| Healthcare Bill Part III; Obamacare | |
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| Tweet Topic Started: Mar 3 2014, 02:20 PM (48,591 Views) | |
| kbp | Mar 5 2015, 09:10 AM Post #1711 |
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A small note on the wording there, ad then I'll wonder off topic! The pro-Ocare crowd wants to claim states were deprived of something due to lack of clear notice, so to say "not giving" can be misleading. Obamacare provided the same opportunity to all states. None were denied anything. Participation thru establishment of an exchange provided the incentive or rewards of FREE MONEY, never any form of a penalizing outcome for not participating. From my understanding, Justice Kennedy noting some form of "death spiral" due to a possible absence of clear notice is finding blame for a problem developed through a compound equation. To reach the conclusion that the states were denied something, we must have: 1) Absence of clear notice The plain text is not absent. The provisions of the law the administration claims creates ambiguity are NOT absurd if followed thru on according to that plain text. There is no part of the law that sneaks a penalty for denial of something in on the states, it is their choice whether they will establish an exchange and use the tax credits provided thru the plain text. Even if you get past this hurdle, you then have the alleged damage... 2) Death Spiral His concern is that the exchanges will hike premiums too much. A big part of the reason is we're talking about one portion of the law, tax credits ONLY in State exchanges, leaves HHS exchanges open to failure because another portion of the law, HHS written regulations, creates pools that are too expensive to run. IOW, a part of the law will fail because of another part of the same law Go figure! Recall that these same regulations also apply to ALL private insurance policies today. The individual market saw increases from the regulations just as the group insurance saw them. The basic complaint Kennedy had is that the new method of pooling will not work as the law is written... period. The harm comes from the new regulations. |
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| LTC8K6 | Mar 5 2015, 09:32 AM Post #1712 |
Assistant to The Devil Himself
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http://www.powerlineblog.com/archives/2015/03/triumph-of-the-leftist-will.php Triumph of the leftist will
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| kbp | Mar 5 2015, 09:36 AM Post #1713 |
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How they'd write a ruling to keep tax credits flowing in HHS exchanges would be interesting. It seems like the options in place for such a ruling are they either have find ambiguity somehow or cry "hands off" for the present status because of the possible harm actually following the law would create to the changes in place from the law... ignore the law. How they'd UNread the plain text, necessary in the former option, appears to be a huge obstacle. Should they select the latter option, that could set a precedent for how new laws are to be written. The administration could just set policy any way they want to alter portions of a law if it works better when using other portions of the law to meet their ideological goals. I can imagine some real whoppers in the tax laws, which relates well to the IRS's conduct in this particular case! . ADD: A better wording for my comment above on ignoring the law is that they'd have to ignore part of the law to save another part of the law, and that is because of the regulations which were NOT a written part of the law... not within the actual text of the law. Edited by kbp, Mar 5 2015, 09:40 AM.
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| kbp | Mar 5 2015, 10:30 AM Post #1714 |
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Reading the opposition to get a clearer picture of what happened.... http://kaiserhealthnews.org/news/arguments-on-health-laws-future-provide-few-clues-about-supreme-court-decision/ Arguments On Health Law’s Future Provide Few Clues About Supreme Court Decision For the second time in three years, the federal Affordable Care Act went before the Supreme Court Wednesday. And before a packed courtroom, a divided group of justices mostly picked up right where they left off the last time. Once again, commentators and experts were left to wonder where Chief Justice John Roberts and Justice Anthony Kennedy, considered swing votes in the case, stand. A decision is expected by the end of June. Unlike in 2012, the current case, King v. Burwell, doesn’t challenge the constitutionality of the law’s centerpiece that requires most Americans to have health insurance or pay a penalty. In a 5-4 ruling, the court that year decided the law could continue, albeit with a twist: states could elect not to expand Medicaid. But the latest case does challenge another piece that’s pivotal to making the law work: Whether tax credits to help moderate-income Americans afford coverage can be provided in the three dozen states where the marketplace is being run by the federal government. The court’s most conservative justices seemed to side with the challengers, who say that a sentence in the law stipulating that tax credits are available only