I suppose #GamerGate is too obvious a choice.
Man, the year has been so seemingly long in retrospect that it's difficult to recall any stupidities that may have occurred in, say, March. All I have in recent memory are, well, more recent things: the proposition, for example, that the children migrating illegally over the southwest border of the US from Guatemala might could be deliberately carrying Ebola. That's pretty idiotic.
A potential candidate for next year, though: the possibility that SCOTUS could rule that the ACA allows health insurance subsidies only for those citizens in states with state-run health insurance exchanges. We don't know yet whether they'll rule in such a way, but it would be shockingly stupid if they did. Do.
The Ebola freakout has to rank pretty high on the list.
A potential candidate for next year, though: the possibility that SCOTUS could rule that the ACA allows health insurance subsidies only for those citizens in states with state-run health insurance exchanges. We don't know yet whether they'll rule in such a way, but it would be shockingly stupid if they did. Do.
I've been wondering about this; everyone seems to be assuming the fact that they granted cert means they're going to rule against the subsidies, and fair enough, but what happens then? What are those states actually going to do, in practical terms? I'd be interested in thoughts from the lawyers and health-policy people on this.
Why would Texas do anything? Wouldn't it just let Texans buy unsubsidized plans off the exchange an go on with life?
4.last: I saw a news piece (blog article) about this last night, but didn't click through to it. Something about "federal exchange states need to begin to thinking about this, now". Will try to find it.
Meanwhile I can say that Maryland considered, after the semi-debacle of its initial state exchange roll-out, going to the federal exchange, and all I could think was: NO. Absolutely not. SCOTUS has yet to rule. Stay state-based.
5: Sure, some of the more conservative states will presumably just roll with it. But not all the states with federal exchanges are like that, and at least some of them probably do want their citizens to still get the benefits of the law.
6: I'll be interested to see it. I haven't seen any articles like that, which is why I asked.
I had never heard of Pointer Gate. That's astounding.
What a weird experience it must be to live in one of those states that "want their citizens to get the benefits" of anything. Huh.
https://twitter.com/danielkauppi/status/530797021310238720/photo/1
https://twitter.com/kenpaulman/status/530691376674258944/photo/1
7.2: I find this, which is not what I saw a link to in the last day or two -- can't recall where that was -- but gives an overview.
How is it that anyone has standing in the ACA case? Who is possibly being harmed by the subsidies?
Could that pointergate kos author get any more annoying? Dude sounds like he's having a fucking meltdown. It's a stupid reaction to a picture, not a bus full of orphans catching fire.
Who is possibly being harmed by the subsidies?
I for one am getting destroyed over here.
I'm more concerned, really -- or at least, just as concerned -- about what I would be willing to call a crisis of legitimacy if the Supreme Court actually does rule against the subsidies. I realize that there's a 'colorable' argument for their doing so, but it's just that and nothing more: it's bullshit.
Last I heard, the Court is actually invested in its own honor and integrity, or at last Roberts is. So as I say, I would be truly shocked, as would many others, if they ruled for the plaintiffs here. One of the potential stupids for 2015, then.
I think it'll be really hard for congressional Republicans to come up with majorities to fix it. They're more likely, I think, to let the long awaited and much anticipated "collapse" of Obamacare finally take place. I'm really not sure just how much of a collapse it'll really be: rather it's going to be a big tax hit in April 2016, as people have to pay back the subsidies for 2014 and 2015.*
Montana isn't going to be able to do anything, if the Supreme Court rules against, until the spring of 2017.
* I guess that's one wild card. If the SC rules in June 2015, do I have to pay an unsubsidized premium in August 2015, or do I keep paying the same amount, and then make it up at tax time? I'm getting ready to decide whether to re-up for an exchange plan, or maybe go for something off-exchange. What do you health policy mavens think?
People would have to PAY BACK THE SUBSIDIES?! That is unreal.
I would be truly shocked
Steel yourself. Bush v Gore should have inoculated you against this.
16.2 -- I put this kind of hope at the same level as the hope that voting against Sen, Hagan will stem the ebola epidemic.
I believe I've read that if the SC rules against subsidies, that will not require the government to take back subsidies already paid. Not sure how it would work midyear, though.
