July 3, 201412 yr In theory, this ruling could wipe out healthcare.gov since the law had no subsidies for the Federal government. The law gave only states subsidies. But since when did the law matter? The ruling could be devastating. But probably not - the government has already provided an argument that it will only apply to the named plaintiffs and that, even though they are breaking the law, they can continue to break the law to serve the non-named plaintiffs. ObamaCare's Latest Legal Challenge - WSJ "Unlike the challenge to the individual insurance mandate, Halbig v. Sebelius involves no great questions of constitutional interpretation. The plaintiffs are merely asking the judges to tell the Administration to faithfully execute the plain language of the statute that Congress passed and President Obama signed. The Affordable Care Act—at least the version that passed in 2010—instructed the states to establish insurance exchanges, and if they didn't the Health and Human Services Department was authorized to build federal exchanges. The law says that subsidies will be available only to people who enroll "through an Exchange established by the State." The question in Halbig is whether these taxpayer subsidies can be distributed through the federal exchanges, as the Administration insists." ... So the Administration faced a choice: HHS could either obey the law, deny subsidies to the two-thirds of the U.S. population living in states with federal exchanges and thus greatly diminish Mr. Obama's legacy project. Or it could improvise a workaround—which is what it did. ... The IRS devoted only a single paragraph to its deviation from the statute, even though the "established by a State" language appears nine times in the law's text. The rule claims that an exchange established on behalf of a state is a "federally established state-established exchange," as if HHS is the 51st state. ... In other words, even if the court finds that the Administration is acting illegally, it cannot strike down the IRS-HHS rule and the executive branch will continue to ignore both Congress's law and the law of the courts. There are few if any precedents for such a remarkable argument." Here is good analysis on the Feds reaction to this case: Obama Administration Position in Halbig: Court Can Only Issue Relief to Named Plaintiffs, So We?ll Disregard It For Everyone Else | Josh Blackman's Blog Stated simply, under the government’s theory, the court can’t strike down the rule at issue. Too many people benefit from Obamacare. Even if the government is acting illegally, those policies should remain in place. ... They argue, outright, that the government is prepared to ignore the ruling, if the court were to find that the IRS rule is invalid. American Thinker's view: Blog: Gutting ObamaCare
July 3, 201412 yr Another smack down of Obamacare in court would be the perfect end to a humiliating week for Obama. Bad news for Obama is generally good news for this country - at least on the domestic front. I do wish that our president would stop embarrassing us on foreign soil, but that is a topic for another thread.
July 3, 201412 yr Author The fact that it was the Democrats were the ones who specifically agreed to keep the exchanges in the states and INTENTIONALLY not have a centralized exchange is interesting. Of course anything and everything in the bill is solely the responsibility of the national Democrats. It was only after 34 states did not set up exchanges that then the IRS made a rule to allow the Federal Government to even to do this though it was not in the original law - by design. So that explains the fiascoes of healthcare.gov a little better. It was rushed and ill-planned because it was only devised after 34 states said - "no thanks". Its not like it was being planned and worked from day 1 of the passing. Unfortunately as it seems the law is now like the big banks - "Too Big To Fail".
July 22, 201412 yr Author Ruling did come down. Subsidies under the Federal exchange (healthcare.gov) ruled invalid. Halbig Decision: Obamacare Subsidies Thrown Out - Business Insider
July 22, 201412 yr More:http://finance.yahoo.com/news/breaking-federal-appeals-court-deals-142529173.html
July 22, 201412 yr Author Some from the ruling: The crux of this case is whether an Exchange established by the federal government is an “Exchange established by the State under section 1311 of the [ACA].” We therefore begin with the provisions authorizing states and the federal government to establish Exchanges. Section 1311 provides that states “shall” establish Exchanges. 42 U.S.C. § 18031(b)(1). But, as the parties agree, despite its seemingly mandatory language, section 1311 more cajoles than commands. A state is not literally required to establish an Exchange; the ACA merely encourages it to do so. And if a state elects not to (or is unable to), such that it “will not have any required Exchange operational by January 1, 2014,” section 1321 directs the federal government, through the Secretary of Health and Human Services, to “establish and operate such Exchange within the State.” Id. § 18041©(1) (emphasis added). ... The problem confronting the IRS Rule is that subsidies also turn on a third attribute of Exchanges: who established them. Under section 36B, subsidies are available only for plans “enrolled in through an Exchange established by the State under section 1311 of the [ACA].” 26 U.S.C. § 36B©(2)(A)(i) (emphasis added); see also id. § 36B(b)(2)(A). Of the three elements of that provision— (1) an Exchange (2) established by the State (3) under section 1311—federal Exchanges satisfy only two: they are Exchanges established under section 1311. Nothing in section 1321 deems federally-established Exchanges to be “Exchange established by the State.” This omission is particularly significant since Congress knew how to provide that a non-state entity should be treated as if it were a state when it sets up an Exchange. In a nearby section, the ACA provides that a U.S. territory that “elects . . . to establish an Exchange . . . shall be treated as a State.”2 42 U.S.C. § 18043(a)(1). The absence of similar language in section 1321 suggests that even though the federal government may establish an Exchange “within the State,” it does not in fact stand in the state’s shoes when doing so. See NFIB, 132 S. Ct. at 2583 (“Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.” (citing Russello v. United States, 464 U.S. 16, 23 (1983))). The dissent attempts to supply this missing equivalency by pointing to section 1311(d)(1), which