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[AntoneM]

You support the ability for Congress to shutdown parts of the government using people's actual income as a bargaining chip for negations on unrelated matters?

I don't think anybody wants a shutdown. But I do support Congress using its power over appropriations to compel the president to fulfill (or prevent the president from avoiding) his Constitutional obligation to "take care that the Laws be faithfully executed."

So, basically, yes; you support Congress in withholding funding (using it's power over appropriations) until they get their way.

 

[Black Mamba]

As I said, a condition to raising the argument resolves it. If your issue is resolved before it can be raised, then it isn't a winning issue--in fact, it never becomes an issue, period. This is a straightforward point, but because you insist on contradicting it, let me explain in more detail.

This is 100% wrong. Numerous SCOTUS cases have gone like this where one side says "even if you don't agree with our argument, which we do believe in, there is still this issue even if you decide against us for why you should still side with us." Numerous cases are like this. Hell, the last ACA case was like this with Roberts adopting the tax argument which the gov't didn't really argue in favor of but hinted at should he rule against their spending power argument.

The principal question in King is whether the IRS rule permitting credits on FFEs is permissible in light of the statutory provision under which the IRS purports to act. In answering this question, the Supreme Court will rely primarily on the doctrine first established in Chevron U.S.A. v. Natural Res. Def. Council, Inc.. That doctrine provides that, in determining whether an agency regulation is lawful, a court engages in a two-step process. Under the first step, the court determines "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." If the court answers that question in the negative, then it must further determine "whether the agency's answer is based on a permissible construction of the statute." Assume, for present purposes, that the challengers lose the case if they lose on that first question.

The issue you keep trying to raise is the doctrine stated in Pennhurst State School and Hospital v. Halderman. In that case, the Court explained, "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously" (citations omitted). This language demonstrates several problems with the issue you're trying to raise: first, you can see that the doctrine only applies when a state "accepts the terms of the 'contract'" (emphasis added). Where a state rejects the terms of the "contract," there is no Pennhurst problem, because its acceptance is a precondition for applying the doctrine. Second, even assuming that Pennhurst is relevant to this case, the requirement is that Congress impose conditions "unambiguously"--the same standard used in step one of the Chevron analysis. In other words, if the plaintiffs win at Chevron step one, they win on Pennhurst.

No, that's not how it works. If the plaintiffs win at Chevron, they do not win at Pennhurst automatically. Chevron is arguing about what the statue says. Pennhurst argues what the statute says is irrelevant if such and such occurs. Do you understand the distinction? You can win Chevron and lose at Pennhurst. They are not incongruous. They are countless SCOTUS cases that have done this.

Even Adler agrees that it's possible! --- "I've said if the plaintiffs have to lose, I hope they lose along those lines," said Jonathan Adler, a law professor at Case Western Reserve University, in a podcast on the case last week. ---

Regarding your argument at Pennhurst, the fact that it was an acceptance of funds doesn't matter to me. The concept behind Pennhurst is what matters. What this case would do is expand that ruling, as it should IMO, thanks to federalism. The rulling in Pennhurst has a logical conclusion and this one fits in that. It's probably the first case like it (in terms of rejection of federal contingencies) but the logic still follows and I'd like to see the Court uphold federalism here.


Anyway, I think this is a good summary of Pennhurst's application here: http://www.vox.com/2015/3/3/8139615/could-pennhurst-offer-a-supreme-court-win-for-both-obamacare-and

But you haven't mentioned Pennhurst. Instead, you mentioned a later case that applies the doctrine, Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy. In that case, after quoting Pennhurst, the Court formulates the test somewhat differently: "we must view the IDEA from the perspective of a state official who is engaged in the process of deciding whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevailing parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regarding the liability at issue in this case." But this is simply a different way of saying what Pennhurst said. When the Court refers to "the perspective of a state official," it isn't saying that courts should poll actual state officials; it isn't inviting courts to admit evidence of what state officials understood the statute to mean. If it were, it would have mentioned such evidence in the remainder of its opinion or remanded to the district court so such evidence could be admitted, but it does neither. It's simply creating a hypothetical character (similar to the ubiquitous "reasonable person") as an analytical vehicle. The question remains, having accepted the deal offered by Congress, is such-and-such requirement clearly (or unambiguously) one of the conditions imposed by the offer? But because the states with FFEs in King rejected the federal government's offer, this case has no application here. (And, in any event, the requirement is that the restriction be unambiguous under both tests, so if it satisfies one, it satisfies the other.)

You are right, I wanted to quote Alito quoting Pennhurst and the more modified test because I thought it was more relevant (Rehquist is no longer on the Court, after all).

your state official thing is wrong for this reason. The IRS made a rule stating the subsidies are on the federal exchanges. But let's play by your game. Let's say a law was passed saying states could accept federal highway funds and somewhere in there it says states set up a DMV website if they don't have one. But the Executive Branch explicitly tells them to ignore that and it won't be enforced. So then 2 years later the federal gov't sues Alabama for not having a DMV. Will you side with the feds over the state? The Federal Gov't is allowed to lie about its actions toward a state and punish them? It's a preposterous notion.

Furthermore, we have states that filed a brief stating they were unaware of the conditions!

Yet you offer no citation, nor could you. Needless to say, your ipse dixit carries little persuasive force.

I cannot cite anything because this specific issue has never come up to the SCOTUS (and still might not if this case loses on Chevron) but my argument is the logic in Pennhurst and cases that follow would logically come to the same conclusion. The rule should be expanded. I'm making an argument based on Pennhurst.

Not at all; the different treatments make perfect sense. It's unfair to hold a person who accepts an offer to obscure terms included in the offer, just as it would be unfair to hold a person whose offer has been rejected to an obscure term in the rejected offer simply because the term was obscure. What matters in the latter case is that the offer was rejected, not that the term was obscure. If you don't believe me, go reject a contract offer that includes an ambiguous term, then see what court will compel the offeror to perform the term on account of its ambiguity.

The relationship between the Federal Gov't and States is not like you and me or company. Such a comparison is absurd. These "obscure" terms have profound effects on people, economies, etc.

Regarding your first paragraph, I'm not sure I can make my case any better than I already have. Your reliance on "context" is empty--you think that the fact that the statute includes other words is enough to change the meaning of the words used in 36B. I've addressed the context of the statute pretty thoroughly, showing that, at worst, it doesn't support the government's argument.

Uh, in Yates the meaning of the words was clearly changed.

Regarding Yates, Alito concurred. He didn't dissent.

He dissented on that specific point. It was 8-1 in which he didn't join.

You ask why Congress would set up an Exchange doomed to fail. There are a number of possible responses: first, Congress might not think a subsidy-less Exchange would fail or otherwise threaten the insurance market in a state.

this is bullshit. The entire point of the subsidies was the ensure against failure of the marketplace. Literally, that's the point of them.

Second, Congress might have only included a fallback exchange to avoid the argument that it was commandeering states (which is a far more plausible explanation for the proliferation of the phrase "established by the State" throughout the statute than the government's "term of art" argument, btw).

This argument is nonsense. Without the subsidies, Congress is telling states "establish your exchange or we'll set up one that will destroy your market and economy," which we learned in South Dakota v Dole is coercion and thus not legal.

This argument only works if the subsidies are included in the federal exchanges.

