The Halbig Subpoena. Oh, the Fright!
Last week, the House Committee on Oversight and Government Reform subpoenaed documents from the Treasury Department and IRS that could have a huge impact on Pruitt v. Burwell, Halbig v. Burwell, King v. Burwell, and Indiana v. IRS – four lawsuits that could have a huge impact on ObamaCare.
Those cases challenge the federal government’s ability to implement the Patient Protection and Affordable Care Act’s major taxing and spending provisions in the 36 states that failed to establish a health insurance “Exchange.” The federal government established fallback Exchanges within those states, but the PPACA says the IRS can implementthe law’s Exchange subsidies, employer mandate, and (to a large extent) its individual mandate only “through an Exchange established by the State.” Nevertheless, the IRS issued a regulation implementing those taxes and expenditures in states with federal Exchanges anyway. That regulation that is being challenged as illegal by taxpayers, employers, school districts, and states, who claim the IRS is taxing them without congressional authorization.
— The Halbig Subpoena, Michael F. Cannon, Forbes.com blogger on “health, freedom, and other uncertainties,” today
Oh, dear. Scaaaaary.
I’m pressed for time, so for background I’ll quote from a Jan. 30 post of mine about Halbig:
Hmm. Okay, let me take a crack at this. The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.
The law doesn’t say “through an exchange run by the state” under the law; it says “through an exchange established by the state” under the law. The states know their options. Fourteen of them chose to establish an exchange by setting one up and running it. The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.
The law itself, in other words, by requiring that each state choose one of two mechanisms to establish an exchange–directly or instead by delegation to the federal government–required every state to have (i.e., to establish) an exchange. The tax credit, or subsidy, provision of the statute does not limit tax credits (subsidies) to people who live in states that choose to physically set up and run the state’s exchange itself. It provides that benefit to people regardless of their state of residence, because by operation of law–specifically, by operation of that law–states can establish their exchanges by delegating to the federal government the physical setting up and running of the exchange.
Depends, in other words, on what the meaning of established is. Or, more accurately, on what Congress intended the meaning of “established” to be. And I’ve just told you what that is. Surely, the federal courts understand the concept of contracting out a tech job. Thirty-six states have chosen to contract out this job to the federal government. Except, of course, that the contract was not negotiated but instead compelled by law.
Voila! The antidisestablishmentarianism theory is disestablished. The tax credits/subsidies clause in the ACA applies even to you, Red State denizens who qualify financially. Congratulations. I mean, my condolences.
The occasion for that post was a column by George F. Will, who expressed delight at what he thought was a surefire court victory ahead for freedom! Liberty! The title of my post: “George Will Comes Out for Single-Payer Healthcare Insurance! Cool!” I titled an earlier post of mine about Halbig, on Dec. 3 of last year, “The Antidisestablishmentarianism Theory of Obamacare Illegality. (The ACA has a (dis)establishment clause! Who knew?)”
I guess that as a practical matter, Cannon, like Will, supports single-payer healthcare. But Cannon’s post is about the legal issue, not the political one. And since the legal issue concerns the meaning of the phrase, “through an exchange established by the state,” as a part of the ACA’s statutory scheme, what matters is, um, the meaning of the phrase, “through an exchange established by the state” within the context of the law, as a part of the ACA’s statutory scheme, not whether or not the IRS initially included the words “through an exchange established by the state” within the context of the law. Because, y’know, the fact that the IRS initially included the words “through an exchange established by the state” within the context of the law only brings us back to the issue of what the meaning of the phrase, “through an exchange established by the state” is within the law’s statutory scheme.
And so, taken seriously, Cannon’s claim would just make us dizzy. After all, the context of that law—in fact, an express provision of that law–provides that states have the option of setting up their own exchanges or instead allowing the federal government to establish an exchange for the state.
The bottom line is that what matters is what Congress said and intended when it enacted the ACA, not what someone at HHS said to someone at the IRS in 2011, or whatever.
