OP-ED

King v. Burwell: Will the Supreme Court Save the Republican Party from Itself?

flying cadeuciiLast week, the Supreme Court heard arguments in the most recent and pernicious attack on the Affordable Care Act – aka Obamacare.  In the absence of a dysfunctional Congress, the case would be beneath the dignity of Court:  it addresses no complicated legal issues that might guide future decisions of lower courts.   Instead, the Supreme Court has been asked to decide whether a drafting error resulting in one unfortunate phrase in the much maligned 2000 page law –“Exchange established by the States” — means that more than 6.3 million citizens would not be eligible for federalsubsidies allowing them to afford commercial (i.e. – non-governmental) health insurance.

Ordinarily, Congress is expected to fix such drafting problems itself.  Each year Congress pass dozens of “Technical Corrections” bills to fix such errors in prior legislation.  These bills are akin to software patches that are regularly released by companies to fix unanticipated “bugs” previously release programs.  But this is no ordinary legislation.  Having spent six years vilifying for President Obama and has supporters for passing legislation that improves American lives it is far too late in the day for the Republican Congress to replace demagoguery with common sense.

So this issue is now in the lap of the Supreme Court, with its well-known partisan divide of four liberals, four arch-conservatives, and Justice Kennedy, who as the “swing vote” effectively decides many of the most divisive cases himself.  The Court can decide to gloss over this drafting error, as proposed by the Obama Administration, or apply its language to devastating effect.   Prior Supreme Court cases—i.e. “precedent” in the jargon of the law—can be found to support either position.   In the end, there have been few cases in which the Court has more judicial freedom – assuming precedent ever really binds the Court – to do whatever it wants in keeping with the Justices own political biases.

I hope the Supreme Court allows Obamacare to continue building upon its unquestionable success.  Notwithstanding specious rhetoric from Republican politicians like Senator Pat Toomey that Obamacare is “taking away our freedom,” it has freed millions of American from the fear of catastrophic illness without a health care security net.   Subsidized exchanges established by states and the federal government have allowed 13.4 million Americans to obtain health insurance and the percentage of uninsured has plummeted from 18 percent to about 13 percent.    Meanwhile, Republican alarms that Obamacare would lead to an explosion of health care costs, cataclysmic job loses, and devastating increases in the national debt have all been debunked.  When Obamacare was enacted in March 2010, unemployment was at 9.7 percent, the deficit was 8.65 percent of the GDP, and healthcare costs were rising at 3.4 percent annually.  In March 2015, unemployment is down to 5.5%, the deficit has dropped to 2.8% of GDP, and the healthcare inflation has dropped to 2.4%–the lowest in fifty years.

Part of me, however, would like to see the Court grant the Republican dream of tearing the roots out of Obamacare so soon after it has begun to bear fruit.   What will the Republicans say to the 6.3 million American who would immediately lose access to affordable health care?  Would they console them with false promises of lower deficits for their sooner to be heirs?  In fact, cutting the subsidies would do nothing further to reduce the deficit but would, like the false promise of the Bush tax cuts, make it far worse.  Eliminating the subsidies would have little, if any, effect on taxes.  There would be no tax refunds.  The only difference would be that funds previously invested in the public’s well-being and spent to pay hospitals, doctors, and other health care providers (among others) would sit in the treasury until someone devised an inevitably less beneficial use for the funds.

Republicans might try the usual tropes about federal entitlements—that government funds encourage people live on the dole rather than seek productive work.  But this malevolent meme would ring especially hollow here:  81 percent of the 6.3 million people who would lose coverage work either full or part time, and 82 percent have modest incomes, but are not poor.

Meanwhile, the unlucky states (including my home state of Pennsylvania) would devolve to the costly and self-destructive world of adverse selection in health care markets.  Subsidies encourage healthy people to buy insurance.   When only sick people would buy insurance, costs skyrocket which, in turn, makes insurance less attractive and even more costly.  According to the Urban institute, elimination of subsidies would quickly lead to a 35% increase in insurance premiums and a 69% reduction in health plan enrollment.

It is, of course, possible that the Republican Congress would fix the statutory glitch, if the Supreme Court is unwilling to overlook the error.  And hell might also freeze over in the meantime.  Far more likely is that Republicans would face the difficult task of justifying their abysmally malevolent inaction during the 2016 Presidential elections—all but assuring Hilary Clinton’s inevitable quest to retain Democratic control of the White House at the end of President Obama’s term.

Gary L. Kaplan teaches health law at Carnegie Mellon University and is a co-founder of the Pittsburgh law firm Kaplan Cook PLLC.

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103 replies »

  1. “You’re paranoid allan! Anyone asking how and why healthcare is different must have a socialist agenda!”

    I never said that. This is typical of your responses that rewrite history and what other people say or don’t say. What I said was quite different and is in black and white in the responses above. Every step of the way you provide arguments against the consideration of a marketplace solution (with subsidies). Every time one of your arguments is addressed “you duck out of the debate as soon as that argument is challenged… each and every argument you have presented you offered no cogent defense and just bounced over to another thought. This series of rapid fire arguments without defense when challenged is not unusual among ideologues.”

    “The sum total of your argument is thus:
    “Saurabh is a socialist.””

    Nowhere did I say that. The statement you placed in quotes “Saurabh is a socialist.” is yours. Instead I said that your actions of constantly twisting and turning refusing to defend any of your arguments was one of the ways ideologues act.

  2. “collectivist derived arguments”

    You’re paranoid allan!

    Anyone asking how and why healthcare is different must have a socialist agenda! That would include Ken Arrow and George Akerlof! I seem to be in good company.

    The sum total of your argument is thus:

    “Saurabh is a socialist.”

    Bravo, old chap!

  3. Saurabh, you seem more concerned over politics and ideology than people. That is not my priority. I care about healthcare, jobs, the economy and the people. We should be discussing the end product we desire rather than political ends and what we agree upon and where we stray.. From that agreement/ disagreement with recognition of the economic facts of life, barring ideology, we should be able to come to some type of agreement.

    All I have heard from you are collectivist derived arguments where you duck out of the debate as soon as that argument is challenged. Market segmentation (as a problem ) was the last argument presented by you, but like each and every argument you have presented you offered no cogent defense and just bounced over to another thought. This series of rapid fire arguments without defense when challenged is not unusual among ideologues.

    This last and probably final argument you have made “assessing the short run” has a common solution. To solve that problem the ACA uses subsidies. I have continuously suggested that subsidies will be needed for some even in a market solution so it is quite apparent that you are not interested in a solution to solve patient problems rather you are looking for solutions that feed your ideological needs.

  4. “There will always be pain in the short run and the long run no matter what we do so what you are saying is meaningless.”

