You misunderstand my point. I'm not questioning the legitimate practice of offering arguments in the alternative, and I'm baffled at how you could interpret my posts to say otherwise. The problem for your
Pennhurst argument is
not that it's an alternative argument. The problem is that it's resolved by the Court concluding that the statute is unambiguous, as is the
Chevron argument. You're suggesting that the government offer the following arguments:
- We win because the statute is ambiguous and so the Court should defer to the IRS interpretation.
- If you disagree, and believe that the statute is unambiguous, then we win because the statute is ambiguous and so no clear notice was given to the states.
Put another way, a valid alternative argument takes the form: "X. But if not X, then Y." Your proposed argument takes the invalid form: "X. But if not X, then X." No judge would take such an argument seriously.
You don't understand Pennhurst. See above. And of all those "countless SCOTUS cases," you couldn't be bothered to name one?
1. By "countless," I was referring to cases with alternative arguments. Do you really need me to name those? I assume you thought I meant countless Pennhurst cases which I did not.
2. I understand your point now but reject your analysis. I don't agree with your conclusion that the law being unambiguous as written undermines my Pennhurst argument because what matters is what a reasonable state official interprets at the time. If the CBO, IRS, Congress, HSS, and the Executive are telling the state official one thing that happens to be contrary to what a few words in a massive legal document says, it is not unreasonable to believe the state official would interpret the law to mean what those agencies are saying.
Could a state official reasonably interpret the ACA to allow federal subsidies?
And let's not forget, the IRS wrote a rule stating unequivocally that the federal exchanges would have subsidies. How else should a state official interpret the law!?
Oh, and doesn't the fact that state officials misinterpreted the statute prove Chevron guidance? We know state officials didn't believe subsidies would be denied so the law must have been unambigious, right? You can't have it both ways, here.
No, that doesn't follow. Accepting a bargain that includes an ambiguous term is not like rejecting a bargain that includes an ambiguous term. If a bargain is rejected, neither party is bound to it, period. It doesn't matter whether the terms are clear or not, there is no agreement. If a bargain is accepted, then clear terms are binding and unclear terms may not be.
When the terms of the bargain involves a massive economic shift, then it does. The SCOTUS has time and again stepped in in such realms. The overarching importance of Pennhurst was that state officials cannot be misled on the terms of their relationship with the federal government vis-a-vis laws. While true that they haven't addressed the situation of a rejected argument, I see no reason why Pennhurst's holding would also be applied here.
To believe Pennhurst can't apply here is to believe that Congress can pass a law in which certain action or inaction could detrimentally harm a State and if the State is not made aware of such harm, too fucking bad. I don't accept this as Constitutional.
You're proposing that the president can amend laws enacted under the Spending Clause by lying about what they say? Is that really a belief you hold about our form of government?
No, but the President can choose not to execute certain laws (they've always done this) to the fullest extent.
Or rather, the executive can explain how the law will work and mislead the State. Even things that are "unambiguous" can be misinterpreted. All it takes is a glossing over.
You cannot be serious. I just quoted the Supreme Court explaining that their Spending Clause jurisprudence treats Congressional programs like contracts. That jurisprudence is what your entire "Clear Notice" argument depends on. Yet, now you're denying that that's the case? Which is it? Is a Spending Clause program like a contract in which states can only be bound by unambiguous terms, or is it not like a contract and nevermind Metaphoreus I didn't understand the argument and have now changed my mind?
Like contracts but they're not contracts and have different realms. Besides, SCOTUS will do funky things whenever it feels like (see: Wickard or Raich or Civil Rights Act) to justify their positions. When it comes to situations that involve huge economic implications, the SCOTUS will squirm around their own rules to fit squares into a round hole. So, it's "like a contract," but not quite. And federalism matters so state officials have to be fully aware of the consequences of rejecting a proposal. Also, the subsidies are not a spending clause program, they are a tax clause program (subsidies are reverse taxes, by definition). And yes, Pennhurst is a spending issue, but I think it would be applied to taxes as well.
