Rube Goldberg wept
July 22, 2014 8:02 AM   Subscribe

A Republican panel of the D.C. Circuit has ruled [.pdf opinion] in the case of Halbig v. Burwell that a drafting error in the Affordable Care Act provides subsidies exclusively to state-based exchanges and not to federally-facilitated ones, even while subjectively intending to provide subsidies in both cases. The ruling threatens to take away federal subsidies for insurance sold on Obamacare exchanges in 36 states.
posted by T.D. Strange (104 comments total) 21 users marked this as a favorite

 
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posted by drezdn at 8:05 AM on July 22, 2014 [1 favorite]


I thought this was a good summary

It's another of the ironies of the Obamacare saga that some of the things done to accommodate and compromise with conservative opponents ended up becoming Obamacare's Achilles' heels and making it vulnerable to legal challenge.

So frustrating!
posted by diogenes at 8:12 AM on July 22, 2014 [7 favorites]


Ugh.

It's almost like there's a group of people in this country who reeeeeeally don't want poor people to have access to affordable healthcare.
posted by Bromius at 8:14 AM on July 22, 2014 [29 favorites]


This is just an awful, biased, shittily-reasoned decision on every single count. Some highlights:

The judges themselves:
It’s important to understand just who these two Republicans are. Judge Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side. Randolph complained, just a few weeks before President Obama would announce that the Affordable Care Act had overshot its enrollment goal, that the launch of the Affordable Care Act was “an unmitigated disaster” and that its costs “have gone sky-high.” At one point, Randolph also cut off Judge Harry Edwards, the sole Democratic appointee on the panel, to cite an editorial published by the conservative Investor’s Business Daily to prove the argument that Obamacare should be defunded.

The Investor’s Business Daily is not known as a particularly reliable source on health policy.
[...]
Griffith is “sympathetic” to Brown’s argument that much of the Twentieth Century is unconstitutional, but he did not want to join her opinion because the arguments she made were not raised by the parties in that case. Halbig, by contrast, presented Griffith with a much more direct attack on supposedly “burdensome regulation” brought by the forces of “cowboy capitalism.”
The decision's awful interpretation of law:
[I]n order to accept [Randolph and Griffith's] decision, a person reading the Affordable Care Act must ignore the following facts:
* The subtitle of the Affordable Care Act which contains the provisions at issue in this case is titled “Affordable Coverage Choices for All Americans.” If Randolph and Griffith are correct, Congress would have named that subtitle “Affordable Coverage Choices for All Americans Except For Those Americans Who Live In States With Federally-Run Exchanges.”
* The Affordable Care Act says that it will “achieve[] near-universal coverage.” If Randolph and Griffith are correct, Congress would have said that Obamacare “achieves near-universal coverage except in states with federally-run exchanges.”
* An amendment to the Affordable Care Act requires the federally-run exchanges to report various information that they would only be able to report if they were providing subsidies, such as whether taxpayers received an “advance payment of such credit”; information needed to determine individuals’ “eligibility for, and the amount of, such credit”; and “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” Congress would not have imposed this reporting requirements if they thought that the federal exchanges would not offer subsidies.
* The Affordable Care Act also provides that the only people who are qualified to purchase insurance at all on a federally-run exchange are people who “reside[] in the State that established the Exchange.” Thus, if federally-run exchanges are not deemed to be “established by the State,” that means that no one at all is allowed to purchase health insurance on the federally-run exchanges, and there would be no purpose whatsoever to their existence. As the trial court explained in this very case, this interpretation makes no sense, because “courts presume that Congress has used its scarce legislative time to enact statutes that have some legal consequence.”
And the fact that, unless SCOTUS is willing to directly and baldly contradict both their own decisions and directives regarding this decision (which is admittedly not entirely unlikely), this isn't the death of the law:
The Supreme Court of the United States, however, has long recognized that a law’s clear purpose should not be defeated due to an error in proofreading. As the Court explained in 2007, “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” It is indeed true that a single phrase of the Affordable Care Act, if read in isolation, suggests that Congress intended only state-run exchanges — as opposed to federal exchanges — to offer subsidies, but this provision is contradicted by numerous other provisions of the law.
[...]
[U]nder the Supreme Court’s Chevron Doctrine, courts typically defer to a federal agency’s reading of a law so long as “the agency’s answer is based on a permissible construction of the statute.” Randolph and Griffith get around this doctrine by claiming that the law “the ACA unambiguously restricts the section 36B subsidy to insurance” purchased on state-run exchanges.

If you truly believe that the only possible interpretation of the Affordable Care Act’s language is the one adopted by Randolph and Griffith on Tuesday, then you may want to go back to the top of this article and start reading it all over again. In any event, two federal judges previously concluded that Obamacare is unambiguous in the other direction — that is, it unambiguously offers subsidies to people who purchase insurance through federal exchanges. That alone demonstrates that, even if the law isn’t completely clear, its meaning is at least uncertain enough that the courts should defer to the agency’s reading under Chevron.

More importantly, Randolph and Griffith’s own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.

Should the full DC Circuit intervene, of course, their decision can ultimately be appealed to the GOP-controlled Supreme Court. But we’ve already seen this story play out once before. The last time conservative lawyers brought a case to the Supreme Court seeking to gut Obamacare, Chief Justice John Roberts voted to uphold the bulk of the law.
posted by zombieflanders at 8:15 AM on July 22, 2014 [29 favorites]


Sooooo.... it's Calvinball? My nation is a game of Calvinball.
posted by Stonestock Relentless at 8:18 AM on July 22, 2014 [45 favorites]


While not exactly good, this isn't the worst thing in the world. The decision won't hold up in en banc review. Things are more worrisome if it makes it to the Supremes, but assuming Roberts is still willing to break from the fold on the ACA, he's not enough of a textualist that proofreading errors should sway him. Hell, even Kennedy might come around, just from the sheer joy he seems to exhibit from being unpredictable.
posted by The Notorious B.F.G. at 8:21 AM on July 22, 2014 [12 favorites]


Too bad the DC courts website doesn't seem to hold up to loads like the SCOTUS one, cause I can't get that PDF.
posted by smackfu at 8:22 AM on July 22, 2014


The ruling is embarrassingly stupid and will be overturned by the en banc review by, let's say yesterday, but I imagine that's not going to stop every pundit and outliet from using lame phrases like "fatal blow to Obamacare."

Though it will be fun to watch Ted Cruz explain how he feels about a "repudiation of Obama's lawlessness" be, umm, repudiated.
posted by XQUZYPHYR at 8:29 AM on July 22, 2014 [1 favorite]


It's almost like there's a group of people in this country who reeeeeeally don't want poor people to have access to affordable healthcare.

Why Democrats in 36 states aren't running ads saying "Republicans are suing to quadruple the cost of your healthcare" baffles me.
posted by XQUZYPHYR at 8:30 AM on July 22, 2014 [63 favorites]


I really hope you're right, The Notorious B.F.G. If this ends up going through, I'm going to lose my insurance, because I won't be able to afford it anymore. And just as I'm going through some pretty shitty health problems. In fact, on my way to the doctor after lunch. Damn. I was still upset that my state didn't expand Medicaid (and so of course it's also one of the states who didn't create its own marketplace). I didn't even realize the credits themselves were in danger.
posted by rue72 at 8:32 AM on July 22, 2014


I imagine that's not going to stop every pundit and outliet from using lame phrases like "fatal blow to Obamacare."