    Not meaningless to the GOP who will be carefully wondering whether their plans to increase market forces in healthcare will not trouble the voters to the extent that they will vote Democrat instead.

    Not meaningless to the citizens of your country who will be assessing the short run, rather than wondering what will happen in the very long run.

    You’re arguing with yourself allan, with reality, not with me.

  5. To those that work in a field or have a need, their field or need is different requiring special favors along with a host of other things that they feel no one but they require. It seems we are hearing more of the same here from a doctor and a potential patient regarding the healthcare sector.

    Argument after argument has fallen by the wayside and now you have provided one more, market segmentation. What country doesn’t have its share of market segmentation in health care? Does market segmentation have to be bad? What sector of our economy doesn’t have some type of market segmentation? OK, OK, let us hear the specifics about the market segmentation that might concern you.

    Finally I take note that when you are about out of arguments in defense of your position you rely upon emotion, “In the short run there will be pain.” That emotional argument is a successful one amongst a few, but carries no water. There will always be pain in the short run and the long run no matter what we do so what you are saying is meaningless.

  6. “Can it be that you really don’t understand what a free marketplace (willing buyer/ willing seller) means?”

    I have to admit that I’m not convinced that health insurance is not different. On the contrary, I think it is significantly different.

    Many economists believe so. Some believe so because they are against markets. Some believe so despite being pro-market.

    The best I can garner in reading the literature is that a free, partially regulated market, will result in market segmentation.

    Equilibrium in competitive insurance markets: an essay on the economics of imperfect information
    Q J Econ, 90 (1967), pp. 629–649

    The market will correct, in the long run. In the short run there will be pain. Lots of it.

  7. It looks like the postings are getting mixed up. Maybe if you choose to reply again it should be done at the bottom to prevent further confusion.

  8. “Still challenged by the difference between “should” and “would”, allan.”

    As an intelligent person you should know from many of my responses that ‘should’ can be coercive and ‘would’ is meaningless for how would anyone know what another would do in the future. Can it be that you really don’t understand what a free marketplace (willing buyer/ willing seller) means?

    “Curiosity”, what a nice word you are using trying to play it safe. But, you need not be curious about me. All you have to do is read an economics textbook that believes in the marketplace instead of collectivism.

  9. My apologies Allan. I did not see your more considered response (located high up in the thread).

    I thought you were simply referring me to a previous response rather than writing a new one!

    In any case I’ll read & respond

  10. “Reply Above.”

    Still challenged by the difference between “should” and “would”, allan.

    Don’t worry, many just can’t get their heads around the difference, so you are not alone. But you do need to make the distinction for us to move ahead with the discussion.

    “simply promoting your own agenda. The latter doesn’t create the environment for a good discussion.”

    Don’t be so silly and permanently paranoid allan! There is no agenda, other than curiosity.

    Curiosity, old chum, curiosity. As I’ve said before, you should try it sometime.

  11. Among other things insurer’s look for

    Profit margin
    Market Share
    Longevity

    If they are not in synch with the community competition will erode their viability. They use actuaries to handle the math. How they handle the end product depends upon what is happening in the marketplace. One of the things about the marketplace that frequently is not understood by those that push collectivist enterprises is that the market place is self correcting. Thus if the profit margins, waste, and efficiency leave room for other entrants the new entrants will push prices down and/or reduce prices and/or improve efficiency.

    “My question is:”

    How do computer companies set the price of a computer. Why does Apple compete on the higher end? Why did they bring in some lower priced goods? How would a government plan ,the ACA (Affordable Computer Act), look today. We would have mainframe computers functioning at relatively slow speed so that every American could have a specific amount of computer access whether they needed it or not. It would be illegal to buy an Apple computer or anything other than what the government offered. The Abacus would return to its former position.

  12. ” “ if the premiums are set actuarially… ”. That is how insurance works.”

    There are three statements.

    Insurers CAN set premiums actuarially.

    Insurers SHOULD set premiums actuarially.

    Insurers WILL set premiums actuarially.

    My question is:

    Why WOULD insurers set premiums actuarially?

    How WOULD the market self-correct excessive premiums charged to those with pre-existing conditions?

    Would a new entrant to the market try and attract healthy, sick or very sick?

  13. Note to Dr Palmer —
    would it not be much much easier to say that if someone is declined for health insurance by all carriers, they can enroll in Medicare A and B. They would get a flat tax credit to help with the cost of early enrollment into Medicare.

    Would this cost money on the federal budget? Of course. The question is whether the additional cost in Medicare would be greater than the cost of the subsidies that you propose? I suspect not.

  14. Bill what you are proposing is a good way to bring two honest parties together that have divergent opinions. Thank you for helping put more light on a problem that shouldn’t be as difficult as it seems it is.

  15. I don’t know why you think there are too many ‘if’s’. It sounds like you are looking for things that do not exist. “ if the premiums are set actuarially… ”. That is how insurance works.

    Businesses always function with a degree of uncertainty, but that is a good thing. Bad producers go out of business and are replaced by better more innovative businesses that continuously improve to meet the needs of those that hired them. That is a lot better than what happens with government programs that can survive even if the program and its managers are incompetent. In fact instead of innovating those bad government programs continue to exist long after they should have died or been terminated. They are kept alive by government’s wasteful spending of taxpayer dollars. That money could have been better used and might even have been used to employ people that presently have to have others pay for their health care.

    “You are saying that if there is risk based pricing the healthy won’t be charged high premiums and be less likely to leave the market. Right?”

    You seem to be slowly getting there in a round about way, but the way you word your questions makes it seem as if you are unaware of basic economics or simply promoting your own agenda. The latter doesn’t create the environment for a good discussion.

    I don’t know what any one individual will do, but studies have demonstrated that for a specific dollar increase in premium an approximate number will give up insurance. The healthy will be more likely to leave the market if the premium price rises and they feel the value of the insurance is worth less than the dollars paid for it.

  16. “Nothing is 100% certain, but if the premiums are set actuarially based upon risk and the actuary did the job he was hired to do then the premiums will cover the payments that have to be made plus overhead and there won’t be a death spiral.”

    I think we are nearly there, even though there are too many “ifs.”

    You are saying that if there is risk based pricing the healthy won’t be charged high premiums and be less likely to leave the market. Right?

  17. Allan, do you see anything wrong in more accurately finding those in need by going back to ordinary underwriting together with assessing medical needs–some type of utilization history review–AND THEN subsidizing.

    By community rating we do not capture what our real medical obligations are to our poor and sick. We don’t know what our welfare costs SHOULD be, normatively. We are in the dark.

