The ACA's poison pill? (Pelosi knows)

Rochester City Newspaper ^ | 12/24/14 | Mark Hare

[Libloather]

**SNIP**

Health law expert Timothy Jost says that the ACA is actually two separate bills, the result of then House Speaker Nancy Pelosi's strategy to get the Senate version through the House without opening it to amendments.

That second companion bill, Jost says, specifically provided for exchanges run by the federal government in states that do not have their own. Just as important, he says, the Congressional Budget Office analyses presume subsidies to customers in all 50 states — proof that Congress always intended to provide assistance to income-eligible consumers whether or not their states opened exchanges.

It's possible that even if subsidies through the federal exchange are struck down, that states like New York could continue to operate their own exchanges. But the legal landscape could be worrisome, says Wade Norwood, chief program officer for the Finger Lakes Health Systems Agency.

Many commercial insurers could drop out of the exchanges, he says, if they believe the national market will not generate the revenues they need to participate.

[Libloather]

If subsidies paid through the federal exchange are killed by the court, you can be sure that many Republicans in Washington will celebrate as the people they represent find themselves without access to essential medical care.

If Husseincare's numbers continue, those 16,000 freshly hired IRS agents will be needed to go door to door to collect the late fine.

[E. Pluribus Unum]

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.” ― Ayn Rand, Atlas Shrugged

[Ray76]

> Many commercial insurers could drop out of the exchanges...

“Single payer” is the goal. PPACA is a program of destruction.

[Ray76]

Origin & Purpose of PPACA

http://freerepublic.com/focus/f-chat/3228600/posts

[Jacquerie]

See, the obamcare mess isn't the fault of utopians like the immensely well paid Herr Gruber, nor Pelosi and Reid who ramrodded the bill through congress without giving members any opportunity to understand it, nor obama who has amended the law dozens of times.

We are to believe the obamacare mess is the fault of those who didn't vote for it, and possibly the judges who just might enforce it as written.

[goldstategop]

Not gonna happen.

The GOP has fully funded Obamacare through 2015.

No one is going to be deprived of medical care in this country.

[sphinx]

Health law expert Timothy Jost says that the ACA is actually two separate bills, the result of then House Speaker Nancy Pelosi's strategy to get the Senate version through the House without opening it to amendments.

Well, yes. First, there is the bill Congress actually passed under reconciliation, bending the rules to the point of breaking them to do so, and without allowing House amendments. This was the only possible way to get the thing passed once Scott Brown had been elected.

Then there is the "second bill," which is the one Pelosi, et. al., wished they could have passed had they had the votes. With regard to the subsidies, Obama is busily implementing this second bill, despite the fact that the Congress never passed it, and the left is frantic that the courts enable the bait and switch.

[JPG]

-“Single payer” is the goal. PPACA is a program of destruction.-

Interesting what just happened in super-lib VT. They were going to institute 'single payer', then threw-up their hands in defeat when they realized they just couldn't afford it and there was no way to make the numbers work. Another pipe dream bites the dust.

[Ray76]

The controversy is over the plain text of the PPACA:

SEC. 1401(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 (a) In General.--In the case of an applicable taxpayer, there shall be allowed 
             as a credit against the tax imposed by this subtitle for any taxable year 
             an amount equal to the premium assistance credit amount of the taxpayer for
             the taxable year.

         (b) Premium Assistance Credit Amount.--For purposes of this section--
        
             (1) In general.-- <> The term `premium assistance 
                 credit amount' means, with respect to any taxable year, the sum 
                 of the premium assistance amounts determined under paragraph (2)
                 with respect to all coverage months of the taxpayer occurring 
                 during the taxable year.
 
             (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, or

                    ``(B) the excess (if any) of--
                           ``(i) the adjusted monthly premium for such 
                                 month for the applicable second lowest cost silver 
                                 plan with respect to the taxpayer, over
                          ``(ii) an amount equal to 1/12 of the product 
                                 of the applicable percentage and the taxpayer's 
                                 household income for the taxable year.

36B(b)(2) specifies the premium assistance amount is equal to the lesser of A or B [that is: the lesser of SEC. 36B(b)(2)(A) or SEC. 36B(b)(2)(B)].

How to you suppose that the premium assistance credit amount of the taxpayer is the lesser of their premium under (A) [explicitly specified as a state exchange under 1311], or (B) [which is claimed includes federal plans]? Is the taxpayer in both a state and federal exchange and whichever is the lesser premium applies?

