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WhiskeyJuvenile posted:special snowflakes edition: it doesn't matter whether the other side's argument isn't ridiculous, because the fact that it's, in the plaintiff's best light, ambiguous, means that the IRS's interpretation of the statute controls because of Chevron deference I dunno, I find it doubtful that a hypothetical court could find that "an Exchange established by the State under section 1311" specifically refers to state exchanges and excludes federal ones, and then conclude that the phrase is silent or ambiguous on federal exchanges. They would probably view "established by the State under section 1311" as unambiguous and limiting. Except maybe Roberts+liberal 4. Did the DC circuit apply Chevron?
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Jul 22, 2014 18:51
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esquilax posted:I dunno, I find it doubtful that a hypothetical court could find that "an Exchange established by the State under section 1311" specifically refers to state exchanges and excludes federal ones, and then conclude that the phrase is silent or ambiguous on federal exchanges. They would probably view "established by the State under section 1311" as unambiguous and limiting. Except maybe Roberts+liberal 4. Did the DC circuit apply Chevron? In the opinion they say that the text is unambiguous so their job is done and they don't have to apply the rest of chevron.
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Jul 22, 2014 19:19
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Could someone fill me in using small words how somebody demonstrated injury by being subsidized and got standing for this in the first place?
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Jul 22, 2014 19:19
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Stultus Maximus posted:Could someone fill me in using small words how somebody demonstrated injury by being subsidized and got standing for this in the first place? The guy's income level interacts with the ACA framework in such a way that buying health insurance is much cheaper for him. But he also holds a belief that he should not have to buy health insurance just because the government said so. Acting according to this belief will cost him a lot of money. Thus, injury. vvvvvvvvvvvvv The mandate was upheld but no one expected that someone would be so pigheaded as to want to live at risk of bodily and financial ruin just to prove a political point. haveblue fucked around with this message at 19:27 on Jul 22, 2014 |
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Jul 22, 2014 19:25
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haveblue posted:The guy's income level interacts with the ACA framework in such a way that not buying health insurance will cost him a lot of money. He also holds a belief that he should not have to buy health insurance just because the government said so. Thus, injury. Well the individual mandate was upheld so...? I don't get it.
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Jul 22, 2014 19:26
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Stultus Maximus posted:Well the individual mandate was upheld so...? I don't get it. If the government gives her a subsidy, she would have to pay the penalty (the individual mandate "tax"). If the government does not give her a subsidy, she does not have to pay the penalty. esquilax fucked around with this message at 19:31 on Jul 22, 2014 |
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Jul 22, 2014 19:27
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Stultus Maximus posted:Could someone fill me in using small words how somebody demonstrated injury by being subsidized and got standing for this in the first place? Essentially, they said the injury was being forced to purchase (for themselves or employees) insurance or pay a tax penalty, where if subsidies didn't exist they would be exempt from purchase/penalty (either because employees couldn't receive subsidies and therefore couldn't trigger the corporate penalty or because without subsidies, the 8% exemption would apply to them.)
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Jul 22, 2014 19:28
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The ACA allows people who cannot afford to buy insurance even with the subsidies to opt out without facing a tax penalty. Basically those "harmed," such as the man mentioned above who paid just $20/year for his insurance, are those that want to opt out and could if the subsidies weren't in place, and are harmed by having to pay for insurance at all.