One thing that has amused me all along about Halbig and its companion lawsuits is their implicit argument that a state’s delegation of its legal authority to some entity that is not actually a state entity or state operation does not effectuate an operation or service established by the state. If that’s accurate, then the privatization of so many state and local government operations and services–prisons; parking meter operations, waste management collection, to name just a few–are being operated not on behalf of the state or local government but are instead independent of the state or local government that is paying these companies. I’m not talking about ordinary contractors—construction companies, architectural and engineering firms, and the like. I’m talking about companies that operate–to use the phrasing of the main federal civil rights law enacted in 1871 as the mechanism to enforce the Fourteenth and Fifteenth amendments—under color of law. In other words, of the Halbig plaintiffs’ analysis is accepted: rogue operations that have been given government police powers.
As for the ACA, each state that has not set up its own healthcare insurance exchanges under the ACA has— as per and as mandated by the ACA—delegated to the federal government the setting up and running of that state’s exchange. The delegation is mandated by law. That law being none other than the ACA.
Washington COA is reviewing through 3 member panel to the side for an en banc review by it. 12 judges voted In favor of the review. I think this is moot? although an exciting putdown of Cruz and others. http://angrybearblog.strategydemo.com/2014/09/full-d-c-circuit-court-will-rule-on-ppaca-subsidies.html
I also wrote about this; but, I did so early in September.
N-n-n-n-NO, Bill! You don’t understand! Sure, the D.C. Circuit Court of Appeals voted to throw out the bizarre 2-1 opinion ruling in favor the Halbig plaintiffs, and hear the case “en banc”. (That court has 11 “active” judges; i.e., not semi-retired, and therefore authorized to participate in an en banc hearing. It takes a minimum of a majority to do that; I’m not sure how many judges voted to do it in this case.) But because there’s now evidence that some I.R.S. regulatory administrator, upon learning that some winger crowd and their lawyer had decided to claim that “through an exchange established by the state” meant “through an exchange set up on a website run by the state,” decided that the agency regulation should use more precise language, well … all bets are off, see.
Seriously, that’s Cannon’s claim.
Cannon seems to be confusing an I.R.S. employee and HHS employee with, y’know, Congress. It’s CONGRESS’s intent that’s at issue.
11 judges voted in favor of hearing the case en blanc (I can only guess who voted no). I do understand it is what Congress’s intent was. I think you half waded into this without having all of your facts together on the PPACA. http://angrybearblog.strategydemo.com/2014/09/full-d-c-circuit-court-will-rule-on-ppaca-subsidies.html#sthash.lzr470d6.dpuf
“The en banc hearing will feature eight Democratic-appointed judges and five Republican-appointed judges. Four of the judges who will rehear the case were appointed by President Barack Obama.” http://talkingpointsmemo.com/dc/dc-circuit-grants-en-banc-halbig
So why’d Jonathan Gruber say the opposite? Twice.
The court will not care much about what Gruber said as there are a host of others who helped create the PPACA and would have input on its creation. If the court did care, it would also take into consideration what they said and include such players as “Peter Orszag, Liz Fowler, John McDonough, Doug Elmendorf” had said besides the congressional staff who drafted the law and the members of Congress who voted for it, and CBO staffers who scored the law. If Gruber matters, they all do, too.”
Adrianna McIntyre of Vox thoughts: I have thoughts on what Gruber said in the videos, but those thoughts are not important to share here, because those videos aren’t very important. Not in any legal sense. The courts are simply more concerned with the actual text of the law than what people are saying about the text of the law. People are mercurial. Statutory text is not.
Yes, one set of plaintiffs filed a motion using Gruber’s comments, but it wasn’t to “prove” that they were right and the government was wrong. They use Gruber’s comments as evidence against the theory that it would be “implausible” for Congress to ever condition subsidies. The plaintiffs don’t need Jonathan Gruber for that. The original Senate HELP bill undercuts the notion of implausibility without his help — it created explicit conditions — and it does so in the courts’ preferred medium: written legislation.
This general sentiment is shared by Jonathan Adler, an administrative law professor and key architect of these court cases.
