Preface: I'd like to note that I am in no way trained to speak in or around any legal arguments, so any logic that seems tortured as hell in this post is a result of that. (Also I'm in a bit of a hurry to get to a class, so I may substantially edit this later tonight.)
(Also, sorry for the fisking, y'all.)
- This is just a more fleshed-out version of the argument BM raised a few pages back.
This may be the case, but the argument is made more convincingly, I think, in that article.
The
entirety of the elected GOP voted in favor of H.R. 4 in the 112th (itself a slight modification of H.R. 705), which was scored by the CBO on the premise that subsidies were universal in scope several months into a political landscape in which states had already declined to set up their own - an indication that at worst, they believed that subsidies *might not* be restricted to state exchanges in moving to capture more revenue from their repayment.
If you have a question or an opinion, you should feel free to interject it while a discussion is ongoing. This after-the-fact passive aggressiveness is silly.
From my view, it's about as silly as the fact that the discussion is even happening - we're seriously debating the legal premise of striking down subsidies for a twentieth of the country's population on the basis that Congress' apparent omission of three words from one section of the ACA indicates unambiguous intent to restrict those subsidies (in the face of nearly all related actions taken in the aftermath of the Act's signing).
Do you want me to explain where I disagree with the Fourth Circuit? Or do you think they presented a knockdown argument that I haven't adequately addressed? It should be clear at this point that I'm willing to address these arguments, so you have no reason not to raise them.
In particular, you can feel free to explain, in as plain a form of language as possible, how Chevron deference does
not apply to this case, given that:
- everyone except for the plaintiffs (and the relevant organizations filing amici curiae) - a group which includes a substantial number of governments and their officials otherwise overtly opposed to the existence of the law - seems to be in agreement that "subsidies go to all states" was at least a plausible interpretation of the sections in question, given that...
- ...rather unlike NFIB v. Sebelius, there appears to have been no credible threat made by members of Congress or the Cabinet to deny subsidies to states that did not opt to create their own exchanges, as Sargent's post details.
It seems to me that taken together, both of these points imply that Congressional intent was not unambiguous (in which case the SCOTUS should grant "Chevron"), unless you are seriously arguing that Congress made a clear-cut threat that, simultaneously, no one seems to be able to find with any measure of clarity.
The second point in particular is the main reason I'm treating your argumentation with such disdain - because you have to torture your reading in order to reach a point where any such "credible threat" was made, beyond what even the case's own petitioners are saying. Again, as I did in my previous direct response to you, I apologize for being a bit of a passive-aggressive dick here.
Recent events?
I may have more to say about this argument later, but for now I'll note two points:
- The "primary argument" made by the challengers is not that Congress intended to use the subsidies as an inducement to states to set up their own exchanges. As I've explained before (last paragraph--see also point (6) here), the primary argument is that the text of the statute does not authorize subsidies on federal exchanges. The inducement argument is a counter to the argument that reading the statute to exclude subsidies on the federal exchanges would be absurd.
The argument that the text of the statute does not authorize federal-exchange subsidies is, full stop, based on the premise that the text of the statute is
unambiguous in that regard. There has been enough debate on the subject to indicate that no, there is some ambiguity, particularly with the first and second points you put forth in that first post - that the phrase involving section 1311 exchanges
may also include section 1321 exchanges, and that because of this, the IRS has authority (albeit EXTREMELY AMBIGUOUS) to administer and interpret that subsidy provision for section 1321 exchanges. (And therefore also your fourth - that the IRS's rule not being a "reasonable construction" is itself unclear.)