on health insurance exchanges “established by the state” means just that. In other words, credits would not be available in the three dozen states that are using healthcare.gov, the federal exchange. [That was "a sentence" identifying a provision of the law mentioned NINE TIMES.] “If Congress did not mean ‘established by the state’ to mean what it normally means, why did they use that language?” asked Justice Samuel Alito. Liberal justices, however, seemed much more comfortable with the Obama administration’s argument that the phrase encompasses both federal and state-run exchanges — and that reading the text to allow tax help only on state exchanges runs counter to the rest of the law. [Short on specific reasons there.] If they were to read the law the way the challengers argue, said Justice Elena Kagan, “there will be no customers and no products” on the federal exchange, because no one would be eligible. “When you’re interpreting a statute generally, you try to make it make sense as a whole,” she said. [BS... All are eligible to be customers. Her last sentence is like step 2 or 3 of a multiple step rewrite. Maybe it is out of context.] But almost nothing could be gleaned from the questioning and comments of Roberts and Kennedy. Kennedy had hard questions for both sides. He suggested at one point that withholding tax credits from states that failed to set up their own insurance exchanges could pose “a serious constitutional problem,” because it could disrupt insurance markets in states that do not set up their own exchanges. Giving states such an unpalatable choice would be unfair coercion by the federal government, Kennedy said. But Kennedy also questioned whether, in the absence of more specific language, Congress intended to let the Internal Revenue Service decide how to distribute billions of federal tax dollars. “That’s a lot of responsibility,” he said. The question specifically before the court is whether the IRS overstepped its authority in interpreting the law to allow tax credits in both state-run and the federal exchange. Roberts, meanwhile, was uncharacteristically quiet during the nearly hour and a half argument. In 2012, it was the chief justice who surprised many observers by joining the liberals to find the law constitutional because Congress was using its taxing power. Outside the court, standing in a light rain, those on both sides predicted victory. “It looks good for the plaintiffs,” said Michael Cannon of the libertarian Cato Institute. Cannon, who helped push the court case – and travelled the country working to persuade states not to set up their own exchanges – said he was pleased by questions about the IRS’ interpretation. “It’s absurd to give the IRS that kind of authority,” he said. But Elizabeth Wydra of the Constitutional Accountability Center, which supported the administration’s position, said she thought the arguments leaned her side’s way. “If the court follows the plain text of the law and prior precedents, then it’s clear tax credits are available to all Americans no matter what entity runs the exchange,” she said. [LMAO! She was blowing smoke just to get her name printed. What "plain text" could she be talking about? Nobody has made that case for keeping Ocare tax credits at HHS exchanges!] |
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| LTC8K6 | Mar 5 2015, 11:09 AM Post #1715 |
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Assistant to The Devil Himself
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Well, the admin constantly said the penalty was not a tax. What did the court say? "It's a tax." |
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| kbp | Mar 5 2015, 11:23 AM Post #1716 |
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In response to the petitioner's interpretation:
His more questionable response:
(a) ...we’ll send your insurance market into a death spiral That would be the HHS's "insurance market," which serves about 2.5% of the people ONLY because somebody else pays for the service provided to 85%+ of them. (b) ...We’ll have people pay mandated taxes which will not get any credit on — on the subsidies The states have the option of establishing an exchange, so they can get credit on those taxes if they so choose. (c) ...The cost of insurance will be sky-high Because of the regulations added under the authority granted HHS thru the law. Meanwhile, the absence of Medicaid expansion in some states seems more harmful when using this type of argument. Using a, b & c here... Medicaid expansion saw its death immediately in many states, those states are not getting credit for the mandated taxes involved here, and cost of health care for those not able to get Medicaid expansion coverage in those states are extreme. Knowing where Kennedy stood in the case where Roberts saved Barry with the "tax ruling, I think he was just playing devil's advocate when making these weak points ...I hope! . |
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| kbp | Mar 5 2015, 11:26 AM Post #1717 |
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Yeah, that was an OMG ruling, but I think this case would need an O...M...G level ruling to keep the tax credits flowing in an HHS established exchange. |
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| kbp | Mar 5 2015, 11:46 AM Post #1718 |