Third, Congress might have assumed that the deal it was offering to states to establish their own exchanges was so good that none would reject it (and there is extra-textual evidence--your favorite kind, I know--to support this view).

uhhhh, are we reading the same things. Your first link rejects your position here. I'll admit no one expected the type of opposition that came out after the passage, but that's why they put the federal exchanges in. They're there as a just in case.

How does establishing these federal exchanges without subsidies lead to this third claim? If the deal is so good, why put in the language for federal exchanges at all The existence of these exchanges literally make your argument here wrong.

The Court has said Congress would not pass a law they intend to fail. Congress knew a federal exchange without subsidies would fail (and don't even try to argue otherwise, they had countless actuaries and economists tell them so as well as an established market in NY to show it). So Congress cannot intend to make an exchange that would fail unless it's used as a threat to coerce the states, in which case it's illegal.

So once again, we're at the same point. Why create the possibility of exchanges without subsidies? It makes no sense, legally or practically.

 

[Black Mamba]

Lobbying the Supreme Court



Interesting times.

In fairness, there literally is no Plan B for the White House. A ruling against them on King leaves them with no alternatives. There is no executive power I'm aware of that can fix the situation other than to say the IRS will simply ignore the ruling...which would not end well.

Unless I'm missing something, I've yet to see a single argument with a workaround the Executive could take.

It would be the most affect a SCOTUS case directly has on the economy...ever? I can't recall the last time they rules on something that actually changed the economy henceforth to such an extent. You can see why anyone would lobby them.

 

[benjipwns]

This argument is nonsense. Without the subsidies, Congress is telling states "establish your exchange or we'll set up one that will destroy your market and economy," which we learned in South Dakota v Dole is coercion and thus not legal.

This argument only works if the subsidies are included in the federal exchanges.

But Congress did destroy the States' markets irregardless of if they setup an exchange or not. So it's not a threat as much as it is an offer of assistance if a state is proactive.

 

[Black Mamba]

But Congress did destroy the States' markets irregardless of if they setup an exchange or not. So it's not a threat as much as it is an offer of assistance if a state is proactive.

yeah, not playing the libertarian game here.

By "destroy" we mean basically render the marketplace non-existent. As in, almost no one buys individual insurance.

 

[Fenderputty]

So, basically, yes; you support Congress in withholding funding (using it's power over appropriations) until they get their way.

Yeah I thought that was a lot of words to just say, "Yes I do"

 

[benjipwns]

yeah, not playing the libertarian game here.

By "destroy" we mean basically render the marketplace non-existent.

Yeah, okay...so how are we playing the libertarian game by agreeing?

 

[benjipwns]

Maybe Hillary Clinton Should Retire Her White House Dreams

Perhaps Hillary Rodham Clinton shouldn't run for president.

Maybe she should stay at the Bill, Hillary & Chelsea Clinton Foundation, where the former secretary of State could continue her life's work of building stronger economies, health care systems, and families. Give paid speeches. Write best-selling books. Spend time with Charlotte, her beloved granddaughter.

Because she doesn't seem ready for 2016. Like a blast of wintry air in July, the worst of 1990s-style politics is intruding on what needs to be a new millennium campaign: Transparent, inspirational, innovative, and beyond ethical reproach.

....

This is another Clinton trope: Deflect attention from their wrongdoing by pointing fingers at others—as if two wrongs make a right and they had never promised to set a higher standard.

...

But here again is a reminder of the 1990s: When cornered, the Clintons denied facts and demonized detractors.

The most obvious example is Bill Clinton's lying about his affair with a White House intern. "It depends on what the meaning of the word 'is' is," he said. Less remembered is an independent counsel's finding of "substantial evidence" that then-first lady Hillary Rodham Clinton lied under oath about her role in the 1993 White House travel office firings.

Many senior Democrats are angry, though not yet mad enough to publicly confront the Clintons. "This story has legs as long as the election," said a Democrat who has worked on Capitol Hill and as a presidential campaign manager. "She will be tripping over this crap until the cows come home."

Another presidential campaign veteran who held a Cabinet-level post in Bill Clinton's White House fretted out loud about the fact that the former first lady is breezing toward the Democratic nomination.

"We can't have a coronation when she's handing Republicans an inquisition," the Democrat said.

Put me in the same category. Like these two Democrats, I've known both Clintons for years. I admire their intelligence and passion and empathy. They've been good to my family. I've actually long thought that she has the potential to be a better president than he was.

But now I wonder whether there is a part of her that doesn't want to be president. She seems to be placing obstacles in her lane before the race begins. Is this sabotage or something else?

....

My concern is that Clinton does not see this controversy as a personal failing. Rather, she sees it as a political problem that can be fixed with more polls, more money, and more attacks. In a Politico story about the push to assemble a presidential campaign staff, a former senior Clinton aide said, "We have had our head up our ass. This stuff isn't going to kill us, but it puts us behind the eight ball."

Due respect, Clinton's problem isn't a lack of staff. It's a lack of shame about money, personal accountability, and transparency.

 

[Black Mamba]

Yeah, okay...so how are we playing the libertarian game by agreeing?

Are you trying to argue that the current ACA exchanges have led to almost no one buying individual insurance?

 

[SenorArdilla]

I dunno. As a causal spectator, I don't see anyone Democrat other than Hillary that could run. As least right now.

 

[speculawyer]

Arguing about Burwell case seems pointless to me. I suspect it is all about politics and the only thing is whether John Roberts wants to kill Obamacare or not. (I don't think he does.) Everything else is just hand-waving for whatever supports your desired outcome.

 

[benjipwns]

Are you trying to argue that the current ACA exchanges have led to almost no one buying individual insurance?

No, why would I argue that?

Correct me if I'm wrong about all of this.

Prior to the ACA, all the States had their own insurance regulatory regimes that are now superseded* by the ACA so the prior State marketplaces no longer exist. You cannot buy plans that no longer meet regulatory standards. The cause is Congress' action. This would have happened even if no States set up exchanges or if the federal government didn't setup an exchange. So there's no threat by the federal government to establish a State exchange or have their subsidies withheld, it's merely assistance offered to the States to encourage their proactiveness in complying with the new regulatory regime rather than resisting ala Medicaid expansion. The prior marketplace has already been destroyed.

*States can go beyond the ACA standards, but can't go under them, in establishing their insurance regulations.

 

[ivysaur12]

It's complicated, so just go to the topic I made to read about how the Alabama Supreme Court just did something very stupid.

 

[Gotchaye]

So, basically, yes; you support Congress in withholding funding (using it's power over appropriations) until they get their way.

I don't think the idea here is problematic. In general, one expects that what the government is actually supposed to be doing at any particular time is a result of compromises between lots of different groups. Regular functioning requires that everybody be doing some things that they'd rather not do, just so that other people continue doing some things that they'd rather not do. If the system breaks down - if someone starts using their power to do only what they want without respecting the system of compromises that's been worked out - other people can only respond by preventing the government from doing the things that the wrongdoer actually does want it to accomplish. If the president is refusing to enforce some law that Congress likes, it makes sense for Congress to defund things the president likes.

Now, it's important that Congress not like whatever it is they defund. General shutdowns are ineffective because they don't give Congress any leverage. Congress wants the government open too, and their constituents want the government open and can see that the government isn't open because Congress has shut it down. Hostage-taking is not a good look. But withholding funding for a program that you're on record as wanting to shut down anyway seems to me to be perfectly legitimate, and effective to the extent that the position is a politically popular one and to the extent that people don't like what the president's doing.