I want to see a picture of the judges with the caption "Death Panel".
posted by George_Spiggott at 8:33 AM on July 22, 2014 [14 favorites]


It's almost like there's a group of people in this country who reeeeeeally don't want poor people to have access to affordable healthcare.

But don't call this judicial activism.
posted by T.D. Strange at 8:35 AM on July 22, 2014 [4 favorites]


The ACA now insures 20 million Americans. Should it get to SCOTUS, that number may double. I just don't see how Congress doesn't pass a legislative fix to this if this decision survives the appeal process. Yes, many GOP seats are safe, but many others aren't, and if they think Obama's a tyrant now, they definitely won't want to see Hillary with Democratic control of both houses of Congress.
posted by tonycpsu at 8:38 AM on July 22, 2014


If this ends up going through, I'm going to lose my insurance, because I won't be able to afford it anymore. And just as I'm going through some pretty shitty health problems. In fact, on my way to the doctor after lunch. Damn. I was still upset that my state didn't expand Medicaid (and so of course it's also one of the states who didn't create its own marketplace). I didn't even realize the credits themselves were in danger.

I'm almost as frustrated with Democrats about this as I am with Republicans for launching the suit to begin with. How on earth have they dropped the ball so horribly on the optics of this?

Republicans literally sued to take your healthcare subsidy away. That's not spin. That was their argument. They sued that the government shouldn't be allowed to make your healthcare affordable. Why is every candidate in a non-exchange state attacking Obamacare not being asked "why do you want me to pay four times as much for my insurance?"

Why do Republicans even want this fight, right now, three months before the election? It's just insane, even for a party run by lunatics. The story is that healthcare premiums might increase four hundred percent because Republicans sued to make it happen.

"If you like your plan, you can keep it. Unless a Republican sues you." Should be the opening line for every Democrat at every campaign stop. If it's not, we all deserve the country we end up with.
posted by XQUZYPHYR at 8:42 AM on July 22, 2014 [25 favorites]


So, another day, another symbolic Tea Party vote to overturn the ACA?
posted by Dashy at 8:43 AM on July 22, 2014 [2 favorites]


I just don't see how Congress doesn't pass a legislative fix to this if this decision survives the appeal process.

Only if the Dems somehow regain the House and hold the Senate. The Republican House would still repeal the entire law tomorrow if they were able, there's zero chance of a fix without Dem control.
posted by T.D. Strange at 8:43 AM on July 22, 2014 [2 favorites]


I just don't see how Congress doesn't pass a legislative fix to this if this decision survives the appeal process.

Why try and fix something that the House has voted 54 times to repeal? This is just more fuel for their argument that Obamacare doesn't work. Of course the ones who will suffer from the fallout if this stands are the poor in the states that refused to take federal money and set up their own exchanges in the first place.
posted by Badgermann at 8:44 AM on July 22, 2014


They should have just ended that opinion with "Now watch this drive."
posted by RedOrGreen at 8:46 AM on July 22, 2014 [1 favorite]


Badgermann: Why try and fix something that the House has voted 54 times to repeal?

Ask John Boehner. He's suing Obama for not implementing a portion of the ACA fast enough.
posted by tonycpsu at 8:47 AM on July 22, 2014 [3 favorites]


Why do Republicans even want this fight, right now, three months before the election? It's just insane, even for a party run by lunatics. The story is that healthcare premiums might increase four hundred percent because Republicans sued to make it happen.

It's not insane; they think that this will appeal to their base. And maybe they're right.
posted by rue72 at 8:47 AM on July 22, 2014 [1 favorite]


My point being, opposition to the ACA in the House need not be coherent as long as the constituency is small enough, but when voters are showing up at town halls saying "keep your government hands off of my Affordable Care Act", it's going to become very real for the ones that want to keep their jobs. Many of them will be in seats safe enough that they can just give those folks the finger, but many will not.
posted by tonycpsu at 8:48 AM on July 22, 2014


XQUZYPHYR - the Repubs don't need to make that argument. The argument that my $CONSERVATIVERELATIVES want to hear is that the Repubs are stopping Obama from taking their hard earned tax money and giving it to the undeserving while $CONSERVATIVERELATIVES get absolutely nothing and have to keep working or stick with their shitty insurance because of whatever stupid rules there are about not being able to get out of the group health insurance plan.

Conservatives don't give a fuck that insurance for rue72 is 4 times more expensive for rue72. they care that they - the conservatives - were having to spend tax money to cover that subsidy. never mind that it's not just conservatives who are paying, we all are, whatever, they don't care.
posted by sio42 at 8:49 AM on July 22, 2014 [3 favorites]


and yes rue72 has it - it WILL appeal to their voter base.
posted by sio42 at 8:51 AM on July 22, 2014


Things are more worrisome if it makes it to the Supremes, but assuming Roberts is still willing to break from the fold on the ACA, he's not enough of a textualist that proofreading errors should sway him. Hell, even Kennedy might come around, just from the sheer joy he seems to exhibit from being unpredictable.

It's hard to predict where the Supremes would go on this one. The conservative justices will be under intense ideological pressure, of course, to take any hammer they can grab to whack the ACA with--but really, it's such a transparently absurd suit and several of the justices would have to impeach themselves as such astonishingly flagrant hypocrites if they were to uphold such a decision that you have to wonder if it might not be more than they can stomach.
posted by yoink at 8:53 AM on July 22, 2014


when voters are showing up at town halls saying "keep your government hands off of my Affordable Care Act",

A lot of the people getting their healthcare via the state exchanges don't actually realize that those were created by the Affordable Care Act. Many of them, indeed, think the state exchanges were an alternative to the ACA. People are so woefully underinformed about this issue that it's going to be hard to mobilize effective public sentiment around it.

Mostly I'm hoping it just gets killed in the courts, but it's a pity these asshole judges have given it this much oxygen.
posted by yoink at 8:56 AM on July 22, 2014 [6 favorites]


Actually, what are the chances Boehner even offers up the opportunity to bring any sort of legislation to fix any problems with the ACA, proofreading or not? Probably somewhere around -10%. Boehner has more or less indicated that almost no legislation, no matter how benign, will come up for votes until after the election, if then.
posted by tittergrrl at 8:58 AM on July 22, 2014


oh thank god my tax dollars can only go to treating poor people in emergency rooms once they're crippled by pain and likely to die rather than to preventative care which enables the uplift of society
posted by shakespeherian at 9:01 AM on July 22, 2014 [5 favorites]


> A Republican panel of the D.C. Circuit ...

At first I thought "Wait, 'Republican'? Judgeships aren't partisan offices." And then I thought "Oh, right. Yeah, I guess so."
posted by benito.strauss at 9:09 AM on July 22, 2014 [5 favorites]


Yoink makes a good point. People are very confused about exchanges and the ACA.

There was a news article in my area recently about some woman who thought some in-patient weight loss program would be covered by "the ACA".

She had some friends who raised money for her to get insurance and then they drove her to freaking florida where the facility is like, uh, no.

So now the news and her and her friends are all like "why obama, why?".

Luckily there were actually people commenting that the ACA is not insurance and this was shoddy reporting to not make that distinction.
posted by sio42 at 9:16 AM on July 22, 2014


Luckily as in wow commenters on a local news site are making sense instead of spewing hate.
posted by sio42 at 9:16 AM on July 22, 2014


Reuters:
U.S. Fourth Circuit Court of Appeals issues separate ruling upholding Obamacare subsidies.