The post linked in 11 links to this Vox piece, which provides somewhat more detailed discussion.
It's worth noting that Roberts surprised everyone the last time the SC ruled on the ACA. Not that that provides any particular indication of what he or any of the other justices will do this time.
Charley, where are you getting the idea that we'd have to pay back the subsidies?
Need some health policy mavens in here for sure.
I think I'm going to have to pay back my 2014 subsidy anyway, because I made more money this year that I thought I would. Isn't the monthly subsidy really just an estimated tax thing?
25 before seeing Minivet at 21: those better informed should take over.
25 Isn't it like a tax credit. Which, if its not applicable to you, you don't get to take.
It's hard enough to have Congress make decisions based exclusively on the criterion of what they think will make the government least functional, thus discrediting the government and turning more people into Republicans. If the Supreme Cout is doing that too now...
The Vox piece in 22 says people would not have to pay back the subsidies.
31 I'd feel a lot better about that if some sort a reasoning was applied. It seems to me that the subsidy is a tax credit, and, in fact, when I applied on the exchange last year, they asked if I wanted my tax credit doled out monthly as a premium offset, or wanted to deal with it on my taxes all at once.
Sure, maybe the IRS can issue some sort of ruling dealing with mid-year. That'll be an extraordinary tangle at tax time, though.
If the feds aren't allowed to pay half my premium in August 2015, they're not going to do it, and the insurance company is going to want the money from me. I think that part of my thinking on the thing is unassailable.
31: and, in fact, when I applied on the exchange last year, they asked if I wanted my tax credit doled out monthly as a premium offset, or wanted to deal with it on my taxes all at once.
I don't recall that when I applied last year; but MD is a state-based exchange. The subsidy was just deducted monthly as premium offset, more or less invisible to me.
Oh dear: I'm concerned for you folks on the federal exchange.
--
I keep wanting someone to ask all the Republicans virulently against the ACA: Why? Why are you against it? (I assume it's the individual mandate, because freedom.)
Today, on the advertising screen above the urinal I was standing at, there was a big picture of the ebola virus (magnified) and a couple paragraphs of scare text.
It was an advertisement for bleach.
34: they're against it because the democrats get credit if it's successful.
My assumption is that the Supreme Court will do about what they did last time with the ACA: issue a "limited" (but still clearly insane) decision that cripples some large part of the bill. In this case that would be pretty straightforward since that's (supposedly) what's at stake. I'm not at all surprised that their decision followed the election that gave the Republicans control of both legislative houses. So the overall game plan would be: (1) eliminate the subsidy in non-state-plan states, (2) trumpet how this is clearly the result of a bad bill, and one that leaves regular citizens worse off, and (3) blame the Democrats for destroying the national healthcare system that was clearly doing just fine before.
Then either: (4a) argue that we need need need to repeal the whole thing and send a bill doing that to Obama to make him look especially bad or, what I take to be the nastier move, (4b) pass a bill "fixing" the problem that either destroys some other necessary bit of it (maybe get rid of the medicaid expansion for all the states?), does something awful in general like eliminating a big tax or creating massive voter restrictions, or whatever else they want, or just straight up puts in some new horrible problem so they can repeat the game in 2016. If they did that I'm pretty sure the pundits would be very happy to repeat their "why are the Democrats fighting against our attempts to fix their stupid bill anyway?" spin.
Yes, I know, but I want a national journalist, on mainstream network TV, to ask them the question, and refuse to accept blather as a response. As far as I can tell, there's just blather in response, declaring that people's premiums have skyrocketed, they can't keep their doctors, and so on. The MSM is a disgusting failure here.
Is 13 a nonsensical question because standing only matters sometimes?
The people with standing say they were forced out of their exemption to the mandate by the premiums. They want the freedom to refuse to get insurance and they would have fallen under the hardship exemption from the mandate penalty if not for the subsidies so therefore they were "harmed" because the existence of subsides made them subject to the penalty.
No I did not just make that up.
Why didn't they just find someone who says that being assisted in buying insurance violates their Christian beliefs?
Oh. Can I punch them until they're glad they have insurance?
