The View From 1776

ObamaCare Sausage

Like sausage, few people knew everything that was packed into it.

Posted by .(JavaScript must be enabled to view this email address) on 11/13 at 09:16 PM
  1. In the good old days, when there was less enmity between the parties, if a typo, a misplaced word was discovered in a bill that had been passed, Congress would amend the legislation to correct and improve that legislation. How different is the landscape these days. The Republicans, failing to defeat the health care bill in Congress (with the house wasting an astounding amount of time voting more than 50 times to repeal it!), and in the courts, keep fighting rear guard actions to pick away at it.

    This latest nit that the conservatives have set out to pick has ended up in the supreme court (again). If you ask the drafters of the bill what they intended, they will tell you that the subsidies were intended to be available to all who qualify. (The Republican interpretation to the contrary would make the act unrecognizable to the Congress that passed it!)

    If the court follows its own precedent by following its own "Chevron Doctrine," it will give due deference to the interpretation of government agencies when a statute is ambiguous. Both IRS and the Health and Human Services (HHS)have interpreted the law to mean that if the states do not establish exchanges, HHS shall operate and "Exchange within the State."

    It will be interesting to see how the conservative fair in court next June!
    Posted by .(JavaScript must be enabled to view this email address)  on  11/14  at  11:29 AM
  2. J. Jay,

    You appear to have jumped subject matter here; else failed to provide us some kind of theme tying your argument to any of the essay and/or article’s several points. Be that as it may, your reasoning (what there is of it) does not stand up to inspection, even without reference to Thomas’ commentary. Both the article and Thomas were addressing the fraudulent way the law was packaged, promoted and sold to Congress and the public; not whether the law’s exchange subsidies can withstand Supreme Court scrutiny.

    First of all, SCOTUS does not waste time with “nits”, nor does it go out of its way giving a nit special attention by jumping it past lower courts as appears to have been the case here (see http://www.businessinsider.com/obamacare-subsidies-case-to-supreme-court-2014-11 ). Moreover, it is not just conservative judges who have done this, as there appears to be at least some support by at least on liberal justice (i.e., Sotomayor) to remand the case to its care. The matter in question is whether the law made proper provision for subsidies (aka, redistribution) by Federal exchanges, or not. Opponents of SCOTUS have labelled their grab ‘political’, but the same can be said (but more so) of the U.S. Circuit Court of Appeals for the District of Columbia from whom SCOTUS seized the case. USCCA-DC improperly grabbed the case away from still lower circuits in its attempt to head off a split that would automatically land it at SCOTUS’s doorstep. USCCA-DC is comprised of 8 Democrat judges versus 5 Republicans (making its’ outcome a virtual certainty).

    Second, Congressional Republicans have grown increasingly wary of and disinterested in scuttling Obamacare (more’s the pity), so your complaint against them specifically is a red-herring meant to scapegoat and distract. At most, there are only a handful of Republicans (either in or outside Congress) still determined to reverse this insidious and highly fractious law.

    Thirdly, it does not matter what the drafters of this law intended, in this particular instance, and ‘Chevron Doctrine’ doesn’t really apply where the provision in question is neither clearly articulated nor contextually implied by the empowering act (see http://www.law.cornell.edu/wex/chevron_deference and http://insct.syr.edu/wp-content/uploads/2014/05/Sales_Silence_Chevron.pdf ). I realize this is a subtle point to someone blinded by ideology, but there is a difference between implying a provision and utterly failing to make any provision whatsoever, be it explicit or implied. To argue the law, itself, implies such an unlimited grant of power to create provisions (at will) is just too open-ended even for our liberal dominated courts. It would mean there is no longer any restraint whatsoever on how far any agency can go in redefining its own jurisdiction and powers. I really don’t think even the idiots who passed this atrocious law intended that much. If they did, and SCOTUS upheld such a noxious contention, then we might as well send Congress packing for all the relevance they’ll have in future to the formulating of law.

    Assuming SCOTUS bars IRS from creating its own means beyond that explicitly or implicitly provided, would such a ruling really scuttle Obamacare the way some now contend? The law still allows states to act on their own in realizing its goals, and many states are certain to do just that. The law still forces us to buy insurance against our will, and still controls how medical services are dispensed. Such a ruling may impede one aspect of the law, but falls far short of scuttling it. Therefore, Chevron Doctrine doesn’t apply since an ‘alternative provision’ remains to the same end, and is explicitly provided by the law (i.e., step one of the Chevron Doctrine satisfied). Given there exists an ‘explicit remedy’, there can be no occasion for invoking step two of the doctrine. If proponents persist in invoking step 2, they risk the court narrowing Chevron’s applicability as recommended by professors Sales and Adler. Therefore, liberal litigators have little to gain and much to lose by pushing your ‘Chevron’ gambit.

    Posted by .(JavaScript must be enabled to view this email address)  on  11/17  at  07:45 PM
  3. Bob,

    I take your points and eagerly await to see how it plays out in court. We will get a chance to see how the justices react to arguments based on the Chervon Doctrine and whether they will be as dismissive of it as you are.

    I really think the outcome will be determined by the demonstrated intent of the legislators and whether a very few poorly drafted words are enough to scuttle the whole law.

    As to whether many Republicans are still intent on overturning Obama Care, I think you may have misjudged the ferocity with which this idea is clutched to the conservative bosom. If you look at the statements of all of the prospective 2016 contenders, to a man you will find repeal of Obamacare very high on their flagpoles!
    Posted by .(JavaScript must be enabled to view this email address)  on  11/21  at  04:51 PM
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