Nelson.gif.
posted by XQUZYPHYR at 9:21 AM on July 22, 2014 [5 favorites]


My point being, opposition to the ACA in the House need not be coherent as long as the constituency is small enough, but when voters are showing up at town halls saying "keep your government hands off of my Affordable Care Act", it's going to become very real for the ones that want to keep their jobs. Many of them will be in seats safe enough that they can just give those folks the finger, but many will not.

The reality of ACA's existence and the complete lack of any feasible GOP alternative is already an issue in fall races:

McFadden, a political newcomer who is heavily favored in next month’s Republican primary, said voters won’t see him dive far into Franken’s past. But he’s battering Franken as being too close to Obama and to the problem-plagued health care law the senator was pivotal in enacting.

Whether that’s a winning argument is murky, as McFadden found out when he struck up a conversation with the owner of Kat’s Hog Heaven, a southern Minnesota barbecue joint where even the cheeseburgers are made of pork.

“Obamacare is the best thing the government has ever done to me,” self-described fiscal conservative and independent voter Bill Stephan told McFadden, describing a new medical plan that saves him thousands and enabled him to quit a second job. “And I didn’t necessarily feel like that until I knew how it worked.”

posted by longdaysjourney at 9:22 AM on July 22, 2014 [4 favorites]


My point being, opposition to the ACA in the House need not be coherent as long as the constituency is small enough, but when voters are showing up at town halls saying "keep your government hands off of my Affordable Care Act", it's going to become very real for the ones that want to keep their jobs.

True, but we aren't there yet, if we ever will be.

WaPo, May 5 2014: A new poll shows the public's opposition to Obamacare has never been higher.

The Pew Research Center poll shows disapproval of the law hitting a new high of 55 percent. It comes on the heels of several polls last week that showed the law had very little -- if any -- bump after sign-ups on the health-care exchanges exceeded goals.

posted by Drinky Die at 9:24 AM on July 22, 2014


What really ticks me off is how selective these right-wing judges are about legislative intent. When it comes to the Constitution, these judges are insistent that you must adhere to the original intent of the Framers, but since the Framers have conveniently been dead for 200 years, it somehow seems eerily conveeeenient that a bunch of judges who probably got C's in their American history classes somehow come to the conclusion that the attitude of the Framers always seems to line up with Barry Goldwater's 1964 Republican platform. On the other hand, when you have reasonably current legislation passed by Congress, such as the Religious Freedom Restoration Act or the Affordable Care Act, where the people who wrote the legislation are still alive and kickin', instead of y'know asking what the people who actually wrote the legislation think it means, these right-wing clowns come up with a cockamamie interpretation based on obtusely context-free interpretations that even your friendly neighborhood Asperger's Debating Society thinks might be a little too literal-minded.
posted by jonp72 at 9:24 AM on July 22, 2014 [4 favorites]


The Pew Research Center poll shows disapproval of the law hitting a new high of 55 percent. It comes on the heels of several polls last week that showed the law had very little -- if any -- bump after sign-ups on the health-care exchanges exceeded goals.

The lack of coherence and amount of confusion behind opposition to Obamacare among the public is well-documented at this point, as is the source of that being deliberate misreadings and straight-up lies by opposing lobbying groups. Repeating them at face value just seems ridiculous at this point, especially in regards to a decision built entirely on said misreadings and lies.
posted by zombieflanders at 9:28 AM on July 22, 2014


U.S. Fourth Circuit Court of Appeals issues separate ruling upholding Obamacare subsidies.

Published opinion after argument: Affirmed (pdf)
posted by yeoz at 9:31 AM on July 22, 2014


The lack of coherence and amount of confusion behind opposition to Obamacare among the public is well-documented at this point, as is the source of that being deliberate misreadings and straight-up lies by opposing lobbying groups. Repeating them at face value just seems ridiculous at this point, especially in regards to a decision built entirely on said misreadings and lies.

*shrug* Not sure what you mean, my only point is this is why it shouldn't be a surprise Democrats aren't going to run on it. Hillary will have to own it like Obama does, everybody else should just stay out of the line of fire.
posted by Drinky Die at 9:31 AM on July 22, 2014


I read probably five articles this morning about the meaning of the upcoming decision and the impact of it once it broke today. Only from reading in this thread do I feel like I have some perspective.
posted by stupidsexyFlanders at 9:34 AM on July 22, 2014 [2 favorites]


XQUZYPHYR: Why Democrats in 36 states aren't running ads saying "Republicans are suing to quadruple the cost of your healthcare" baffles me.

Because that wouldn't be playing nice.

If you can't win by playing nice, is winning all that important?
posted by IAmBroom at 9:34 AM on July 22, 2014 [1 favorite]


On the other hand, when you have reasonably current legislation passed by Congress, such as the Religious Freedom Restoration Act or the Affordable Care Act, where the people who wrote the legislation are still alive and kickin', instead of y'know asking what the people who actually wrote the legislation think it means, these right-wing clowns come up with a cockamamie interpretation based on obtusely context-free interpretations

When a judge did use the words of the people who actually wrote the legislation, it's not surprising that they came to the opposite conclusion (emphasis mine):
[S]ome of the top Democratic senators who oversaw the ACA's creation have said that they always intended for tax credits to be accessed through the federal website.

"They're available in both," Sen. Tom Harkin (D-IA), who chairs one of the two committees most involved in the law's drafting, told NPR in 2012 when the issue was initially being raised. "My advice to Republicans is get over it. The law is the law and we're moving ahead with it. Quit trying to scare people."

The U.S. district judge who ruled against the plaintiffs in January quoted then-Sen. Max Baucus (D-MT), the other primary architect of the law, as part of his decision to allow subsidies to continue through HealthCare.gov. While the bill was being crafted in 2009, Baucus said that the law “fundamentally gives states the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the federal government to set up the exchanges.”
posted by zombieflanders at 9:38 AM on July 22, 2014 [3 favorites]


The dissent from Judge Edwards also says as much:
Perhaps because they appreciate that no legitimate method of statutory interpretation ascribes to Congress the aim of tearing down the very thing it attempted to construct, Appellants in this litigation have invented a narrative to explain why Congress would want health insurance markets to fail in States that did not elect to create their own Exchanges. Congress, they assert, made the subsidies conditional in order to incentivize the States to create their own exchanges. This argument is disingenuous, and it is wrong. Not only is there no evidence that anyone in Congress thought § 36B operated as a condition, there is also no evidence that any State thought of it as such. And no wonder: The statutory provision presumes the existence of subsidies and was drafted to establish a formula for the payment of tax credits, not to impose a significant and substantial condition on the States.

It makes little sense to think that Congress would have imposed so substantial a condition in such an oblique and circuitous manner....The simple truth is that Appellants’ incentive story is a fiction, a post hoc narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.
posted by zombieflanders at 9:57 AM on July 22, 2014 [4 favorites]


Fourth Circuit ruling:
Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right, to decline to do so. They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
posted by XQUZYPHYR at 10:12 AM on July 22, 2014 [12 favorites]


I find that the whole judiciary makes a lot more sense if you just picture the judges getting stewed in their offices on the desk-drawer bottle of Wild Turkey while their clerks write the most apparently well-reasoned and researched opinion they can based on their judge's bleary mumblings.
posted by George_Spiggott at 10:14 AM on July 22, 2014 [2 favorites]


yoink: People are so woefully underinformed about this issue that it's going to be hard to mobilize effective public sentiment around it.