    So we find people who are extremeley costly?and can’t afford coverage?They are simply given more help. They don’t cause a death spiral or bankrupt their insurer because they get subsidized proportionately.

    The only problem I see is that to do means testing, underwriting and medical utilization reviews on all the folks applying for exchange plans might be more than the government can manage and more than the insurer actuaries can do.

    But it does make it theoretically clean and allows us to only help those who need it. So it is fairer to the taxpayer.

    How would we go about finding the data about actual medical claims submitted for, say, the last two years? Is that Canadian bureau thingy still operating that was supposed to have everyone’s medical usage records? The trouble with plain vanilla underwriting, it seems to me, is that it only looks forward and tells you risks in the future. This does not predict costs quite as well as looking in both the future amd the past.

    If we are going to do this in the slickest possible way we must know as accurately as possible, the burden we are putting on the taxpayer. And both ex-post and forward underwriting have to come back.

  18. Bob, thanks for your comments.

    “But where America is struggling since the Bill Clinton era is that private voluntary insurance does not serve all citizens”

    That is true. At that time we talked about 47 million uninsured. That included a whole bunch of people that could afford insurance, but refused it, those eligible for Medicaid, and illegal aliens. If we parsed the numbers then we would have found about 8 million, maybe a bit more, that truly fell through the cracks.

    We could have covered a lot of those people by increasing Medicaid just like the ACA did. Instead we passed a hybrid bill, the PPACA, that has some of the worst parts of what the two opposing sides were fighting over. In the process we have caused many to lose insurance and forced some that had good private insurance to end up on Medicaid. To benefit those few that actually have benefitted we caused harm to the rest of our nation of over 300 million people.

    We needed to immediately work on how to manage the uninsurable and reduce costs at the same time. We had mechanisms to do that. The ACA actually provides a few of those mechanisms that were fought over for years, but mixed them with a lot of poorly thought out legislation that will eventually prove to be the legislations downfall. What is the ACA’s solution for those truly in need? Subsidization, the same thing that can effectively be used in a marketplace scenario except the marketplace over and over again has been proven to be a more efficient mechanism than top to bottom control.

    “This kludge-like complexity is easier to describe than to solve.”

    No matter how dictatorial a government might be it still cannot stick a square peg into a round hole. That requires innovation, something the government is poor at. One needs to change the dynamics of the situation something the ACA does not do. Innovation is best left to a free market which doesn’t function well under the weight of heavy handed government.

  19. Allan, you are doing a solid job of presenting the basic facts of voluntary private insurance.
    But where America is struggling since the Bill Clinton era is that private voluntary insurance does not serve all citizens — and never has. Some people are uninsurable, some have no disposable income, some are irresponsible and let their insurance lapse even when they can afford it.

    You recognize that with your comment that 10% need special assistance. One can debate the 10% ratio, but your instinct is correct.

    The hard part is how to help those 10 or 20 per cent in a political atmosphere that seems to prohibit any straightforward increases in social programs and related income taxes.

    The ACA attempts to shoehorn the 10-20 per cent into every one else’s insurance, which raises rates tremendously, which then requires subsidies just to keep all the other insureds in the game. It also requires subsidies to the insurers themselves.

    This kludge-like complexity is easier to describe than to solve.

  20. “Please explain how risk-based pricing prevents a death spiral.”

    Understanding that there is no such thing as 100% certainty under what circumstances do you believe that risk-based pricing wouldn’t prevent a death spiral?

    We see risk based pricing whether the insurance is life insurance, fire insurance, maritime insurance, etc.

    Nothing is 100% certain, but if the premiums are set actuarially based upon risk and the actuary did the job he was hired to do then the premiums will cover the payments that have to be made plus overhead and there won’t be a death spiral. In a way it makes all patients equal (as far as the insurer is concerned) for each patient is paying the actuarial risk and the problem of selection fades away.

  21. “A bit better, but I believe there are a bunch of better answers. In the context of this discussion a better answer might be to prevent death spirals.”

    Please explain how risk-based pricing prevents a death spiral.

  22. “Should the risk-based pricing be unregulated or regulated?”

    Some regulation always exists, but assuming no monopoly in the normal marketplace there is no need for government to set prices.

    I said: “Think about your question and why risk-adjustment exists.”

    You responded: “Actuarial fairness. To ensure the purpose of insurance remains compensating for unknown events.”

    “Actuarial fairness”: Somewhat of a fantasy since there are so many parameters that define ‘fairness’.

    “To ensure the purpose of insurance remains compensating for unknown events.”

    A bit better, but I believe there are a bunch of better answers. In the context of this discussion a better answer might be to prevent death spirals.

  23. “Think about your question and why risk-adjustment exists.”

    Actuarial fairness. To ensure the purpose of insurance remains compensating for unknown events.

    “Are there limits to how much an insurer should charge someone who is a low risk?”

    Should the risk-based pricing be unregulated or regulated?

  24. Think about your question and why risk-adjustment exists.

    Are there limits to how much an insurer should charge someone who is a low risk? What is the essential difference between your question and this question? (hint, there is very little difference in how the insurer creates the pricing.)

  25. Should the risk-based pricing be unregulated or are there limits to how much an insurer should charge someone who is, for example, mildly hypertensive a higher premium?

  26. What else does risk-adjustment mean when one is talking about health insurance? One way or another higher premiums have to be taken into account for higher risk, but higher premiums that are unaffordable can still be managed.

    The ACA does that by throwing more people onto Medicaid, narrowing networks, offering subsidies, etc, but one should look at how much the deductibles, premiums, co pays and out of pocket costs add up to. That sum total is too much for many of the ACA patients to bare.

  27. “Risk adjustment”

    Just so that we are on the same page, people should pay a higher premium for pre-existing conditions. Right?

  28. “How can one meld the two together? Offer free market care for the 90+ percent where it works and offer subsidies of one kind or another to those that fall through the cracks.”

    What stops insurers from cherry picking the healthiest, to lower the premiums in order to entice the healthiest?

  29. How appropriate. I could say you fit so well into Dunning-Kroger, but how will this advance the nature of the discussion? It won’t, but you will persist in being a blowhard and continue this line of discussion. I’ll attempt to put a stop to that by a short contrast of opinion where the collectivist ideology is removed.

    1) One might be afraid of the marketplace solution because one might feel too many people fall through the cracks.

    2) One might be afraid of the government approach because they will inhibit innovation, reduce personal freedom, increase costs and a whole host of other things.

    How can one meld the two together? Offer free market care for the 90+ percent where it works and offer subsidies of one kind or another to those that fall through the cracks.

    Choose your poison or choose collectivism, but for goodness sakes stop with your 50 Cent insults and move to a higher level of thought.

