Posted on 12/04/2013 11:28:13 AM PST by EBH
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.
Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.
Adler, a case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.
(Excerpt) Read more at cleveland.com ...
Maybe Roberts did us a favor.
Have I read 1401? I read it. And all I posted previously still stands. Importantly they fold 1401 as an amendment to the Internal revenue Code of 1986 which within lies a labyrinth of discretionary points and authorities for the federal government to administer tax credits; ergo 1401 is subject to all general provisions of the tax code and those general provisions provide for resolution of tax credit applications.
Further, 1401 specifies tax credits to 1311 defined health plans in part 36B(b)(2)(A) but to all others in part 36B(b)(2)(B).
*******************************************************
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.
``(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.
******************************************************
I am not going to waste my time arguing as the federal government lawyers will likely argue; it is a colossal waste of time to become entrenched in the bureaucratic minutiae because the outcome will favor the fed lawyers because of the many general provisions of the tax code of which 1401 is a mere amendment.
What you should understand is that the waste of time lost on chasing commerce clause arguments in the suit that Roberts decided was at the expense at arguing the government's authority to tax healthcare benefits as income and the proper definition of 'income' in this context. It would have been much more facilitating for SCOTUS to attack extension of income to include health benefit plans than to leave the bulk of the work to commerce clause challenges. But no attorney challenged this encroachment as they bet that the entire law would fall on the weight of commerce clause arguments. In other words, their strategy was a failure and their tactics left their flank open.
What you are doing is essentially the same thing in distracting readers away from the much more important battle which is for the Senate in 2014 and for the White House in 2016 by drawing undue attention to minor skirmishes in bureacratic code that will not end Obamacare in any case.
You and government pissants are spitting at each other while evil criminal gangs are encircling you and getting ready to take you out. Open your eyes. This exercise in bureaucratic wrangling isn't worth anyone's time.
1401 specifies tax credits to 1311, not 1321. Oops. Guess you should have read it before you passed it, Nancy.
Nowhere does it say in 1401 that tax credits are ONLY applied to 1311. 1401 is amended to the IRC and is subject to the IRC’s general provisions.
In the part that I copied in the previous post it says that 36B(b)(2)(A) applies to 1311, ***or*** the tax credit can be applied as in part 36B(b)(2)(B) which does not reference 1311:
``(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.
The above specifies the tax credits that can be applied to non-1311 exchanges and if that’s not enough there can be other governing provisions of IRC that can be brought into play.
The bottomline is this lawsuit goes nowhere, it is a distraction and a waste of time from where the real deciding battles are which are the 2014 and 2016 elections, to which the democrats response is immigration reform where they will pick up millions upon millions of votes illegally registered but that will be counted unless challenged before.
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.
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 you claim includes federal plans]? Is the taxpayer in both a state and federal exchange and whichever is the lesser premium applies?
Since 36B(b)(2)(A) specifically refers to Exchanges established by the State under 1311 then 36B(b)(2)(B) must necessarily also refer to Exchanges established by the State under 1311, otherwise 36B(b)(2) is meaningless.
You're just saying it is meaningless because you haven't got an argument. IT'S NOT CLEAR! That much is obvious. And if it is not clear, the lawsuit won't have any chance to survive in court. Like I said before it is DOA.
Lawyers find myriad ways to milk money from clients and I suspect this is just one more. As I said this is a minor skirmish that will go nowhere but cause distraction and create false expectations.
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 you claim includes federal plans]? Is the taxpayer in both a state and federal exchange and whichever is the lesser premium applies?
If your 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. Therefor 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.
Thats’ easy for you to say.
I sometimes smile at the irony that it takes more keystrokes to get that one thing wrong, than to get it right.
What the heck is the Should Be Enforced As Written crap?!
Congress writes law and the president either signs it into law or he doesn’t.
The IRS must implement law as written. They do not have the power to rewrite law. Limited interpretation can be made in rule making but that has to be put through the public comment process (I really do not even agree with that but I recognize that Congress is lazy).
Correct me if I'm mistaken, but the Supreme court challenge was in regards to the individual mandate...right?
If they ruled the individual mandate was unconstitutional, this portion of the law could be struck down...leaving the remainder of the law intact. This is the way I understood it.
With the origination clause challenge, the totality of the law could be struck down.
Any thoughts?
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