This is true, but running ads saying, e.g. "Kynect is Obamacare" is very easy. Getting the Democrats to actually grow a spine and own their biggest accomplishment might be somewhat out of character, but this thing is getting big enough that they'll have no choice but to get behind it. Nobody openly runs against Medicare or Social Security today, and the ACA is heading in that direction.
posted by tonycpsu at 10:16 AM on July 22, 2014 [1 favorite]


And, yes, I realize that Beshear and Kentucky Democrats have been very circumspect in describing Kynect so that it wasn't tied to the unpopularity of Obamacare, but that was before people started receiving benefits. Now you can pull off the mask and say "Look! It was Old Man Jenkins Obamacare all along!"
posted by tonycpsu at 10:17 AM on July 22, 2014 [1 favorite]


People are so woefully underinformed about this issue that it's going to be hard to mobilize effective public sentiment around it.

"If Republicans don't agree to pass this simple two-sentence legislative fix, 20 million people could see their health care rates increase by 400%" seems pretty simple enough to express.
posted by XQUZYPHYR at 10:18 AM on July 22, 2014 [1 favorite]


From the Fourth Circuit ruling:
No case stands for the proposition that literal readings should take place in a vacuum, acontextually, and untethered from other parts of the operative text; indeed, the case law indicates the opposite. National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007). So does common sense: If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino’s, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino’s with a ham and pepperoni pizza has still complied with a literal construction of my lunch order. That is this case: Congress specified that Exchanges should be established and run by the states, but the contingency provision permits federal officials to act in place of the state when it fails to establish an Exchange.
posted by Snerd at 10:19 AM on July 22, 2014 [2 favorites]


Greg Sargent: What today’s Obamacare ruling reveals about the GOP (emphasis in original)
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.

But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
[...]
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
posted by zombieflanders at 10:19 AM on July 22, 2014 [5 favorites]




Second Obamacare ruling of day upholds subsidies in federal exchanges

So, now we've had two rulings today upholding the subsidies and one "reluctantly" rejecting them. And people think Obamacare's complicated! Our legal system must be the Rube Goldberg device referenced in the title to this FPP.
posted by saulgoodman at 10:19 AM on July 22, 2014 [1 favorite]


What really ticks me off is how selective these right-wing judges are about legislative intent. When it comes to the Constitution, these judges are insistent that you must adhere to the original intent of the Framers.... On the other hand, when you have reasonably current legislation passed by Congress, such as the Religious Freedom Restoration Act or the Affordable Care Act, where the people who wrote the legislation are still alive and kickin', instead of y'know asking what the people who actually wrote the legislation think it means

There are books upon books and law review articles explaining this topic, so I cannot really fully explicate the nuances here, but you are conflating a lot of different, developed legal concepts here. "Legislative intent" is different than "original intent" and other legal formalism concepts like textualism. You can't group these all under "right wing" judges and launch such a broad criticism.

You begin by snarking about trying to figure out the dead framer's intent. That is something some "right wing judges" might try to do. But not all formalism judges believe in "original intent". Originalism (which is different) is most closely associated with Robert Bork, and his theory was not necessarily what the founders intended, but what the words meant to readers at the time the constitution was ratified. It's a heavily nuanced distinction. However, Scalia rejects originalism and did so in law review articles (as does Posner and other "right wing judges").

It is probable that the "right-wing judges" are not fans of legislative intent when it comes to statutory construction (again not knowing who are talking about, it is hard speak generally; Scalia is different than Bork who is different than Thomas who is very different than Posner, etc.) Indeed, it is almost universally accepted across all formalist judges that when a statute has a clear meaning and is unambiguous, than legislative intent does not ever matter. So to your point about why don't judges ask living legislators, the response would almost certainly be this: if the statute is not ambiguous and judges are required to interpret the law as written, why would they care what the legislative intended? They'd also ask: why would we care what the legislator thinks after the law has passed? Wouldn't the only relevant inquiry be what the legislative history shows they were thinking in debating and proposing the bill? If legislator's could change their mind about what a law means after it has passed, wouldn't that be completely antithetical to the rule of law and our legislative process? These questions would actually be principled questions in many instances; many of these judges believe they have a constitutionally defined function that requires such principles.

I guess you are generally dis-satisfied with what is called "strict constructionist" theories. Of course, there are many academic and intellectually fertile (some even compelling!) competing theories of judicial interpretation, some "right wing" (e.g., Posner's pragmatism, Sacks' purposivism) and some "liberal" (e.g., Breyer's ordered liberty, Dean Ely's political process theory, Dworkin's moral interpretivism). But you have to understand that these are developed theories and not just haphazard claims. There are intellectually honest academics who espouse strict constructionism with equal integrity, charity and good faith as Dean Ely espoused his theory.

Now, there is certainly a ripe area of criticism to say that, in practice, some judges don't always adhere to the principles they espouse. But in so making that criticism, you have to really understand what that judge's theory is and why the judge ruled the way the judge did. Making some really overly broad, conflating and confused general statement such as the one above is no criticism at all.

As to this opinion at hand, I think it presents an interesting academic legal case study. When a statute appears to be clear on its face, when should a judge depart from the plain meaning? This is the perfect battleground for these academic theories of interpretation. Knowing that the case itself is heavily partisan and the effects could have political ramifications, my guess is that you'll see judges toss aside the theories and go the "justify the preferred result" route. Ultimately, I hate to have so much turmoil and personal consequences riding on the resolution of such a question. It's a much more interesting academic question than actual real controversy.
posted by dios at 10:20 AM on July 22, 2014 [5 favorites]


Also, they're celebrating the end of a tax cut.
posted by Holy Zarquon's Singing Fish at 10:20 AM on July 22, 2014 [1 favorite]


I find that the whole judiciary makes a lot more sense if you just picture the judges getting stewed in their offices on the desk-drawer bottle of Wild Turkey while their clerks write the most apparently well-reasoned and researched opinion they can based on their judge's bleary mumblings.


The D.C. Circuit is often the go-to resource for considering eligible Supreme Court nominees (case in point, current Chief Justice Roberts). I honestly think that the two Republicans on the DC panel all but knew their stupid ruling would be countered (as it has been so far both in today's 4th Circuit and every other prior ruling) as well as by the en banc panel. But that said, they got to create a massive talking point palatable to the right-wing and raise their standing for a Republican president's search come Kennedy retirement time.
posted by XQUZYPHYR at 10:22 AM on July 22, 2014 [1 favorite]


Sooooo.... it's Calvinball? My nation is a game of Calvinball.

Oh, 'tis the devil in the details.

Did you know that a lawyer can never lie in court? Yup, every word out of their mouth and ink placed on the pen is truth.

What they CAN do is commit professional misconduct. The judging of that misconduct is done by other lawyers in many States. One can well imagine how lawyers judging lawyers works out in practice.

Back in the bad old days you used to get charged with a crime when you bribed a juror An account of Clarence Darrow and bribery.
posted by rough ashlar at 10:28 AM on July 22, 2014


As to this opinion at hand, I think it presents an interesting academic legal case study. When a statute appears to be clear on its face, when should a judge depart from the plain meaning?