  30. Allan, I’m seeking someone to demonstrate the classic Dunning Kruger effect. Will you volunteer?

  31. “But I am talking about markets in healthcare and/ or healthcare insurance”

    Over time it has been announced that virtually every sector of this economy is different. The truth is all sectors are different from one another, but they all do better with marketplaces. You keep talking about nuances, and post after post you promise to provide us with new revealing information. What an absolute disappointment you have been. You repeat the same garbage over and over again without apparent understanding of what you say or the responses by the others around you.

    The quote was “Go back to Obama for more. It’s time for you to prey.”

    “Pray?”

    Both Pray and prey like you have been doing. Stick to the former. You are lousy at the latter.

    “Never mind. If you wish to explore market failures in HC you know where to find me.”

    Who would want to find someone that never provides much of anything? Market failures are everywhere, but one of the biggest cause so happens to be government that doesn’t permit the market to function and doesn’t know how to help individuals in need without destroying markets.

  32. “Markets have proven their value in creating wealth all over the world.”

    Indeed they have.

    But I am talking about markets in healthcare and/ or healthcare insurance.

    I did warn you it is a nuanced issue, and might shake your cerebral vault more than you are accustomed to.

    “It’s time for you to prey.”

    Pray?

    Never mind. If you wish to explore market failures in HC you know where to find me.

    If I need to be entertained, I know where to find you!

    In the meantime I hope you have been trying my prescription to overcome ODS.

  33. “If you surprise me with substance I will happily reciprocate.”

    That is untrue, but what I should expect. In prior discussion you kept telling us how you would reveal everything and … poof …nothing. Your answer is redistribution and mindless banter.

    Markets have proven their value in creating wealth all over the world. Your methods have been proven as well only not as a benefit, rather as a curse to enslave people and deny them their ability to succeed.

    You have run out of ideas. Go back to Obama for more. It’s time for you to prey.

  34. “How many more times are you going to repeat this phrase”

    It’s a biopsy of your logic. Specifically, this phrase:

    “The alternative of direct aid to the needy upsets your balance of totalitarian rule and redistribution.”

    It is true that this discussion hasn’t scratched the surface of markets in healthcare but every time I push you to deeper introspection about market failures, you get apoplectic.

    So, as you are offering little substance just assertions, I may as well restrict the discussion to amusement!

    If you surprise me with substance I will happily reciprocate.

  35. “ have you washed your Gadsden flag… ”

    I don’t know how the Gadsden flag has anything to do with you finding God in Obama. Maybe you have a fetish of snakes or maybe you are just afraid of being independent.

    “And a short step to National Socialism!”

    How many more times are you going to repeat this phrase. I talked of redistribution and socialism. Suddenly you bring in National Socialism for some inane reason. I guess you have trouble debating ideas like a marketplace that provides jobs and improvement of one’s socio economic standing where the needy can be aided by things other than redistribution and socialistic policies. That is the issue that you refuse to discuss instead relying upon insults and demonization trying to pretend it to be amusement rather than the wrong way to protect your dignity.

  36. ““If you can overcome your Pavlovian reactionary rage”

    Clearly not!

    ” am glad you have you have found God in Obama.”

    Allan, have you washed your Gadsden flag recently?

    “”The alternative of direct aid to the needy upsets your balance of totalitarian rule and redistribution.”

    And a short step to National Socialism! Ooh, don’t tread on me. Big government get out of my way, but please keep those subsidies and tax credits going, Uncle Sam!

    Allan, I indulge you because you guarantee amusement – a blithering Muppet, but a Muppet nonetheless. 😉

  37. “If you can overcome your Pavlovian reactionary rage”

    Pure rubbish! One can have a marketplace and still provide for those in need with subsidies and other methodologies. I’ll skip the rest of your drivel and deal with a quoted sentence since apparently you are unable to rely upon your own.

    “There’s only a free market solution if you’re willing to let lots of poor people get sick and die, which most of us aren’t.”

    My goodness, the logic and understanding falls to a new low. The marketplace is an effective method of determining needs and distribution based upon value. It doesn’t create sick people, but the use of marketplaces can elevate the standard of living of people and thus their socio economic status leading to an improvement in health. That elevation in status would do more good than all the redistributive and socialist policies you might want to promote that inhibit job formation and leave people unemployed. The alternative of direct aid to the needy upsets your balance of totalitarian rule and redistribution.

    I am glad you have you have found God in Obama. I have nothing personal against your God other than I disagree with some of his policies.

  38. “If you can overcome your Pavlovian reactionary rage”

    Pure rubbish! One can have a marketplace and still provide for those in need with subsidies and other methodologies. I’ll skip the rest of your drivel and deal with a quoted sentence since apparently you are unable to rely upon your own.

    “There’s only a free market solution if you’re willing to let lots of poor people get sick and die, which most of us aren’t.”

    My goodness, the logic and understanding falls to a new low. The marketplace is an effective method of determining needs and distribution based upon value. It doesn’t create sick people, but the use of marketplaces can elevate the standard of living of people and thus their socio economic status leading to an improvement in health. That elevation in status would do more good than all the redistributive and socialist policies you might want to promote that inhibit job formation and leave people unemployed. The alternative of direct aid to the needy upsets your balance of totalitarian rule and redistribution.

    I am glad you have you have found God in Obama. I have nothing personal against your God other than I disagree with some of his policies.

  39. “I can help you with health Econ 101. Don’t be shy to ask!”

    You might be a good radiologist, but you certainly aren’t a good economist. Your understanding of markets is appalling.

    “hands off my Medicare”

    You seem stuck on the Tea Party so let me educate you a bit.

    2010 Gallup: PRINCETON, NJ — Tea Party supporters skew right politically; but demographically, they are generally representative of the public at large. That’s the finding of a USA Today/Gallup poll conducted March 26-28, in which 28% of U.S. adults call themselves supporters of the Tea Party movement.

    ~80% of Tea Party folk were not on Medicare.

    Time for you to get back on topic and stop hiding behind your straw men.

  40. “Strange how when I treated the insane”

    Allan, I’m sorry but I can’t cure your Obama Derangement Syndrome.

    But I’ve heard if you pretend you are on the brink of a revolution & chant “hands off my Medicare” it has made some sufferers feel better 😉

    I can help you with health Econ 101. Don’t be shy to ask!

  41. I missed this earlier:

    Saurabh demonstrating an ever declining wit says: “There is a crater in your knowledge base allan that is brewing recycled, poorly understood free market nonsense & an extreme paranoia of the state.”

    Strange how when I treated the insane they sounded much like you. They think it is everyone else that is insane, not thinking about the fact that they were the one’s without the keys.