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http://www.forbes.com/sites/theapothecary/2015/03/04/7-reasons-why-obamacare-federalism-wont-lead-anthony-kennedy-to-join-the-supreme-courts-left-in-king-v-burwell/ 7 Reasons Why Obamacare 'Federalism' Won't Lead Anthony Kennedy To Join The Supreme Court's Left In King v. Burwell Today, the Supreme Court heard oral arguments in King v. Burwell, a case with significant implications for the future of Obamacare. Most of the justices’ questions proceeded along expected lines. Most notable was a series of questions by Associate Justice Anthony Kennedy, who questioned whether it would be constitutional for Obamacare to induce states to set up exchanges. If Kennedy’s fears are right—that federal subsidies for state-based exchanges are “coercive”—then he might side with the Obama administration in the case. But if you understand how Obamacare’s insurance markets work, it’s clear that Kennedy should side with Obama’s challengers. The ‘federalist’ argument advanced by Obamacare supporters It was the biggest surprise to reporters who follow health care: Kennedy’s persistent questioning on whether state-based exchanges are “coercive.” The argument is that under Obamacare, the federal government is imposing mandates and regulations on a state’s insurance market, mandates that are unworkable if they aren’t accompanied by billions in subsidies. Said Kennedy:
Gluck expounded on her theory in a Politico op-ed. If Obamacare conditioned exchange subsidies on the construction of state exchanges, wrote Gluck, that would be unfairly punitive against the states, decrying “the penalty the challengers would foist on the states—the loss of the subsidies and drastic consequences that would go with it.” Gluck admits that she and her fellow Obamacare advocates are susceptible to being called “fair-weather federalists,” or as the kids say these days, a “troll.” She’s right. 1. Can Obamacare’s insurance regulations function without subsidies? Of course they can First of all, the argument that havoc and destruction will ensue if subsidies go away is simply factually wrong. There will remain an individual mandate, forcing many people to purchase health coverage regardless of their eligibility for subsidies. It’s true that in a subsidy-free state, average premiums would likely go up, and that fewer people would enroll in Obamacare than originally hoped. But guess what? That has already happened, even with federal exchange subsidies. Obamacare’s mandates and regulations have already led younger and healthier people to stay away from the exchanges: what wonks call “adverse selection.” Indeed, enrollment in the exchanges has skewed around 25 percent older than one would expect without adverse selection. And underlying premiums have skyrocketed; our Manhattan Institute analysis found that non-group premiums increased by 49 percent in the average county.  At the Supreme Court, Obama’s advocates called adverse selection and higher premiums a disastrous, chaotic, punitive result. So, then, do they also think that the insurance markets of today, imposed by Obamacare, are disastrous, chaotic, and punitive? Another way to look at it: if today’s premium hikes and adverse selection are fine and dandy, then tomorrow’s greater premium hikes and adverse selection aren’t so bad. Let’s not forget that we aren’t talking about the entirety of a state’s insurance market, either. We’re talking about the minority of people who shop for coverage on their own, instead of getting it from their employer or the government. 2. If exchanges without subsidies wasn’t Congress’ intent, why are there no subsidies for U.S. territories? The Obama administration—and Gluck—make the argument that Obamacare’s insurance regulations, without subsidies, is an obvious disaster that Congress would never have intended. Well, then, why did Congress force U.S. territories like Guam and the Virgin Islands to do exactly that? These U.S. territories are subject to all of Obamacare’s insurance regulations, but get none of the subsidies. In Guam, premiums went up by 35 to 55 percent—not dissimilar to what they did in the mainland—but no one disputes Congress’ intent in this area. In addition, Obamacare originally contained a provision called the CLASS Act—a national plan for long-term care insurance championed by Ted Kennedy that even Kathleen Sebelius called “totally unsustainable.” Part of the government’s argument is that Congress could never have intended to create an unworkable health care program. Then why did Congress do so in the case of CLASS? 3. Is awarding trillions of dollars for state exchanges ‘punitive?’ No Then there’s the fundamental absurdity of the argument that spending trillions of dollars on participating states is “punitive.” It’s a carrot, not a stick. The federal government is saying: if you set up an exchange, we’ll send you lots of taxpayer dollars. A punitive system would be: if you don’t set up an exchange, we’ll stop sending you the taxpayer dollars you are already receiving. That’s what Obamacare tried to do with its Medicaid expansion; it said to states, “if you don’t expand Medicaid, we’re going to take away the Medicaid funding we’ve been sending you since the 1960s.” That was punitive, and it was overturned 7-2 by the Supreme Court in 2012. Indeed, the challengers’ lawyer, Michael Carvin, pointed out that the system endorsed by the Supreme Court in that case—giving states the option to expand Medicaid and receive subsidies—would be unconstitutional as well under Gluck’s theory. If Congress is being punitive when it encourages states to set up exchanges by offering subsidies, then most of what Congress has been doing since 1937 is illegal. For example, the No Child Left Behind education reform conditions federal education subsidies on states that adopt various reforms and meet various criteria. If Obamacare’s supporters think the challengers’ case is a violation of federalism, so is every federal law that conditions federal subsidies on local action. Maybe we should render all those laws unconstitutional. But I don’t think that’s a result that Obamacare’s supporters want. 4. Are Obamacare’s insurance regulations punitive? Yes Then there’s the question of remedy. If the Supreme Court wants to argue that Obamacare’s insurance regulations are punitive, the remedy isn’t to appropriate trillions of taxpayer dollars that Congress didn’t authorize. It’s to overturn the insurance regulations that the Court considers punitive. As Randy Barnett puts it in the Washington Post’s Volokh Conspiracy, under the Obama administration’s framework, “it is the latter expressed and unambiguous regulations that will cause the ‘coercive’ death spiral.”  5. Why did eight states argue that they prefer not to set up exchanges, even without subsidies? If exchanges without subsidies are such a devastatingly coercive way to run an insurance market, why did eight states file amicus briefs in favor of the challengers, arguing that they did not want to build exchanges and didn’t want subsidies? Clearly these eight states didn’t find such a regime oppressive, or they wouldn’t have voluntarily chosen it. One such brief was submitted by the states of Oklahoma, Alabama, Georgia, Indiana, Nebraska, South Carolina, and West Virginia. “Significantly,” they wrote, “the federal government’s payment of a subsidy—for even a single employee—triggers costly obligations for employers within that State (including the States themselves), placing such states at a competitive disadvantage in employment,” due to Obamacare’s employer mandate. In addition, the law’s individual mandate has less bite in a subsidy-less environment, due to the fact that the individual mandate only applies in instances where someone’s net premium costs are below an income-related threshold. 6. Obama’s Solicitor General didn’t embrace the faux ‘federalism’ argument President Obama’s Solicitor General, Donald Verrilli, was asked by Justice Samuel Alito whether he agreed with the ‘federalism’ argument. “If we adopt Petitoners’ interpretation of this Act,” asked Alito, “is it unconstitutionally coercive?” Responded Verrilli: “I think that I’m not prepared to say to the Court today that it is unconstitutional. It would be my duty to defend the statute and on the authority of New York v. United States, I think we would do so.” 7. In the Affordable Care Act, ‘state flexibility’ is a lie Oh, and while we’re on the subject of Verrilli. In oral argument, Verrilli several times made mention of the ACA’s citation of “state flexibility.” The challengers’ reading of the law, he says, “makes a mockery of the statute’s express textual promise of state flexibility.” Elsewhere, he says that “this statute is designed to afford state flexibility. State flexibility. It would be an Orwellian sense of the word ‘flexibility’ to use it in the manner that Petitioners say the statute uses it, because it’s the polar opposite of flexibility.” Do you know what is the “polar opposite” of state flexibility? Obamacare. The law imposes a one-size-fits-all regulatory framework on states that enjoyed broad sovereignty in this area for the previous 234 years of American history. Indeed, the most novel aspect of Obamacare, as a matter of law, is the degree to which it undermines state flexibility by creating an entirely new layer of federal insurance regulation. And yet the President’s top lawyer is arguing that “state flexibility” is the reason why Obamacare has been implemented in the way it has. Is Kennedy inclined to side with the Obama administration? Probably not All this matters, of course, because Kennedy is regularly one of the swing justices on the Supreme Court. In order for the Obama administration to win, either Kennedy or Roberts has to side with the four members of the predictably pro-Obama side of the Court. When questioning Michael Carvin, Kennedy said: “It may well be that you’re correct as to these words [in the statute prohibiting subsidies for federal exchanges] and there’s nothing we can do. I understand that.” This may signal that while Kennedy is interested in this issue of federal coercion of the states, he may not think it prevents a favorable ruling for the challengers in this instance. So instead of worrying about Kennedy, you should focus all of your SCOTUS speculation onto Chief Justice John Roberts. . |
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| kbp | Mar 5 2015, 01:22 PM Post #1719 |