The Republicans' problem is that there's a huge disconnect between what they say they want, what they actually want, and what they want to be seen to be responsible for. They've got options, going by what they're saying. Pass a budget that doesn't include these tax credits for Obamacare that the Supreme Court is about to rule on. If Obama vetoes it he's vulnerable to his own rhetoric about not just approving those things that everyone can agree on before fighting about the things we don't agree on - he'd be the one hostage-taking. But the Republicans absolutely don't want to be seen to be responsible for taking away people's tax credits, so that's off the table. Opposition to Obamacare is only popular in the abstract.

Similarly, the Republicans really don't want to be seen to be fighting to boot out people's immigrant grandmothers. Most of them are actually at least indifferent towards the policy Obama's implementing.

So they're kind of stuck. Many of them don't want to get their way. They don't really have anything that they can withhold in order to pressure Obama to behave differently because the stuff they say they hate is popular. What Obama's doing could probably pass Congress if they weren't worried about the optics of it, and many are worried about the optics of opposing it, especially opposing it effectively. Most Republicans would like to quietly ignore what Obama's doing on immigration and hope the issue goes away. Boehner's goal is not to effectively fight Obama on this but to get the bitter-enders in his caucus to not sabotage the party.

 

[HylianTom]

These Alabama developments make me think that, by the time the primary is over, the GOP establishment is going to be extraordinarily pissed at the religious base for keeping this in the news. The candidates aren't going to be able to dance and dodge the issue for very long at this rate.

 

[Metaphoreus]

So, basically, yes; you support Congress in withholding funding (using it's power over appropriations) until they get their way.

Yeah I thought that was a lot of words to just say, "Yes I do"

Congress was not suggesting shutting down DHS. Congressional Republicans proposed to fund DHS but prohibit DHS from implementing the president's deferred action programs, since they believe those programs represent a failure of the president to fulfill his Constitutional duty to "take care that the Laws be faithfully executed." You two are misreading my response if you think I must be in favor of a DHS shutdown simply because I'm in favor of Congress exercising its prerogative to not fund programs Congress deems unlawful. My preferred outcome would be one where DHS is funded and the president follows the law (though I'm not yet persuaded that the deferred action programs are unlawful).

This is 100% wrong. Numerous SCOTUS cases have gone like this where one side says "even if you don't agree with our argument, which we do believe in, there is still this issue even if you decide against us for why you should still side with us." Numerous cases are like this. Hell, the last ACA case was like this with Roberts adopting the tax argument which the gov't didn't really argue in favor of but hinted at should he rule against their spending power argument.

You misunderstand my point. I'm not questioning the legitimate practice of offering arguments in the alternative, and I'm baffled at how you could interpret my posts to say otherwise. The problem for your Pennhurst argument is not that it's an alternative argument. The problem is that it's resolved by the Court concluding that the statute is unambiguous, as is the Chevron argument. You're suggesting that the government offer the following arguments:

1. We win because the statute is ambiguous and so the Court should defer to the IRS interpretation.
2. If you disagree, and believe that the statute is unambiguous, then we win because the statute is ambiguous and so no clear notice was given to the states.

Put another way, a valid alternative argument takes the form: "X. But if not X, then Y." Your proposed argument takes the invalid form: "X. But if not X, then X." No judge would take such an argument seriously.

No, that's not how it works. If the plaintiffs win at Chevron, they do not win at Pennhurst automatically. Chevron is arguing about what the statue says. Pennhurst argues what the statute says is irrelevant if such and such occurs. Do you understand the distinction? You can win Chevron and lose at Pennhurst. They are not incongruous. They are countless SCOTUS cases that have done this.

You don't understand Pennhurst. See above. And of all those "countless SCOTUS cases," you couldn't be bothered to name one?

It's probably the first case like it (in terms of rejection of federal contingencies) but the logic still follows and I'd like to see the Court uphold federalism here.

No, that doesn't follow. Accepting a bargain that includes an ambiguous term is not like rejecting a bargain that includes an ambiguous term. If a bargain is rejected, neither party is bound to it, period. It doesn't matter whether the terms are clear or not, there is no agreement. If a bargain is accepted, then clear terms are binding and unclear terms may not be.

your state official thing is wrong for this reason. The IRS made a rule stating the subsidies are on the federal exchanges. But let's play by your game. Let's say a law was passed saying states could accept federal highway funds and somewhere in there it says states set up a DMV website if they don't have one. But the Executive Branch explicitly tells them to ignore that and it won't be enforced. So then 2 years later the federal gov't sues Alabama for not having a DMV. Will you side with the feds over the state? The Federal Gov't is allowed to lie about its actions toward a state and punish them? It's a preposterous notion.

You're proposing that the president can amend laws enacted under the Spending Clause by lying about what they say? Is that really a belief you hold about our form of government?

I cannot cite anything

That's what I said.

The relationship between the Federal Gov't and States is not like you and me or company. Such a comparison is absurd. These "obscure" terms have profound effects on people, economies, etc.

You cannot be serious. I just quoted the Supreme Court explaining that their Spending Clause jurisprudence treats Congressional programs like contracts. That jurisprudence is what your entire "Clear Notice" argument depends on. Yet, now you're denying that that's the case? Which is it? Is a Spending Clause program like a contract in which states can only be bound by unambiguous terms, or is it not like a contract and nevermind Metaphoreus I didn't understand the argument and have now changed my mind?

Uh, in Yates the meaning of the words was clearly changed.

The paragraph you're responding to had nothing to do with Yates. So, I'm a bit confused concerning your point here.

He dissented on that specific point. It was 8-1 in which he didn't join.

Yeah? Which page says that?

this is bullshit. The entire point of the subsidies was the ensure against failure of the marketplace. Literally, that's the point of them.

Your argument seems to be that Congress could not possibly have authorized exchanges without tax credits. But that's clearly not true. As the Cannon and Adler amicus brief pointed out regarding one of the two bills combined in creating the ACA:

S. 1679 asked each state to adopt certain health insurance regulations, and either establish an Exchange itself or ask the federal government to establish one “in” the state. Id., § 142(b), proposing section 3104(d)(1)(A) of the Public Health Service Act. S. 1679 withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied. After four years, the federal government would establish an Exchange “in” the state and implement guaranteed-issue and community-rating rules even stricter than those found in the PPACA. If a state thereafter failed to implement the bill’s employer mandate, S. 1679 withheld Exchange subsidies permanently — even in a federal Exchange. Id., proposing section 3104(d)(2).

This fact demonstrates that Congress could have done precisely what you imply they could not possibly have done. (And my prior posts demonstrate, I think, that they did do just that.)

This argument is nonsense. Without the subsidies, Congress is telling states "establish your exchange or we'll set up one that will destroy your market and economy," which we learned in South Dakota v Dole is coercion and thus not legal.

The better citation here would be to NFIB, which actually found a program coercive, rather than South Dakota v. Dole, which didn't. Like benjipwns pointed out, the credits have nothing to do with Congress imposing new rules on insurance companies. Those new rules apply regardless what a state or the federal government does (or fails to do). Let me ask you this, though: do you think Congress could, without violating the Constitution, enact all the new rules it enacted under the ACA without providing credits to anyone? Or do you think the Court should adopt a new doctrine under which Congress must prove to the courts that a new law doesn't unnecessarily endanger a given industry before a law is valid?

uhhhh, are we reading the same things. Your first link rejects your position here.