Sure, you could say that these “revelations” might bias the judges on a personal level. And maybe that’s true. But, as Bagley points out, “If you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking.” http://www.vox.com/2014/8/1/5959809/halbig-what-media-is-getting-wrong/in/5690430
And yes the Repubs and the Conservative wingnuts are making it up as they go along or as they wish it would happen. Brian Beutler has a good take down of conservative healthcare writers here: http://www.newrepublic.com/article/118880/halbig-gruber-video-gives-right-excuse-flip-aca-subsidies “Why Are Conservative Health Journalists Covering for Halbig Truthers?”
I can not know or tell you what a 13 judge panel in Washington DC will decide. If they decide for the administration, the threat of the Kennedy court taking this up will in all likelihood diminish.
The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.
Maybe those states are running the exchanges as well and just delegating the day-to-day operations to the federal government, eh?
I could swear it was just day or two ago that you were tearing into the right wingers for abusing the language and making shit up as they go. I guess it is OK when left wingers do it?
If you go here: http://www.commonwealthfund.org/interactives-and-data/maps-and-data/state-exchange-map Health Insurance Exchanges, you will get an accurate depiction of how each state has decided on its Healthcare Exchange as done by Commonwealth. There are 6 different ways to do so.
why wasnt the subsidy calculator included in the cgi contract for healthcare.gov? If hhs really believed the federal exchange was to offer subsidies, why wasn’t that part of the federal exchange until after the IRS wrote the halbig reg?
Hell if I know and it really does not matter. You are grasping at straws.
As with my own state of Michigan, “I am sick to my stomach because 600,000 Michiganders will now be insured under Medicaid” Michigan State Senator Joe Hune and the rest of the Republican controlled state legislature waited to the very last minute to pass the Medicaid expansion out of spite even though with the proper planning the expansion would be funded until 2026/27 as shown by their own Republican State Senate study. There was no way the state could have been able to put together a state exchange by themselves along with the passage of the Medicaid Expansion. Even after passage, the state delayed the Medicaid implementation till April 1, 2014 costing the state ~$70 million in aid.
The whole effort to repeal has nothing to do with the PPACA subsidies, the PPACA, and the Medicaid Expansion; it has to do with an African-American man as the most power person in the world, in a big White House, and residing as the president of the US. This is something many white Americans never dreamed would happen and are angry it did happen. The closet racists and bigots are out in full force.
You see. That’s why I post comments. I try to learn from the perspective of those I disagree with.
When asking reasonable questions, questions about Gruber and the healthcare.gov website- for which you have no answers and don’t even care to understand- you hit back with the charge of racism. Thanks so much for being honest. I’ve learned something today. I’ve learned that I am willing to discuss and learn from you but you are not willing to do that in return. Asking questions of any sort leads to the race card being played. That’s the problem with the country. You are the problem with the country.
As for the Halbig case, the truth is that if the Court strikes down subsidies from the Federal exchange, States that want the subsidies and the associated taxes will simply build their own exchange. Maybe a couple will not. Big freaking deal.
The Halbig case is not about defeating the law, its about defending the law. The IRS simply does not have the authority to write a Reg that changes the plain language of the law. The law is the law. It should be implemented as written. No more delays until after elections.
You have built some excellent straw men in your quest to find reasoning where there is none. Both articles cited, contest your views, those of Gruber, and that of Cruz.
I read them. I don’t want to write a dissertation on this but they are based on false premises.
That aside, as someone that is looking into the ACA on my own time, I will tell you one thing that nobody seems to mention: with such an enormous redistribution, as this law clearly is, there will certainly be winners. However, there will be tons of losers. Do not lose sight of that.
Why am I looking into the law? No, not racism. I didn’t pay the law much attention until late 2013. That’s when I learned that my family’s premiums doubled from $6,000 to $12,000 a year and the deductibles are higher. That is not a straw man. That’s not Fox News. That’s real life.
And you could have learned that from me without using the race card.
You should then contact the Heritage Foundation with your healthcare situation. They have been looking for real examples of these negative effects of the ACA for quite awhile, and they are more than happy to recompense you for your story.
Y’know, this isn’t the first bite of the ACA apple by the Halbig legal team.
Strange that on the first bite, they realized that the subsidies applied to all states, but now they don’t.
I’ve chosen to be compensated in other, non-monetary ways.