As is pointed out in the ThinkProgress article I linked to above, this is essentially a decided question (reaffirmed as recently as 2007) from no less a source than SCOTUS itself in the Chevron decision. It couldn't be plainer when not only the legislators, but all the involved administrative parties (including HHS, CBO, and the states) determined both federal and state exchanges to be created.
posted by zombieflanders at 10:30 AM on July 22, 2014


several of the justices would have to impeach themselves as such astonishingly flagrant hypocrites

And that is a crime or a problem in 'legal calvinball' how?
posted by rough ashlar at 10:32 AM on July 22, 2014


The D.C. Circuit is often the go-to resource for considering eligible Supreme Court nominees (case in point, current Chief Justice Roberts). I honestly think that the two Republicans on the DC panel all but knew their stupid ruling would be countered (as it has been so far both in today's 4th Circuit and every other prior ruling) as well as by the en banc panel. But that said, they got to create a massive talking point palatable to the right-wing and raise their standing for a Republican president's search come Kennedy retirement time.

It's certainly possible (not to mention the possibility of dining free forever while getting paid to give speeches to conservative groups), but Griffith is 60 and Randolph is 70, so it's not exactly a high-percentage play given the average age of new justices in the last few administrations.
posted by Copronymus at 10:34 AM on July 22, 2014


this is essentially a decided question (reaffirmed as recently as 2007) from no less a source than SCOTUS itself in the Chevron decision.

You think "When a statute appears to be clear on its face, when should a judge depart from the plain meaning?" is a decided question? Not so much. It remains a central question in jurisprudential theory.

Chevron had do to the extent to which ambiguity can be filled in by administrative agencies. That is, can Congress leave a gap and delegate filling in those gaps to administrative agencies. And when Congress does so, does the Court need to defer to that gap-filling. It is the exact opposite of the question I posed which is when a statute is clear or unambiguous on its face, i.e. no gap.
posted by dios at 10:38 AM on July 22, 2014


The principle affirmed in 2007 was that decisively written language in a single section does not make the statute unambiguous if that language conflicts with other provisions, as it does here.
posted by Holy Zarquon's Singing Fish at 10:40 AM on July 22, 2014


SCOTUSblog reading the tea leaves sees the ACA back at the Supreme Court next term.
posted by T.D. Strange at 10:44 AM on July 22, 2014


A circuit split on a national policy that includes the DC Circuit is basically guaranteed to end up in the Supreme Court, yeah. I'd be shocked if they don't take the case, unless the circuit reverses en banc and no other court looks at the issue.
posted by Holy Zarquon's Singing Fish at 10:45 AM on July 22, 2014



SCOTUSblog reading the tea leaves sees the ACA back at the Supreme Court next term.

The ACA was effectively upheld based on Roberts making the reasonable interpretation that the mandate was a tax. To try and uphold the DC circuit based on the argument that the exchange language can't also be reasonable interpreted was be ludicrous, even for them. Add that into the fact that if SCOTUS took this, and then upheld the DC panel's analysis, they would unarguably be deemed as solely responsible for destroying Obamacare. Despite the Right's salivations, that would be nuclear for Republicans, in the midst of a presidential election.

The full DC Circuit is likely going to reverse the panel decision, making it a clear sweep for the Obama administration on all challenges. If/when that happens, Roberts isn't going to want to touch this with a ten foot pole.
posted by XQUZYPHYR at 10:50 AM on July 22, 2014 [2 favorites]


The principle affirmed in 2007 was that decisively written language in a single section does not make the statute unambiguous if that language conflicts with other provisions...

Well, yeah. That's not exactly a Chevron rule. It's a canon of statutory construction that the statute must be read in light of the whole (if you want to learn more about this, I did a detailed post about this eight years ago). My question was addressed to the question when a statute is in fact unambiguous (which means, in light of the whole). That should be evident from what I said. And that is not a decided question, of course.

...as it does here.

Arguably. That's the fight.
posted by dios at 10:50 AM on July 22, 2014


Well, yeah. That's not exactly a Chevron rule.

Sure it is. Step 1 of Chevron is deciding whether the statute is ambiguous.
posted by Holy Zarquon's Singing Fish at 10:54 AM on July 22, 2014


This thread has taught me that judges really like pizza and bourbon.
posted by Drinky Die at 10:57 AM on July 22, 2014 [6 favorites]


>That's not exactly a Chevron rule.

Sure it is. Step 1 of Chevron is deciding whether the statute is ambiguous.
posted by Holy Zarquon's Singing Fish at 12:54 PM on July 22


You don't have a clue what you are talking about, do you? Yeah, sure, that a "statute must be read as part of a whole" is a "Chevron rule" from 1984, that was somehow presaged by Justice Taney in 1850 and about thousand other reported cases before Chevron.

This is what I get for talking about law with people who get their info from a Think Progress article.
posted by dios at 11:05 AM on July 22, 2014


The article is written by a lawyer who clerked for a judge on the 6th Circuit. What, pray tell, is he getting wrong here?
posted by zombieflanders at 11:10 AM on July 22, 2014 [1 favorite]


As to this opinion at hand, I think it presents an interesting academic legal case study. When a statute appears to be clear on its face, when should a judge depart from the plain meaning? This is the perfect battleground for these academic theories of interpretation. Knowing that the case itself is heavily partisan and the effects could have political ramifications, my guess is that you'll see judges toss aside the theories and go the "justify the preferred result" route. Ultimately, I hate to have so much turmoil and personal consequences riding on the resolution of such a question. It's a much more interesting academic question than actual real controversy.

Dios, don't even bother arguing the false dichotomy that criticism of an original intent/strict constructionist standard somehow implies that I believe in "justifying the preferred result" by any means necessary. In a climate that has given us Bush v. Gore and Hobby Lobby, don't try to deny to me the clear evidence that conservative judges are engaging in "justifying the preferred result." This is disingenuous projection at best and bad faith argumentation at worst. I'm sorry you feel compelled to stand up here as the defender of The Majesty of Law against my snark, but frankly, I'm not the one responsible for politicizing the law here. You portray yourself as this neutral authority on law who's here to educate the silly little liberals about the error of their reasoning, but somehow, you always seem to end up at the endpoint the Federalist Society wants.
posted by jonp72 at 11:11 AM on July 22, 2014 [13 favorites]


Or, for that matter, all of the previous judges that argued against the plaintiffs as well as today's decision from the 4th Circuit, all of which directly addressed the ambiguity issue.
posted by zombieflanders at 11:11 AM on July 22, 2014


I honestly think that the two Republicans on the DC panel all but knew their stupid ruling would be countered ... But that said, they got to create a massive talking point palatable to the right-wing and raise their standing for a Republican president's search come Kennedy retirement time.

Interesting thought but I was under the impression that being reversed is the last thing an ambitious judge wants. A certain kind of president might want to give him marks for trying but to be soundly, possibly even ass-whuppingly reversed in a headline-making way on a previous administration's signature legislation is gonna look like shit.
posted by George_Spiggott at 11:15 AM on July 22, 2014


Yeah, sure, that a "statute must be read as part of a whole" is a "Chevron rule" from 1984, that was somehow presaged by Justice Taney in 1850 and about thousand other reported cases before Chevron.

I thought we were talking specifically about the language articulated in National Association of Home Builders v. Defenders of Wildlife, a dyed-in-the-wool Chevron case. Obviously statutory construction is older than 1984, but Chevron has pulled a lot of different questions into its orbit in the last 30 years, and tests for statutory ambiguity are very high on the list.
posted by Holy Zarquon's Singing Fish at 11:16 AM on July 22, 2014 [1 favorite]


This is what I get for talking about law with people who get their info from a Think Progress article.