From the first link:

When Congress passed legislation to expand coverage two years ago, Mr. Obama and lawmakers assumed that every state would set up its own exchange[.]

How does establishing these federal exchanges without subsidies lead to this third claim? If the deal is so good, why put in the language for federal exchanges at all

The second and third possibilities are not mutually exclusive.

EDIT: C'mon benji. I'm quoting single sentences as proxies for quoting the entire paragraphs they begin. (And tell your weepy friend to stop whining. It's unbecoming.)

SECOND EDIT: No, I'm not there, but apparently there is already a line in front of the Supreme Court.

 

[Black Mamba]

No, why would I argue that?

Correct me if I'm wrong about all of this.

Prior to the ACA, all the States had their own insurance regulatory regimes that are now superseded* by the ACA so the prior State marketplaces no longer exist. You cannot buy plans that no longer meet regulatory standards. The cause is Congress' action. This would have happened even if no States set up exchanges or if the federal government didn't setup an exchange. So there's no threat by the federal government to establish a State exchange or have their subsidies withheld, it's merely assistance offered to the States to encourage their proactiveness in complying with the new regulatory regime rather than resisting ala Medicaid expansion. The prior marketplace has already been destroyed.

*States can go beyond the ACA standards, but can't go under them, in establishing their insurance regulations.

The marketplaces still exist. They're expanded. You're just looking at a bunch of things that are inconsequential (regulations, etc) that determine price. It's a libertarian look. Everything changed means it was destroyed!

The ACA affected the market, yes. But it did not destroy it. When I say "destroy," I mean fewer buyers and sellers. The ACA increased quantity purchased.

 

[Teggy]

I feel like we need a separate "come debate Metaphoreus on the minutiae of King v. Burwell" thread.

 

[Metaphoreus]

I feel like we need a separate "come debate Metaphoreus on the minutiae of King v. Burwell" thread.

I thought about starting a King v. Burwell OT before oral argument tomorrow, but I decided that might be a bit excessive.

 

[SenorArdilla]

These Alabama developments make me think that, by the time the primary is over, the GOP establishment is going to be extraordinarily pissed at the religious base for keeping this in the news. The candidates aren't going to be able to dance and dodge the issue for very long at this rate.

Have any GOP candidates come out against the ruling?

 

[benjipwns]

The marketplaces still exist. They're expanded. You're just looking at a bunch of things that are inconsequential (regulations, etc) that determine price. It's a libertarian look. Everything changed means it was destroyed!

The ACA affected the market, yes. But it did not destroy it. When I say "destroy," I mean fewer buyers and sellers. The ACA increased quantity purchased.

What?

Products that existed prior to the ACA are no longer available for purchase. The terms under which those products could be made, bought and sold are no longer available. The marketplace that existed at that time no longer exists.

You can't call the current marketplace an "expanded" version of the original when it has entirely different products and services and methods compared to the prior marketplace.

I was assuming the premise that the ACA did change the health insurance industry and make its products more widely sold. This is not a "libertarian game" since referring to any of this as resembling the market would be nonsensical.

EDIT: C'mon benji. I'm quoting single sentences as proxies for quoting the entire paragraphs they begin. (And tell your weepy friend to stop whining. It's unbecoming.)

shhh i don't hate it like other people seem to, i find it centers ones responses

 

[ivysaur12]

I thought about starting a King v. Burwell OT before oral argument tomorrow, but I decided that might be a bit excessive.

You should just have the OP be a picture of you inside the courtroom

Spoiler

ready to give oral arguments.

 

[Metaphoreus]

You should just have the OP be a picture of you inside the courtroom

Spoiler

ready to give oral arguments.

lol

 

[AntoneM]

Congress was not suggesting shutting down DHS. Congressional Republicans proposed to fund DHS but prohibit DHS from implementing the president's deferred action programs, since they believe those programs represent a failure of the president to fulfill his Constitutional duty to "take care that the Laws be faithfully executed." You two are misreading my response if you think I must be in favor of a DHS shutdown simply because I'm in favor of Congress exercising its prerogative to not fund programs Congress deems unlawful. My preferred outcome would be one where DHS is funded and the president follows the law (though I'm not yet persuaded that the deferred action programs are unlawful).

I don't like piling on because the arguments going on here about the King case are beyond my time allocation to truly understand which is why I don't participate.

However, you are still saying that you support Congress withholding funding for executive agencies (not shutting down executive agencies) if they disagree with the executive actions of the President while knowing full well there are other avenues that Congress can pursue if they think the president is not upholding the constitution. You're still basically saying that you agree it's alright for Congress to hold executive agencies "hostage" in order to get Congress's way.

 

[benjipwns]

King v. Burwell |OT| Freedom v. Mad Tyrants Who Don't Want To Follow The Actual Text Of The Law Because They HATE AMERICA; Saturdays at 10 on ABC!

Spoiler

2014-15 TV Show Cancellations: King v. Burwell's Subsidies Cancelled

 

[benjipwns]

I don't like piling on because the arguments going on here about the King case are beyond my time allocation to truly understand which is why I don't participate.

However, you are still saying that you support Congress withholding funding for executive agencies (not shutting down executive agencies) if they disagree with the executive actions of the President while knowing full well there are other avenues that Congress can pursue if they think the president is not upholding the constitution. You're still basically saying that you agree it's alright for Congress to hold executive agencies "hostage" in order to get Congress's way.

Power of the purse, baby.

EDIT: lol at this page existing: http://history.house.gov/Institution/Origins-Development/Power-of-the-Purse/

 

[Metaphoreus]

I don't like piling on because the arguments going on here about the King case are beyond my time allocation to truly understand which is why I don't participate.

However, you are still saying that you support Congress withholding funding for executive agencies (not shutting down executive agencies) if they disagree with the executive actions of the President while knowing full well there are other avenues that Congress can pursue if they think the president is not upholding the constitution. You're still basically saying that you agree it's alright for Congress to hold executive agencies "hostage" in order to get Congress's way.

It's not piling on to simply respond. Answering one another is the whole point of a discussion board, so don't sweat it.

I support Congress using its power over appropriations to force the executive to comply with the law as Congress sees it. There's no reason to jump straight to impeachment when a lesser remedy might suffice. The president has a Constitutional duty to faithfully execute the laws; on the other hand, Congress has no Constitutional duty to fund government--Congress has the power of the purse, not the duty of the purse. So, as between executive actions that Congress believes violate the president's Constitutional duty and Congress's funding of an agency that is not Constitutionally entitled to such funding, I think letting funding lapse until a stalemate can be resolved is the lesser evil, though I'd rather the president simply comply with Congress' demands. (We're not talking about an executive action that the president thinks is Constitutionally mandated; we're talking about an executive action that is based merely on the president's policy preferences--and which, in this case, has been enjoined by a federal court.)

 

[benjipwns]

I support Congress using its power over appropriations to force the executive to comply with the law as Congress sees it. There's no reason to jump straight to impeachment when a lesser remedy might suffice.

We wouldn't even have this silly DHS funding "problem" if Congress hadn't raised the debt ceiling. Thanks, Obama, McConnell, Boehner.

 

[HylianTom]

Have any GOP candidates come out against the ruling?

They were mostly quiet on the issue at CPAC. Cruz made more noise than anyone else, but even he didn't linger on the issue.

Quiet tonight.