EMichael: Y’know, the individual mandate was a fine then a responsibility, then a mandate but it was never a Tax- until it was.
Not trying to be snarky. I don’t think much was thought of the Subsidy issue until the Treasury Department responsible for implementing that part of the statute saw what the law actually said. That’s why they wrote the Reg.
We can posture back and forth on Congressional intent… but the Commadering argument makes sense. As does the Benn Nelson argument. And frankly, I thought it was kind of nonsense myself until that arrogant jerk Gruber was linked in. But now that I’ve seen what the CGI contract said, I’m convinced.
Yeah, all Monday morning QB’ing.
No one thought this was the case until they ran out of other legal options. Not the far right, not the middle, not the far left, not the CBO, not the people that brought the first case against the ACA(with the same legal team in Halbig), no one.
It is all total bs.
The whole law is BS. Its all built on false premises and sold on lies. Just wait until the Employer Mandate kicks in. People are going to be really angry when they get kicked off their insurance, probably get a small stipend from their work, and have to pay taxes on that stipend. Gruber insists that this is the ACA causing “wage growth.”
Now you are being silly.
Over 20 million Americans have been helped by the ACA as of right now. Without the workings of the Five Horsemen of the Apocalypse on the Supreme Court, that number would be closer to 30 million.
And those numbers are going to grow, and the law will be made better(already would be much better without the GOP’s political posturing which has harmed millions of people who elected them).
It is over. The ACA is law. And even with a GOP controlled Congress and a GOP President (shudder!), it is not going to go away. Better for the rwdws to come up with a name change and make the ACA their idea. Which I believe they will do, and the lemmings will believe them.(See McConnels Kynect babbling in Kentucky)
As noted above, I have no doubt that the law helped many. You and others keep repeating that and I don’t dispute the “helped” thing. But tons were harmed. There are two sides. And tons more will be harmed.
i don’t make this up. I studied Gruber. Its all him. Its by design.
It was built on false premises… that its a 3 legged stool based on Mass, and that Mass was a success because it cut premiums in half. Well its not a 3 legged stool- there’s a 4th leg (someone has to pay for the subsidies), and nether was Romneycare. And the Mass premiums did drop in half- but only after Guaranteed Issued first caused a death spiral and forced them sky high.
And we all know the lies it was sold on… keep your plan, keep your doctor, premiums dropping for the average family by $2500, etc.
Look, I’m not being a jerk. There’s two sides to this. I’ve looked at both. I fairly recognize that many are helped. All I ask is that proponents of the law on the left do the same and recognize that there was harm done too, that the law was based on false premises, and the employer mandate is going to be a mess.
I don’t think that’s an unreasonable position.
Cannon apparently has for months now been pushing the claim that Gruber is the official spokesman for the Congress that enacted the ACA. Or maybe that his real name is Harry Reid. Or Nancy Pelosi.
What that Politico opinion piece (which the above link is to) by Cannon does suggest is that Gruber wanted the ACA to provide what Cannon and the Halbig plaintiffs claim it provides, but that Congress had other plans—those plans being the CREATION OF THE FEDERAL-SETUP BACKUP. Apparently, Gruber wrote the “through an Exchange established by the State” language, but played no role in creating the federal-setup backup.
Congress, however, DID create the federal-setup backup, a virtually meaningless provision absent the availability of the federal subsidies. Since the only conceivable purpose of the federally-set-up state exchanges would be as a fallback in states that declined to set up and run their exchanges—and since Gruber was not a member of Congress—it does appear that Congress rejected the idea that Cannon and the Halbig plaintiffs say Congress adopted. Gruber’s comments notwithstanding.
The Gruber quotes are a transparent canard. A classic red herring.
Soooo sorry. Hope that answers your initial question to me, rightwinger. I must say, though, that I detect from your comments here a tad bit of concern that my post dangerously deconstructs your, and Cannon’s, silly claim.
Of course there are two sides, and of course some people were harmed. There is no law in the history of man that helped everyone. The numbers are far, far greater in those helped than those hurt. It is not close.
In terms of paying for the subsidies, we know where that comes from, those making more than roughly $250,000 of taxable income a year and those making more than $250,000 of passive income per year.