If the claim that 36B(b)(2)(B) includes federal exchanges is correct, then 36B(b)(2)(A) must also include federal exchanges, something it explicitly does not do. Therefore 36B(b)(2)(B) must necessarily also refer to Exchanges established by the State under 1311, otherwise 36B(b)(2) would be meaningless because a taxpayer can not be enrolled in both a state and federal exchange and whichever is the lesser premium applies.

The PPACA explicitly allows tax credits for state-run exchanges and excludes such credits for federally run exchanges.

The IRS makes the absurd claim that “Exchange established by the State under 1311” includes “Exchange established by the Federal government under 1321"

Courts can not read out of the statute clauses or introduce absurdities where non exist just to satisfy what an agency, the IRS, claims is Congress's intent. There is no ambiguity or absurdity, the statute as written expresses Congress' intent.

[Tallguy]

“the Congressional Budget Office analyses presume subsidies to customers in all 50 states — proof that Congress always intended to provide assistance to income-eligible consumers whether or not their states opened exchanges.”

Dontcha just love it when an editorial starts with a big fat juicy assumption like that?!

[KevinB]

You are correct. The Supremes will rule the subsidies illegal. Then the real fun will begin.

[InterceptPoint]

Just as important, he says, the Congressional Budget Office analyses presume subsidies to customers in all 50 states — proof that Congress always intended to provide assistance to income-eligible consumers whether or not their states opened exchanges.

It proves nothing. Just as good are these two:

1. Proof that the Dems just knew that nearly every state would set up an exchange in order to get their paws on those subsidies.

Or 2. A 50 state worst case analysis was required.

If the Dems wanted the Federal Exchange to hand out subsidies they should have written that into the bill. They did just the opposite - they gave that right exclusively to the State Exchanges.

[Major Matt Mason]

This may all be true, but Roberts has already set the precedent for crafting/twisting a decision that keeps the court out of the process of messing with the law. The same five that upheld Obamacare the last time will do so again this time by whatever tortured means necessary.

[KevinB]

Roberts will interpret the clear language of the statute and will find the subsidies illegal.

[RKBA Democrat]

Both wings of the uniparty want obamacare. Thus it will be so.

[Ray76]

Jost and the government claim that there is an ambiguity or absurdity and that legislative history must be looked at. But the legislative history does not help them: the tax credits available to those who purchased through a state exchange were intended as an inducement to states to establish exchanges, the did not anticipate that many states would not establish exchanges.

Michael Cannon has assembled all the court filings and opinions, and analyzes and refutes Jost’s claims, available here:

http://www.forbes.com/sites/michaelcannon/2013/12/31/for-reporters-law-professors-citizens-a-reference-guide-to-president-obamas-illegal-obamacare-taxes/

[Ray76]

Since many states did not establish exchanges many (most) people do not have tax credits available. This causes the cost to be too great for many people. To remedy that the IRS illegally gave tax credits (subsidies) to those who purchased through a federal exchange.

[itsahoot]

Roberts will interpret the clear language of the statute and will find the subsidies illegal.

So Roberts will let this fester for 6 more months then rule it is unconstitutional? Dream on, it will go down exactly like it did last time unless of course the GOPe rescue it by some other means. In either case the ACA is here to stay.

[Political Junkie Too]

proof that Congress always intended to provide assistance to income-eligible consumers whether or not their states opened exchanges. < p > This is nonsense.

There are 535 members of Congress, of which no Republicans voted for the bill. How can this author state what Congress "always intended" when all Republicans said no?

Besides, intent means nothing. Republicans intended things, too. What is debated and voted on is what counts, not what someone "intended."

Any court ruling based on Congressional "intent" that failed to pass the vote, is judicial activism of the worst kind. Why bother with the charade of debate, compromise, and vote, if the Democrats can always get the courts to give them what the always wanted in the end no matter the outcome of actual votes?

-PJ

[lentulusgracchus]

Courts can not read out of the statute clauses or introduce absurdities where non exist just to satisfy what an agency, the IRS, claims is Congress's intent. There is no ambiguity or absurdity, the statute as written expresses Congress' intent.

It's "heads I win tails I win" language that, given the history of the legislation (which the courts may also consider, as they might in the case of an unconstitutional ukase by an Impostor_Resident), any court might choose to blow up if it were ever asked to stomach three impossibilities before breakfast. We all know this is Red Queen stuff, and a court need only point to the obvious and say so, to find the Act unconstitutional. That CJ Roberts chose not to, on the Act's first outing (when he was possibly being coerced), does not preclude further challenges.

ACA/Obamacare has a very perilous road ahead in any case, and as our FRiend pointed out above, the real challenge the People face from the Act is political not legal or even financial. It's a direct challenge to their 'nards, mounted by nerds.