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http://blogs.wsj.com/washwire/2014/11/03/obamacare-premium-changes-coming-soon-but-not-by-election-day/

Obamacare Premium Changes Coming Soon—But Not by Election Day

Just after the election, insurers will send letters to millions of consumers spelling out changes in premiums for coverage under the health care law. Why not before?

Under the health law, the federal government is responsible for approving premiums for health plans in 36 states where it is running some or all of the online insurance exchanges through the HealthCare.gov website. The Department of Health and Human Services told insurers in early September they should notify consumers who hold policies with them of their new premiums for 2015 only after HHS approved the rates. HHS can’t reject the new rates, only criticize them.

Under the HHS schedule, contracts with the insurers will be signed this week, and insurers’ letters must reach consumers by Nov. 15, the first day of the new enrollment period for coverage under the health law. The final rates may also be published by the administration sooner next week, and consumers are also supposed to be able to go to HealthCare.gov to start browsing them.

The Obama administration has said the schedule wasn’t decided with an eye to the date of the midterm elections. “That is not circled on the calendar of the experts at the Department of Health and Human Services who are working on this,” said White House spokesman Josh Earnest. HHS officials said they are focusing on ensuring consumers get “the right information to choose the health care plan that best meets their needs.”

But GOP lawmakers have accused the administration of hiding financial information from households because it could be perceived unfavorably.

[...]

Several states require insurers to notify consumers of changes to their premiums at least 60 days before those changes take effect – or by Nov. 1 for plans starting Jan. 1.

One of those states, Texas, agreed not to enforce its rule this year, relieving the pressure on insurers. But others, including Georgia, Maine, Mississippi and New Hampshire, followed through with the requirements. So did California, Nevada and New York, which are running their own insurance exchanges and so are not subject to HHS rules.

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http://ziffblog.wordpress.com/2014/11/03/reflections-from-cato-halbig-and-the-isolationist-theory-of-statutory-interpretation/

Reflections from Cato: Halbig and the “Isolationist” Theory of Statutory Interpretation

On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here.

Much of the argument surrounding the merits of the Halbig decision has focused on intent: Did Congress intend to limit tax subsidies to state-run exchanges? Or were the subsidies meant to be available on federal exchanges as well, despite the statute’s language limiting subsidies to an “Exchange established by the State under section 1311.” The challengers have focused on the statute’s text, while the government’s supporters have often (not always or exclusively, but often) focused on unexpressed legislative intent. As explained here, I’ve long thought that the pro-government arguments should focus more on the text.

Textualism and Context

With that in mind, I began my remarks at Cato by setting out some general ground rules for statutory interpretation, based on Justice Scalia’s recent opinion in UARG v. EPA from last Term:

• 
  
• 
  To be sure, Congress’s profligate use of [a general term] where what is meant is obviously narrower than the Act-wide definition is not conducive to clarity. One ordinarily assumes that identical words used in different parts of the same act are intended to have the same meaning. In this respect (as in countless others), the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. . . . [T]he presumption of consistent usage readily yields to context, and a statutory term—even one defined in the statute—may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.“
  
  ...
  
  [R]easonable statutory interpretation must account for both the specific context in which language is used and the broader context of the statute as a whole. A statutory provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. Thus, an agency determination that is inconsistent with the design and structure of the statute as a whole does not merit deference.
  
  Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2441-42 (2014) (internal citations, alterations, and quotation marks omitted) (emphasis added).

Reading Justice Scalia’s language, he almost sounds like a purposivist: “overall statutory scheme,” “statutory objects,” “implementation strategies,” “broader context,” “substantive effect,” “design and structure,” etc. But Justice Scalia’s focus on intent, context, structure, object, and purpose is wholly textual. To determine the object, purpose, effect, and context of the relevant statutory provision, Justice Scalia does not look to general statements of legislators on Meet the Press or to the editorial pages of the New York Times. Indeed, he doesn’t even look to legislative history. He looks to the text of the statute—of the entire statute.

The “Isolationist” Theory of Statutory Interpretation

What the challengers are advocating, and what the Halbig panel did, is not textualism—at least not in the traditional Justice Scalia sense. Instead of focusing on context and statutory design, the challengers focus narrowly on a single isolated statutory phrase: “established by the State under section 1311″ without regard to the broader statutory language or the other 900+ pages of the ACA.

I am not sure if there is a name for the challengers’ method of statutory interpretation. In preparing for the Cato conference I began referring to it as isolationism. The challengers’ proffered interpretive theory privileges a literal, isolated reading of a narrow statutory provision. And while the directly applicable provision is read strictly and narrowly, other statutory provisions are weak and malleable in the face of the challengers’ initial reading.

The isolationist method of interpretation proceeds as follows: First, the applicable statutory phrase is read in isolation and given a “plain text” reading. That reading is then awarded a strong default preference—a sort of static friction or inertia. Second, other potentially relevant statutory provisions are examined. In other words, the interpreter looks at context. But the contextual analysis is not a neutral inquiry into statutory meaning, for the applicable provision’s plain meaning has already been decided. Rather, the question is whether there exists any plausible non-absurd reading of the secondary provision that does not conflict with the default isolationist reading of the applicable language. If such a plausible reading is discovered, then the default interpretation prevails. And then the next secondary provision is examined and the same dance is repeated until all the secondary provisions are exhausted.

