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[Black Mamba]

Kennedy's questions ultimately boiled down to the following two: (1) How should I interpret the text? (2) If the challengers are right about the text, is the scheme they describe unconstitutionally coercive?

The Chevron analysis fits into question (1). Remember that Chevron tasks courts with asking two further questions, which I'll paraphrase: (a) Is the statute ambiguous on the relevant point? (b) If so, is the agency rule based on a reasonable interpretation of the statute? If, as an initial matter, Kennedy thinks the statute is ambiguous, but one of the reasonable readings would raise constitutional doubts, then he might say that the statute is actually unambiguous in favor of the other reasonable reading. Kennedy's questions about whether the challengers' reading would be coercive fit in here, as well as in question (2). But if he concludes in (a) that the statute really is ambiguous, and that he can't avoid that ambiguity, then he'll move on to (b). (Some of Kennedy's comments about the text indicate that he doesn't view the government's reading as a reasonable one, so the doctrine of constitutional avoidance may not even come into play for him.)

Question (b) is where Kennedy's questions concerning the magnitude of the discretion purportedly left to the IRS come in. As a consequence, even if he gets to Chevron step two (i.e., question (b)), he might say that the IRS rule is not entitled to deference because Congress would not have delegated so great a power through an ambiguous term. (By the way, Verrilli refers on page 76 to a "learned treatise that described" the rule that tax credits must be clearly stated "as a false notion." He's referring to Scalia and Garner's Reading Law, with which you are all surely familiar by now.)

Question (2) probably won't play into the case if it doesn't do so in Kennedy's thinking about question (a). This is because question (2) is not part of the questions presented in the case, and the issue has not been fully briefed. In fact, neither the government nor the challengers are willing to endorse the theory in this case. So, unless question (2) causes Kennedy to interpret (a) in favor of the government, I think he'd kick the can down the road, waiting for a state to challenge the program on the basis that it's coercive.



I don't think that's what Kennedy's saying. I think he's saying the challengers' reading raises a "serious Constitutional question," and both parties need to address that. Verrilli does address it by saying, in essence, "If that causes you to interpret the statute my way rather than the challengers' way, then more power to you. But I'd never concede you're right about it."



An Exchange isn't the website, but the organization tasked with maintaining the website (among other duties). An Exchange can contract with an "eligible entity" to "carry out 1 or more responsibilities of the Exchange" under 1311(f)(3), but "eligible entity" is defined in such a way as to exclude HHS.

Speaking of California, California Government Code sec. 100500 demonstrates how a state "establishes" an Exchange:

I was unaware that HSS is not an eligible entity according to the ACA.

Regarding Kennedy, I wonder if the SCOTUS will find a way to kick the case back down to the Circuit Court after giving guidelines. IE: Determining Chevron applies but since it's not properly briefed on the merits of the Chevron test, send it back to the lower court to decide.

I also now don't see any way for the Court to side with Petitioners without addressing the coercive argument. Rule one way and Virginia will instantly file suit.

Ruling in favor of King would be a bloody mess all around. You'd have other constitutional issues arise. You'd have insurance marketplaces wiped out with no fix in place. It would be economic and legal chaos. You can't stay the judgment 6 months to help.

And yes, theoretically the Court shouldn't rule one way because it makes more sense to do so even if it is legally wrong. But theory and reality don't always meet up. A Justice has to be cognizant of the affect on people's lives such a ruling would cause. Hypothetically, let's say a case comes to the Court in which a ruling one way would literally cause an overnight recession. Maybe on the merits, that ruling is correct, but should they do it? You can't take the reality out of the equation...

Granted, King should lose on the merits, but I think it's an interesting dilemma for people like Roberts and Kennedy who might otherwise be swayed to go a different direction. I mean, you're literally killing people by removing their cancer treatment by ruling in favor of King (Scalia and Thomas don't give a fuck, they'd actively steal the chemo away).

Only a few months to go...yayyyyy!!!

