I've seen a number of places where people work 35 hours a week instead of 40. Also it would allow any hourly employee working 40 hours a week, of which there are very many, to have their work cut by an hour and lose benefits.
King v. Burwell is being argued in front of SCOTUS today. From the reporting I am reading it sounds like the justices see the merit in what the petitioners are saying but want to see the law continue to exist in the form that was described at the time rather than the one that was actually written. Rather than accept that the law was poorly written at the time and passed in a rush when Kennedy died they want to make the changes in the law required to make it work. Changes that the Republicans have fought against because they never supported the law in the first place.
As written it is clear that the subsidies should not apply in the states that have federal exchanges. Without those subsidies the mandate fails and then the ACA as a whole fails.
My memory could be off but at the time weren't the subsidies a carrot to get the states to create exchanges? Didn't the Medicare expansion get tossed out because it was a form of federal coercion?
I expect SCOTUS to rule in favor of the government on this one because... To big to fail.
My constitutional law may be a bit rusty, but from what I remember, the Federal Government can't punish the states with penalties for doing/not doing things, but are completely free to offer incentives to the states to do/not do certain things.
I am reading the transcript now (half way) and the case for the petitioners looks pretty good. A few things are also linked to the Medicare expansion that was tossed out a few years back. Essentially the petitioners are saying that this is an extension of that and should be read as a carrot designed to get the states to make their own exchanges.
There were a few humorous exchanges dealing with three people with one being a substitute but the lawyer was quite deft at pointing out how the analogy didn't work here.
I also did not know that specific language existed that specified territories would also be treated as states for the subsidies and exchange creation benefits. Which raises the point that if the law makers felt the need to say territories count as state created exchanges why not say the same for federal exchanges created for states?
My constitutional law may be a bit rusty, but from what I remember, the Federal Government can't punish the states with penalties for doing/not doing things, but are completely free to offer incentives to the states to do/not do certain things.
Penalties = BAD but incentives = GOOD.
Yes, but the incentives can't be so big that it gives the states no choice; that saying no would be a punishment because of the amount of money they are denying for themselves.
Basically what the ACA is doing in regards to the Medicaid expansion. Many of the conservative states that backed away from it originally have embraced it over time because of the sheer amount of cash the feds are putting on the table for them.
Which raises the point that if the law makers felt the need to say territories count as state created exchanges why not say the same for federal exchanges created for states?
Because they didn't review it closely enough times to catch that, I guess?
To my knowledge it was the prior supreme court case that let states opt out of the medicad expansion that really caused this issue. One could argue that the writers of the law didn't expect the courts to rule in that way.
They didn't expect the court to come out the way they did. Originally, it was looking like the ACA was going to be struck down 100%, but Roberts got to looking at whether it was allowable under Congress' tax power after reading Ginsburg's dissent and decided it had merit. Suddenly, the ACA gets to stick around.
To the best of my knowledge, at no point during the oral arguments was that brought up as a way to save the ACA. All the arguments were about the commerce clause and the necessary and proper clause. So this result was very surprising.
Just finished reading the full transcripts. We have some real comedians on the court.
In the second half Alito brought up the whole rushed nature of the bill as a possible reason for its ambiguities.
There was discussion of the previous case and the medicare expansion decision and how much of the text of the medicare expansion directly relates to the exchanges and this case.
Maybe the original case should have tossed the law out fully or supported fully. Instead, Roberts political play to save the law has only caused more problems.
Reading some of the analysis and they fall into two camps.
On the left they grab onto Kennedy's statements about constitutional avoidance and how he must vote to uphold the law because if he doesn't there will be death spirals. The criticism from the right on this topic is that if the death spirals are true then it is only because the ACA is a form of blackmail where states are given no choice but to participate.
On the right the consensus appears to be that the law must be struck down because the cure will make everything worse by allowing the bureaucracy to rewrite any statute that it finds to be unworkable no matter how clearly it is written. The left does not appear to acknowledge this as being a problem. Possibly because it echoes Obama's sentiments on immigration law enforcement and the executive branch's right to choose which laws to enforce and which ones not to?
Yet, if the bureaucracy is granted this power now what will happen to the ACA when a Republican becomes president?