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Jul 22, 2014 19:28
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So question, with all the dumb cases that have been decided over the past 25 years on the basis of standing, how can anyone possibly have standing to sue over this issue? Who can demonstrate that they personally have been harmed by themselves or someone else getting subsidies to buy insurance? That doesn't make any sense. e: I'm behind and this was literally just answered 
Paul MaudDib fucked around with this message at 20:26 on Jul 22, 2014 |
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Jul 22, 2014 20:24
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edit: dammit
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Jul 22, 2014 21:37
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evilweasel posted:Specifically, if a state fails to fulfill its duty to create an exchange under 1311, the secretary creates that exchange for them. It's not a separate type of exchange: the Secretary is establishing the exchange for the State that failed to do so. If the federal government sets up an exchange under section 1311, that would be "an Exchange established by the Federal Government under 1311 of the Patient Protection and Affordable Care Act," not "an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act." If 36B was even worded differently (e.g., "an exchange created under 1311 of the Patient Protection and Affordable Care Act"), your argument would be rock solid. But 36B specifies the exchanges it applies to by identifying the governmental entity which creates such exchanges. And because the provisions under 36B relate to the exchanges created by States and not to exchanges created by the Federal Government -- indeed, the plain language specifies such a distinction -- it looks like 36B failed to include within its scope exchanges established by the Federal Government, even if those exchanges are allowed under 1311. I gotta say, this looks like a pretty straightforward statutory construction case governed by unambiguous plain language. edit: I would say that the way to winning would be to argue that 36B is ambiguous, so that Chevron kicks in, but I find that to be a super difficult argument to make. How is the language in 36B ambiguous? The terms it uses are readily understood to mean exactly what they say, and they refer to one particular thing: exchanges created by a State pursuant to 1311. Alternatively phrased, and assuming that 36B is ambiguous, how would you suppose that Congress could have drafted 36B to not be ambiguous, but to mean what I contend is the unambiguous plain language of the statute: that the terms of 36B applies only to exchanges created by the States under 1311, not by the Federal Government under 1311? Green Crayons fucked around with this message at 21:53 on Jul 22, 2014 |
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Jul 22, 2014 21:47
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"If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino’s, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino’s with a ham and pepperoni pizza has still complied with a literal construction of my lunch order." The 4th Circuit's pizza analogy is delightful and relevant. Pizza Hut or Domino's has been specific, as has ham and pepperoni, and the argument presented amounts to 'nonono the ham and pepperoni has to be from pizza hut! I don't care about the rest of the pizza, but the ham and pepperoni absolutely must be pizza hut ham and pepperoni!'
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Jul 22, 2014 21:56
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Oh, that is delightful! Unfortunately, not on point with the DC Circuit case. ~*~ Pizza Analogy! ~*~ If 36B is the friend asking for Pizza (an exchange), it clarifies that it wants Pizza from Pizza Hut (the States). The friend (36B) does not ask for pizza from Domino's (the Federal Government). If the friend (36B) specifies that it wants ham and pepperoni (exchange must be set up pursuant to 1311) on his pizza, the fact that a ham and pepperoni pizza came from Domino's (the Federal Government) and not Pizza Hut (the States) does not comply with the literal construction of the lunch order, because that lunch order did not sanction Pizza from Domino's.
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Jul 22, 2014 22:03
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Green Crayons posted:Alternatively phrased, and assuming that 36B is ambiguous, how would you suppose that Congress could have drafted 36B to not be ambiguous, but to mean what I contend is the unambiguous plain language of the statute: that the terms of 36B applies only to exchanges created by the States under 1311, not by the Federal Government under 1311? Maybe by using the word "only", which appears exactly zero times in the passages of the statute that are used to construct this argument? Or by constructing the statute in such a way in which the Federal government does not "establish and operate such Exchange within the State"? Or maybe if you read the legislative history, they never intended for the statute to be read that way at all.
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Jul 22, 2014 22:06
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haveblue posted:The guy's income level interacts with the ACA framework in such a way that buying health insurance is much cheaper for him. But he also holds a belief that he should not have to buy health insurance just because the government said so. Acting according to this belief will cost him a lot of money. Thus, injury. Certainly this guy also doesn't have car insurance for similar reasons, right?
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Jul 22, 2014 22:08
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Green Crayons posted:Oh, that is delightful! The pizza analogy is a direct quote from the 4th Circuit Ruling. Also the ACA says that Domino's is fine. People (E: specifically Evilweasel) have talked about this already: evilweasel posted:Specifically, if a state fails to fulfill its duty to create an exchange under 1311, the secretary creates that exchange for them. It's not a separate type of exchange: the Secretary is establishing the exchange for the State that failed to do so. Magres fucked around with this message at 22:12 on Jul 22, 2014 |
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Jul 22, 2014 22:09
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Green Crayons posted:Oh, that is delightful! Now the trick is to get your pizza analogy to be controlling law on the subject in the 4th circuit like the previous one is.