 

[Crisco]

Unlikely. Remember that 1311(d)(1) requires an Exchange to be a "governmental agency or nonprofit entity that is established by the State." HHS is neither.

Doesn't matter, HHS sets all the rules about what qualifies as an Exchange, and 1311 also allows this,

(B) make available for use by Exchanges a model template for an Internet portal that may be used to direct qualified individuals and qualified employers to qualified health plans

That can easily be healthcare.gov. This won't be an overnight thing, but the end result will be residents of blue states will keep their subsidies. Make no mistake, red states will bear the entire burden of a ruling for King.

It's what makes the whole thing kinda amusing to me from a Machiavellian POV. Those people will get exactly what they deserve for their voting choices.

 

[Crisco]

Also, I love how the textual basis for their incentive theory is, to use Carvin's words,

Section 1311's strong preference for State Exchanges

which is, of course, just wrong.

 

[HylianTom]

Only a few months to go...yayyyyy!!!

The wait between now and June is going to take forever.

At least when waiting for Election Day, there are other daily news events, activities, poll releases, and comedy bits going-on. Court cases? We just get to sit and wait and wonder.

 

[NYCmetsfan]

No avatars? And dark theme?

Disgusting

 

[HylianTom]

Just announced: SCOTUS oral arguments on the marriage cases have been set for Tuesday, April 28th.

Update:
SCOTUS to provide same-day audio for the marriage cases. SWEET.
http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_03-05-15

 

[Coriolanus]

Well, this is lovely. On mass incarcerations and the war on drugs.

Lotsa points that are rarer. One really weird bit, however, is:

The African-American incarceration rate of about 2,300 per 100,000 people is clearly off the charts and a shocking figure. The black–white incarceration rate in the United States is about 6 to 1. Focusing so intently on these racial disparities often obscures the fact that the incarceration rates for other groups in the United States, including whites and Latinos, is also comparatively very high, just not astronomically high as in the case of blacks.

The white incarceration rate in the United States is about 400 per 100,000. This is about 2 to 2.5 times the total incarceration rates of the most punitive countries in Western Europe and about 5 to 6 times the rate of the least punitive ones.

Even if you released every African American from US prisons and jails today, we’d still have a mass incarceration crisis in this country. I do not mean to minimize the enormity of the problem of the carceral state for African Americans but rather to make a larger point about how we need to think about racial disparities and criminal justice in a more nuanced way and in a wider context.

Wonder which presidential candidate will discuss this issue.

ayy lmao

*neogaf.gif*

No avatars? Dark theme?

 

[Crisco]

It's weird, while the liberal judges made no bones about how ridiculous they felt Carvin's main argument was, the conservatives were much more reserved. At worst, Scalia and Alito's main points were that "yes, we can in fact burn the whole thing down over a technical glitch.". As I said, no one who isn't getting directly paid for it wants to endorse this bullshit.

 

[NeoXChaos]

If GInsburg is replaced by a Republican President....................

 

[TheLaughingStock]

No avatars? And dark theme?

Disgusting

The dark theme is sexy though.

 

[Aaron Strife]

Dark theme hate? Whaaaaat

 

[Metaphoreus]

Regarding Kennedy, I wonder if the SCOTUS will find a way to kick the case back down to the Circuit Court after giving guidelines. IE: Determining Chevron applies but since it's not properly briefed on the merits of the Chevron test, send it back to the lower court to decide.

I also now don't see any way for the Court to side with Petitioners without addressing the coercive argument. Rule one way and Virginia will instantly file suit.

Ruling in favor of King would be a bloody mess all around. You'd have other constitutional issues arise. You'd have insurance marketplaces wiped out with no fix in place. It would be economic and legal chaos. You can't stay the judgment 6 months to help.