And my understanding on the tax issue is with CC, that it is a credit issued monthly where you have to true up next April, for example if you got more than you should have thanks to a change in income. So if the subsidies suddenly end in August the IRS will apply the credit up until then but not after and calculate your yearly bill based on that. I don't know how that affects monthly payment mechanics.
Ooh, late entry to the supidlympics- teatards are up in arms that the new AG was a Clinton aide and on the Whitewater legal defense team. Except it's a totally different person with the same name. I predict at least three senators will nonetheless cite this as a reason to oppose her.
41 is right except it's not as stupid as that sounds. These plaintiffs have to pay $X that they wouldn't have to pay if there was no subsidy in their state. If that subsidy is illegal (as they allege), then they're injured to the tune of $X. Doesn't matter that X here is a small number, an injury is an injury for standing purposes. Maybe that still sounds stupid but really, a lawsuit like this should fail on the merits, not on lack of standing.
47: I agree standing is a mess generally, but regardless of the law, it's still substantively stupid that they're asserting this is a harm to them, even if they can technically quantify something in dollars. If the subsidies keep going, they can pay a penalty, or they can get cheap insurance. They're asserting they'd be better off with insurance being much more expensive, or, depending on their health status, perhaps unobtainable.
48 makes it seem like they should be contesting the mandate, not the subsidies. "I should have the option to decline the subsidy."
SP's explanation is correct. I have a theory that the injury could be nullified if the plaintiff had claims in excess of the premium (such that the insurance turned out to be a good deal), therefore someone should run over him with a car. In fact, someone should do this on general principle.
45: Ooh, late entry to the supidlympics- teatards are up in arms that the new AG was a Clinton aide and on the Whitewater legal defense team. Except it's a totally different person with the same name.
And Breirbart might have topped the original article with their correction. Basically the full headline and article are still up. The headline has [CORRECTED] at the end and at the bottom of the article there is one sentence: Correction: The Loretta Lynch identified earlier as the Whitewater attorney was, in fact, a different attorney.
Huh, Roberts' PR actually fooled someone not in the media.
You do have to pay it back if you make more money than you anticipated. That's different from the question of whether you'll have to pay it back, because you had a Federal Exchange.
The AG nominee is probably guilty of voter fraud too, because at least two Loretta Lynches voted in different places last week.
Is the payback on a monthly or annual qualification basis though? E.g., if you have income below qualifying threshold for four months and get subsidies, then you get a new high-paying job for the other 8 months, does your new income take a hit to pay back those previous four months, in addition to no longer qualifying for the 8 months at higher pay? I know in MA when they send coverage certification for mandate purposes it looks at a monthly coverage basis but I don't know if subsidies are broken down the same way.
I mean, sure you could argue that overall your income for the year was high but that doesn't mean you didn't need the subsidies at the time- you could make the same argument about longer term windows. "Oh, sure, you were on Medicaid 7 years ago, but now you're rolling in it so please pay us back for any government support from the last decade."
55: Medicaid clawbacks exist! Almost always in the context of long term care and claims against the estate of a decedent, afaik.
So, Kermit, you think we'll get to keep our illegal subsidies?
John "Dick" Roberts has made his decision, now let him enforce it!
the insult that will be added to the injury is having to see this all play out in the mainstream media.
Andrea Mitchell "[insert words that would indicate to any rational person that the whole thing is an intellectually dishonest clusterfuck], but Republicans say that this is yet another way that Obamacare has increased economic uncertainty and led to lost jobs. Back to you Brian."
So, follow-up question: if the guy is claiming that the problem is that the subsidies disqualify him from the exemption, then there's nothing about that claim that hinges on the federal exchange vs. state exchange drafting error. Wouldn't the very next thing be for someone from a state exchange to make the same argument? What is the connection between his painful subsidy and the drafting error, except that he happens to be in a federal exchange state?
60 His argument is that the IRS is interpreting the statute wrong, and in a harmful way. Someone from an exchange state can't argue that the harm comes from illegality.
57: No idea. I was slightly surprised the court took it up. I guess it will come down to Roberts' view of which outcome is best for Big Business: would gutting the Chevron doctrine be a net positive because it opens up new grounds for contesting regulations, or a net negative because it throws decades of settled law into question?