    “Who regulates the insurance industry? ……”

    I have no objection to reasonable regulation where the marketplace is preserved. I mentioned that awhile back, but I realize how difficult it is for you to defend your arguments without relying upon straw man arguments or insults.

  42. Thanks to Dr Palmer and Allen for good insights. The ugly experiences in some of the blue states with failed exchanges (i.e. Oregon) would indeed justify caution.

    Another factor not mentioned — some of the Southern states were wildly against the expansion of Medicaid, and in their view the state exchanges and Medicaid were all part of one package that had to be rejected.

    Finally — and no one has mentioned this — the timid Congressional practice for the last 20 years is to re-label spending programs as tax credits.

    Medicare and Social Security were real spending programs — they brought in real taxes, and then sent out real benefit checks. This was approved by Congress in open debate.

    But ah, tax credits even sound like Congress is lowering our taxes, when of course they are doing nothing of the kind.

    And there is an argument that tax credits can indeed be administered by the IRS, which is what effectively happened here.

    If a Congress and President with guts would have said, “The subsidies will cost $100 billion a year, and we are raising the Medicare tax by 1.67 per cent to get this money,” we would not be in the Supreme Court today.
    Germany funds its social programs this way all the time.

  43. Here in Florida I believe there were two main reasons. 1) The law would increase the number of people that would be enrolled and not covered by the feds at the rate for cases covered under the ACA. 2) After the law was in effect the feds would reduce the federal funds available for these new enrollees and the state would be caught funding the rest. Thus for a great part the decision was financially based..

    3) Some states felt they could do a better job for less cost after the feds reduced their payments.

  44. @Hertz
    Sorry for the delay, Bob.
    Why so many states refused to set uo exchanges? This is an excellent question and I have been wandering around the internet trying to get an inkling. I think the dominant answer is that 1. “Why should we go through this giant hassle when all the actual decisions about benefits offered and prices asked and eligibility–these are the meat dishes of the exchange–will be decided by the feds? 2. The second thing I found was that the states saw the difficulty of arranging mostly federal databases to all come together in one web site or physical office in a functional way. It was daunting. After all, the exchange has to connect with the SS administration, the DHS, the HHS, the IRS, the state insurance agencies, and the US Treasury. Further, it has to have a bunch of logical rules plugged into its calculator so that eligibility is figured correctly and so that shoppers can compare plans. To the states, having to depend so much on federal cooperation in getting these databases to work properly combined with feeling so impotent in changing any of the rules… this was a turnoff.

    To argue that the states were trying to teach Obama a political lesson doesn’t make any sense, does it, when everyone knew Obama wanted a single payer and defaulting to federal exchanges was abetting this goal? Also, when states were in the process of defaulting to federal exchanges, they did not know whether this was denying a sucess or abetting failure because at that time you and others were saying that the overall intent of the law was that subsidies would be offered by all exchanges. So the feeling of “baulking” could not have been present in the mind of the states at that time. They may have believed that they were helping the administration achieve a single payer.

    But anyway, the principle reason the states defaulted to allowing the feds to run the exchanges was, I believe, the anticipated dofficulties in working with federal databases.

  45. Ken, I don’t know what is happening with your postings, but they appear to be later than the date stated.

    Thanks for the references. I agree that there are many interpretations, but that is the fault of the speedy passage of this bill which was wrong. I don’t think it should be the Supreme Court’s duty to rewrite the law. Instead Congress should do it. If there is something appearing unconstitutional in any law written by Congress it should not stand and should be rectified by an amendment to the Constitution rather than an expansion of it by the judiciary.

    But to your point and quote:

    …” to sort of squeeze the states to do it”

    I would think that type of pressure to be unconstitutional.

    I think that portion of the argument might have been left out by the government because of the Constitutional argument. Both sides are keeping silent on those things that hurt their case.

    Ultimately it is the Supreme Court’s voice that counts whether or not their decision makes legal sense. If the Supreme Court continues to legislate from the bench and not force Congress to use the amendment process then soon enough the Constitution will be nothing more than a roll of toilet paper that is changed at will.

  46. Ken, thanks. I think what you are rendering is an opinion not a legal issue. What Gruber said is on record. The conflicting words are on paper and we all know why those conflicting words remained in the bill. The only thing we don’t know is what law the justices will use to justify their opinions.

  47. Allan,

    I posted a response to your reply from this morning, but it appears to stuvk in moderation. On the off chance that the two links I included are responsible for the hold-up, here is a copy without those links.

    Cheers.

    You are quite right, my wording was unclear. I was accusing Petitioners’ of dishonestly rendering Gruber’s meaning. They claim that there was no hint in his 2012 comments that he was basing his warning to the states on the possibility that Federal backstops wouldn’t be ready on time, but what else is this, but a massive hint to exactly that effect?

    “In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”

  48. Allan,Allan,

    You are quite right, my wording was unclear. I was accusing Petitioners’ of dishonestly rendering Gruber’s meaning. They claim that there was no hint in his comments that he was basing his warning to the states on the possibility that Federal backstops wouldn’t be ready on time, but what else is this, but a massive hint to exactly that effect?

    “In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”

    The conservative economist Scott Sumner – no fan of the ACA – wrote two posts on this subject when the first videos surface. Both are worth reading.

    http://www.themoneyillusion.com/?p=27141
    http://www.themoneyillusion.com/?p=27169

  49. Ken, I missed your reply earlier. Sorry.

    I’m not quite sure what you are saying on two occasions.

    “completely distorted rendering ” Very unclear to me. That is an opinion you carry, but I wasn’t quite sure what you were trying to conclude. What was distorted?

    I was further confused “ Consider this dishonest version from the Petitioners’ reply brief:” What is this dishonest version you are talking about? I assume since there were quotations around the comment you quoted the brief, not a version of the brief.

  50. Let me raise a counter point and a question.

    1. Medicare is more or less controlled by a single federal agency. It has faults but does not seem to be the disaster that you imply.

    2.If the subsidy money is not coming from state coffers, then why did so many states refuse to create exchanges? Even the reddest states line up eagerly for farm price supports and federal highway funds.

    Setting up exchanges is not cheap, but I think there were federal monies for a lot of that also.

    Seems to me like you had a great ideological drive to deny Obama any successes.

  51. @Hertz
    Do you believe that it would really be better for the country if all these marketplaces were supervised and more or less controlled by a sinlge federal agency? Remember that the exchange is not welfare itself, it is only handing out welfare payments sent as refundable tax credits from the Treasury. The states cannot take or divert these moneys no matter how much lingering racism or contempt they feel for the poor. The money is not coming from the state coffers. Besides, you know that the feds would soon control the benefit offerings from all the insurers, then their premium prices, and finally their ROIs.