 

[Black Mamba]

You misunderstand my point. I'm not questioning the legitimate practice of offering arguments in the alternative, and I'm baffled at how you could interpret my posts to say otherwise. The problem for your Pennhurst argument is not that it's an alternative argument. The problem is that it's resolved by the Court concluding that the statute is unambiguous, as is the Chevron argument. You're suggesting that the government offer the following arguments:

1. We win because the statute is ambiguous and so the Court should defer to the IRS interpretation.
2. If you disagree, and believe that the statute is unambiguous, then we win because the statute is ambiguous and so no clear notice was given to the states.

Put another way, a valid alternative argument takes the form: "X. But if not X, then Y." Your proposed argument takes the invalid form: "X. But if not X, then X." No judge would take such an argument seriously.

You don't understand Pennhurst. See above. And of all those "countless SCOTUS cases," you couldn't be bothered to name one?

1. By "countless," I was referring to cases with alternative arguments. Do you really need me to name those? I assume you thought I meant countless Pennhurst cases which I did not.

2. I understand your point now but reject your analysis. I don't agree with your conclusion that the law being unambiguous as written undermines my Pennhurst argument because what matters is what a reasonable state official interprets at the time. If the CBO, IRS, Congress, HSS, and the Executive are telling the state official one thing that happens to be contrary to what a few words in a massive legal document says, it is not unreasonable to believe the state official would interpret the law to mean what those agencies are saying.

Could a state official reasonably interpret the ACA to allow federal subsidies?

And let's not forget, the IRS wrote a rule stating unequivocally that the federal exchanges would have subsidies. How else should a state official interpret the law!?

Oh, and doesn't the fact that state officials misinterpreted the statute prove Chevron guidance? We know state officials didn't believe subsidies would be denied so the law must have been unambigious, right? You can't have it both ways, here.

No, that doesn't follow. Accepting a bargain that includes an ambiguous term is not like rejecting a bargain that includes an ambiguous term. If a bargain is rejected, neither party is bound to it, period. It doesn't matter whether the terms are clear or not, there is no agreement. If a bargain is accepted, then clear terms are binding and unclear terms may not be.

When the terms of the bargain involves a massive economic shift, then it does. The SCOTUS has time and again stepped in in such realms. The overarching importance of Pennhurst was that state officials cannot be misled on the terms of their relationship with the federal government vis-a-vis laws. While true that they haven't addressed the situation of a rejected argument, I see no reason why Pennhurst's holding would also be applied here.

To believe Pennhurst can't apply here is to believe that Congress can pass a law in which certain action or inaction could detrimentally harm a State and if the State is not made aware of such harm, too fucking bad. I don't accept this as Constitutional.

You're proposing that the president can amend laws enacted under the Spending Clause by lying about what they say? Is that really a belief you hold about our form of government?

No, but the President can choose not to execute certain laws (they've always done this) to the fullest extent.

Or rather, the executive can explain how the law will work and mislead the State. Even things that are "unambiguous" can be misinterpreted. All it takes is a glossing over.

You cannot be serious. I just quoted the Supreme Court explaining that their Spending Clause jurisprudence treats Congressional programs like contracts. That jurisprudence is what your entire "Clear Notice" argument depends on. Yet, now you're denying that that's the case? Which is it? Is a Spending Clause program like a contract in which states can only be bound by unambiguous terms, or is it not like a contract and nevermind Metaphoreus I didn't understand the argument and have now changed my mind?

Like contracts but they're not contracts and have different realms. Besides, SCOTUS will do funky things whenever it feels like (see: Wickard or Raich or Civil Rights Act) to justify their positions. When it comes to situations that involve huge economic implications, the SCOTUS will squirm around their own rules to fit squares into a round hole. So, it's "like a contract," but not quite. And federalism matters so state officials have to be fully aware of the consequences of rejecting a proposal. Also, the subsidies are not a spending clause program, they are a tax clause program (subsidies are reverse taxes, by definition). And yes, Pennhurst is a spending issue, but I think it would be applied to taxes as well.

The question here is this. Can the federal government impose a tax hike on a State's citizens for the State not doing something Congress passes if the State is unaware of such terms and rejects the "contract" offered? I simply can't imagine the answer is "yes."

The paragraph you're responding to had nothing to do with Yates. So, I'm a bit confused concerning your point here.

You said: you think that the fact that the statute includes other words is enough to change the meaning of the words used in 36B

I say: Uh, in Yates the meaning of the words was clearly changed

The SCOTUS ignored the literal definition. It can do it in King, as well.

Yeah? Which page says that?

I am going to amend what I said and say he did not join the opinion that said that while 8 others did agree to that point (even the dissent agreed to it). So since he just concurred in judgment, who knows.

Your argument seems to be that Congress could not possibly have authorized exchanges without tax credits. But that's clearly not true. As the Cannon and Adler amicus brief pointed out regarding one of the two bills combined in creating the ACA:

"withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied."

Once again, undermining your argument. Take away the other regulations (like community rating, individual mandates, etc) you can take away the subsidies. Congress did not contemplate having the ACA as it currently is without the subsidies because it cannot work.

This fact demonstrates that Congress could have done precisely what you imply they could not possibly have done. (And my prior posts demonstrate, I think, that they did do just that.)

No, because I'm not arguing Congress cannot establish an exchange without subsidies. I'm arguing it could not authorize one in which everything else is as it currently is.

Let me restate what I've said in the past. You cannot remove the subsidies and still enforce an individual mandate and community rating. All three of those things must go together. The brief given by Cannon and Adler prove my point because it removes those things! Cannot separate one from the other two.

The better citation here would be to NFIB, which actually found a program coercive, rather than South Dakota v. Dole, which didn't.

I could do Dole because it established the rule (even though it said the feds were fine here).

Like benjipwns pointed out, the credits have nothing to do with Congress imposing new rules on insurance companies. Those new rules apply regardless what a state or the federal government does (or fails to do). Let me ask you this, though: do you think Congress could, without violating the Constitution, enact all the new rules it enacted under the ACA without providing credits to anyone? Or do you think the Court should adopt a new doctrine under which Congress must prove to the courts that a new law doesn't unnecessarily endanger a given industry before a law is valid?

Not if the point of the law is to increase the amount of people insured and lower the (expected) out of pocket expenses for the average policy.

Remember, Congress cannot pass a law that it intends to fail. If Congress wants to pass a law that destroys the private market for individual insurance and is a specific goal, then yes it can do what you state. The Court doesn't need to adopt any such doctrine. Congress can pass a law that unintentionally fails so they don't need to prove shit.

The ACA has numerous goals. One of them is to decouple employer insurance from employer compensation. This lowers the employer insurance market and that's totally fine! It also reduces the labor force. And that's also fine. Because that's the intent.

The ACA also wants to increase the individual insurance market at lower out of pocket costs (relative to what they'd pay prior). A federal exchange with no subsidies undermines that.

Short answer. yes it can if its intention is to ruin the market. No, it cannot, if it's intention is to expand the market.

From the first link:

If they truly assumed, what's the purpose of writing federal exchanges in at all? Again, it undermines your argument.

The truth is this. Lawmakers hoped all the states would create their own marketplace, but just in case they wouldn't, they wrote in a safety valve.

The second and third possibilities are not mutually exclusive.

Which makes even less sense.

"The deal is so good no one will reject it but just in case someone went nuts in the head, we'll set up a fallback exchange doomed to fail to punish them!"

Seriously?