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Jul 22, 2014 22:10
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Green Crayons posted:If the federal government sets up an exchange under section 1311, that would be "an Exchange established by the Federal Government under 1311 of the Patient Protection and Affordable Care Act," not "an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act." Language isn't simply "unambiguous" when read in context of the sentence or paragraph it's located in. "Unambiguous" language can get really ambiguous really fast when it's read in the context of the entire act. The Eastern District of Virginia went into great detail on this issue in King v. Sebelius: "Plaintiffs aver that Congress's bargain backfired when, to the surprise of all, many states did not opt to create and run their own Exchanges. As such, Plaintiffs fundamentally contend that, to the extent that their reading of section 36B harms the implementation of the ACA, any adverse consequences are the result of a miscalculation by Congress. In contrast, Defendants argue that their interpretation of section 36B is correct because it furthers Congress's intent to provide affordable health insurance for all. Defendants support their argument, in part, by setting forth numerous statutory anomalies that Plaintiffs' reading would incur. Plaintiffs attempt to mitigate these anomalies by either declaring that they do not matter or that they are minimally disruptive to the implementation of the ACA." http://scholar.google.com/scholar_case?case=10966487854081938172&hl=en&as_sdt=6&as_vis=1&oi=scholarr If the Halbig majority remains good law, Chevron analysis is made even more unpredictable and arbitrary than it already is. You could isolate any sentence, paragraph, or word to make it mean what you want it to mean.
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Jul 22, 2014 22:12
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Pressing Constitutional Law question: Does Domino's have standing and all prima facie elements necessary to sue for libel?
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Jul 22, 2014 22:13
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Green Crayons posted:Oh, that is delightful! Also your pizza analogy ignores section 1321, in which the friend asking for pizza says 'oh hey if pizza hut is closed, grab domino's instead.' Click here and read section c of 1321, as it reads quote:(c) Failure to establish Exchange or implement requirements Y'know, the stuff Evilweasel already quoted to you about this. Discendo Vox posted:Pressing Constitutional Law question: Does Domino's have standing and all prima facie elements necessary to sue for libel? What's prima facie, and does it go well with ham and pepperoni?
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Jul 22, 2014 22:14
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Kugyou no Tenshi posted:Or maybe if you read the legislative history, they never intended for the statute to be read that way at all. Ew gross. Magres posted:The pizza analogy is a direct quote from the 4th Circuit Ruling. Also the ACA says that Domino's is fine. People (E: specifically Evilweasel) have talked about this already 36B, which is our friend ordering the pizza, does not say that Domino's pizza (Federal Government created exchanges) is fine. Although pizza indeed may be made by Dominio's (as permitted by 1311), our friend 36B does not relate to such pizzas. 36B only wants pizzas from Pizza Hut (State created exchanges). The crux of what you're missing (this responds to your second most recent post as well): 36B is the starting point of the analysis to determine what 36B applies to. It's terms do point to exchanges created pursuant to 1311, but then distinguishes between the universe of exchanges that might be created pursuant to 1311 by identifying only exchanges established by States.
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Jul 22, 2014 22:17
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Meat Recital posted:Certainly this guy also doesn't have car insurance for similar reasons, right? I asked a coworker this and after a few moments of flailing he settled on "well car insurance isn't for preventative maintenance like going to the doctor is so the comparison doesn't work." Yeah.
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Jul 22, 2014 22:18
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Emanuel Collective posted:Language isn't simply "unambiguous" when read in context of the sentence or paragraph it's located in. "Unambiguous" language can get really ambiguous really fast when it's read in the context of the entire act. The Eastern District of Virginia went into great detail on this issue in King v. Sebelius: edit: in other words, I agree with you that we shouldn't isolate words and phrases, but the additional section of the ACA that people are looking to (1311, specifically), does not alter or make ambiguous the language of 36B. It only clarifies that 36B identified one type of exchanges permitted by 1311. Green Crayons fucked around with this message at 22:23 on Jul 22, 2014 |
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Jul 22, 2014 22:20
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Green Crayons posted:I don't see how Chevron becomes more unpredictable and arbitrary. 1311 specifies two types of exchanges (those established by States, those established by the Federal Government). 36B points to only one of those types of exchanges (those established by States). Although this means 36B does not apply to the other type of exchanges, that fact in and of itself doesn't render 36B's language "ambiguous." The problem is that "ambiguity" in Chevron analyses doesn't mean "the words aren't subject to different interpretations." Chevron holds that language is "unambiguous" if the words make it clear that Congress has clearly spoken on an issue. If you read 36B in isolation, you could argue that Congress clearly held that only state-run exchanges could get subsidies. But when you read 36B in the context of the rest of the act, coming to that conclusion is absurd
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Jul 22, 2014 22:26
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A bigger problem with GreenCrayons argument is that there are portions of the statute that require federal exchanges to report information on subsidies provided. And that define people eligible to purchase insurance on an exchange as people who reside in the State that established the exchange (which, as we've discussed, is defined to only mean states, not the federal government.). If we decide that state exchanges established by the federal government aren't established by the state, then no one is eligible to purchase insurance on that exchange. Basically, there's at best ambiguity here, if not clarity that it was intended for federal exchanges to stand in state shoes and count as exchanges established by the state for various purposes, including subsidies.
