A Legal Blow to Obamacare

[boooeee]

So, this is an example of a biased poll question:

Employers should have the right to choose what forms of contraceptives their health plans provide, based on their religious beliefs.

But this is not:

Should a government agency be allowed to force a company to provide certain kinds of contraception for free to its employees even if it is considered a sin according to the company's owners' sincere religious beliefs?

 

[Upchurch]

So, this is an example of a biased poll question:




But this is not:

 

[rustypouch]

This wouldn't be an issue at all if the Republican-controlled Congress simply passed an amendment to the law clarifying the intent.

But why bother doing your job to help millions of poor people get access to healthcare when you can take yet another spiteful jab at Obama?

You seem to be implying that Republicans want poor people to have heathcare. I'm not so sure about that.

 

[sunmaster14]

So, this is an example of a biased poll question:


But this is not:

My point is that it's difficult to summarize the controversy in a way which is both neutral AND easy for an unknowledgeable person to understand. Ideally, the pollster should have asked "Have you been following the Hobby Lobby case?" and, if the answer is "yes," followed it up with "Which way do you think the Supreme Court should decide it?"

Actually my main point is that most people are so uninterested in and unknowledgeable about the Hobby Lobby case that a poll is virtually meaningless. You may as well ask people whether or not they prefer the Heisenberg formulation of quantum mechanics to the Schroedinger formulation.

 

[theprestige]

My point is that it's difficult to summarize the controversy in a way which is both neutral AND easy for an unknowledgeable person to understand. Ideally, the pollster should have asked "Have you been following the Hobby Lobby case?" and, if the answer is "yes," followed it up with "Which way do you think the Supreme Court should decide it?"

Actually my main point is that most people are so uninterested in and unknowledgeable about the Hobby Lobby case that a poll is virtually meaningless. You may as well ask people whether or not they prefer the Heisenberg formulation of quantum mechanics to the Schroedinger formulation.

Schroedinger.

 

[Unabogie]

http://talkingpointsmemo.com/dc/obamacare-halbig-workaround

Interesting take on possible workarounds even if the SCOTUS decides to go rogue.

The experts told TPM that the mechanics of how the workaround could be done aren't completely clear, but the crux would be this: States could continue using HealthCare.gov but pass a bill or otherwise indicate that the website functions as their state-based insurance exchange. Creating a website from scratch had been one of the biggest impediments to states creating their own exchanges.

But with HealthCare.gov now built, states could latch onto it as their technical platform and avoid having many of their citizens pay higher premiums because they don't have a state-based exchange.

Joel Ario, a former Health and Human Services official who nows works at Manatt, Phelps and Phillips, told TPM that HHS Secretary Sylvia Mathews Burwell "could make it much easier for a second generation of state exchanges to be established now that the federal government has a viable IT platform for both state and federal exchanges to use."

So any state that didn't want to completely screw over their citizens could simply agree to wave a magic wand, and poof, Healthcare.gov is really AlabamaCare.gov or whatever. Similar to how MLB.com took over all team sites a few years back.

 

[Kestrel]

If the DC court ruling stands, it will impose a tax hike on millions of Americans. One might expect conservatives to be against a tax hike, but apparently they don't care when the tax hike is restricted to American families with modest incomes.

 

[Babbylonian]

If the DC court ruling stands, it will impose a tax hike on millions of Americans. One might expect conservatives to be against a tax hike, but apparently they don't care when the tax hike is restricted to American families with modest incomes.

It doesn't have to be restricted to them. It just has to disproportionately penalize them.

 

[Sam.I.Am]

The first ruling was a strict word for word reading of what the law says, the second decision was an interpretation of what the judges thought that it meant.

I guess we really did have to wait for the law to pass in order to know what was in it... and then change it through interpretation and executive orders to try and fix it. It's a badly written law and badly written laws are what you get when you pass them in the proverbial dead of night.

 

[Unabogie]

The first ruling was a strict word for word reading of what the law says, the second decision was an interpretation of what the judges thought that it meant.

I guess we really did have to wait for the law to pass in order to know what was in it... and then change it through interpretation and executive orders to try and fix it. It's a badly written law and badly written laws are what you get when you pass them in the proverbial dead of night.

That's not how the law works. The rest of the statute clearly speaks of how Federal subsidies should be reported, which means that the framers of the law clearly intended there to be Federal and state exchanges. They set up how that would work so that states could opt to let the feds handle the exchange for them, or set up their own if they wanted more control over the process. What the DC court said was that the clear intent of the framers doesn't matter if there's an ambiguous or erroneous passage, even if it conflicts with other parts of the same law. In the past, courts have always sided with the lawmakers and agencies who interpret the laws, because if they didn't then almost every law could be picked apart for language like this. It's the DC court (well, two wingnut activist judges, anyway) who went rogue.

And by the way, that stupid talking point about passing the law in the "dead of night" and "passing the law to find out what's in it"? The law was online for anyone to read it for a year. If you didn't know what was in it, it's because you spent too much time reading chain emails or watching Fox News to bother educating yourself.

 

[quadraginta]

The first ruling was a strict word for word reading of what the law says, the second decision was an interpretation of what the judges thought that it meant.

I guess we really did have to wait for the law to pass in order to know what was in it... and then change it through interpretation and executive orders to try and fix it. It's a badly written law and badly written laws are what you get when you pass them in the proverbial dead of night an adamantly obstructionist party jams as many poison pills as it can in an effort to make the law as complicated and impotent as possible.

Fixed that for you.

 

[Kestrel]

The first ruling was a strict word for word reading of what the law says, the second decision was an interpretation of what the judges thought that it meant.