I forgot to mention, for all of you here who don’t know–which is all of you here except winger, that the Politico opinion piece I linked to identifies Cannon as “the director of health policy studies at the Cato Institute.”
The position, though, actually is “the director of health policy ‘studies’ at the Cato Institute.” The studies apparently involve mostly studying such things as YouTube video of Jonathan Gruber speeches and interviews.
Yes, very funny. Oh, Oklahoma won their case today regarding the above topic. See footnote 23.
This is not about winning and losing. Its about the law. You can yuck it up all you want. The law is the law. And as I said, this will not destroy the ACA. States will simply build their own exchanges. NBD.
BEVERLY MANN- TO BE CLEAR, MCANNON DID NOT FIND THAT GRUBER VIDEO. I DID.
EMICHAEL- HEHEHEHEHEHEHE RIGHT BACK AT YOU
RIGHTISRIGHT- STOP BEING SO NICE.
Sorry, Footnote 24
No, actually, Oklahoma won its case today before a trial judge appointed by G.W. Bush–which, since the ruling will be appealed, does not mean that Oklahoma actually won its case.
And, my apologies to you, Rich Weinstein (who presumably is rightisright5116). I mean–credit where credit is due, right?
I know who that guy is. He’s been hat tipped in several articles written on Breitbart.
Like I said before, doesn’t matter. It won’t kill the ACA. States that want subsidies and mandates will just build their own exchange.
AWESOME articles, run! Let’s hear it for Adrianna McIntyre at Vox, and Brian Beutler at the New Republic.
What is the purpose of shouting out your finding of something that means absolutely nothing to any but the ideologues of the world?
I WAS CORRECTING THE AUTHOR. ON OCCASION I LOOK AROUND TO SEE WHAT’S BEING BLOGGED AND STUMBLED UPON THIS SITE. THE CASE WAS BEING MADE AGAINST MCANNON. “The studies apparently involve mostly studying such things as YouTube video of Jonathan Gruber speeches and interviews. – See more at: http://angrybearblog.strategydemo.com/2014/09/the-halbig-subpoena-oh-the-fright.html#comments”
FOR NOW, WE’RE JUST GOING TO HAVE TO DISAGREE ON THE SIGNIFICANCE OF THE GRUBER VIDEO(S). THUS FAR THE ONLY JUDGE THAT’S MADE A RULING SINCE THE DISCOVERY HAS FOOTNOTED IN HIS RULING (FOOTNOTE 24) THAT GRUBER’S STATEMENT DEFEATS HIS OWN “ABSURDITY” BRIEF TO THE COURTS.
YOU MIGHT BE RIGHT AND IN THE LONG RUN THE VIDEO(S) PROVE TO MEAN “absolutely nothing.” I’M OPEN TO THAT CONCLUSION.
AND TO BE PERFECTLY CLEAR, “RIGHTISRIGHT” IS RIGHT. THIS ARGUMENT IS OVER NOTHING. IF THERE ARE NO SUBSIDIES THROUGH HEALTHCARE. GOV, THE STATES WILL SIMPLY HUSTLE UP AND BUILD THEIR OWN EXCHANGES. THIS WILL NOT DESTROY THE ACA ONE WAY OR THE OTHER. MAYBE A COUPLE STATES WILL STAY WITH THE FED EXCHANGE AND WE’LL SEE WHAT HAPPENS TO THEM ECONOMICALLY AND POLITICALLY.
ALSO, THERE WAS A POINT MADE SOMEWHERE ABOUT THE HHS CONTRACT WITH CGI. ITS ACTUALLY A PRETTY INTERESTING TOPIC. GOOGLE “SCOT VORSE”.
BOTTOM LINE: I DIDN’T POST ON THIS BLOG TO PICK A FIGHT AND I DON’T CARE TO HAVE ONE. I’M NOT GOING TO ARGUE WITH ANY OF YOU. IT WILL BE WHAT IT WILL BE. THE SUPREME COURT WILL HEAR THIS AND THE ARGUING WILL CONCLUDE LATE NEXT SUMMER.
A little louder, please?