The 4th Circuit addressed Chevron, so that's no reason to kick it back down. And if the Court doesn't address the coercion argument as a way to avoid the challengers' interpretation of the statute, then I don't think it will be addressed by this case at all. Kennedy may call out the issue, but they'll wait for that Virginia lawsuit to make its way through the courts before resolving it. If they ever do get around to answering the coercion question on its merits (rather than using it as a tool to avoid an unwanted interpretation), Randy Barnett thinks they'll have to go with what I called the "State Veto" approach (mirroring the NFIB resolution)--if they don't just completely strike down the ACA (mirroring the NFIB dissenters' opinion; what I called the "Diablos Scenario").

Doesn't matter, HHS sets all the rules about what qualifies as an Exchange, and 1311 also allows this,

(B) make available for use by Exchanges a model template for an Internet portal that may be used to direct qualified individuals and qualified employers to qualified health plans

That can easily be healthcare.gov.

No, the statute sets the rules for what qualifies as an Exchange. If HHS implements regulations that are contrary to the statutory requirements, then someone's just going to bring another lawsuit challenging those regulations.

And I'm not sure that 1311(c)(5)(B) is referring to healthcare.gov, because 1311(c)(5)(A) ("the Internet portal developed under section 1103(a)") clearly is, and (A) and (B) seem to refer to different things ((B) doesn't refer to "the Internet portal developed under section 1103(a)," but to "a model template for an Internet portal"). Also note that (A) suggests that state-established Exchanges are supposed to build their own websites, since it directs the Secretary of HHS to "assist States in developing and maintaining their own such portal."

Also, I love how the textual basis for their incentive theory is, to use Carvin's words,

Section 1311's strong preference for State Exchanges

which is, of course, just wrong.

Not at all. 1311(b) uses mandatory language in directing each state to establish its own Exchange. 1311(a) appropriates funds for HHS to use as grants to assist states in establishing their own Exchange (in notable contrast to the law's provision for FFEs). 1321 echoes this preference, since it directs HHS to establish "such Exchange" only if a state fails to do so.

Spoiler

1401 (IRC 36B) likewise echoes this preference, since it restricts credits to state-established Exchanges.

EDIT: Oh, and I'm with Chichikov on the dark theme/no avatars.

 

[ivysaur12]

if they don't just completely strike down the ACA (mirroring the NFIB dissenters' opinion; what I called the "Diablos Scenario").

bless.

 

[Zona]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

 

[NeoXChaos]

http://www.nytimes.com/2015/03/06/upshot/scott-walkers-electoral-record-is-less-impressive-than-it-looks.html?abt=0002&abg=0

Looks like ivysaur was right. Solarbeam me if not.

 

[BertramCooper]

Desktop: Default theme

Mobile: Dark theme

 

[NYCmetsfan]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

That I didn't read as a defense force but rather just the ramblings of a really crazy person.


Wasn't there also someone who said hitler didn't hate the jews and just stumbled into killing a bunch of them?

The dark theme is sexy though.

I hate the color orange.

 

[ivysaur12]

Also, what are we short-handing the marriage cases as? DeBoer v. Snyder seems to be the one everyone's sort of gravitating towards. That makes sense -- it was the only one with a trial?

http://www.nytimes.com/2015/03/06/upshot/scott-walkers-electoral-record-is-less-impressive-than-it-looks.html?abt=0002&abg=0

Looks like ivysaur was right. Solarbeam me if not.

Sort of why I think Jeb is a much better candidate for the GOP. We'll see.

 

[pigeon]

Also, what are we short-handing the marriage cases as? DeBoer v. Snyder seems to be the one everyone's sort of gravitating towards. That makes sense -- it was the only one with a trial?.

Obergefell v Hodges is the case name of record based on the cert grant, which is to say, it was the first of the four cases to appeal to SCOTUS.

 

[NYCmetsfan]

Also, what are we short-handing the marriage cases as? DeBoer v. Snyder seems to be the one everyone's sort of gravitating towards. That makes sense -- it was the only one with a trial?

