Wording and intent of ObamaCare law meant nothing … law is written on the wind

Remember how Jonathan Gruber, one of the architects of ObamaCare, explained why the law was written in such a way that states had to establish healthcare exchanges in order for citizens to get subsidies?

The Supreme Court ruled today that the clear wording and the intent of the law are meaningless.

“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,” Gruber had said.

“But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges and that they’ll do it, but you know once again the politics can get ugly around this,” he continued

Here are the opening paragraphs of Antonin Scalia’s dissent in King v. Burwell, which was joined by Clarence Thomas and Samuel Alito (cites deleted):

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

The Patient Protection and Affordable Care Act makes major reforms to the American health-insurance market. It provides, among other things, that every State “shall . . . establish an American Health Benefit Exchange” — a marketplace where people can shop for health-insurance plans. And it provides that if a State does not comply with this instruction, the Secretary of Health and Human Services must “establish and operate such Exchange within the State.”

A separate part of the Act — housed in §36B of the Internal Revenue Code — grants “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges. The tax credit consists of “premium assistance amounts” for “coverage months.” An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State under [§18031].”  And the law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State under [§18031].”  The premium assistance amount further depends on the cost of certain other insurance plans “offered through the same Exchange.”

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State — which means people who buy health insurance through such an Exchange get no money under §36B.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”


30 comments on “Wording and intent of ObamaCare law meant nothing … law is written on the wind

  1. That’s what you get when you elevate an untested (and unreliable) judge to Chief Justice of the Supreme Court instead of associate justice. Justice Scalia should have been the nominee for Chief Justice…but unfortunately George W. (and Karl Rove) weren’t up for that skirmish. So they tried to finesse it, to play both sides against the middle…and it’s come back to bite them both (and us) in the butt big time! Chief Justice Roberts simply wasn’t up to the pressure and has folded like a cheap tent twice on this issue. Thanks for unmasking him in your dissent Justice Scalia. And unfortunately…we know what’s coming next.

  2. nyp says:

    Doesn’t really matter, does it, Mr. Mitchell? After all, you predicted two years ago that ObamaCare was so absurd and unworkable that it would quickly collapse under its own weight. I am sure that will happen … any day now.

  3. CF says:

    Well I have never been part of the blame Bush crowd; but he owns this one. Robert’s is either a liberal or he’s being blackmailed. I’ll go with blackmail, oh and this cannot be construed as a racist slur LOL

  4. nyp says:

    yeah. that’s it. We have compromising pictures of him.

  5. Vernon Clayson says:

    I’ve read that Eisenhower said that Earl Warren as Chief Justice was his biggest mistake, time for George Bush to admit that Chief Justice Roberts was his biggest mistake. Warren set the hounds of liberalism loose but didn’t reduce the power of the court, Roberts has loosed the hounds of socialism and has surrendered the judicial branch to the executive.

  6. nyp says:

    Good point. Warren gave us Brown vs. Board of Education, Miranda rights, and one-person, one-vote. I’m sure conservatives regret each of those landmark decisions.

  7. Vernon Clayson says:

    Roberts has also dropped logic and reason in his rulings on the so-called Obamacare to make it more unfeasable and incomprehensible, he writes to please Uncle Sugar, the federal government as represented by Obama and his posse, regardless of the ruinous costs to individuals and the states.

  8. nyp says:

    Good point. Death panels all over the place.

  9. CF says:

    nyp, snarky comments and putdowns are how progressive’s show their ignorance. I usually ignore you but really this decision is off the wall. By the way, nyp have you signed up for it and do you love your 3K deductible.

  10. nyp says:

    I haven’t signed up because, like most people, I get health insurance through my employer. If I were self-employed or if I were to lose my job I would certainly want to use the exchanges to get high-quality, affordable health insurance. That would be particularly important were I to have a pre-existing condition such as prostate cancer. Under the old system an insurer could deny coverage for me and my family. Now, pre-existing conditions cannot be used as a basis for coverage denials.

    Come to think of it, I have much more freedom to start my own business, now that I know that my family won’t lose health insurance protection if I leave my employer-sponsored plan!

  11. Steve says:

    Hey! Nyp!

    That’s right I can quit my job and get put on medicaid now!


  12. nyp says:

    If you are in a family of four people and your income is at or below $32,000 you can indeed be put on Medicaid. I would not suggest quitting your job because at that 4-person income level you life would be pretty shitty.

    On the other hand, if you decide to leave the security of a large corporation and strike out on your own by starting a business, you now know that you will be able to purchase affordable, high quality health insurance for your family, even if a family member has a pre-existing condition.