After more reading I am not sold on the right's fear. The Chevron principle that is being cited has been around for decades.
The govt lawyer joked with Kennedy (I think?) About how he had no faith that the current congress would fix the law if the challengers won. To which the justice replied that he doubted congress would do nothing if the outcome were as bad as many believe.
I also see statements from Democrats who worked on the bill stating that it was their intention that subsidies would go to all but... You could probably also find a Republican from that time who would gleefully state that they tried very hard to sabotage the bill and that the resulting legislation that passed was flawed by design with the intent that it would never work. At which point you have to ask: do we have the law that was passed or the law that we wanted? How would such a ruling impact other laws in the future?
Sorry in advance for the length of this post. I find statutory interpretation to be incredibly fascinating and love talking about the different "schools" of interpretation.
Statutory interpretation based on legislative intent alone is a fool's game because trying to determine the "legislative intent" or purpose of any statute or law is almost impossible.
Actual legislative intent is unknowable for a variety of reasons. First, legislative intent may be camouflaged or embody multiple and conflicting ideas. Each legislator may have a different interpretation of the statute, law, or amendment under consideration. You could have three people vote "yes" for a law, but for entirely different reasons. Let's use a hypothetical example of a gun control bill... Three legislators could have voted in support of it, but one legislator could have voted for it because he or she wants to ban the sale of assault weapons. A second legislator could have voted for it because he or she wanted to enact a law to monitor potentially harmful mentally ill individuals. A third legislator could have voted in support to create a state-wide gun registry and a uniform licensing standard. All three voted "Yes," but unless you ask them personally, we may never know why they voted in support of the bill.
Second, statements made by a legislator, even purporting to support a law or amendment, may be strategic and may not represent his or her actual beliefs, but be designed to coax others to vote for the piece of legislation. Using the example above, a legislator could voice support for the ban on assault weapons, when what he or she is really interested in is making sure there is a gun registry. If a ban on assault weapons is more popular than a registry, even if that's not the legislator's purpose in voting yes, he or she could say it is in order to garnish more support for it. Or the opposite could be true as well.
For example, during the passage of the Title VII of the Civil Rights Act in 1964, (Employment Discrimination), the Chairman of the Rules Committee in the House of Representatives was Howard W. "Judge" Smith. Smith was a notorious foe of civil rights laws and had stalled or killed previous attempts at getting a civil rights bill passed through his committee (this technique is commonly called a veto-gate with Smith as the "gatekeeper"). When he realized that this bill was most likely going to pass, Smith added an amendment to Title VII greatly expanding the scope of the law. He proposed the addition of the word "sex" to Title VII's list of impermissible bases for employment decisions, not because he was a champion of women's rights, but because he hoped that by transforming the civil rights bill into a law guaranteeing women equal employment rights with men, thereby drastically affecting virtually every employer, labor union, and governmental body in the country, the bill would become so controversial that it would fail, if not in the House of Representatives, than in the Senate. So, even if a legislator makes a statement supporting a bill, he or she may not actually do so. This leads to...
Third, a statement by one legislator does not represent the views of others. A legislator may be purposefully silent or give the impression that he or she supports the interpretation or reasons of another legislator, which may or may not be true. Speculation as to intent may be unreliable since voting itself may be strategic.
Personally, I find that the best way to interpret a statute, bill, Constitution, etc is a combination of:
1. Plain meaning of the text 2. Legislative history/intent of the law 3. Statutory purpose
All three of these methods, when taken by themselves, have their weaknesses. It's only when you use all three, sometimes called Dynamic Statutory Interpretation, that you get the best results.
What do you do when number two is unclear and the law in question is passed via parliamentary tricks on a partisan party line? Or, in your example, when legislators purposely try to sabotage the law and add extra language or muddy the existing language in the law?
When the law is not contentious but it is ambiguous Chevron is used by the court to settle the issue. In this case, can it?
I absolutely think the Chevron Doctrine could settle this issue, and the Supreme Court should defer to the IRS and other agencies' interpretations of the ACA. I guess we'll find out in a couple of months what they end up doing.
The problem with Chevron, as the chief justice alluded to, is that the next administration could change the meaning of the words without any input from the other two branches.