An example from Halbig: The Court of Appeals was faced with a secondary provision that instructed states to enroll children in coverage “offered through an Exchange established by the State under section 1311.” Halbig Panel Op. at 29 n.10. Here’s how the Court of Appeals analyzed this secondary provision: “Although we recognize the oddity of requiring some states and not others to take this step, we do not see how it makes the statute nonsensical or otherwise meets the high threshold of absurdity.” Id.

At no point does the isolationist inquiry call for a stepping back from the canvas to look at the statute as a whole, with equal weight given to all provisions. Instead, once the initial isolated “plain meaning” is decided, context is attacked provision-by-provision to see if the initial interpretation remains plausible. But the textualist inquiry advocated by Justice Scalia and others sets its sights a bit higher than mere plausibility. Rather, by looking at context and statutory structure as a whole, the goal of statutory interpretation must be the harmonization of all statutory language—in other words, the best interpretation of the statute, not just a non-absurd one.

Forced analogy alert: To the isolationist, statutory interpretation is like a bad action movie, with the isolated “plain text” reading cast as the movie’s hero. After we meet our hero, other statutory provisions play the part of hapless henchmen. Sure, they might outnumber the hero 10-to-1, but they choose to attack him one at a time. And when they do, they are feeble and easily dispatched. They shoot at the hero over and over again, somehow always missing. But unbelievably, our hero has perfect aim whenever he lines up one of the henchmen.

Statutory interpretation is not a bad action movie! Done properly, it’s more like an ensemble hero movie: The Avengers. (Stay with me here.) Why does the isolationist cast fellow statutory provisions as enemies to be defeated? A true textualist does not view seemingly conflicting statutory provisions as enemies; they are allies. And they need to work together to figure out what the statute means and/or to save the world from Loki.

The isolationist’s strong initial default is misplaced. Statutory interpretation is a searching inquiry that does not end with one provision. That is why in UARG Justice Scalia held that the term “air pollutant” could mean different things in different sections of the Clean Air Act, despite the use of a common term and a common definition. A textual plain meaning requires context, and context requires a fair reading of the statute as a whole.

In later posts, I’ll attempt to give the ACA that fair reading and discuss some contextual problems for the challengers’ position.

A Few Additional/Responsive Thoughts

Of course, the challengers do not agree with this characterization of their arguments. Following the panel, Professor James Blumstein said that what I derisively called “isolationism” was really just a focus on the relevant statutory provisions. I think Prof. Blumstein’s comment illustrates the disagreement well. True, the courts’ task in this litigation is to interpret one phrase: “Exchange established by the State under section 1311.” But that phrase is not the only relevant phrase. Turning again to Justice Scalia:

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• Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (describing Canon #24, the “Whole-Text Canon”).

In response to a question from the audience, Professor Jonathan Adler (one of the forefathers of the Halbig litigation) responded that the challengers do look at the law in its entirety. I don’t disagree. As described above (and as I explained at the conference) the isolationists don’t wholly ignore context; rather, they give context so little weight that it fails to give effect to Congress’s structure. The purpose of the whole-text inquiry is to determine plain meaning, not to see if the rest of the statute is “absurd” in light of an already-determined plain meaning based on an isolated reading of the applicable provision.

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http://kaiserhealthnews.org/news/republican-gubernatorial-victories-make-medicaid-expansion-unlikely-in-5-states/

Republican Gubernatorial Victories Make Medicaid Expansion Unlikely In 5 States

Tuesday’s re-election of Republican governors in closely contested races in Florida, Georgia, Wisconsin, Maine and Kansas dims the chances of Medicaid expansion in those states.

Advocates hoping for Democratic victories in those states were disappointed by the outcomes, but Alaska, which also has a Republican incumbent, remains in play as an independent challenger holds a narrow lead going into a count of absentee ballots.
[...]
In Alaska, Bill Walker, an independent candidate who favors expansion, holds a small lead over incumbent Gov. Sean Parnell, who opposes it. Should Walker prevail after absentee ballots are counted, he still must get the support of his Republican-controlled legislature. About 26,000 Alaskans would gain coverage through expansion.
[...]

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http://www.nytimes.com/2014/11/06/business/republican-election-victory-seen-as-positive-for-business-but-others-temper-expectations.html

Business Leaders Cautiously Expect G.O.P. Win to Open Some Doors

...But despite plenty of public talk of more aggressive action — like a rollback of the Affordable Care Act or the Dodd-Frank rules passed after the financial crisis — lobbyists, experts on Wall Street and political veterans say the actual legislative agenda will be much more limited.

...While many of the more conservative Republicans elected on Tuesday made their opposition to the Affordable Care Act a touchstone of their campaigns, there is much less appetite on the part of business leaders for wholesale changes to the health care law.

For one thing, many of the insurance exchanges are finally working well, and businesses have adapted to the new landscape. Even more important, added demand from the newly insured is likely to increase profits in sectors like hospitals, pharmaceuticals and medical devices.....