad happens.
Oh, and for God's sake, shop around for the best prices, take care of your health, and try to carry as much of that $3,000 over into next year.
They'd PREFER stories about double digit increases in premiums that have been submitted in multiple states this year? I bet an increase of 50% in NM alone in 2016 would help Dem chances.
I think I see it now. The Left expected the GOP Congress to chip away at ObamaCare. So their plan, when the sticker shock set in amoung the people, was to blame GOP tinkering with the ACA as the culprit.
Not a hard argument to sell when your base falls so easily for the "Hands up don't shoot!" and "1 in 5 campus women raped" lies.
The Left simply didn't count on the GOP being as useless as it is.
AReasonableMan said: "As a moderate..."
Thanks, ARM! That will keep me chuckling all day.
Yah I've been noticing this pattern from him on other threads too. Pretending to be a moderate before he parrots his Soros talking points. I think its in the guide they hand out at the Astroturf Meetings.
Frankly I am sure there were some politicos and drafters who took the Gruberian view regarding coercing the states into setting up exchanges, while others had no clue that such coercion was supposed to be included, and assumed that Fed and State exchanges were equally subsidized. This was a many-headed beast, and most of those heads contained brains damaged by Botox or excessive progressivism.
Nevertheless, words have consequences. And this should be a lesson to anyone who proposes a bill in excess of 200 pages.
They had to pass it before they and we could find out what's in it. They didn't know how screwed up it was, and is, and don't much care. Unless it affects them.
They don't have to "fix" anything. They couldn't write the law any other way, as mandating that the states set up an exchange is illegal coercion, so it is not a mistake.
The idea that it was a mistake is clearly Nonsense.
Roberts even said that the legality of the law would depend on state compliance. Compliance is consent and legality.
Let the abortion die
You know all that confusion because the Dems no longer had 60 votes & had to, well you know. It’s all the GOPs fault (Gurgle, gurgle).
If I were answering a prof in my law school class, I would say that, when confronted by “experts” who say they have a secret decoder ring that shows what congress really meant, in reality what matters is what Congress enacted.
Oh, wait. Not if my Prof were a Lib/Progressive!
If your deductible is $5,000 your insurance is insurance, not a medical care prepayment plan. Set aside maybe $3,000 for your expected medical expenses for the year, figure out where you could save/borrow the other $2,000 if your expenses run that high, and count on the insurance only if something majorly bad happens.
...except those were the exact policies labelled as inadequate by the same goofs now claiming that this is "affordable"
I think ARM is just pulling our leg.
We should all begin our arguments with, "As a moderate."
It's trolling at it's finest. And his concern trolling in this thread is epic.
Ignorance is Bliss: If your deductible is $5,000 your insurance is insurance, not a medical care prepayment plan.
You don't say? Well, if I'd only known that, I wouldn't have experienced sticker shock after the ACA was implemented and our deductible and OOP max skyrocketed to a level once considered appropriate to catastrophic coverage. (With, alas, a premium increase, not a premium reduction). If only I knew enough to say to myself, "Anglelyne, you silly thing, it's insurance, not a medical pre-payment plan", I'm sure it wouldn't have bothered me.
Set aside maybe $3,000 for your expected medical expenses for the year, figure out where you could save/borrow the other $2,000 if your expenses run that high, and count on the insurance only if something majorly bad happens.
[...]
Oh, and for God's sake, shop around for the best prices, take care of your health, and try to carry as much of that $3,000 over into next year.
Hey, Iib, thank you for your concern, but I doubt anyone here is in need of your pious little savings and insurance-purchasing tips. I'm a lot more worried about the financial future of certain other naïve people around here, who apparently can't tell a racket from a properly functioning market.
damikesc: Honestly, they aren't appreciably better than catastrophic care plans that were just not sufficient for a modern society or something.
They're worse - old school catastrophic care plans didn't come with "cadillac plan" premiums. IiB apparently thinks that the only people who are or will be hammered by escalating OOPs are poor dumb schmucks buying at the rock-bottom of the public exchanges, who don't know how to save money or shop for insurance.
Anglelyne said...
Hey, Iib, thank you for your concern...
I would say you're welcome, but I actually wasn't concerned, nor was I trying to express such. And I'm certainly not suggesting that the policy is properly priced for that level of OOP, nor am I in any way suggesting that the government should have been fucking around with the healthcare/insurance market to begin with.
I was just pointing out the obvious- that insurance should be for the unexpected, not the everyday expenses. It should be priced accordingly, and people should make their plans accordingly. I realize that we are far from this ideal, with the government screwing up the incentive structure every chance it gets.
Well, in fairness, the law was passed by a Clown Congress.
"We have to pass the law so we can find out what it means."
This cannot be true. Medicaid funding was the lever to get states to create the exchanges. Not just new Medicaid funding - ALL Medicaid funding. The SCOTUS said that was coercive and unconstitutional. This lessened the blow of a state not creating an exchange. And it weakened those 4 little words. But those 4 little words were, in fact, intentional.
This Brookings article says a different section of ACA provides justification for the subsidies for the federal exchanges, even if not "crystal clear":
“In focusing attention on Section 1401 (b)(2)(A) of the Act, and continually returning to it, the petitioners are engaging in a clever sleight of hand, for it is not in this Section that ambiguity lies. Rather the crucial, but less than crystal clear language, on which King should turn is found in ACA Section 1321 (c)(1)(B). This section describes what follows if a state decides not to establish an exchange or establishes an exchange that fails to meet federal standards. Then the HHS Secretary is directed to, “establish and operate such Exchange within the State” (emphasis added). The key question is whether Congress when it used the phrase “such exchanges” meant to incorporate all the features, including subsidy availability, that characterize state exchanges. It is difficult to believe that they did not, for the antecedent of “such” in this clause appears to be state exchanges that, under rules to be set by the HHS Secretary, offer qualified health plans, and qualified plans are plans that, depending on the taxpayer’s circumstances, meet certain standards and qualify for subsidies.”
Wasn't the part of the ACA penalty NOT being a tax clear. Did not the Governmental law dogs, in fact, argue the penalty was NOT a tax. And did not Roberts declare the clear language and the position taken by the government was wrong, wrong, wrong because..... if the plain language was followed the bill would die.
So, tell me again why the plain language MUST be followed.
professional drafters — skilled nonpartisan lawyers
I count at least 2 lies in this sentence fragment
Lydia, "within the state" and "by the state" are not the same thing. I can create a painting with a state while visiting there. This painting was not created by the state. Nice try, though.
I guess you still believe in "hands up, don't shoot" as well?
holdfast,
"And this should be a lesson to anyone who proposes a bill in excess of 200 pages."
Aren't you off by at least one order of magnitude here, or more likely two?
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