VS what other standard?

- Ignorance of the law is no excuse. A Maxim from back in the days when Blackstone wrote down some stuff and "the law" was far fewer rules VS today when 3 attempts to count the Federal Law have failed within the timeframe of most of us have drawn breath.

- The legal education citizens get in public school before age 18

- Demonstration of how respectable "the law is" with barred chokehold discussion on side, heads of government agencies saying the "truthful" testimony they gave was "the least untruthful thing" he could have said, and the demonstration of the ACA decision right here as the point to start from.

As said upthread - 'the legal system sure looks like a game of calvinball'. So do feel free to show us how to turn square corners so the discussion of law will be worthy of participation in.

Calvinball rules indeed!
posted by rough ashlar at 11:19 AM on July 22, 2014


This is what I get for talking about law with people who get their info from a Think Progress article.

This is what I get for assuming the good faith of an interlocutor who thinks anybody ideologically sympathetic to Think Progress must be a complete ignoramus when it comes to law.
posted by jonp72 at 11:32 AM on July 22, 2014 [8 favorites]


I don't know why I even bother writing out posts. Some of y'all do not even attempt to read what I actually write or read it charitably. You just cook up some boogeyman strawman to rail against.

Dios, don't even bother arguing the false dichotomy that criticism of an original intent/strict constructionist standard somehow implies that I believe in "justifying the preferred result" by any means necessary.

Did you read what I wrote? I said specifically "Of course, there are many academic and intellectually fertile (some even compelling!) competing theories of judicial interpretation, some "right wing" (e.g., Posner's pragmatism, Sacks' purposivism) and some "liberal" (e.g., Breyer's ordered liberty, Dean Ely's political process theory, Dworkin's moral interpretivism)." All of those are principled theories which I applaud, and none of them deal with picking results. So, other than making a strawman, where would you get that I was making such a "false dichotmy"?

In a climate that has given us Bush v. Gore and Hobby Lobby, don't try to deny to me the clear evidence that conservative judges are engaging in "justifying the preferred result."

Deny it? I said it myself. Did you read what I wrote? Quote from my first post: "Now, there is certainly a ripe area of criticism to say that, in practice, some judges don't always adhere to the principles they espouse... my guess is that you'll see judges toss aside the theories and go the "justify the preferred result" route."

So what are you talking about? I clearly said that judges in practice toss their principles aside to pick a result. You then claim I am denying it?

You portray yourself as this neutral authority on law who's here to educate the silly little liberals about the error of their reasoning, but somehow, you always seem to end up at the endpoint the Federalist Society wants.


So me saying that "both sides have intellectually developed and principled (even compelling) theories" and that "judges get rid of their principles in practice to pick results" is espousing the Federalist Society line, which specifically says that Ely, Breyer and Dworkin are not principled and strict constructionists are prinicpled? So me taking a position contrary to the Federalist Society is actually in line with the Federalist society? Do my words mean anything?

Your response to me had nothing to do with what I actually said and everything to do with a boogeyman you want to fight with. I am not engaging such nonsense any further.

The article is written by a lawyer who clerked for a judge on the 6th Circuit. What, pray tell, is he getting wrong here?
posted by zombieflanders at 1:10 PM on July 22


No, I am sure he knows he was talking about. I am sure you do not know what you are talking about. Nor do I think you understand what he is talking about.

Because I am certain he would not have made the wholly incorrect claim you did that "When a statute appears to be clear on its face, when should a judge depart from the plain meaning?" is a decided question based on Chevron.

I thought we were talking specifically about the language articulated in National Association of Home Builders v. Defenders of Wildlife, a dyed-in-the-wool Chevron case.

Read the thread. Not what I was talking about. I was talking about the concept of unambiguous statutes. zombineflanders made a silly claim about the Chevron case deciding the question of when a judge should depart from the plain meaning when a statute is unambiguous. You then came to his defense for reasons that are completely incomprehensible to me.

This is what I get for assuming the good faith of an interlocutor who thinks anybody ideologically sympathetic to Think Progress must be a complete ignoramus when it comes to law.
posted by jonp72 at 1:32 PM on July 22


Such strawman. First, you don't even know where my ideology sympathies lie. Nor do you know my opinion of the guy who wrote the Think Progress article. My point is that people whose entire knowledge of an issue is informed by a (inaccurate or underdeveloped) reading of a Think Progress article should maybe not rush to make ludicrous claims like zombieflanders did when he corrected me that "When a judge should depart from the plain meaning when a statute is unambiguous" was a decided question based on Chevron--something he incorrectly pulled from that article. I have nothing against Think Progress or that author. My problem is when people who are ignorant of the law make claims (or worse, criticize others) about what the law is based on their (mis-)reading of articles.

But if you want to make this a partisan thing instead of addressing what I am actually saying--which y'all clearly do--then I am done here.
posted by dios at 11:46 AM on July 22, 2014 [1 favorite]


So, judging by the discussion, does this mean the whole thing is a non-issue? Not the Chevron argument, but the ACA legislation in general.

The comments about Calvinball and this being an empty gesture from the Tea Party highlight a sentiment I share with this comment from a previous thread. If this really is a political circlejerk of empty gestures, I wish someone would call them out on the immorality of their bluff as mentioned earlier.
posted by Johann Georg Faust at 11:51 AM on July 22, 2014


I was talking about the concept of unambiguous statutes.

If one has straightforward statues then those in power might be held to the letter of the statute VS the present legal calvinball world where money and preconceived notions lead to the decision.

So instead there is a whole sub-section of things one can point to as precedent which you can then use to argue why that statute based on what was law even before there was a United States isn't "unambiguous".

Go ahead - be a pro se VS a lawyer in a court case. Argue statute. See how that turns out for ya. The only way it seems to work out is if the lawyer side treats you as a know-nothing-beach-bum-pro-se litigant AND you are smart enough to make the record so you can get your win in the appeals court.
posted by rough ashlar at 11:57 AM on July 22, 2014


Read the thread. Not what I was talking about. I was talking about the concept of unambiguous statutes. zombineflanders made a silly claim about the Chevron case deciding the question of when a judge should depart from the plain meaning when a statute is unambiguous. You then came to his defense for reasons that are completely incomprehensible to me.

Zombieflanders has been talking specifically about this case, as opposed to general legal theory, and that question is implicated exactly nowhere in this case (DOJ didn't even raise it in their 80+ page brief), so I think there was a miscommunication along the line on this topic.
posted by Holy Zarquon's Singing Fish at 11:58 AM on July 22, 2014


It's not 100-percent, but I've always thought a pretty interesting test is, "What policies that I generally support do not seem to be constitutionally allowed? And vice-versa: What things do I think should be forbidden, but which I must admit the Constitution seems to protect?"

For example, I do believe that the government should provide citizens with some form of health guarantee. But I am among those who believed that the mandate was pretty clearly unconstitutional (Roberts decided this question by determining that the mandate was a form of tax -- which the Obama administration insisted over and over that it was *not*.)

Similarly, I read all kind of outrage upthread that the judges who made this ruling are clearly evil corrupt rethuglicans who just hate poor people. Sorry, but I don't read it that way. The judges are pretty clearly saying, "Look, here is an absolutely clear statute. It is not our job to save Congress from itself, and doing so sets a horrible precedent. Our job is to rule on the law, not what some Congressmen say they meant."