61: It's weird, because the same identical "harm" is coming to people in both kinds of states, but only one kind of state contains people who can point to a drafting error.
62 -- They don't have to gut Chevron, they just have to say that the statute is unambiguous. Gutting Chevron might be considered a bonus, but I bet it's still used more on the establishment side than against corps.
Heebie doesn't even see gas stations.
"Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases."
64: I was going to add that they could, in theory, take the hacktacular stance that there is no ambiguity, but surely Roberts has a teensy-weensy bit of concern about how history will regard him? On second thought, never mind, everyone start panicking now.
Chevron basically means that if a statute is ambiguous, and the agency charged with implementing the statute interprets it reasonably, that's good enough for judicial review even if a court starting from scratch might have interpreted the statute differently. The relevance for this case is that the plaintiffs lose unless the ACA unambiguously denies subsidies to federal-exchange states. Unless the Supreme Court decides to gut ChevronChevron
Basically the issue is that Chevron says if there's any ambiguity at all (one section says one thing, others say different, as often happens with drafting errors) then the courts should defer to administrative (IRS) interpretation of the statute unless their interpretation is totally unreasonable. There's no way the interpretation is "unreasonable" as the system totally makes sense and is clearly working as they've implemented it; therefore the court would need to find that the "as established by the states" is clearly unambiguous which is why you get all the bullshit about "Of course Congress meant to penalize states who didn't make their own exchanges so that the voters would rise up and kick the bums out when they were denied their subsidies" (who's being unreasonable now?)
Hence the Seinfeld reference joke about not only does the trivial pursuit card say the Moops invaded Spain; people are now arguing that the invaders were, in fact, always known as the Moops and historians all agree about the influence of Moopish architecture in modern Spain.
67: On second thought, never mind, everyone start panicking now.
I think he gets bot more distance than the Sibelius dissenters who sure missed an important "unambiguous" part of the law back in the day (unless I'm misremembering what's in what parts of the opinions0> Bust as you imply, not sure they give a fuck; someone willing to put Shelby County v. Holder is a total nihilist.
Ooops, end of 68 should have been "unless the Court decides to gut Chevron, which would be in its power, but which I think is the least plausible outcome of the case." I really don't know why so many people think they're out to get Chevron.
I'm feeling a little bit less panicky about this case than I was the other day, mainly because as 62 says this will come down to Roberts' view of which outcome is best for business. He's already shown that he's not ideologically committed to doing everything he can to wreck the ACA, and at this stage the business interests are pretty clear. Insurance/hospitals/etc. firmly in favor of the subsidies; can't think of anybody important against them. I still think striking the subsidies is the more likely outcome at this point given that there was no need to grant cert now just to affirm, but I'm less convinced of that than I was initially.
We need someone to dish on whether he was shooting daggers at Scalia--I'm guessing he didn't actually vote for cert.
I'm seeing other absurd results of the challengers' interpretation, but one that should be game, set, and match is what the ACA added that's now in 1902(gg)(1) of the Social Security Act. Until an "Exchange established by the State" is operational, states are required not to tighten their Medicaid eligibility requirements and procedures compared to on the ACA's date of passage. So if healthcare.gov doesn't count, the resisting states can't tighten Medicaid until the end of time. Maintenance of effort rules are big deals, and I can't imagine the states not objecting if they thought this might be a result. Heck, I think NC is now trying to take the opportunity to reduce eligibility.
On the flip side, it would be a tiny and beneficial retribution if CMS enforced that law as such following a nihilist SCOTUS decision.
Oh, and 5:
Why would Texas do anything? Wouldn't it just let Texans buy unsubsidized plans off the exchange an go on with life?
I read somewhere that there's no such thing as a qualified exchange plan without subsidies because the definition of a qualifying plan is that it meets the standards for getting subsidies if the applicant qualifies. That reasoning seems a bit backwards to me, but if that's the case then it's not just that people lose subsidies, the exchanges in those states are nuked and people are thrown back to shopping on their own, although community rating still exists.
My nomination is that Harvard sociologist who argued that it's unimportant whether his results can be replicated because the people replicating the experiments can make mistakes, and demonstrated how easy it is to make mistakes by ennumerating some of the mistakes he had made in his own experiments.