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 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/avoiding-constitutional-avoidance/ Avoiding constitutional avoidance From questioning today in King v. Burwell, there is quite a buzz that Justice Kennedy appears concerned about whether interpreting the ACA to deny subsidies to citizens of states with federal exchanges would unconstitutionally coerce states to set up their own exchanges. The alleged coercion would result from the damage caused to the insurance markets of these states by the other mandates in the ACA — for example, by “community rating” that restricts the ability of insurance companies to set their rates according to actuarial risk, and “guaranteed issue,” that is, preventing carriers from refusing insurance based on pre-existing conditions. The concern is that, because these provisions absent a subsidy would cause a “death spiral” in those states, states would be unconstitutionally coerced to setting up their own exchanges lest their insurance markets be destroyed. Therefore, it is contended, under the doctrine of “constitutional avoidance,” the ACA should be interpreted to avoid this unconstitutional result and allow the IRS regulation to stand so subsidies will flow to the states. Readers may note that I have not previously opined here on the merits of King v. Burwell. I have remained silent because there were no constitutional issues involved upon which I considered myself expert, and I was not prepared to offer an expert opinion on the statutory construction question presented by the case. I freely admit that I hoped and believed that the challengers of the IRS regulation had the better argument, but I remained open to arguments to the contrary, and was unprepared to take a public position on the question presented. Nor did I file or join any amicus brief in the case. But the invocation of the constitutional avoidance doctrine starts to trench into the constitutional domain in a particularly annoying way. Here are just some of the concerns raised by employing this doctrine now to save the IRS regulation. 1) As a threshold matter, this constitutional concern seems misplaced in the case that is before the Court. First, 8 States filed amicus briefs in support of petitioners, saying they don’t want exchanges OR subsidies — so obviously those States aren’t being “coerced.” Second, neither party in this case has ever raised the constitutional concern, so we lack adversarial briefing on this issue. Third, if the relevant wording of the statute is unambiguous and this wording exposes the statute to constitutional attack in some later case, then so be it. This is similar to later Origination Clause challenges to the “individual insurance mandate” cum “option to buy insurance or pay a modest tax” that could only be brought once it was established that what looked like a Commerce Clause “penalty” was really a noncoercive tax. We must take up these matters one step at a time. 2) But suppose that a State later raises a constitutional coercion claim: How does that support the IRS regulation making the subsidies available on federal exchanges at issue in this case? Assuming there is a “constitutional concern,” what’s the proper remedy? Do you rewrite the statute to make subsidies available in states that don’t establish exchanges, or do you strike down the federal insurance regulations that allegedly create the “death spiral” and threaten to “destroy” state insurance markets unless states set up exchanges? It is the latter expressed and unambiguous regulations that will cause the “coercive” death spiral. To remedy the adverse affect of these regulations, should the Supreme Court judicially authorize billions of dollars in subsidies that Congress refused to authorize? 3) The supporters of the government have urged the importance of “state flexibility.” Yet states will have more flexibility if the Court later invalidates the community rating and guarantee issue requirements as unconstitutionally coercive (unless Congress provides subsidies). If the Court does that, states would be able freely to choose between (a) setting up their own exchanges + Obamacare regulations + federal subsidies to pay for them OR (b) having a federal insurance exchange without subsidies, but no costly guaranteed issue and community ratings regulations, which is what what makes the federal subsidies necessary. 4) This is essentially the same remedial option that Justice Kennedy and the four other justices embraced in their NFIB dissent: with respect to Medicaid, the remedy should be to invalidate the Medicaid expansion, not to invalidate the condition between the new and old Medicaid funds. Moreover, Justice Kennedy and the other dissenters further argued that the invalidity of the Medicaid expansion (together with the unconstitutional individual mandate) required invalidating the whole Act as non-severable. 5) Thus, if any justice thinks the coercion of states is a serious constitutional problem, the best way to “avoid” it is to limit subsidies to exchanges “established by the state,” and then invite states who feel coerced to choose to bring a coercion challenge in the future. Should such a challenge be brought, the Court could at that time find the community-rating and guaranteed-issue regulations (which are not now before the Court) to be unconstitutionally coercive in states that decide not to establish exchanges (and assess the severability consequences of that invalidation).