  13. CF says:

    Problem here, it’s not affordable. I have friends who had coverage through their company. The insurance was cancelled and now the premium is 1150.00 a month and a 5K deductible each. Their children are raised and they are living on retirement income. So explain to me again how this helped this couple. There are thousands of examples of people being hurt more by the bill than helped. The conservatives missed the boat when they did not find and share the personal stories of American’s who have been damaged by this law.

  14. Winston Smith says:

    “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” –James Madison, Federal No. 62, 1788

    “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.” – Thomas Jefferson

  15. Rincon says:

    Reality check: The rate of increase for the cost of medical care is lower than at any time since at least 1970. Quite the opposite of the apocalypse predicted by Conservatives. I would have thought you guys would tuck your tails between your legs and hope that no one would notice how wrong you have all been. Instead, you just act as if your predictions came to be true. Only problem is, they haven’t. Yes, health care is still expensive, but the battleship is finally beginning to turn around. It would have done so much faster if Conservatives would just get out of the way.

  16. Steve says:

    Too bad the only ones apparently feeling the “lowering of the cost curve” are rich liberal business owners!

  17. CF says:

    I swear to God libs live in lala land. Ask a physician how much cheaper this is getting. When your deductible is 5K before it kicks in and your premium is over 1K a month, basically you have no coverage unless you have an incurable disease or an extreme accident. Why you choose to look at propaganda by the BO adm is beyond me. What in reality is happening to average American’s is what should be your gauge. The poor already had Medicaid so it does not change their status, it hurts the middle class.

  18. Barbara says:

    CF their lala land will get a reality check in 2018 when the “Cadillac” tax on employer health care plans kick in if it lasts that long.

  19. Rincon says:

    “Too bad the only ones apparently feeling the “lowering of the cost curve” are rich liberal business owners!” Heck no. The conservative rich business owners get theirs too!

    “I swear to God libs live in lala land. Ask a physician how much cheaper this is getting.” It’s not getting cheaper. It’s getting more expensive less quickly than any time in 45+ years. Not good, but still better than the previous system.

  20. Steve says:

    Redistribution to the rich!

    The socialists dream!

  21. nyp says:

    “Following the Affordable Care Act’s second open-enrollment period, most people enrolled in marketplace plans report being satisfied with a wide range of their plan’s coverage and features, finds a new Kaiser Family Foundation survey of people who buy their own health insurance.

    “A large majority (74 percent) of those in marketplace plans rate their coverage as excellent or good, according to a news release on the survey. Most (59 percent) also say their plan is an excellent or good value for what they pay for it, though the share rating the value as “excellent” declined somewhat from 23 percent last year to 15 percent in the current survey.”


  22. Steve says:

    Found a nerve, I see.

  23. nyp says:

    “In states that have implemented the act in full and expanded Medicaid, data from the Urban Institute show the uninsured falling from more than 16 percent to just 7.5 percent — that is, in year two we’re already around 80 percent of the way there.”

  24. nyp says:

    “what about costs? In 2013 there were dire warnings about a looming “rate shock”; instead, premiums came in well below expectations. In 2014 the usual suspects declared that huge premium increases were looming for 2015; the actual rise was just 2 percent. There was another flurry of scare stories about rate hikes earlier this year, but as more information comes in it looks as if premium increases for 2016 will be bigger than for this year but still modest by historical standards — which means that premiums remain much lower than expected.”

  25. nyp says:

    “The U.S. economy has added more than 240,000 jobs a month on average since Obamacare went into effect, its biggest gains since the 1990s.”

  26. Steve says:

    Oh, yes…definitely found a nerve.

    For Ocare’s target audience…even a 4 % efficiency equals a 100% improvement.
    It’s no wonder they make such glowing statements.

    Jobs coming out of a recession…how fortunate for the Ocare stats.

    Premiums,,,funny. Forcing a bunch of new “customers” to buy something already overpriced and claiming the costs only went up a “little” instead of a “lot” is misleading. Again it only shows how bad things were during the recession.

  27. Nyp says:

    Where is my death panel?

  28. Rincon says:

    Hey, don’t knock it. Even if “death panels” existed, there would surely be supplemental insurance available through the private sector. As it stands now, helping a suffering individual to end their life with dignity is potentially a capital offense. Talk about big government!

  29. Rincon says:

    For what little it may be worth, the definition of state: “A nation or territory considered as an organized political community under one government.” Is it absolutely clear that the state referred to in the law is one of the 50 states and not the nation?

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