Let me ask you something else. Isn't the notion that the feds could set up an exchange without subsidies if the state doesn't make an exchange - in which this exchange will intentionally produce disastrous results for a state's individual insurance marketplace - an overly coercive threat?

And if you were to agree that that is Unconstitutional, what happens? Does a State that doesn't create an exchange simply revert to its own rules en masse? Can the IRS just pass a rule fixing it (as it already has)? What's next?

 

[Black Mamba]

What?

Products that existed prior to the ACA are no longer available for purchase. The terms under which those products could be made, bought and sold are no longer available. The marketplace that existed at that time no longer exists.

You can't call the current marketplace an "expanded" version of the original when it has entirely different products and services and methods compared to the prior marketplace.

I was assuming the premise that the ACA did change the health insurance industry and make its products more widely sold. This is not a "libertarian game" since referring to any of this as resembling the market would be nonsensical.

I only look at it as insurance being sold and amount of buyers. All I care about in the discussion. Don't care how different the products are, those are technical details.

 

[benjipwns]

I only look at it as insurance being sold and amount of buyers. All I care about in the discussion. Don't care how different the products are, those are technical details.

But those "technical details" are the entire point of the law...and the case...and this argument you're having with Meta. (And me. And JUSTICE.)

 

[Oblivion]

Meet the new Obamacare replacement plan, courtesy of the Republican boy genius, Paul Ryan:

We would allow parents to keep children on their plan until age 26. We would prohibit insurers from imposing lifetime limits on benefits. We would protect people with existing conditions. And we would guarantee renewability for people already enrolled in a plan.

Second, help people buy coverage. Right now, those who get insurance through their employer get a lot of help from the tax code, while some people who buy insurance on their own, including potentially the millions of Americans the IRS put at risk, get no help at all. So we would offer those in the affected states a tax credit to buy insurance.

http://www.dailykos.com/story/2015/...amacare-replacement-idea-Steal-nbsp-Obamacare

Hmm, sounds familiar some how...

 

[jamesinclair]

Meet the new Obamacare replacement plan, courtesy of the Republican boy genius, Paul Ryan:



http://www.dailykos.com/story/2015/...amacare-replacement-idea-Steal-nbsp-Obamacare

Hmm, sounds familiar some how...

Sounds like Romneycare!

 

[benjipwns]

Joan shouldn't have cut out the surrounding paragraphs.

First, make coverage more affordable. Any state that uses our off-ramp would be able to opt out of ObamaCare’s insurance mandates. These coverage requirements are driving up costs, so eliminating them would empower individuals and families to choose from a wider range of plans that fit their personal needs and budgets. Our proposal will also allow participating states to opt out of ObamaCare’s burdensome individual and employer mandates, allowing Americans to purchase the coverage they want.

We would also force insurers to compete for your business, rather than force Americans to buy a government-approved health plan under the threat of IRS fines. Let people buy insurance across state lines. Stop frivolous lawsuits by enacting medical-liability reform. Let small businesses band together so they get a fair deal from insurance companies.

...

The credit would be “advanceable”—that is, you would get it when you needed it; you wouldn’t have to wait for tax season. It also would be “refundable”—that is, you would get the full amount no matter the size of your tax bill. And would adjust the size of the credit for age; the elderly, who face higher coverage costs, would get more support.

 

[Metaphoreus]

1. By "countless," I was referring to cases with alternative arguments. Do you really need me to name those? I assume you thought I meant countless Pennhurst cases which I did not.

2. I understand your point now but reject your analysis. I don't agree with your conclusion that the law being unambiguous as written undermines my Pennhurst argument because what matters is what a reasonable state official interprets at the time. If the CBO, IRS, Congress, HSS, and the Executive are telling the state official one thing that happens to be contrary to what a few words in a massive legal document says, it is not unreasonable to believe the state official would interpret the law to mean what those agencies are saying.

Could a state official reasonably interpret the ACA to allow federal subsidies?

And let's not forget, the IRS wrote a rule stating unequivocally that the federal exchanges would have subsidies. How else should a state official interpret the law!?

Oh, and doesn't the fact that state officials misinterpreted the statute prove Chevron guidance? We know state officials didn't believe subsidies would be denied so the law must have been unambigious, right? You can't have it both ways, here.

(1) I misunderstood you, then.

(2) A state official who believes lies is not reasonable. Case closed, you lose. For further analysis of how Pennhurst operates and why Alito's alternate formulation doesn't mean what you think it means, see my post here.

When the terms of the bargain involves a massive economic shift, then it does. The SCOTUS has time and again stepped in in such realms. The overarching importance of Pennhurst was that state officials cannot be misled on the terms of their relationship with the federal government vis-a-vis laws. While true that they haven't addressed the situation of a rejected argument, I see no reason why Pennhurst's holding would also be applied here.

To believe Pennhurst can't apply here is to believe that Congress can pass a law in which certain action or inaction could detrimentally harm a State and if the State is not made aware of such harm, too fucking bad. I don't accept this as Constitutional.

Regarding the significance of Pennhurst and why a rejected offer differs in kind from an accepted offer, see my posts here and here. Put briefly, you're interpreting the Pennhurst doctrine as turning on empirical facts. It doesn't. It turns on whether a purported condition was unambiguously stated in the statute, or not. It doesn't matter whether a given state or state official understood the law, which is why the Court didn't require evidence on that point before deciding Arlington Central.

[1] No, but the President can choose not to execute certain laws (they've always done this) to the fullest extent.

[2] Besides, SCOTUS will do funky things whenever it feels like (see: Wickard or Raich or Civil Rights Act) to justify their positions. When it comes to situations that involve huge economic implications, the SCOTUS will squirm around their own rules to fit squares into a round hole.

[3] The question here is this. Can the federal government impose a tax hike on a State's citizens for the State not doing something Congress passes if the State is unaware of such terms and rejects the "contract" offered? I simply can't imagine the answer is "yes."

[1] Regarding the president's duty to take care that the laws be faithfully executed, see generally the U.S. Constitution.

[2] No doubt, if the Court ignores precedent and its usual rules of statutory interpretation, then it can arrive at whatever result it pleases. But I see no point in arguing over judicial malfeasance as a basis for deciding this controversy.

[3] Generally, sure. Congress doesn't have to notify a state before amending its own tax laws. Pennhurst and its progeny only come into play when Congress offers federal funds to a state with certain conditions attached. Not every change to the IRC will fit that mold, even when that change takes differences in state law into account (imagine a law permitting taxpayers to deduct state income taxes as an above-the-line deduction, for instance. If such a law were vague, that could be a problem for anyone attempting to claim the deduction, but states without an income tax would have no complaint).

You said: you think that the fact that the statute includes other words is enough to change the meaning of the words used in 36B

I say: Uh, in Yates the meaning of the words was clearly changed

The SCOTUS ignored the literal definition. It can do it in King, as well.

Sure they can. My complaint is that you haven't pointed to any context in King that suggests they should ignore the literal definition. The fact that other sections exist in a statute isn't enough; those sections must provide a reason for ignoring the literal definition, and you haven't explained how any do that.

"withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied."

Once again, undermining your argument. Take away the other regulations (like community rating, individual mandates, etc) you can take away the subsidies. Congress did not contemplate having the ACA as it currently is without the subsidies because it cannot work.

Not at all. You missed the part where the HELP bill withheld such credits permanently if states failed to implement the employer mandate. Note that that's the same trade-off in the ACA. Without credits, the employer mandate isn't triggered. Curious, that.

