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Could Four Words Doom the ACA?

January 31st, 2014 - 3:15 pm

George Will:

The four words that threaten disaster for the ACA say the subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.

So the IRS, which is charged with enforcing the ACA, has ridden to the rescue of Barack Obama’s pride and joy. Taking time off from writing regulations to restrict the political speech of Obama’s critics, the IRS has said, with its breezy indifference to legality, that subsidies shall also be dispensed to those who purchase insurance through federal exchanges the government has established in those 34 states. Pruitt is challenging the IRS in the U.S. District Court for the Eastern District of Oklahoma, and there are similar challenges in Indiana, Virginia and Washington, D.C.

I’ll pop the corn.

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All Comments   (5)
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Confucius say: Single payer have many layer.

Of course they did not mean for subsidies to be paid out through the fed. That would have slipped the mask off too soon.

You have to pass this gall stone to find out what's in it. The Finanacial Gestapo is in charge...and if you don't like it, you can learn about audits.

Lois Lerner can plead the fifth, we will have to plead the whole gallon.
1 year ago
1 year ago Link To Comment
Gabriel Malor over at Ace's has a pretty strong counter-argument, at least in my IANAL opinion. He says that a part of determining the applicability and scope of any particular section of a law depends on the context and scope of the rest of the law. Even though the language of this section reads in a way that could be problematic for the current implementation of ObamaCare, Gabe argues that the rest of the law makes it pretty clear that the intent of this section is being implemented properly.

Again, IANAL. But there's some common sense in his argument. We'll see what the Supremes say, though.

Of course, it would be nice if we could go back to basics with our legislative process and write laws that, you know, aren't more than 20 pages long, double-spaced, and actually adhere to a strict interpretation of the Constitution.

A guy can dream, right?
1 year ago
1 year ago Link To Comment
The counter to Malor's piece comes later in Will's column. It's a lengthy excerpt, which is why I didn't use it originally, but it pertains now:

"The IRS says its 'interpretation' — it actually is a revision — of the law is 'consistent with,' and justified by, the “structure of” the ACA. The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this. The ACA’s legislative history, however, demonstrates that Congress clearly — and, one might say, with malice aforethought — wanted subsidies available only through state exchanges.

"Some have suggested that the language limiting subsidies to state-run exchanges is a drafting error.


"Some of the ACA’s myriad defects do reflect its slapdash enactment, which presaged its chaotic implementation. But the four potentially lethal words were carefully considered and express Congress’s intent.

"Congress made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.

"In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus (D-Mont.), one of the bill’s primary authors, suggested conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA."

So, no, the intent was written as-is.

But what the Supremes will decide is anybody's guess, now that Roberts has decided his real job is to serve as a sort-of remedial law-writing instructor to Congress.
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1 year ago
1 year ago Link To Comment
When are we going to learn that Obama is grateful whenever somebody finds a loophole? He then knows what hole to patch in the law. We are beta testing his law for him.
1 year ago
1 year ago Link To Comment
Not sure what you mean by that. What's the loophole? The law of the land is not being beta-tested, it's being implemented.
1 year ago
1 year ago Link To Comment
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