  52. Dr Palmer, your proposals run into the same problem that has existed since FDR.. About 15 states have no desire to do anything for the working poor regarding health insurance — even with all federal dollars.
    In the deep south, this is a legacy of racism. In other states, it is a desire to be sure that their state is not attractive to poor people.
    I was not kidding when I said FDR. Read a biography of Harry Hopkins, who found Southern officials refusing to give out federal aid. Read a history of Medicaid, which was not funded with one nickel in Arizona until the 1980’s.
    State’s rights is really doom for the poor, although the legal justifications for states rights are on the surface defensible.

  53. “I love insurance.”

    I know you do Allan. I never really mistook you for the “live free or die” type.

    Who regulates the insurance industry? Who makes sure that they have a minimum reserve so that they don’t go bankrupt and renegade on their promises to risk averse people?

    There is a crater in your knowledge base allan that is brewing recycled, poorly understood free market nonsense & an extreme paranoia of the state.

    You can call this Greek. But at least the Greeks understand their dependence on big government.

  54. Maybe it would be better, in fact, if the exchanges were run by the states.

    1. There would be more variety in benefit design. We still do not know the global answer to “What to Cover?”. State experiments help.
    2. There might be less total cost to AHIPs because of more insurer participants competing.
    3. Less chance for Printz v United States-effect. “Congress should not coerce the States to follow federal law.”
    4. Less chance of Chevron effect. “Agencies changing the law.”
    5. More innovation and experimentation.
    6. More appropriate local determinants of subsidy levels.
    7. More insurers = more complexity = more digital security.
    8. Less chance to morph into single payer. Congress (overall) may have wanted this.
    9. Less top-down autocracy from HHS. More total people on boards of HIXs.
    More democracy. More Senator-Representative control of state exchange.

  55. If we agreed on what Gruber said, we would also agree that the impact they had on the trajectory of these cases was based on a completely distorted rendering thereof. Consider this dishonest version from the Petitioners’ reply brief:

    “Fifth, the Government’s brusque dismissal of repeated confirmations of the Act’s incentive function by ACA architect Jonathan Gruber is unconvincing […].Gruber belatedly sought to claim he was addressing what would happen if HHS failed to establish Exchanges. […] Yet nothing in his comments even hinted at such a scenario, and there was no rational basis in January 2012 to believe that HHS would defy its statutory duty. “

  56. Your latest reply needs to be annotated.. That will prevent your Bullwinkle Mythology from reaching the size of the original 3 volume Mythology of ancient times.

    Sometimes what you say is Greek to me.

  57. That is a real fairy tale Saurabh. I love insurance and am probably overinsured. Not only that but I would see to it I got the best treatment possible for that fracture. Since I believe in voluntary insurance the diffusion to others is limited by a voluntary agreement between the insured and the insurer.

    Vous êtes bullwinkle!

  58. The fairytale will be about Allan Galt.

    He is a rugged individual who refused to buy health insurance and then refused emergency treatment for a compound fracture of the femur whilst mountain biking, because he did not wish to diffuse costs to those who bought insurance.

    Stuff of legends, this Allan Galt! He wrapped his leg in a Gadsden flag.

    Don’t tread on me, said Allan Galt.

    Je suis Allan!

  59. Saurabh, let me let you in on a little secret. I don’t speak for Republicans.

    “I’ll write about Uncle Allan’s limited government fairy tale one day.”

    But first you have to know what you are talking about and be able to distinguish truth from fiction.

  60. Sorry, I should have bridged the first two sentences with a conjunction!

    GOP won’t touch Medicare, won’t shrink government. You know that don’t you, allan? Which is why you will vote for them. Because they will keep their hands off your Medicare!

    I’ll write about Uncle Allan’s limited government fairy tale one day.

  61. “McCarthy was dead wrong.”

    Joe McCarthy’s claims was that there were communists in sensitive positions of the government. He wanted those individuals shifted away from sensitive positions until they were demonstrated not to be a threat. He was proven right many times over. The Venona papers revealed it again when they were finally released almost 50 years later.

    You remind me of Bullwinkle and his Fractured Fairy tales that my children used to watch.

    Why not get back to the ideas behind the ACA that most of us find desirable.

  62. McCarthy was dead wrong.

    It wasn’t subversives that would expand the state but people’s want of security. Healthcare is exhibit 101.

    This is why the GOP wouldn’t dare touch ESI or Medicare with a barge pole.

    It was Khrushchev who actually nailed it. Offer piecemeals of the state as pieces of candy. Then you can’t take it away.

    Lament as much as you want Allan. The government will never shrink. People won’t allow it.

    Rugged individualism is a myth, like Bigfoot

  63. “Allan McCarthy accusing me of being gratuitous!”

    The comment was gratuitous. I don’t think your use of the word is correct.

    I assume you are talking about Joe McCarthy who you probably know little about. I don’t know what type of man Joe McCarthy was, but one thing that has been proven, Joe McCarthy was right. But go ahead and utilize demonization instead of argument. That is where you excel.

    At least we have found agreement to some extent on third party payer. That is a step forward. There were two other items, high deductible and private insurance, but ending the tax ‘mandate’ of third party payer would likely resolve both of those issues to a great extent.

  64. Allan McCarthy accusing me of being gratuitous!

    Who says irony is dead!

    Allan, you maybe a thin-skinned Muppet struggling to sell earnestness for rigour but you’re an endless source of amusement!

    ” should insurance and employment be irrevocably tied up?”

    No. But I challenge the GOP to touch ESI or Medicare & prevail in next election. I dare them to test rugged individualism. Go on. Make my day!

    “Third party payer is one of the biggest problems we face and the tax law helped create third party payer.”

    Agree, to an extent.

  65. Since I am answering your questions now and have done so time and time again in the past (something you all too frequently avoided) it is now your moral obligation to respond to questions as well. Your response or lack of response doesn’t reflect on a legal issue, only a moral one.

    Additionally you need not help me out (“Let me help you out.”) for you aren’t now and haven’t in the past. This is a gratuitous comment that you don’t wear well.

    The ACA has led the way for high deductible insurance by making high deductible insurance acceptable. High deductible insurance is an important desire both of conservatives and the ACA.

    The ACA beefs up individually purchased insurance. It actually provides benefits for insurance bought on the individual market.

    Should health insurance and employment be irrevocably tied up?

    Third party payer is one of the biggest problems we face and the tax law helped create third party payer. The ACA law helps to break that link.

    Redistribution and top down measures excluded the frequently stated objectives behind the ACA aren’t much different than my own. The only problem is I think the ACA inhibits attaining these goals.

  66. “Bobby are you also going off the edge? Whether you like the bill or not do you really think this bill was well drafted?”