But this then returns us to where the focus of this case has been all along: does the meaning of the ACA restrict subsidies to “exchanges established by a State” or not? And that is the statutory construction question presented by King v. Burwell on which I still do not wish to opine. Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014). . Edited by kbp, Mar 5 2015, 01:23 PM.
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| kbp | Mar 5 2015, 01:33 PM Post #1720 |
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From NYTimes...think regulations! http://www.nytimes.com/2015/03/05/upshot/even-with-an-unfavorable-court-ruling-much-of-obamacare-would-live-on.html Even With an Unfavorable Court Ruling, Much of Obamacare Would Live On The case before the Supreme Court this week will not wipe Obamacare off the books. Unlike the case the court considered in 2012, which could have erased the Affordable Care Act entirely, this one concerns the application of only one provision of the law, and only to certain states. A ruling for the plaintiffs in the case, King v. Burwell, would carry huge consequences in many states, but 15 million of the people estimated to get insurance under the law would still get it, according to an Urban Institute estimate. The list of policy changes that would be untouched by any legal ruling is very long. The law’s Medicaid expansion, now covering more than nine million poor Americans, will endure. Regulations on health insurance, limiting insurers’ ability to impose lifetime caps on coverage or exclude customers who have pre-existing illnesses, will remain. Young adults will still be able to stay on their parents’ insurance until they reach 26. Major changes in the way Medicare pays doctors and hospitals, designed to make health care safer and more efficient, will continue. Workplaces will still need to provide places for lactating mothers to pump breast milk. Chain restaurants will still need to publish the calorie counts of their menu items. Drug companies will still need to report the money they pay to doctors. Taxes on wages and health insurance and medical devices will remain in place. Even the law’s expansion of insurance coverage to the uninsured — the piece directly challenged by the lawsuit — will not completely evaporate. If the law’s challengers win in court, subsidies that help middle- income people buy insurance in as many as 37 states could disappear. The result, according to an Urban Institute estimate, is that about eight million fewer people would have health insurance in 2016 than would if the law remained untouched. But that same model estimates that, even with a decision in favor of King, the law would still reduce the number of uninsured Americans by nearly 15 million people. And a large majority of Americans receive their health insurance from either an employer, Medicare or Medicaid — all systems that would experience little disruption from a court ruling. That means that, even in the worst case for Obamacare, with a win for the King plaintiffs followed by no congressional, regulatory or state policy action, the law would still reduce the number of uninsured Americans by about two-thirds of what it would accomplish unchallenged. Moreover, some policy changes could mitigate the impact of a decision for the plaintiffs. As my colleague Michael Shear has pointed out, although the Obama administration is promising no direct action in the aftermath of a ruling, it is likely that there are actions they would take to ease the transition for states that want to preserve their subsidies. [They have a chart with very questionable numbers, but the point of the article remains.] A Reduction, Not an Erasure If the Supreme Court rules to eliminate insurance subsidies in certain states, the number of uninsured Americans would rise. But it would still be lower than without the Affordable Care Act. |
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| kbp | Mar 5 2015, 01:49 PM Post #1721 |
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http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/things-we-learned-at-todays-oral-argument-in-king-v-burwell/ Things we learned at today’s oral argument in King v. Burwell By Jonathan H. Adler March 4 at 11:28 PM Now that I’m back on Ohio, here are some additional thoughts and observations about today’s oral argument in King v. Burwell. One should never read too much into oral argument, but the questions the justices ask and how they respond to the advocates can sometimes provide a window on how they see the case. With that in mind, here are some of my observations. Standing is unlikely to derail the plaintiffs’s case. In the weeks leading up to the argument, there were several press reports raising questions about some of the plaintiffs’s continued standing. Yet only one plaintiff need have standing for the court to have jurisdiction, which is why cases like this are filed with multiple plaintiffs. The issue was raised by Justice Ginsburg at the outset of the argument, but it did not appear to gain any traction, particularly after the Solicitor General effectively conceded that he had no basis for questioning whether there was standing to challenge the IRS rule. Justice Kennedy is not buying the government’s textual arguments. Justice Kennedy may have said some things which were encouraging to the government (see below), but he expressed tremendous skepticism of the SG’s efforts to make textual arguments in defense of the IRS rule. When the SG noted that