No, because I'm not arguing Congress cannot establish an exchange without subsidies. I'm arguing it could not authorize one in which everything else is as it currently is.

Let me restate what I've said in the past. You cannot remove the subsidies and still enforce an individual mandate and community rating. All three of those things must go together. The brief given by Cannon and Adler prove my point because it removes those things! Cannot separate one from the other two.

Hold on. Do you mean Congress legally lacks the power to enact the individual mandate and community rating unless it provides tax credits? Or do you mean it would be practically imprudent for Congress to do so?

Remember, Congress cannot pass a law that it intends to fail. If Congress wants to pass a law that destroys the private market for individual insurance and is a specific goal, then yes it can do what you state. The Court doesn't need to adopt any such doctrine. Congress can pass a law that unintentionally fails so they don't need to prove shit.

Wait. Congress can't pass a law that intentionally fails, but can pass a law that unintentionally fails? Where's all this coming from? And how would you ever determine what laws are of which type?

Which makes even less sense.

"The deal is so good no one will reject it but just in case someone went nuts in the head, we'll set up a fallback exchange doomed to fail to punish them!"

Seriously?

More like, "This deal is so good nobody's gonna pass it up. But I'm told that it's open to challenge for being coercive, so let's just put in this bit about a fallback exchange to prevent that argument."

Let me ask you something else. Isn't the notion that the feds could set up an exchange without subsidies if the state doesn't make an exchange - in which this exchange will intentionally produce disastrous results for a state's individual insurance marketplace - an overly coercive threat?

And if you were to agree that that is Unconstitutional, what happens? Does a State that doesn't create an exchange simply revert to its own rules en masse? Can the IRS just pass a rule fixing it (as it already has)? What's next?

These are good questions that I've addressed before. See my post here.

EDIT:

Meet the new Obamacare replacement plan, courtesy of the Republican boy genius, Paul Ryan:

http://www.dailykos.com/story/2015/...amacare-replacement-idea-Steal-nbsp-Obamacare

Hmm, sounds familiar some how...

The portion you quoted reminds me of this.

 

[Diablos]

These are good questions that I've addressed before. See my post here.

You say Option 3 would be attractive but at the same time realize it doesn't jive with making the Medicaid expansion optional...

Of course, the ACA clearly states no matter where you stand that all states MUST enforce Medicaid being expanded... Roberts made it optional. The argument in King is not a matter of states being forced to take subsidies, rather if the federal exchange can step in and provide tax credits instead... so is it really valid to think it falls in line with Roberts' thinking on expanding Medicaid?

For all the thinking and analysis you do, you still honestly don't seem to project a lot of confidence as to how the ruling will actually come down.

 

[Black Mamba]

But those "technical details" are the entire point of the law...and the case...and this argument you're having with Meta. (And me. And JUSTICE.)

those are irrelevant to my comment about destroying the market. Again, but that it is meant that there are almost no buyers and sellers.

Those technical details matter towards other discussions.

Joan shouldn't have cut out the surrounding paragraphs.

it's the same stuff they've been spouting for years. And the ACA already does the small business part.

It's not a plan. It's an idea, that is very similar to the ACA, that hasn't been actually figured out in terms of the gritty details. Until they do the hard work there and get majority support of their own party, they have no plan.

But yeah, they've been doing this for a while now: http://www.washingtonpost.com/blogs...ace-obamacare-it-looked-a-lot-like-obamacare/

 

[thepotatoman]

In fairness, there literally is no Plan B for the White House. A ruling against them on King leaves them with no alternatives. There is no executive power I'm aware of that can fix the situation other than to say the IRS will simply ignore the ruling...which would not end well.

Unless I'm missing something, I've yet to see a single argument with a workaround the Executive could take.

It would be the most affect a SCOTUS case directly has on the economy...ever? I can't recall the last time they rules on something that actually changed the economy henceforth to such an extent. You can see why anyone would lobby them.

The alternative would basically be to put everyone getting thrown off subsidies to be exempt from the mandate under that undo hardship clause, but I don't know if premium prices can stay low if insurance companies still have to cover preexisting conditions despite so many people getting thrown off insurance.

 

[Metaphoreus]

You say Option 3 would be attractive but at the same time realize it doesn't jive with making the Medicaid expansion optional...

Of course, the ACA clearly states no matter where you stand that all states MUST enforce Medicaid being expanded... Roberts made it optional. The argument in King is not a matter of states being forced to take subsidies, rather if the federal exchange can step in and provide tax credits instead... so is it really valid to think it falls in line with Roberts' thinking on expanding Medicaid?

For all the thinking and analysis you do, you still honestly don't seem to project a lot of confidence as to how the ruling will actually come down.

I don't know how the case will be decided.

Once Elena calls me back, though, then I'll know.

I'll keep you updated.

 

[Diablos]

I don't know how the case will be decided.

Once Elena calls me back, though, then I'll know.

I'll keep you updated.

No one knows... I'm talking about what you think will happen. Not five scenarios, not stuff muffled by the details of the case.

 

[Metaphoreus]

No one knows... I'm talking about what you think will happen. Not five scenarios, not stuff muffled by the details of the case.

I wouldn't venture to guess.

I'll put in a call to Sonia tomorrow, just to be sure.

 

[benjipwns]

those are irrelevant to my comment about destroying the market. Again, but that it is meant that there are almost no buyers and sellers.

Those technical details matter towards other discussions.

There will always be buyers and sellers. You can't destroy the market. But we can talk about the design of a marketplace or industry which can be destroyed.

If I own a store that sells apples, bananas, oranges and grenade launchers and the government bans apples, bananas and oranges from being sold unless you buy six grenade launchers, the original marketplace doesn't exist anymore, we have a new marketplace. The original has been wiped away by legislative fiat.

I'd still sell you apples, bananas and oranges separately, but it won't be a legal marketplace. And probably lead to somebody in jail. (You, because I'll call my Congressman.)

 

[Black Mamba]

(1) I misunderstood you, then.

(2) A state official who believes lies is not reasonable. Case closed, you lose. For further analysis of how Pennhurst operates and why Alito's alternate formulation doesn't mean what you think it means, see my post here.

Are you telling me a reasonable official could not be misled by the federal gov't in to the application of a 900 page law?

Really, now?

Regarding the significance of Pennhurst and why a rejected offer differs in kind from an accepted offer, see my posts here and here. Put briefly, you're interpreting the Pennhurst doctrine as turning on empirical facts. It doesn't. It turns on whether a purported condition was unambiguously stated in the statute, or not. It doesn't matter whether a given state or state official understood the law, which is why the Court didn't require evidence on that point before deciding Arlington Central.

No, it turned on whether a state official understood the terms. Empirical evidence just wasn't needed in that case to adjudicate it.

Again, to believe Pennhurst can't apply here is to believe that Congress can pass a law in which certain action or inaction could detrimentally harm a State and if the State is not made aware of such harm, too fucking bad.

Do you believe the above is Constitutional?

[1] Regarding the president's duty to take care that the laws be faithfully executed, see generally the U.S. Constitution.

It's also a part of separation of powers. And of course "faithfully executed" isn't a cut and dry thing.

[2] No doubt, if the Court ignores precedent and its usual rules of statutory interpretation, then it can arrive at whatever result it pleases. But I see no point in arguing over judicial malfeasance as a basis for deciding this controversy.