True, but agencies can pretty much do that already. Plus, if an agency does something that the other two branches don't like, Congress can legislate, limiting the agencies' powers, and the Supreme Court can declare it unconstitutional. Checks and balances. Furthermore, since the head of most agencies is a political appointee, whomever controls the executive branch can somewhat guide the wheel of the agency supertankers.
Congress can only legislate if it has a super majority to over ride the inevitable presidential veto.
Look at the Republicans going apeshit over the FCC and net neutrality. Doesn't matter what they do because the President will veto and there is no way enough democrats will jump ship to over ride.
That is all completely true, but we went from discussing a hypothetical situation put forward by Chief Justice Roberts to a real-world situation you wrote above. We have no idea who will run the next administration. It could be a Democrat, it could be a Republican, heck it could even be Ross Perot. Although I'm not actually sure if he's still alive or not and I'm too lazy to google it.
My point is that the Chief Justice will not invalidate the Chevron Doctrine, which has been in place for over 30 years (I did actually google that), over a hypothetical. Either it's good law or it's not. I would hope that the Supreme Court would not choose to ignore it based on who might be the next president. They're not supposed to take that into consideration. This is about law, not about who's president.
The ruling itself doesn't seem like it would apply, since it's over revisions to agency interpretations, but it does suggest that the Supreme Court could uphold the IRS' right to make their current interpretation of the ACA.
I have a crazy idea. Forget the "Free State Project" or whatever. Why don't all the poor/shiftless Occupy people, hipsters, and everyone who's free to move easily all converge in, say, Ohio, and flip the state? An organized movement to take over a swing state.
That would have more effect than almost anything else we could do on the presidential elections.
You move to OHIO first big mouth. I have a better idea. Use dynamite to make Manhattan float around on its own. Put sails on the skyscrapers. Bring it down south to Florida. The "free state project" is going to hit its trigger number of people by the end of the year.
Comments
As written it is clear that the subsidies should not apply in the states that have federal exchanges. Without those subsidies the mandate fails and then the ACA as a whole fails.
My memory could be off but at the time weren't the subsidies a carrot to get the states to create exchanges? Didn't the Medicare expansion get tossed out because it was a form of federal coercion?
I expect SCOTUS to rule in favor of the government on this one because... To big to fail.
Penalties = BAD but incentives = GOOD.
There were a few humorous exchanges dealing with three people with one being a substitute but the lawyer was quite deft at pointing out how the analogy didn't work here.
I also did not know that specific language existed that specified territories would also be treated as states for the subsidies and exchange creation benefits. Which raises the point that if the law makers felt the need to say territories count as state created exchanges why not say the same for federal exchanges created for states?
Basically what the ACA is doing in regards to the Medicaid expansion. Many of the conservative states that backed away from it originally have embraced it over time because of the sheer amount of cash the feds are putting on the table for them.
To the best of my knowledge, at no point during the oral arguments was that brought up as a way to save the ACA. All the arguments were about the commerce clause and the necessary and proper clause. So this result was very surprising.
In the second half Alito brought up the whole rushed nature of the bill as a possible reason for its ambiguities.
There was discussion of the previous case and the medicare expansion decision and how much of the text of the medicare expansion directly relates to the exchanges and this case.
Maybe the original case should have tossed the law out fully or supported fully. Instead, Roberts political play to save the law has only caused more problems.
On the left they grab onto Kennedy's statements about constitutional avoidance and how he must vote to uphold the law because if he doesn't there will be death spirals. The criticism from the right on this topic is that if the death spirals are true then it is only because the ACA is a form of blackmail where states are given no choice but to participate.
On the right the consensus appears to be that the law must be struck down because the cure will make everything worse by allowing the bureaucracy to rewrite any statute that it finds to be unworkable no matter how clearly it is written. The left does not appear to acknowledge this as being a problem. Possibly because it echoes Obama's sentiments on immigration law enforcement and the executive branch's right to choose which laws to enforce and which ones not to?
Yet, if the bureaucracy is granted this power now what will happen to the ACA when a Republican becomes president?
The govt lawyer joked with Kennedy (I think?) About how he had no faith that the current congress would fix the law if the challengers won. To which the justice replied that he doubted congress would do nothing if the outcome were as bad as many believe.