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Jul 22, 2014 22:28
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Green Crayons posted:The crux of what you're missing (this responds to your second most recent post as well): 36B is the starting point of the analysis to determine what 36B applies to. Literally no one has missed this. However, you're missing that it is not the absolute end of the analysis to determine what it means. Green Crayons posted:1311 specifies two types of exchanges (those established by States, those established by the Federal Government). 1311 defines Exchanges and authorizes interstate and sub-state regional Exchanges. 1321(c) authorizes the Secretary to establish and operate an Exchange within the State should the state fail or refuse to establish such exchange itself. There is no establishment of exchanges "by the Federal Government" in 1311.
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Jul 22, 2014 22:29
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Green Crayons posted:Ew gross. 1311 also says "An Exchange shall be a governmental agency or nonprofit entity that is established by a State." Are you going to argue that this means that only states can establish exchanges? If we're only reading 1311 and ignoring the context of the rest of the act, which is what your argument hinges on, then clearly only state governments can establish exchanges.
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Jul 22, 2014 22:29
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Well I will admit that I am not an expert on Chevron deference, and have not looked into what constitutes Step 0 or 1 or whatever in quite some time. So I will defer to more experienced persons if ambiguity under the Chevron doctrine is different from what constitutes ambiguity for non-administrative agency statutory interpretation cases.
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Jul 22, 2014 22:30
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Green Crayons posted:Well I will admit that I am not an expert on Chevron deference, and have not looked into what constitutes Step 0 or 1 or whatever in quite some time. So I will defer to more experienced persons if ambiguity under the Chevron doctrine is different from what constitutes ambiguity for non-administrative agency statutory interpretation cases. Will you also admit that you haven't read the ACA outside of the parts you already agree with? Because that's what I keep getting out of the things you keep saying here.
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Jul 22, 2014 22:32
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Magres posted:What's prima facie, and does it go well with ham and pepperoni? Oh I thought prima facie was like Facebook but for lawyers.
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Jul 22, 2014 22:34
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Kugyou no Tenshi posted:Literally no one has missed this. However, you're missing that it is not the absolute end of the analysis to determine what it means. quote:(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—
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Jul 22, 2014 22:35
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^^^^^^ That's 1321 Not 1311 
Magres fucked around with this message at 22:38 on Jul 22, 2014 |
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Jul 22, 2014 22:36
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Kalman posted:A bigger problem with GreenCrayons argument is that there are portions of the statute that require federal exchanges to report information on subsidies provided. And that define people eligible to purchase insurance on an exchange as people who reside in the State that established the exchange (which, as we've discussed, is defined to only mean states, not the federal government.). If we decide that state exchanges established by the federal government aren't established by the state, then no one is eligible to purchase insurance on that exchange. This is actually a really strong argument in favor of 36B being ambiguous.
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Jul 22, 2014 22:36
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Magres posted:That's 1321 Oh, fart. What. I've been misled!
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Jul 22, 2014 22:38
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Green Crayons posted:Oh, fart. What. I've been misled! Misled by what? Magres had already quoted that text as being in 1321.
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Jul 22, 2014 22:39
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The important wording in the federal creation of the state exchange is "such". Basically means that the fed will create a state exchange. SUCH an exchange (the state exchange, whether created by fed or state ) would be covered with subsidy.
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Jul 22, 2014 22:41
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Ah yes, as all these dicks were flying at my face, I happened to fail to notice whether one of them was circumcised. edit: giving it a long, hard five minute thought, being set straight as to what 1311 does and does not actually say, I see that my from the hip argument is incorrect. Green Crayons fucked around with this message at 22:46 on Jul 22, 2014 |
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Jul 22, 2014 22:42
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Whatevs, it's water under the bridge now that we've gotten it straightened out. Out of curiosity, is there any kind of oversight on judges for stuff like 'this ruling was clearly not handed down in good faith?' I think the law can be argued as ambiguous if you stretch a bit, but ruling that it clearly states that subsidies don't exist with federally established exchanges is knowingly going against both the law's clear intent and its wording. Magres fucked around with this message at 22:50 on Jul 22, 2014 |
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Jul 22, 2014 22:45
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The appeals process. Not being glib. That's what there is.
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Jul 22, 2014 22:53
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Ugh lifetime appointments 
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Jul 22, 2014 22:55
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