    You respond: “Yes, AHIPcare is a Frankenstein pastiche…”

    My claim was the bill was “poorly drafted” To which you went over the edge and now agree with me. Where is the problem with reading comprehension?

  67. I commend your efforts at finding middle ground.

    Let me help you out.

    Allan, please list the features of the ACA you like.

  68. Saurabh, what are you talking about?

    It is a bill, one that a person favors or doesn’t. This is not one of these all or none phenomenons you like to create. In fact in the past I made mention of some items in the bill that I felt were leading us in the right direction.

    What you are doing is making every discussion into a divisive one. Why?

    I don’t loathe the ACA. I just think it is a bad bill that does more harm than good and shouldn’t have been passed. I am not against everyone carrying insurance nor am I against helping those that are in need which I believe are major reasons for the bill’s existence.

  69. But the states can get waivers and do the whole ACA-equivalent thing themselves…,as long as it is budget neutral–I guess this means federal budget–and as long as the medical job is @identical. See WSJ 3/13/15, yesterday. This probably means the states can establish their own subsidies.

    But also, if the loss of federal subsidies affects too many folks, don’t you think that Congress would do a bi-partisan fix? Some say “this Congress would let it rot in hell”. I’m trying to see why the Pubs would lose anything by fixing it. They could say their effort was akin to palliation, trying to keep the beneficiaries comfortable before they change the really key parts of the Law. [ Big problem: There are no innovative devices in the ACA hammering costs]

  70. Peter & Allan:

    Between loving the ACA unconditionally & loathing it reflexively is there no middle ground?!

    Lord, I miss the independents!

  71. Interesting points, Bob. But, assumes that only the poor and low-income strata would be significantly adversely affect by a SCOTUS strikedown of federal HIX’s in King. The NHE is pretty much a zero-sum game.

  72. “Bobby are you also going off the edge? Whether you like the bill or not do you really think this bill was well drafted?”

    You have a reading comprehension problem. I repeat.

    “Yes, AHIPcare is a Frankenstein pastiche of lobbyist-submittal staffer cut & paste plagiarism. Like any major law. What’s new?”

    You also naively assume, in light of my calling BS on the disingenuousness of the King plaintiffs, that I am a fan of the ACA — ‘scuse me, “AHIPcare.” Which, btw, I followed via the postings of every draft while it was still a bill.

    http://bgladd.blogspot.com/2009/08/public-optional.html

  73. The beneficiaries of federal subsidies are a diverse and scattered group. They do not constitute a voting bloc.
    I worked first hand on ACA enrollments this past winter. Our office processed about 900 applications, and virtually all involved subsidies.
    These 900 people would not scare any Republican candidate even if they hated the candidate and made sure to vote against him or her. Many of the 900 probably would not vote.
    In about 2996, Tennessee slashed its Medicaid rolls by over 200,000 persons. Tennessee has been electing Repug-Nicans ever since.
    As much as I would hate to see it, the right wing might well survive a massive cut off of subsidies. It kind of reminds me of gun control, where the public is assumedly lined up against the gun nuts, but no legislator is ever driven from office over gun laws.

  74. We don’t disagree as to what Gruber said. We disagree on the impact those words have whether or not what Gruber said is considered evidence in the case.

  75. Read again Ken. Take note I included an asterisk to highlight the operative words. Take note (comment #1) the reference was to explain some of the divisiveness and not to highlight whether or not the law was legal.

  76. You suggested that the “process” by which the bill was passed might be “illegal”, but that there was nothing illegal about using reconciliation get the final bill through the Senate. And yours is the first suggestion that I’ve seen that the bill itself might be illegal: Petitioner’s certainly don’t make that claim. They merely aver that the IRS misread the statute.

  77. Gruber’s “speako” does not support the King position. He said nothing about the statute, but rather implied that the Federal backstops might not be ready on time, and that consequently, states that did not run their own Exchanges might leave their citizens out in the cold:

    “[The Exchanges …] will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”

    The full quote, including the question he was answering, is here: http://www.youtube.com/watch?v=nalCco0iEk8

  78. Bobby are you also going off the edge? Whether you like the bill or not do you really think this bill was well drafted? You don’t think that “*Some* might *wish* to call this process one of dubious legality.” isn’t true? Totally illegal laws can be passed and are considered legal until challenged. Isn’t that what has happened with this bill?

  79. “Pile of crap.”

    The spin has gotten to you Peter1. That is all you seem to read. I can understand if you like the ACA. I can understand if you believe the Supreme Court will rule in favor of the government, but to say that “The ACA was a poorly drafted bill largely due to the unconventional and divisive way it came into law.” is a pile of cr-p tells us to the depths you have fallen.

    The bill wasn’t passed in an unconventional way?
    The bill’s passing wasn’t divisive?
    The ACA wasn’t poorly drafted?

    No matter what you think of the ACA all the above are true, but you are so charged up you can’t manage the facts.

  80. How to Grow Stare Decisis in Your Own Back Yard

    SCOTUS: “It is not our job to to correct the Congress’s mistakes…but in this case we will.”

  81. “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

    – Abraham Lincoln

  82. Nice.

    HE doesn’t like it, so it’s “poorly drafted” and of “dubious legality” (gotta love that second complaint; a bill passed by Congress and signed into law by the President is presumptively “legal” until struck down by SCOTUS or subsequently re-legislated out of existence by Congress and, again, either signed by the President or via override of a veto).

    Amusingly, some red state Guvs are now expressing some Buyers’ Remorse, given the potential adverse financial (and political control) implications of any looming HIX strikedown should SCOTUS go that way.

  83. SCOTUS as the legislature of last resort.

    Kennedy’s reasoning will win and a new precedent will be born:

    To have meant the Act io exclude federal subsidies, Congress would be placing an intolerable unconstitutional coercive burden on the states which would lead to an insurance catastrophy, death spirals and no customers. We have decided that the federal government can not treat the states this harshly. Therefore, the Congress could not have meant this, and we will re-write the Bill.

  84. “- Burden of proof is on the plaintiffs.”

    When one goes before the Supreme Court it is a matter of law so there is a level playing field without the typical burden of proof.

  85. If this were a hugely popular law with both parties (yes I know unlikely) and throughout the public, would we be having this court case at all?

  86. The ACA was a poorly drafted bill largely due to the unconventional and divisive way it came into law. Some might wish to call this process one of dubious legality. The proponents of the bill did an end run around the opponents and the usual way bills are drafted. By doing so they passed a bill that was incomplete and used the reconciliation process to prevent the bill from going back to the House.

    The proponents are now faced with a bill that has questionable provisions that is their fault both in the drafting and refusal to spend the time correcting the bill. We should have little sympathy for those that intentionally spill milk and then complain there is no milk left.