Section 1401 does not merely reference exchanges “established by the State,” but instead says “established by the State under 1311,” Justice Kennedy cut him off noting that the SG’s argument was heading in the “wrong direction.” The SG flubbed the drafting history of Section 1401. When the SG turned to explaining the origins of the phrase “established by the state” as it appears in Section 1401 of the Act, he got his facts wrong. The SG claimed that the language came from the Senate Finance Committee, and was not added at the last minute: “The language here in 36B was not the product 5 of some last-minute deal, it wasn’t the product of scrambling at the end.” What the SG failed to acknowledge, however, is that Section 14o1 refers to exchanges “established by the State” in two separate places, and one of those references was “added at the last minute,” as Michael Cannon and I discussed in our amicus brief. This matters because if all Congress sought to do was reference exchanges established under Section 1311, there would have been no reason to add this additional language, and the SG was able to offer no credible explanation for why this language is there. Justice Kennedy is unlikely to defer to the IRS interpretation. Late in the argument, Justice Kennedy asked the SG whether a potential conflict among statutory provisions is sufficient to create an ambiguity worthy of Chevron deference. The SG certainly thought it was, though it’s worth noting that this question splintered the court in a case last term. At this point, however, Justice Kennedy threw cold water on the idea that the IRS should receive deference:
(Some on) the court have thought about remedy. In discussing whether states had received adequate notice of the conditions placed on tax credits, Justice Alito asked the SG whether the court could stay its mandate, should it invalidate the IRS rule, so as to provide states and the federal government time to respond to the ruling and ameliorate any potentially disruptive consequences. In response, the SG acknowledged the court could take such a step, and that a stay could help. Said the SG “if that’s where the court is going and that’s what the court thinks the proper disposition is, that would reduce the disruption.” Federalism is the federal government’s best hope, and that makes the federal government uncomfortable. Justice Kennedy may not have shown much sympathy for the federal government’s textual arguments, but he did seem open to the idea that interpreting the statute as urged by the plaintiffs could raise federalism concerns. In particular, he suggested it may be impermissibly coercive to condition tax credits — and whatever protection such subsidies provide against adverse selection in the individual health insurance market — on state cooperation with federal policy. Justice Kennedy’s questions suggested he might be a fifth vote to uphold the IRS tax credit rule on the grounds of “constitutional avoidance.” That is, by upholding the rule, the court could avoid a result that is constitutionally problematic. Randy noted some of the problems with adopting that approach to this case below. I would also add that such a decision would implicitly call into question existing court precedents. In New York v. United States, for example, the court upheld conditional regulations that threatened to impose highly disruptive conditions on private industry in non-cooperating states — specifically those firms that produce low-level radioactive waste, including hospitals and medical research centers. This, unlike the LLRWPAA’s “take title” provision raised no constitutional problems, the court held in New York, which would seem to cover the sorts of federalism concerns raised here. Although the SG openly encouraged the court to consider whether constitutional avoidance concerns would support the government’s textual analysis, he also stopped short of embracing the underlying federalism concerns. Indeed, the SG said that the government could defend the constitutionality of conditioning tax credits on state cooperation under current law, and cited New York. The SG’s reticence about the federalism arguments is totally understandable because the SG’s office is well aware of the threat such arguments could pose to other federal programs. Just last month Maine filed a cert petition in Mayhew v. Burwell challenging conditions placed upon the continued receipt of Medicaid funding as unconstitutionally coercive under NFIB. A federalism holding in King would strengthen Maine’s arguments, and bolster the arguments of litigants in pending cases, such as Ohio’s recent ACA challenge and litigation against the EPA’s interpretation of Section 111 of the Clean Air Act. |
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| kbp | Mar 5 2015, 01:52 PM Post #1722 |
