The Biggest Obamacare News Getting Little Attention

Discussion in 'Too Hot for Swamp Gas' started by dadx4, Aug 21, 2013.

  1. dadx4
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    dadx4 Well-Known Member

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    Interesting.



    What is perhaps the biggest Obamacare news story of all from the past couple of weeks isn't getting much attention. You have probably heard and read plenty about delays of some parts of the Affordable Care Act, or ACA, special financial assistance for Congress and its staff beyond what ordinary Americans will receive, and what will happen with the health insurance exchanges scheduled to start up on Oct. 1. But relatively little publicity has been given to a recent federal court decision on a lawsuit that could be huge if ultimately successful
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  2. GatorBen
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    GatorBen Well-Known Member

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    It is interesting, and will likely come down to a Chevron analysis (two steps, has Congress spoken clearly to the issue in question so that it is non-ambiguous and if not is the agency's interpretation a permissible one).

    That being said, it's not an entirely clear cut answer. The legislative history would seem to suggest that this is a scrivener's error (there are a fair number in the bill, including incorrectly numbered sections and multiple sections bearing the same number, largely there because the MA senate election kept the Senate bill from being able to be cleaned up). While the courts aren't likely to say that the "state run exchanges" language standing alone is a mere scrivener's error that can be completely ignored, there is enough there and in legislative history to suggest that this was probably supposed to mean all exchanges and is at least arguably ambiguous when read together. If that's the case (and it's definitely not clear cut, but there's at least an argument it is), IRS's interpretation would almost certainly be a permissible one.

    Keep in mind that if it made it to SCOTUS the likely swing votes are Roberts or Kennedy. Roberts has already engaged in legal gymnastics to uphold ACA, while Kennedy's record here shouldn't comfort the challengers. You've got opinions like his in Rapanos floating around where he said that a definition of "navigable waters" as used in the Clean Water Act that included waters which were neither navigable in fact nor adjacent to waters that were navigable in fact was permissible if the waters had a "significant nexus" with navigable waters. That kind of Chevron opinion, combined with the section of the NFIB dissent that he is widely believed to have written describing how subsidies were critical to the exchanges and they wouldn't operate as intended by Congress without subsidies should, at the least, mean that challengers shouldn't rest their hopes on taking a Kennedy vote for granted.
  3. Gatorrick22
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    Gatorrick22 Well-Known Member

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    That was interesting, dx4. I've never before seen a law written so damned ambiguously as this ACA was written. It's just so convoluted that no one can fully understand it, nor the true ramifications of it if it remains... like an anchor dragging us underwater.
  4. PSGator66
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    PSGator66 Well-Known Member

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    But what are the chances of this law going away?

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