    The proponents wish to call the present problem a drafting error. You and others might wish to call it a drafting error as well, but why wasn’t that the argument in court? Why wasn’t the so called drafting error rectified during the reconciliation process? The law was signed March 2010. There was no technical correction bill considered which generally is done within a short time frame. The legislature might bilaterally change a date that was typed wrong or correct other similar small errors, but they don’t change entire sections of the law that were written as separate entities instead of one entity with the word ‘and’ inserted between ‘federal’ and ‘state’.

    In August of 2011 almost 1½ years later the IRS made the tax credits available to the federal exchanges. The IRS does not have such statutory authority. It didn’t claim ‘a drafting error’. Neither did the President when he tried to use executive fiat instead of drafting a new law. Suddenly after failing to be convincing I note the same claim being made of a simple drafting error that is far from simple .

    That is why we are in front of the Supreme Court.

  87. The states could go ahead and establish their own PPACA exchanges.
    The Congress could go ahead and fix the law.
    The states could, and some have, established their own non-PPACA exchanges with locally determined subsidies.
    The HHS could deed their exchanes over to the states.
    The insurers in federal exchanges could charge spuriously low premia and devise federally granted re-insurance schemes to prevent death spirals.

  88. Pretty interesting to me how many millions have been wasted arguing over the willful blindness red herring phrase “established by the state.”

    Yes, it’s right there. Stipulated, Your Honor.

    Plaintiffs have glommed onto

    SEC. 1401. REFUNDABLE TAX CREDIT PROVIDING PREMIUM ASSISTANCE FOR COVERAGE UNDER A QUALIFIED HEALTH PLAN.

    (a) IN GENERAL.—Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 (relating to refundable credits) is amended by inserting after section 36A the following
    new section:

    ‘‘SEC. 36B. REFUNDABLE CREDIT FOR COVERAGE UNDER A QUALIFIED
    HEALTH PLAN…

    ‘‘(2) PREMIUM ASSISTANCE AMOUNT.—The premium assistance amount determined under this subsection with respect to,any coverage month is the amount equal to the lesser of—
    ‘‘(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act…”
    __

    Yep. (2)(A). Which refers us back the the antecedent and Commanding clause 1311 on page 72.

    “(d) REQUIREMENTS.—
    (1) IN GENERAL.—An Exchange shall be a governmental agency or nonprofit entity that is established by a State…”

    (BTW, note the “IN GENERAL”)

    Conveniently ignored by King v Burwell Plaintiffs is the supplanting and superceding/trumping text set forth in Section 1321 (pp 85-86), which goes to federal HIX authority in the wake of state inaction.

    1321(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—

    (1) IN GENERAL.—If—

    (A) a State is not an electing State under subsection (b); or
    (B) the Secretary determines, on or before January 1,
    2013, that an electing State— (i) will not have any required Exchange operational by January 1, 2014; or
    (ii) has not taken the actions the Secretary determines necessary to implement…

    …the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements…

    Also noteworthy to me is the Subtitle E Header on page 110 (just above the “36(b)” citation)

    “Subtitle E—Affordable Coverage Choices for All Americans”

    Not “Affordable Coverage Choices for ONLY Americans residing in states that set up their own Exchanges.”

    But, NO..O.O.O.O.O.O.O.O.O, we can’t determine “legislative intent” from all of this, we need Ouija Board Jurisprudence to set us all straight.

    But, but, but, Your Honors, when they wrote “established by the state,” they inadvertently omitted the word “only.” They REALLY mean “ONLY established by the state.” It was an innocent drafting oversight.
    __

    What crap.

    Moreover, Plaintiff’s Counsel Carvin got caught with his pants down at Orals. Turns out he argued the opposite position regarding HIX viability in NFIB in 2012 (the SCOTUS case that upheld the ACA 5-4).

    http://regionalextensioncenter.blogspot.com/2015/03/obamacare-back-at-scotus-orals.html

    This has nothing to do with the learned parsing of incoherently-written words that render a stature ostensibly SO opaque as to be unworkable. This is all about letting SCOTUS have another bite at the strikedown apple, via quibbling over a bunch of tangential academic federalism nuances. Scalia, Thomas, and Alioto have made it utterly clear that they want to kill the law by whatever expedient means present. That really just leaves Kennedy and Roberts in play. I’m thinkin’ 6-3 to Uphold. 6-3 would send the message “ENOUGH, already. Take this turd back to Congress (which is Scalia’s favorite riff anyway, ironically).”

    Maybe only 5-4 to Uphold. Or, maybe it’ll go 5-4 to strike the federal HIXs.

    I doubt it. But, it could happen.

    Yes, AHIPcare is a Frankenstein pastiche of lobbyist-submittal staffer cut & paste plagiarism. Like any major law. What’s new?

  89. Well,anyway, you can’t have half of the people subsidizing the other half. The 400% of the FPL cut-off in the exchanges just happens to fall at the @median income in the country. This means that the upper half of income earners are subsidizing the lower half. Oh, that’s nice.

    What if half the people felt that the other half should give them cars or beauty salon treatments?

  90. I don’t think anyone outside the beltway is paying much attention to this political theater. But the FQHC patients I talk to are mostly ambivalent about the law at this point. They used to get nearly free visits, but now they have a copay and everything they were waiting to have done like specialty care is subject to what are to them huge deductibles such that the care remains out of reach despite the subsidies. I think they will expect something in its place if ACA were to fall, but I don’t think they would care much about the politics behind all of it.

  91. “Gruber calls them “speak-o’s”.

    Compelling but not conclusive.

    – Burden of proof is on the plaintiffs.

    – Original intention is difficult to proove. It’s like sincerity.

    – I don’t think the lawsuit impresses party-elastic independents (i.e. those who have voted GOP and Democrat)

  92. Is Gruber nuts? What about his speeches at the Jewish Community Center in San Francisco on Jan 10, 2012 and at Noblis on Jan 20, 2012? Do you believe that speaking errors are as easy as typos? Gruber calls them “speak-o’s”.

    So on two separate occasions you have typos (read speak-o’s) in your speech at exactly the same place where you are explaining how the states need to be persuaded to set up their own exchanges?

    Should ideology cause people to believe Anything?

  93. The biggest problem with this lawsuit, well other than its absurdness, is that it detracts the GOP from the question: what is your alternative to the ACA?

    In a year’s time they will be asked this question by independent voters – i.e. voters who do not dwell on the relentless possibility of microtorture of the constitution – who are likely to find this lawsuit less of of a scholarly pursuit of best economic model for healthcare and more of a settling an old grudge.

    These people, and there are enough of them around, will determine who will be the next president.

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