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http://www.wsj.com/articles/scott-pruitt-a-state-reply-to-justice-kennedy-1425513344 A State Reply to Justice Kennedy We are not children who must be protected by the federal government from making choices. By Scott Pruitt The Supreme Court heard oral arguments Wednesday in King v. Burwell, a challenge to ObamaCare. At issue is wording in the 2010 Affordable Care Act stipulating that premium tax credits—i.e., federal subsidies—are available for people who enroll in ObamaCare “through an exchange established by the State.” In the hours since oral arguments, much of the talk has centered around Justice Anthony Kennedy ’s suggestion that “from the standpoint of the dynamics of Federalism . . . there is something very powerful to the point that if [the challenger’s] argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral.” In other words, Justice Kennedy was asking, if Congress did in fact condition ObamaCare’s tax credits on a state having set up an exchange, does that amount to an unconstitutional coercion of the states? In short: no. First, in the last ObamaCare case, NFIB v. Sebelius (2012), the Supreme Court said a statute is coercive only if it amounts to “a gun to the head” that “leaves the States with no real option but to acquiesce.” Here, we know that states had an option not to acquiesce in establishing health-care exchanges because they did not, as a matter of fact, acquiesce. Compare and contrast this with the Medicaid expansion at issue in NFIB v. Sebelius, where no state had refused the expansion, precisely because it was so coercive. There is no merit to the argument that the states were unaware of the consequences of refusing to establish an exchange. Oklahoma, for example, where I am attorney general, sued the Internal Revenue Service months before making its decision to decline to set up an exchange, arguing that the ObamaCare tax credits and subsidies could not be given in Oklahoma. Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act. Likewise, in January 2012, seven states, including Virginia, Maine and North Dakota, asked the federal government for “a written legal opinion from the Office of the Attorney General or a declaration from a federal court certifying that the federal government is authorized to establish an exchange under federal law, and detailing the authority of the federal government in all operational aspects of the exchange, including, but not limited to the authority to administer premium tax credits.” Those seven states were aware of the possibility that the IRS might have no authority to grant tax credits in states that declined to establish an exchange. Yet in late 2012 Virginia, Maine and North Dakota each declined to establish an exchange. Second, there is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation. This sort of “well, Congress did such a bad job that states have no choice but to step in and bail Congress out by acquiescing” argument is, as U.S. Solicitor General Donald Verrilli put it Wednesday, “novel.” That is precisely why the federal government never made this argument in any brief, and why Mr. Verrilli was quick to distance himself from it at oral argument. Third, this sort of federal program isn’t antithetical to federalism, it is federalism. As we explained in our amicus brief to the court, this carrot-and-stick approach is found in dozens of federal programs sprinkled throughout the United States Code. The states are not children that the federal government must paternalistically “protect” from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices. Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make. So to Justice Kennedy I say this: King v. Burwell isn’t about protecting the states from their choices, it is about allowing coequal sovereigns to make their choice and bear the consequences of that choice. That is accountability, and that is federalism at work. Mr. Pruitt is the attorney general of Oklahoma. . |
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| kbp | Mar 6 2015, 01:46 PM Post #1723 |
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...“If you’re right — if you’re right about Chevron, that would indicate that a subsequent administration could change that interpretation?” Roberts asked. ...So one way to look at Roberts’s question is this: If the Obama IRS giveth, can the next president’s IRS taketh away? Looks to me like Roberts is asking if any administration can just rewrite it as they please, that even if you find possible ambiguity, you're still stuck searching for proof of what INTENT Congress had in mind ...that INTENT the IRS under this administration is evidently claiming to have knowledge of, but will not share with us. . Edited by kbp, Mar 6 2015, 01:47 PM.
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| kbp | Mar 7 2015, 10:46 AM Post #1724 |
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Was Roberts forcing Verrilli to play his hand on the ambiguity issue, showing that it is not a final outcome if they go that route, that the GOP could also rewrite the law if they hold control of the administration. ...Mr. Verrilli, resisting a victory that might vanish in 2016, urged the court to rule on the basis of the statute itself. How Verrilli gets them to UNread the plain text there - nine times - is a mystery. |
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| kbp | Mar 7 2015, 11:22 AM Post #1725 |
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The ONLY market subject to the "death spiral" would be the market within the exchange, though there could be harm also to the overall individual market (a state pool could help it). The imposition from the laws regulations would be the factor creating "coercion." The coercion is from a combination of the laws provisions: exchanges and regulations. If you go this "avoidance" route, it seems to me it should go the other way. If absence of Part A of the law, federal subsidies, makes another Part B, exchanges, a problem, then how can they say too bads left in place provides a good outcome? I wonder if this was mentioned or why it may not have been or how I'm incorrect????? |
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