The question here is this. Can the federal government impose a tax hike on a State's citizens for the State not doing something Congress passes if the State is unaware of such terms and rejects the "contract" offered? I simply can't imagine the answer is "yes."
The paragraph you're responding to had nothing to do with Yates. So, I'm a bit confused concerning your point here.
You said: you think that the fact that the statute includes other words is enough to change the meaning of the words used in 36B
I say: Uh, in Yates the meaning of the words was clearly changed
The SCOTUS ignored the literal definition. It can do it in King, as well.
Yeah? Which page says that?
I am going to amend what I said and say he did not join the opinion that said that while 8 others did agree to that point (even the dissent agreed to it). So since he just concurred in judgment, who knows.
Your argument seems to be that Congress could not possibly have authorized exchanges without tax credits. But that's clearly not true. As the Cannon and Adler amicus brief pointed out regarding one of the two bills combined in creating the ACA:
"withheld Exchange subsidies,
as well as many of its insurance regulations, for up to four years until the state complied."
Once again, undermining your argument. Take away the other regulations (like community rating, individual mandates, etc) you can take away the subsidies. Congress did not contemplate having the ACA as it currently is without the subsidies because it cannot work.
This fact demonstrates that Congress could have done precisely what you imply they could not possibly have done. (And my prior posts demonstrate, I think, that they did do just that.)
No, because I'm not arguing Congress cannot establish an exchange without subsidies. I'm arguing it could not authorize one in which everything else is as it currently is.
Let me restate what I've said in the past. You cannot remove the subsidies and still enforce an individual mandate and community rating. All three of those things must go together. The brief given by Cannon and Adler prove my point because it removes those things! Cannot separate one from the other two.
The better citation here would be to NFIB, which actually found a program coercive, rather than South Dakota v. Dole, which didn't.
I could do Dole because it established the rule (even though it said the feds were fine here).
Like benjipwns pointed out, the credits have nothing to do with Congress imposing new rules on insurance companies. Those new rules apply regardless what a state or the federal government does (or fails to do). Let me ask you this, though: do you think Congress could, without violating the Constitution, enact all the new rules it enacted under the ACA without providing credits to anyone? Or do you think the Court should adopt a new doctrine under which Congress must prove to the courts that a new law doesn't unnecessarily endanger a given industry before a law is valid?
Not if the point of the law is to increase the amount of people insured and lower the (expected) out of pocket expenses for the average policy.
Remember, Congress cannot pass a law that it intends to fail. If Congress wants to pass a law that destroys the private market for individual insurance and is a specific goal, then yes it can do what you state. The Court doesn't need to adopt any such doctrine. Congress can pass a law that unintentionally fails so they don't need to prove shit.
The ACA has numerous goals. One of them is to decouple employer insurance from employer compensation. This lowers the employer insurance market and that's totally fine! It also reduces the labor force. And that's also fine. Because that's the intent.
The ACA also wants to increase the individual insurance market at lower out of pocket costs (relative to what they'd pay prior). A federal exchange with no subsidies undermines that.
Short answer. yes it can if its intention is to ruin the market. No, it cannot, if it's intention is to expand the market.
If they truly assumed, what's the purpose of writing federal exchanges in at all? Again, it undermines your argument.
The truth is this. Lawmakers hoped all the states would create their own marketplace, but just in case they wouldn't, they wrote in a safety valve.
The second and third possibilities are not mutually exclusive.
Which makes even less sense.
"The deal is so good no one will reject it but just in case someone went nuts in the head, we'll set up a fallback exchange doomed to fail to punish them!"
Seriously?
Let me ask you something else. Isn't the notion that the feds could set up an exchange without subsidies if the state doesn't make an exchange - in which this exchange will intentionally produce disastrous results for a state's individual insurance marketplace - an overly coercive threat?
And if you were to agree that that is Unconstitutional, what happens? Does a State that doesn't create an exchange simply revert to its own rules en masse? Can the IRS just pass a rule fixing it (as it already has)? What's next?