provides: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(d)(1). According to the dissent, (d)(1) means that an Exchange established under section 1311 is, by definition, established by a state. Therefore, the dissent argues, because federal Exchanges are established under section 1311, they too, by definition, are established by a state. The premise that (d)(1) is definitional, however, does not survive examination of (d)(1)’s context and the ACA’s structure. The other provisions of section 1311(d) are operational requirements, setting forth what Exchanges must (or, in some cases, may) do.3 See generally 42 U.S.C. § 18031(d)(2)-(7) (listing “[r]equirements”). Read in keeping with that theme, (d)(1) would simply require that an Exchange operate as either a governmental agency or nonprofit entity. But the dissent would have us construe (d)(1) differently. In its view, (d)(1) plays a definitional role unique among section 1311(d)’s otherwise operational provisions, creating a legal fiction that any Exchange is, by definition, established by a state, even when, as a matter of fact, it is not. That reading, however, would render (d)(1) the odd man out twice over: both within section 1311(d) and among the ACA’s other definitional provisions, which, unlike (d)(1), employ the (unmistakably definitional) formula of “The term ‘X’ means . . . .” See, e.g., 42 U.S.C. §§ 300gg-91, 18024; see also 26 U.S.C. § 4980H©. The dissent’s reading would also require us to overlook the fact that section 1311(d) would be a strange place for Congress to have buried such a legal fiction. Section 1311, after all, concerns Exchanges that are established by states in fact; the legal fiction the dissent urges would matter only to Exchanges established by the federal government. To accept the dissent’s construction would therefore transform (d)(1) into the proverbial elephant in the mousehole—the “ancillary provision[]” that “alter the fundamental details of a regulatory scheme.” Whitman v. Am. Trucking 531 U.S. 457, 468 (2001). ... Crucially, this construction does not entail ignoring the plain meaning of “established by a State” in section 1311(d)(1); here, section 1321 tells us to substitute the federal government for the state under a certain scenario. But there is nothing comparable with respect to section 36B: no analogue to section 1321 says that section 36B should be read to encompass federally-established Exchanges. Accordingly, we reject the dissent’s argument that, because federal Exchanges are established under section 1311, they are by definition “established by a State.” Instead, sections 1311 and 1321 lead us to interpret section 36B essentially as appellants do. Those provisions, to be sure, establish some degree of equivalence between state and federal Exchanges—enough, indeed, that if section 36B had authorized credits for insurance purchased on an “Exchange established under section 1311,” the IRS Rule would stand. But section 36B actually authorizes credits only for coverage purchased on an “Exchange established by the State under section 1311,” 26 U.S.C. § 36B©(2)(A)(i), and the government offers no textual basis—in sections 1311 and 1321 or elsewhere—for concluding that a federallyestablished Exchange is, in fact or legal fiction, established by a state. Moreover, as we have noted, that absence is especially glaring given that the ACA elsewhere provides that a federal territory that establishes an Exchange “shall be treated as a State,” 42 U.S.C. § 18043(a), clearly demonstrating that Congress knew how to deem a non-state entity to be a “State.” Thus, at least in light of sections 1311 and 1321, the meaning of section 36B appears plain: a federal Exchange is not an “Exchange established by the State.” The government argues that we should not adopt the plain meaning of section 36B, however, because doing so would render several other provisions of the ACA absurd. ... Much of the ruling is deals with the argument of 'standing' since the government basically claimed the appellants had no standing. So the court documents why they do have standing in detail. And it also does a de novo review so that it was not constrained by the previous record. The ruling nullifies tax subsidies under the Federal exchange. It appears without these subsidies the individual and employer mandate become mute - thus gutting the enforcement of the law in 36 states (not Kentucky). Need to look at this in more detail to understand the issue. It deals with the 8% of income limit and how subsidies impact that it appears.
July 22, 201412 yr I read that another appeals court ruled today on the same issue and went unanimously in support of subsidies. Regardless, it looks like the US Supreme Court will get to take another look at ACA.
July 22, 201412 yr Obama to defy court ruling.. White House To Ignore Court Ruling, Keep Handing Out Obamacare Subsidies | The Daily Caller
July 22, 201412 yr Author Here is the net: Halbig eliminates the individual mandate penalty ONLY FOR those in the non-state-exchange states who make less than 400% of fed poverty level (approx. $45,000 for individs, $95,000 for families) AND whose healthcare premiums would exceed 8% of income.
July 22, 201412 yr L.A. Times story on both decisions. Conflicting court rulings throw healthcare law subsidies into question - LA Times
July 25, 201412 yr Author This is the architect of ACA talking in 2012. He clarifies that States that do not set up exchanges themselves 'do not get the tax credit'. That is at the heart of the case in this tread. He mentions the 'Federal backstop'. That is where the Federal government would come in and setup a state level exchange (not one umbrella exchange). But if that happened then the citizens do not get a tax credit (and would not be subject the tax penalty if their income did not exceed certain thresholds due to the high cost).
July 25, 201412 yr Author Oh, but now - "its just a typo". https://www.youtube.com/watch?v=Mm0KZGHNS8A And its "criminal" that it has gotten this far. Talk about intimidating statements.
July 25, 201412 yr Author The other ruling is the correct one according to Wasserman Schultz - though she has wrong facts to back it up. She says the bad Republican governor of Nevada did not implement an exchange. But he did.
July 25, 201412 yr Author And it looks like Nevada will keep its Republican governor.... The winner of the Democratic Primary for Governor was 'None of the above' apparently. The second place finisher does get to go on the ballot though.
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