In contrast, it is the *dissenter* (and, in my opinion, most people in this thread) saying "We should ignore the statute's plain meaning because doing so leads to a result that I favor".
posted by Alaska Jack at 12:01 PM on July 22, 2014 [1 favorite]


(i.e. I read his comment as saying that the question of whether a statute like the ACA should be considered ambiguous was settled)
posted by Holy Zarquon's Singing Fish at 12:01 PM on July 22, 2014


So, judging by the discussion, does this mean the whole thing is a non-issue?

Very much an open question. The panel ruling is likely to get struck down on en banc review of the newly Democratic majority DC Circuit, and SCOTUS may just let it die there, but if not, this case could be the perfect vehicle for the Republican 5 Horsemen on the bench to take another bite at implementing the tea party agenda in spite of electoral losses. SCOTUS review would come after the midterms, and depending on the results, the Horsemen may make a different political calculus the next time they have an opportunity to strike down Obamacare. Or not, there's still a ways to go.
posted by T.D. Strange at 12:05 PM on July 22, 2014


The judges are pretty clearly saying, "Look, here is an absolutely clear statute."

Everyone is clear that that's what they're saying, people here just don't agree that it is clear in the way they are saying it is.
posted by vibratory manner of working at 12:07 PM on July 22, 2014 [4 favorites]


I'm almost as frustrated with Democrats about this as I am with Republicans for launching the suit to begin with. How on earth have they dropped the ball so horribly on the optics of this?

Republicans literally sued to take your healthcare subsidy away. That's not spin. That was their argument. They sued that the government shouldn't be allowed to make your healthcare affordable. Why is every candidate in a non-exchange state attacking Obamacare not being asked "why do you want me to pay four times as much for my insurance?"


I think this is a great question, and every Democrat (at the very least) should be wondering the same thing.

I don't know the answer for certain, but I would guess that it's one (or both) of two reasons.

First, Democrats have been largely trying to distance themselves from the Obama administration for a while in general, and they may think that their Republican rivals will be able to get away with arguing that Obamacare is worse than no health care whatsoever. And that argument seems to be working in many places, largely because of the sociopathic culture of sadistic, paranoid revanchism that now constitutes the entirety of the right wing's electoral ideology. People act really irrationally in matters of health and purity, and if you can plant the seed in people's mind that the "medicine" being given to them is deliberately tainted, and I mean Obamacare itself here, you can control their behavior effectively with that fear. Republicans have made no secret of their agenda to poison that well and then say it was like that when they got here.

The second reason is that Dems and Republicans have been increasingly getting their campaign and other political money from the same places since the long, slow decline of unions began in the '70s. I would guess that the two parties' candidates have some different and some identical sources of income within the medical industry, but all of those sources are from within the parasitical, rentier industry of medical care itself. So there's probably significant pressure that Dems would face from their owners if they tried to even obliquely introduce the question of justice into any policy decision about health care.
posted by clockzero at 12:08 PM on July 22, 2014 [2 favorites]


Sorry, but I don't read it that way. The judges are pretty clearly saying, "Look, here is an absolutely clear statute. It is not our job to save Congress from itself, and doing so sets a horrible precedent. Our job is to rule on the law, not what some Congressmen say they meant."

If this is what they are saying, then there are several enormous, gaping holes in their reasoning, as listed above. And America's judicial history, especially over the last several decades, says that readings without context (as occurred here) are neither acceptable, nor would they be under the judicial branch's purview even if there was ambiguity.

In contrast, it is the *dissenter* (and, in my opinion, most people in this thread) saying "We should ignore the statute's plain meaning because doing so leads to a result that I favor".

No, that's not what he was saying, which the repeated statements that there is no evidence of that being the statute's meaning should make clear. Nor was it taken that way by any organization involved. The fact that his description has been supported by every other court, and will likely be so when either or both of these Circuit cases go to en banc, makes the majority of this particular panel plainly in favor of a certain result not accepted by any other organization.
posted by zombieflanders at 12:21 PM on July 22, 2014


The rhetoric that's infuriating me the most at this point is every "legal expert" saying "well there are two conflicting Circuit Court rulings; that means it's inevitable it's going to head to the Supreme Court."

No. There aren't two conflicting rulings. At least, not yet. The DC ruling was a 2-1 panel decision that everyone and their uncle clearly reads in the next sentence is going to be appealed directly to the full Circuit. If they uphold the ruling, there there's a split.

But almost everyone with a pulse is predicting that the full DC panel will overturn the panel's decision, which means there isn't going to be "conflicting rulings," there's going to be three major court rulings all in favor of the Obama administration.

I have no idea if it's laziness or deliberate working the refs, but it's just maddening to watch even the smart folks on this ignoring the actual reality of the decisions.
posted by XQUZYPHYR at 12:30 PM on July 22, 2014 [8 favorites]


arguing that Obamacare is worse than no health care whatsoever. And that argument seems to be working in many places, largely because of the sociopathic culture of sadistic, paranoid revanchism that now constitutes the entirety of the right wing's electoral ideology.

1) Ever try dealing with the healthcare AND insurance industry? It is a bad enough experience many opt to avoid it. Now what is your option if you wanted to avoid it - pay $95 this year and have the backing of the IRS able to collect your non-participation?

2) The ACA driven mandate wants you to submit paperwork proving you are a citizen. But some of that proof and its requirements would have you submit data on websites shown to be insecure in the past or submit to forms of Government ID that adds your picture into the facial recognition databases that exist. Post Snowden and post Navi Pillay how should the citizens fight this gather data "habit"? The simplest way is not to participate and be the river which flows around the rock. With the idea of standing, the cost of lawyers, and getting labelled "vexious litigant" the ability to have a fight is limited also.

The government in the past has taken legal things like being a member of the communist party and made it an issue for citizens. Why should government OR corporations be trusted with "big data" to not infringe on people's rights? One way to avoid "big data" is not to participate - and non-participation sure doesn't seem to be an option with the ACA. Another way to attempt to twart "big data" is to fill the blank data spaces in with false data - now how well are false statements suppose to work out on federal forms?
posted by rough ashlar at 12:32 PM on July 22, 2014


I have no idea if it's laziness or deliberate working the refs, but it's just maddening to watch even the smart folks on this ignoring the actual reality of the decisions.

Perhaps we need Nolnah's razor to describe rulings like this and Hobby Lobby: "Never attribute to stupidity that which is adequately explained by malice."
posted by zombieflanders at 12:34 PM on July 22, 2014 [3 favorites]


Where can I find the form to non-participate in the communicable diseases that might spread if people don't see doctors?
posted by Drinky Die at 1:02 PM on July 22, 2014 [1 favorite]


Ever try dealing with the healthcare AND insurance industry? It is a bad enough experience many opt to avoid it.
But some of that proof and its requirements would have you [...] submit to forms of Government ID that adds your picture into the facial recognition databases that exist.