I also see statements from Democrats who worked on the bill stating that it was their intention that subsidies would go to all but... You could probably also find a Republican from that time who would gleefully state that they tried very hard to sabotage the bill and that the resulting legislation that passed was flawed by design with the intent that it would never work. At which point you have to ask: do we have the law that was passed or the law that we wanted? How would such a ruling impact other laws in the future?
Statutory interpretation based on legislative intent alone is a fool's game because trying to determine the "legislative intent" or purpose of any statute or law is almost impossible.
Actual legislative intent is unknowable for a variety of reasons. First, legislative intent may be camouflaged or embody multiple and conflicting ideas. Each legislator may have a different interpretation of the statute, law, or amendment under consideration. You could have three people vote "yes" for a law, but for entirely different reasons. Let's use a hypothetical example of a gun control bill... Three legislators could have voted in support of it, but one legislator could have voted for it because he or she wants to ban the sale of assault weapons. A second legislator could have voted for it because he or she wanted to enact a law to monitor potentially harmful mentally ill individuals. A third legislator could have voted in support to create a state-wide gun registry and a uniform licensing standard. All three voted "Yes," but unless you ask them personally, we may never know why they voted in support of the bill.
Second, statements made by a legislator, even purporting to support a law or amendment, may be strategic and may not represent his or her actual beliefs, but be designed to coax others to vote for the piece of legislation. Using the example above, a legislator could voice support for the ban on assault weapons, when what he or she is really interested in is making sure there is a gun registry. If a ban on assault weapons is more popular than a registry, even if that's not the legislator's purpose in voting yes, he or she could say it is in order to garnish more support for it. Or the opposite could be true as well.
For example, during the passage of the Title VII of the Civil Rights Act in 1964, (Employment Discrimination), the Chairman of the Rules Committee in the House of Representatives was Howard W. "Judge" Smith. Smith was a notorious foe of civil rights laws and had stalled or killed previous attempts at getting a civil rights bill passed through his committee (this technique is commonly called a veto-gate with Smith as the "gatekeeper"). When he realized that this bill was most likely going to pass, Smith added an amendment to Title VII greatly expanding the scope of the law. He proposed the addition of the word "sex" to Title VII's list of impermissible bases for employment decisions, not because he was a champion of women's rights, but because he hoped that by transforming the civil rights bill into a law guaranteeing women equal employment rights with men, thereby drastically affecting virtually every employer, labor union, and governmental body in the country, the bill would become so controversial that it would fail, if not in the House of Representatives, than in the Senate. So, even if a legislator makes a statement supporting a bill, he or she may not actually do so. This leads to...
Third, a statement by one legislator does not represent the views of others. A legislator may be purposefully silent or give the impression that he or she supports the interpretation or reasons of another legislator, which may or may not be true. Speculation as to intent may be unreliable since voting itself may be strategic.
Personally, I find that the best way to interpret a statute, bill, Constitution, etc is a combination of:
1. Plain meaning of the text
2. Legislative history/intent of the law
3. Statutory purpose
All three of these methods, when taken by themselves, have their weaknesses. It's only when you use all three, sometimes called Dynamic Statutory Interpretation, that you get the best results.
When the law is not contentious but it is ambiguous Chevron is used by the court to settle the issue. In this case, can it?
I absolutely think the Chevron Doctrine could settle this issue, and the Supreme Court should defer to the IRS and other agencies' interpretations of the ACA. I guess we'll find out in a couple of months what they end up doing.
Look at the Republicans going apeshit over the FCC and net neutrality. Doesn't matter what they do because the President will veto and there is no way enough democrats will jump ship to over ride.
My point is that the Chief Justice will not invalidate the Chevron Doctrine, which has been in place for over 30 years (I did actually google that), over a hypothetical. Either it's good law or it's not. I would hope that the Supreme Court would not choose to ignore it based on who might be the next president. They're not supposed to take that into consideration. This is about law, not about who's president.
Tea Leaves for the ACA ruling?
Good catch!
Edit: does this guy have tenure? http://m.law.uchicago.edu/faculty/baude
Considering his pedigree how could he pen, let alone publish such a horrible op-ed?
https://freestateproject.org/blogs/93-goal-20000-5-days
It appears that the derp squad has mobilized in force over the last couple years.