I guess we really did have to wait for the law to pass in order to know what was in it... and then change it through interpretation and executive orders to try and fix it. It's a badly written law and badly written laws are what you get when you pass them in the proverbial dead of night.

Reality is that every complex law includes a few glitches. Language that is inconsistent with other parts of the law or simply unclear. Long standing practice is that the Federal Agencies fix such problems when they create the regulations that implement the law.

 

[johnny karate]

The first ruling was a strict word for word reading of what the law says, the second decision was an interpretation of what the judges thought that it meant.

I guess we really did have to wait for the law to pass in order to know what was in it... and then change it through interpretation and executive orders to try and fix it. It's a badly written law and badly written laws are what you get when you pass them in the proverbial dead of night.

Even if this partisan bile were true, it's still an easy fix. Congress just needs to pass an amendment that clarifies the language of the law.

So which side do you come down on, Sam?

The one in which a relatively simple legislative process can smooth the way for millions of low income people to be provided access to healthcare?

Or the one in which bitter ideologues punish poor people for the sake of spite and political theater?

 

[ehcks]

First of all, it is for free. That's part of the mandate.

Is car insurance free because it's part of a mandate?

 

[Upchurch]

Is car insurance free because it's part of a mandate?

And if it is indeed free, then why can't anyone walk into a large business and ask to be covered by their insurance?

It's part of the spin that businesses are being forced to give health insurance away when it is actually part of the compensation package for companies of a certain size.

Of course, the actual solution to all of this is to let the ACA die and move to a UHC system. We should have done so in the 90's.

 

[Manopolus]

Obama can legally take care of this silliness with an Executive Order declaring state exchanges to be effectively federal entities for the purposes of the law (since they're paid for with federal money), although I'm sure Republicans will try to sue him again for doing so. It doesn't matter in any case, since it will likely be overturned. The specific line which they cited was taken out of context with surrounding material. This isn't a blow to anything. It's just more political hand waving.

If SCOTUS decides to eventually hear it and concurs with the current opinion, like I said, the fix isn't beyond the reach of an Executive Order by any stretch of the imagination. It really isn't anything to worry about... basically a glorified typo (obscure language) that the judges in question intentionally misread.

 

[Regnad Kcin]

And by the way, that stupid talking point about passing the law in the "dead of night" and "passing the law to find out what's in it"?

He left out my fave: "ramming it down our throats."

 

[sunmaster14]

That's not how the law works. The rest of the statute clearly speaks of how Federal subsidies should be reported, which means that the framers of the law clearly intended there to be Federal and state exchanges. They set up how that would work so that states could opt to let the feds handle the exchange for them, or set up their own if they wanted more control over the process. What the DC court said was that the clear intent of the framers doesn't matter if there's an ambiguous or erroneous passage, even if it conflicts with other parts of the same law. In the past, courts have always sided with the lawmakers and agencies who interpret the laws, because if they didn't then almost every law could be picked apart for language like this. It's the DC court (well, two wingnut activist judges, anyway) who went rogue.

No, this isn't right. What they said was that it wasn't ambiguous. Here is a well-written explanation by a distinguished lawyer. I'm not a lawyer, but I've had a lot of experience with litigation over bond indentures and the like. Going to court is always a crapshoot. Judges will do what they will do (which is to say, make random and inconsistent rulings). But in my experience there are only two situations where the plain letter of the statute will be reinterpreted: (1) a scrivener's error (i.e. a typo); and (2) a truly ambiguous provision, which means that reasonable people, who are familiar with the lingo and common practices assumed by the drafters, may reach materially different interpretations. I don't see either one in this case. If this was a private financial contract, I would definitely want the plantiffs' side of this case. The plain text is quite clear. Before a judge should even look to other elements of the contract to help resolve an ambiguity, he must first determine that there is an ambiguity. There simply isn't one in the provision providing for subsidies, even when read in concert with the rest of the statute. You can't create an ambiguity by showing that other provisions appear to assume a different meaning. You would need an outright contradiction to do that.

That being said, I think most judges will rule according to their hearts and not their brains when it comes to a decision which would completely upend the status quo. I expect the DC Circuit en banc appeal will overturn the ruling of the panel and side with the government because the full court was recently packed with liberals by Obama and Reid (that was the main reason for changing the filibuster rules), and the Supreme Court either will let the ruling stand or will rule 5-4 in favor of the government (with Roberts being the swing vote).

And by the way, that stupid talking point about passing the law in the "dead of night" and "passing the law to find out what's in it"? The law was online for anyone to read it for a year. If you didn't know what was in it, it's because you spent too much time reading chain emails or watching Fox News to bother educating yourself.

I don't know how the law could have been online for an entire year before being passed, since the Senate version, which was passed by the House in March 2010, was still being negotiated in December 2009. Also, reconciliation was used to make many changes in March 2010. So the law was still in flux right up to the point that it was passed.

By the way, another legal challenge is coming because the Senate screwed up the usual trick for satisfying the Origination Clause when they created and passed the Obamacare bill.

 

[sunmaster14]

Is car insurance free because it's part of a mandate?

Your implied analogy would make sense if the government mandated that your employer provide you with car insurance and that that insurance plan must give you free oil and lubes whenever you wanted them. Otherwise, not so much.

 

[Manopolus]

You do realize that with your gloating that you're dancing at the prospect of actual people losing health insurance right? It's not going to happen, but it might be nice if you could keep that perspective in mind. If any of these people get sick or injured, it will likely have to be paid for by medicare/medicaid, rather than an insurance company, which will actually cost you more money as a taxpayer (more than the health insurance assistance it takes away from them).