So ... worse than no healthcare for the subset of people who can afford to pay cash for emergency treatments and who also do not have a license or other photo id? To whom does this realistically apply?
posted by The Great Big Mulp at 2:31 PM on July 22, 2014


Seriously? As many who AAL readily point out, IANAL, but could this be fixed as easily as amending 26 C.F.R. § 1.36B-2(a)(1) thus:
established by within the State under section 1311
? If so, the legislation should be prepared immediately and Congress given the opportunity to vote on it. Let's see who among the legislature is willing to vote to increase their constituents' insurance premiums.
posted by Mental Wimp at 2:45 PM on July 22, 2014 [1 favorite]


Here is a somewhat more even handed treatment of the decision which notes that 83% of those who signed up on the exchanges are now both denied subsidies and liberated from the mandate. In other words, these judges interpreted the statute to not cover the vast majority of the very people it was designed to target...
posted by mrbigmuscles at 3:47 PM on July 22, 2014 [1 favorite]


WHAAARGARBL

It drives me fucking mental that a significant number of your elected representatives have managed to convince a sizeable number of your public that free/subsidized healthcare is bad.

I mean what the goddamn fuck, seriously. Congesscritters actually literally have gold-plated healthcare paid for by taxpayer dollars. And then they turn around and tell taxpayers they shouldn't have iron-plated healthcare paid for by taxpayer dollars, and make them fucking believe it.

Healthcare is a human right. Full stop. End of goddamn fucking discussion.
posted by feckless fecal fear mongering at 4:07 PM on July 22, 2014 [5 favorites]




I already thought that the people who were fighting the ACA were beneath contempt. Then the ACA saved my life.

Obamacare saved my ass, all too literally. I had colon cancer, and was only able to get it diagnosed and treated because of the ACA.

If not for Barack Obama and the ACA, I would have probably been dead by 2015. I'm a far lefty and Barry O has done a lot of stuff I haven't liked. But I feel like I have to give him credit for doing some really good stuff too. Like saving my life.

The ACA has not been perfect, by any means. I spent months getting dicked around, standing in lines, waiting on hold, fussing with their website and dealing with the endless bureaucracy of it all. GOD, it was a huge pain. But then at the end of it, I got my cancer diagnosed and treated. Life saved. It was worth the lines.

The ACA is saving lives, like mine for instance. It is saving a lot of lives, and improving many more. It is messy and complicated and it's nobody's ideal program, but it is doing huge, great things, every single day.

And these guys don't care. They want to kill it dead, because if it succeeds that will mean the other guys have won.

I'd wish ass cancer on them, but (thanks to the ACA) I know what it's like to survive that, and I'm not going there. So instead I'll just wish a really horrific, antibacterial-resistant UTI upon them all, with the bonus that they should go broke and not be able to afford to get it treated. Thanks to the Republican hogfuckers who ruled this country for far far too long, I know what that's like, too.
posted by Ursula Hitler at 5:39 PM on July 22, 2014 [23 favorites]


They Criticize What They Can't Understand
To my amazement, as I first saw on Twitter yesterday, some conservatives are arguing that Congress actually intended for the federal exchanges not to include subsidies. For example, Ramesh Ponnuru:
Supporters of Obamacare have been lamenting that the law shouldn't be crippled by a mere "drafting error." But it's not at all clear that restricting tax credits to state-established exchanges was a drafting error. If Obamacare had proven more popular, or resistance to it weaker, then most states would have established exchanges. And if the law were put in place as written - with the restriction on tax credits - then the few holdouts would be under pressure to establish exchanges to get credits for their residents. Other health-care legislation before Congress at the same time as Obamacare had the same restriction.

It's wrong, then, to say that Congress obviously didn't intend to include this restriction.
This argument is...amazing. It may be true that many members of Congress were too optimistic about states creating their own exchanges. But we also know that Congress anticipated that some states would not create their own exchanges...because the statute gave the federal government the power to create exchanges when states wouldn't. Ponnuru's reading of the statute can't explain why they bothered to do this at all. The actually existing Congress assumed that some states would not participate but wanted the exchanges available in all 50 states. So Ponnuru's explanation is plainly wrong, and we're left with an implicit assumption that Congress established the power to have the federal government to create exchanges but wanted them not to work, which is absurd.
posted by tonycpsu at 9:26 AM on July 23, 2014 [3 favorites]


I had colon cancer, and was only able to get it diagnosed and treated because of the ACA.

Was it found using FOBT? Or some other early detection method like flexible sigmoidoscopy or colonoscopy? Or an even newer method such as virtual colonoscopy, stool DNA or even methylated septin 9? I ask because this is my area of research and, of course, hope it is doing some good out there in the world.
posted by Mental Wimp at 9:50 AM on July 23, 2014 [5 favorites]


(There are very few places in the world where "I had colon cancer" gets the response "Please tell me all about your sigmoidoscopy". Weird place, MetaFilter.)
posted by benito.strauss at 10:23 AM on July 23, 2014 [2 favorites]


Thanks for protecting our butts, Wimp.
posted by Drinky Die at 10:34 AM on July 23, 2014 [5 favorites]


De nada. It's my job.
posted by Mental Wimp at 10:45 AM on July 23, 2014 [4 favorites]


Mental Wimp: Butt Protector™
posted by Holy Zarquon's Singing Fish at 11:25 AM on July 23, 2014 [3 favorites]


>> Ramesh Ponnuru: It's wrong, then, to say that Congress obviously didn't intend to include this restriction.
> This argument is...amazing. [...] Ponnuru's explanation is plainly wrong, and we're left with an implicit assumption that Congress established the power to have the federal government to create exchanges but wanted them not to work, which is absurd.


It's like conservative "intellectuals" aren't even trying to mask their bad faith any longer - they can spew any old bullshit and rely on Very Serious commentators to say "On the other hand, some people disagree ..."
posted by RedOrGreen at 11:39 AM on July 23, 2014


Yeah, it seems like the philosophy of many on the right these days is "whatever we can get away with".
posted by benito.strauss at 11:50 AM on July 23, 2014


Mental Wimp, it was found via colonoscopy. I'd had one back in the early 'aughts and I was told I had polyps, and that I should follow up on them at some point. (I was also told the odds of them ever turning into anything were slim.)

For years I simply could not afford to deal with it, so I let it go. Big mistake, as it turns out.

Then the ACA happened, and suddenly I could actually see doctors again. I'd had mysterious gut pain the last few years, like a bad muscle pull that kept coming back, so I went to a gastroenterologist and he decided to do the colonoscopy. They found a weird mass, and that was apparently the source of the pain. (They still don't know what the hell that mass is, but apparently it's not cancer, so... yay, I guess. A qualified yay.) They also found the cancer. One big ol' colon resection later, and here I am all stapled back together, not dead. Thanks, Obama!

Thanks for protecting our butts, Wimp.

That may be one of the most peculiar sentences I've ever read.
posted by Ursula Hitler at 3:07 PM on July 23, 2014 [4 favorites]


Kevin Drum points out that Republicans will be in a real bind if a bill comes to the floor to fix the language to preserve the tax credits, because if you are a Republican you are to Never Ever Ever vote against a tax cut, like Ever.
posted by Asparagus at 3:42 PM on July 23, 2014 [1 favorite]


Perhaps the most ridiculous development in the post-Halbig debate over the ACA is the emergence of "Halbig Truthers", who insist that the authors of the ACA wanted the law to depend on the state exchanges being set up, and to fail when red-state Governors refused to set them up.

Unlike Its Opponents, People Who Supported the ACA Wanted it to Work

Why Are Conservative Health Journalists Covering for Halbig Truthers?

My Ten-Dollar Offer to the Halbig Truthers

The Halbig Troofers

The Great Obamacare Gaslighting of 2014
posted by tonycpsu at 8:09 AM on July 31, 2014 [1 favorite]


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