77: I'd forgotten about him! What a clot that man was.
Here's a link to post which is a compilation of posts by Nicholas Bagley on King/Halbig. Much more on the legal aspects than consequences, but pretty comprehensive. Includes some debates he's had with Adler.
purposivists
Ooh, my new vocabulary word of the day.
Read his post on what remedy the court might expect to apply, and the argument that the government could consider removing subsidies just from those people who feel harmed by them which is probably a relatively small population of nutjobs. Has anyone ever sued following a decision saying that the new interpretation is harming them? I guess you can't sue to directly overturn a court decision but it seems like the millions of people who are getting fucked to satisfy the libertarian fantasies of a few should have some recourse.
the argument that the government could consider removing subsidies just from those people who feel harmed by them
That post was about the prospective DC Circuit ruling, in which context it made a certain amount of sense, but is a complete non-starter here. Agencies often won't acquiesce to a lower court ruling, except w/r/t the parties to the immediate litigation and/or within that court's geographical jurisdiction, but if the Supreme Court rules against the subsidies, that will be a definitive statement from the highest court in the land that black is white the ACA does not provide subsidies for people in federal-exchange states. To continue providing subsidies to people happy to accept them would be to openly violate the law, unless the administration decides that the SCt no longer gets to definitively say what the law is (which, for better or for worse, is not going to happen). The recourse for the millions of people who are getting fucked is to elect members of Congress who will fix it.
81. last: Or alternatively, state governments.
Re 76, this is what I was talking about (from Scotusblog which lays out the exact sections that contradict each other if you follow the plaintiff reading):
Likewise Section 1312(f) provides that only "qualified individuals" can purchase on an Exchange but defines a qualified individual as one who "resides in the State that established the Exchange." Failure to understand a federally operated exchange as the legal equivalent of a state exchange would mean that federal exchanges have no customers.
We're heightening the contradictions! Let's see what happens next.
And I'm going to go out on a limb with my happy pills and predict that it was actually the liberal wing + Roberts that granted cert because they have the votes to say to the rest of the federal appellate "Stop fucking around with these bullshit cases." Sure they could have let the circuit split resolve itself but then it's not a definitive statement about the bullshit nature of these cases.
As you know, heebie, PH. D. stands for "Piling the contradictions Higher and Deeper."
For which you get a piece of paper that says, "I piled the contradiction high and deep and all I got was this lousy piece of paper."
||
So, I had symptoms of a UTI on Friday, went to the doctor and saw an NP who prescribed Bactrim. I had whit eblood cells in my urine.
Puked up breakfast Saturday. Took a Zofran.
Tried to go out. Came home and started throwing up so much at 5pm that I had to go to the ER, got IV fluids, IV antibiotic and some headache medicine.
Changed the antibiotic.
Got in one dose of medicine.
Went out yesterday and threw up once. around 4:30. Took antibiotic with dinner of chicken soup and was okay.
This morning ate saltines, water, a little bit of hydration drink. Took my medicine.
Threw up 40 minutes ago. WTF. Nurse at doctor's office said that their urgent care was probably a good compromise compared to the ER, since they can do more than the PCP's office, like give me fluids.
I hate this shit. Disrupting FE's day to drive me to the doctor. More fucking co-pays. At least, I have good insurance.
|>
Now they called back and the doctor said go to the ER.
Best wishes. Hope they fix this quickly.
That sounds awful. Hope you feel better ASAP.
I don't understand why this guy's injury-by-subsidy trumps someone else's injury-by-lack-of-subsidy. There are so many things about this case that I just refuse to understand.
92- Was this the know-nothing thread? Yoo obviously knows his first bullet is full of shit, he's just playing for the ignorant masses who will now say "Law prof told me that there's nothing conflicting in the rest of the law!" Nothing like spreading ignorance in pursuit of partisan goals.
He's allowed to walk into the courthouse because he has an individual injury -- that's what gives him standing to bring the case at all. He can win the case and get relief if his injury was caused by a violation of law (because the ACA doesn't allow subsidies in federal exchange states, stupid a theory as that may be).
