Friendly note: I addressed this argument (briefly)
here:
First, as I've mentioned before, the Court will only address the question if it first concludes that 36B clearly limits credits to state-established exchanges. So, a condition to raising this argument resolves it.
Uh, no shit...and how is this a weakness? I have repeatedly said that even if the argument in King was sound that it restricts the subsidies in the law that they lack of conveying the threat makes it irrelevant. Obviously to ask this question means they Court believes the text says the subsidies are restricting. I'm not arguing otherwise and it's not a weakness. It's just another example of how the King argument should ultimately lose in the end.
"Second, the Court thinks about cases like this as akin to contract formation. Conditions attached to an offer of federal money have to be clear, the Court reasons, because it would be unfair to impose requirements on the states that accept the offer if those requirements weren’t obvious at the time the offer was accepted. But here, the complaining states are those that rejected the purported offer. These are not offerees bound to a contract that includes a hidden term; they are offerees not bound to a contract because they rejected it. The Pennhurst analysis is inapplicable."
Wrong. Because the states believed the subsidies were coming even if they rejected the "contract." The terms of the contract were known in that way.
In fact, states like Virginia have filed a brief making the argument that they didn't know the terms so it's unfair.
http://www.washingtonpost.com/r/201... Virginia Amicus Brief in King v. Burwell.pdf
The Clear Notice doctrine is important and cannot undone because the offer was rejected rather than accepted. The Clear Notice doctrine means the offer must be known unambiguously, regardless. So if the states were under the impression that by rejecting the offer, its citizens would receive healthcare in
almost the exact same manner as if they accepted the offer, then that's the prevailing law and nothing in the text can change that years after the fact. It is perprosterous to argue that the SCOTUS says states cannot accept conditions they unaware of but can subsequently reject conditions they are unaware of.
This has been reaffirmed in cases Kennedy wrote the Opinion for, as well as Alito. I might have said Scalia when I meant Alito, but he wrote it in Arlington SD v Murphy just a few years ago.
And you're over-reading
Yates. There's not a justice on the Court that thinks context shouldn't be consulted in determining the meaning of a term or phrase used by Congress.[/QUOTE]
But there is no way a rational person can read the context of the entire law and assume the subsidies were only intended for the states. It makes no sense. It only works in isolation.
Also, in yates, Alito dissented from what you just said, so it has happened.
Gonna do both posts here and break yours out a bit.
The exchanges are "a marketplace where individuals and small businesses will be able to shop for health insurance at competitive prices. Insurance companies will have an incentive to participate in this exchange because it lets them compete for millions of new customers. As one big group, these customers will have greater leverage to bargain with the insurance companies for better prices and quality coverage. This is how large companies and government employees get affordable insurance. It's how everyone in this Congress gets affordable insurance. And it's time to give every American the same opportunity that we give ourselves." This is important, because "consumers do better when there is choice and competition. That's how the market works. Unfortunately, in 34 states, 75 percent of the insurance market is controlled by five or fewer companies. In Alabama, almost 90 percent is controlled by just one company. And without competition, the price of insurance goes up and quality goes down. And it makes it easier for insurance companies to treat their customers badly -- by cherry-picking the healthiest individuals and trying to drop the sickest, by overcharging small businesses who have no leverage, and by jacking up rates."
Put another way, exchanges--marketplaces "that . . . operate something like a Travelocity Web site for insurance policies"--"fix a fundamental flaw in the present system by giving small businesses and individuals a broad choice of insurance policies at competitive prices. Right now, such buyers typically have few affordable options." But "[w]ithout careful design and adequate rules of fair play, and without letting enough buyers participate to create a robust market, the exchange might not actually stimulate new competition among the nation’s health insurers. . . . The risk is that many local markets could end up looking much as they do today — with small businesses and individuals at the mercy of too few insurers wielding too much power in their regions."
Or, again, exchanges are "an attempt to inject some retail competition into a marketplace that today is not exactly teeming with bargains. Theoretically, they’d allow individuals and small businesses to band together and get better prices and more variety in health insurance options – the kinds of breaks that big corporations can negotiate for their employees today."
First off, let's establish one thing. The small business aspects are irrelevant (they never got subsidies but rather tax breaks, they have a different exchange SHOP, so they're completely out of the equation. So what I say below completely ignores small businesses and is not part of the conversation.
Now, none of the above is true without the subsidies. Your own fucking links imply as much.
I don't even understand what you're trying to prove in the above statement. As I've said before, the federal exchanges
make no sense without the subsidies. Everything you said above cannot exist without the subsidies. Without the mandate, subisidies, and community rating the exchanges cannot function as intended. I don't care what political rhetoric you want to quote, what i'm saying is mathematical fact. You cannot increase leverage without the subsidies. Without them, the exact opposite happens.
In addition to providing greater leverage to consumers in an attempt to control costs, "[t]he exchanges would offer individuals who do not have employer-sponsored health insurance and some small businesses a choice of health care plans, providing standardized information on areas such as benefits and cost, making it easier to shop for coverage." Former Secretary of HHS Sebelius agreed, when announcing the launch of Healthcare.gov: "HealthCare.gov will help take some of the mystery out of shopping for health insurance. For too long, it was confusing to identify your options and compare plans. HealthCare.gov makes comparison shopping easier with a new insurance finder that allows users to answer a few basic questions and receive information about insurance options that could work for them. The site makes a system that thrived on complication and confusion easier to understand. This kind of transparency helps create informed consumers which increases competition, reduces prices and improves quality."
What you're describing here is not an insurance exchange but rather the Kayak.com of insurance pricing. Yes, one of the additional benefits of the way the exchanges have been set up is they display prices ala Kayak.com, but that is not what the exchange is. The insurance exchanges are the actual products being offered. And it makes no sense Congress to crease an federal exchange without the subsidies because such a plan fucking ruins the entire market in said state and they're not ignorant of this fact. Also, the kayak.com setup and data collection is basically rendered useless when nobody can fucking buy insurance because the market is ruined without the subsidies.
Your reductionist theory that the exchanges are simply about providing credits to eligible taxpayers doesn't stand up to scrutiny against the statutory functions assigned to the exchanges or against contemporaneous expressions of the purpose of the exchanges.
No, this is a straw man argument.
I have never argued that setting up a federal exchange can serve no other plausible purpose without the subsidies. I said, setting up the federal exchanges without subsidies makes no fucking sense. These are distinctly different arguments.
An insurance marketplace that has an individual mandate, community rating, and no subsidies makes no fucking sense. Why create such an exchange?
The ACA's state exchanges has the subsidies. In light of that, telling the federal gov't to make one if the state doesn't makes no sense without those subsidies. It would be created a nearly non-existent market (and a much smaller one than existed prior). It does the exact opposite of the intended goal. If that's the intention, the states were completely unaware. And although Congress can pass laws with unintended consequences (they do so all the time) this was not one of them because they understood what it meant to not provide subsidies.
That's the part you have never addressed. Why would Congress intentionally set up a failed exchange in this scenario?