Hey, precedent doesn't mean shit at the SCOTUS (only lower level). SCOTUS overrules precedence all the time and it should. Even you wouldn't argue SCOTUS should uphold a bad ruling for precedence.

We're disagreeing at statutory interpretation here. I think ruling in your favor would be the most blatant disregard of statutory interpretation in the history of the Court not related to civil rights, so....

[3] Generally, sure. Congress doesn't have to notify a state before amending its own tax laws. Pennhurst and its progeny only come into play when Congress offers federal funds to a state with certain conditions attached. Not every change to the IRC will fit that mold, even when that change takes differences in state law into account (imagine a law permitting taxpayers to deduct state income taxes as an above-the-line deduction, for instance. If such a law were vague, that could be a problem for anyone attempting to claim the deduction, but states without an income tax would have no complaint).

Federal tax laws that apply to everyone regardless of residence, yes. This isn't that, though. I am not arguing Pennhurst involved spending, but that doesn't mean the logic in the case shouldn't be applied to other situations, including taxes or rejection of spending.

Sure they can. My complaint is that you haven't pointed to any context in King that suggests they should ignore the literal definition. The fact that other sections exist in a statute isn't enough; those sections must provide a reason for ignoring the literal definition, and you haven't explained how any do that.

That's been done in the past by myself and others that showed other parts of the law indicating the federal exchanges are no different than the state ones. I'm not going to rehash those.

Not at all. You missed the part where the HELP bill withheld such credits permanently if states failed to implement the employer mandate. Note that that's the same trade-off in the ACA. Without credits, the employer mandate isn't triggered. Curious, that.

Yes, and? That was punishment for a state not []enforcing the law[/i], not for refusing to enact their own exchange. They aren't given a choice in the matter regarding the employer mandate. That's enforced through the Interstate Commerce Clause. It's practically no different that them withholding subsidies for not enforcing discrimination laws (other than not being tangentially related).

Hold on. Do you mean Congress legally lacks the power to enact the individual mandate and community rating unless it provides tax credits? Or do you mean it would be practically imprudent for Congress to do so?

Not if it's intended goal is to increase the amount of insured at a lower out of pocket (OOP) cost (relative to previous market). Because it is well aware what happens without the subsidies.

Wait. Congress can't pass a law that intentionally fails, but can pass a law that unintentionally fails? Where's all this coming from? And how would you ever determine what laws are of which type?

Congress can pass a law to fund a mission to mars. If it fails, that's fine. They truly thought they could make it there.

Congress, however, cannot fund the capture of flying spaghetti monsters.

And it's obvious what laws are of what type. The ACA stated its goals. Removing subsidies undermines that goal with the other two stool legs in place. We know this for a fact (saying otherwise is the equivalent of saying gravity doesn't exist in Argentina).

More like, "This deal is so good nobody's gonna pass it up. But I'm told that it's open to challenge for being coercive, so let's just put in this bit about a fallback exchange to prevent that argument."

And then we make the fallback option coercive by threatening the destruction of their marketplace. YEAH!!!!

Or maybe they created the fallback to be exactly the same to avoid the coercion...since, you know, they can't avoid that without it.

You are literally arguing the feds set up a coercive fallback to avoid being coercive. LOL.

These are good questions that I've addressed before. See my post here.

EDIT:

Your option 3 is the only viable one, which means I'm right! I mean, they could kick the can, but it would eventually come back and they'd have to rule unless there's an actual fix. 1 avoids the question which isn't my scenario. 4 is way too messy and very unconstitutional.

5 is ludicrous in application, not merit. The Court isn't going to rule that way after the 2012 ACA case. That type of ruling (invalidating the whole law) would have happened then while they restrained the ICC which is much more important that the coercive bit.

Regardless, I'd bet anything on the SCOTUS finding any way to uphold the law. Again, I can't recall them every making a rule that would so drastically alter the economy in one swoop. It's unconscionable.

 

[Black Mamba]

There will always be buyers and sellers. You can't destroy the market. But we can talk about the design of a marketplace or industry which can be destroyed.

If I own a store that sells apples, bananas, oranges and grenade launchers and the government bans apples, bananas and oranges from being sold unless you buy six grenade launchers, the original marketplace doesn't exist anymore, we have a new marketplace. The original has been wiped away by legislative fiat.

I'd still sell you apples, bananas and oranges separately, but it won't be a legal marketplace. And probably lead to somebody in jail. (You, because I'll call my Congressman.)

This is all fruitless and why I said I don't want to engage in this game.

I've made it clear what is meant. If me telling you what I mean isn't enough, sobeit. Don't care for this type of conversation.

The ACA wants to expand coverage. Any provision/application that causes it to not expand coverage is a failure.

The alternative would basically be to put everyone getting thrown off subsidies to be exempt from the mandate under that undo hardship clause, but I don't know if premium prices can stay low if insurance companies still have to cover preexisting conditions despite so many people getting thrown off insurance.

That's a fix to the individual mandate. Hell, it's not even a fix, it's already part of the law since if your insurance premiums greater than around 9% of income, you're exempt!

Prices will skyrocket and may even lead to a death spiral without the mandates. I don't know how the executive can fix this problem without waiving the community rating and minimum benefits packages (and thus return to the previous markets for the most part). But that is also probably illegal.

 

[Metaphoreus]

If I own a store that sells apples, bananas, oranges and grenade launchers and the government bans apples, bananas and oranges from being sold unless you buy six grenade launchers, the original marketplace doesn't exist anymore, we have a new marketplace. The original has been wiped away by legislative fiat.

You just shot yourself in the foot with this. I don't know how much you know about public policy (I'm an expert), but not selling grenade launchers alongside fresh fruit is a big part of it. What this means is that, once Congress hears about your store, they're not going to let you sell anything anymore. This is HUGE. You can laugh all you want, but you just alienated every member of Congress by knowing fuck all about public policy and how it's created, or really anything about the fields of munitions policy or economics.

benjipwns, publicly apologize and cancel your sales of grenade launchers from your fresh fruit store, or you can kiss your business goodbye.

 

[benjipwns]

This is all fruitless and why I said I don't want to engage in this game.

I've made it clear what is meant. If me telling you what I mean isn't enough, sobeit. Don't care for this type of conversation.

The ACA wants to expand coverage. Any provision/application that causes it to not expand coverage is a failure.

At what point did I propose anything that would "cause it to not expand coverage"? I merely disputed that Congress was making a threat, it had already wiped away the previous 50 marketplaces, irregardless of the exchange provisions. The exchanges and the attached subsidies were incitement and assistance for the States to meet the standards of the new marketplaces the States would have to create and their role in connecting information with their citizens.

 

[TheAbsolution]

Not exactly related to politics but apparently the Rachel Maddow show podcast is going to highlights only. That sucks.
Gotta sign in with cable information to get the full show now.

 

[Black Mamba]

At what point did I propose anything that would "cause it to not expand coverage"? I merely disputed that Congress was making a threat, it had already wiped away the previous 50 marketplaces, irregardless of the exchange provisions. The exchanges and the attached subsidies were incitement and assistance for the States to meet the standards of the new marketplaces the States would have to create and their role in connecting information with their citizens.

Because I explicitly told you my definition in my posts and I don't care about yours when I'm saying what I want to say.

I've defined my usage of the term for you. That ends the conversation.

 

[Metaphoreus]

I've defined my usage of the term for you. That ends the conversation.

(Don't listen to him, benji! I defined "State" months ago, but he still keeps bringing up King v. Burwell!)