Someone who is injured by lack of subsidy might plausibly be able to demonstrate standing, that would get him into the courthouse, because he had an injury. But without a theory that his injury was caused by a violation of law, he couldn't win his case and get relief.
Does that clarify anything at all?
If I wasn't taking a position of doggedly refusing to understand this case, that would clarify things, yes.
It would also clarify my gripe above, about how the injury is the identical in both kinds of states, so how is that a thing. If I were seeking elucidation.
Late question. I assume the DC court will continue with the en banc as it is a different case? Or will they not because it is basically the same statutory question?
Odds are they'll stay it. The panel decision stirking the subsidies has been vacated (so it's status quo) and the SCt is going to definitively resolve the legal issue so anything the en banc DC Cir could do would be a "waste of judicial resources" as they say.
Late coming back to this as well, but I found Ian Millhiser's Think Progress piece the most reassuring I've seen (at least of those written for the layperson) regarding the plausibility of a decision in favor of the government. Quoting selectively:
the plaintiffs in King ask the justices to hold that the subsides were not, in fact, intended to "work in unison" with the law's other provisions. Instead, they argue that Congress actually intended to allow each state to turn off these subsidies simply by electing to have the federal government run their health exchange.
The attorneys representing these plaintffs claim that the subsidies were intended as an "inducement" to convince states to set up their own exchanges.
Congress does have the constitutional authority to pressure states in this way, but its authority to do so is limited. As 18 states explain in an amicus brief supporting the government's position that subsidies are available nationwide, the Constitution does not permit the federal government to condition the payment of federal money on a state taking a particular action "if a State is unaware of the conditions or is unable to ascertain what is expected of it."
There follows a fairly detailed accounting of the states, governors, attorneys general, et al. who have in the recent past made statements which make clear that they had no idea that subsidies would be contingent on their establishing state-based exchanges.
Read the whole thing: my understanding is that there's room for the court (Roberts, really) to hold that if the law is understood to establish a conditional grant of subsidies to states -- or to their residents -- that's unconstitutional, man.
Oh, wait: my own rendering just now makes me wonder why this wouldn't lead to a finding that the entirety of the ACA is unconstitutional. Um.
I'm kind of into the weeds on this -- I just read that article a short while ago.
100, 101: I don't find that argument very convincing, which of course isn't to say Roberts won't go with it as some contrived means of splitting the baby. But it wouldn't amount to merely extending the existing "conditional grant" doctrine Ian's talking about, it would be something genuinely new I think. He's talking about the Pennhurst doctrine, which basically says that if the feds condition a state grant on the state agreeing to do XYZ, XYZ have to be clear up front. If, say, nobody could have realized they were agreeing to do Z, the feds can't come back next year and say hey, you took our money, now you have to do Z. Explicitly analogous to contract law, the deal can't include something you didn't reasonably know about. Ian's saying Roberts can just extend that doctrine to grants to a state's residents. But this is different because, under the plaintiffs' batshit ACA reading, it's doing Z that triggers the grants, not taking the grants that triggers the obligation to do Z. The concerns animating Pennhurst--protecting states from taking on obligations without realizing it--don't apply.
Thanks for the feedback.
But this is different because, under the plaintiffs' batshit ACA reading, it's doing Z that triggers the grants, not taking the grants that triggers the obligation to do Z.
The plaintiffs' batshit reading would be that Z is setting up a state-based exchange, right?
Uh, I'm having trouble here: while this may not be what's animating Pennhurst, in this case nobody is coming back to the states and saying, "hey, you took our money, now you have to do Z, set up a state-based exchange." That's because the feds don't think the subsidies/grants are contingent on such a Z. That is just what's in contention.
Doesn't the fact that the feds never said such a thing to the states indicate that ...
oh never mind. I need to map this out or something, probably read the Scotusblog roundtable.
98, 99: Halbig held in abeyance until after the Supremes sing on King.
It is ORDERED that this case be removed from the oral argument calendar of December 17, 2014, and held in abeyance pending disposition by the Supreme Court of King v. Burwell, No. 14-114 (cert. granted Nov. 7, 2014).
The parties are directed to file motions to govern future proceedings within 30 days of the date of the Supreme Court's decision in King v. Burwell.