HOMOPOCALYPSE 2015: It's already happing

 

[Black Mamba]

The 4th Circuit addressed Chevron, so that's no reason to kick it back down. And if the Court doesn't address the coercion argument as a way to avoid the challengers' interpretation of the statute, then I don't think it will be addressed by this case at all. Kennedy may call out the issue, but they'll wait for that Virginia lawsuit to make its way through the courts before resolving it. If they ever do get around to answering the coercion question on its merits (rather than using it as a tool to avoid an unwanted interpretation), Randy Barnett thinks they'll have to go with what I called the "State Veto" approach (mirroring the NFIB resolution)--if they don't just completely strike down the ACA (mirroring the NFIB dissenters' opinion; what I called the "Diablos Scenario").

But that's still a legal quagmire. See, the State Veto doesn't solve anything for a state like Virginia. Virginia says, hey, we didn't know a rejection meant no subsidies and that's a problem because they want the exchange! How do you remedy that? You make Virginia go back to pre 2012 status quo until their exchange is up? Meanwhile removing insurance from its citizens when it explicitly doesn't want to do that? Remember, it takes years to set up an Exchange.

Furthermore, unlike NFIB, the federal government has the ability to force community rating and such through ICC and it isn't a threat. Previous coercion cases required the states to do something it didn't want to do that is in only their sphere. Expanding medicaid is strictly a state program. The Feds cannot do it for them. It makes sense that the Feds can't coerce them to extend. But Community Rating is within the sphere of Congress' power and HSS regulation. If it wants to enforce community rating on its own, it can. Put it this way, it would be like SCOTUS saying in NFIB that the Federal Gov't can't even offer the medicaid expansion, even without strings attached. There's on way in hell they'd make that ruling This seems like a violation of separation of powers, here. I do not believe they have the power to do this.

I don't think the "state veto" is a proper remedy. In fact, I think the only actual proper remedy, which your article does give as a possibility, is forcing the subsidies. That, at the very least, is legally less flimsy. You're basically asking the SCOTUS to choose between two illegal option.

If I were Kennedy, I wouldn't want to touch that with a 10 foot pole. The obvious solution is to simply adopt the most obvious and correct explanation, that the text disagrees with King.

There's no reason to put the country's health insurance market and status of the states and follow up with legal quagmire's over what is at worst sloppy language when we know exactly what was intended.

Also, the "Diablos Scenario" is only in states that choose to veto. Here in California, we'd still have it. They're not striking down the entire ACA.

 

[ivysaur12]

Obergefell v Hodges is the case name of record based on the cert grant, which is to say, it was the first of the four cases to appeal to SCOTUS.

Ah, Obergefell! (Ah-BERG-eh-fell ?)

Also, we all missed this very important part of the King oral arguments which really could turn it on its head.

 

[Black Mamba]

Ah, Obergefell! (Ah-BERG-eh-fell ?)

Also, we all missed this very important part of the King oral arguments which really could turn it on its head.

/dead

Also, Obergefall...obergefall....uebergayfall?

 

[Trouble]

Ah, Obergefell! (Ah-BERG-eh-fell ?)

Also, we all missed this very important part of the King oral arguments which really could turn it on its head.

 

[pigeon]

If I were Kennedy, I wouldn't want to touch that with a 10 foot pole. The obvious solution is to simply adopt the most obvious and correct explanation, that the text disagrees with King.

There's no reason to put the country's health insurance market and status of the states and follow up with legal quagmire's over what is at worst sloppy language when we know exactly what was intended.

This is essentially why I think the government will win here.

As with any contentious Supreme Court case, there are multiple legal theories which might eventually be found plausible. Thus, in many ways, the important questions are the consequences of the decision and the long-term consequences of the precedent.

The consequences of the decision, should it be in favor of the challenger, are agreed by basically all parties to be seriously destructive, at least in the short term. So there's a pretty strong motivation for anyone not seriously focused on ideology to find the other way, if possible. Given that, and the potential for a finding that sets a strong conservative precedent, I think the incentives point in the right direction for the ACA here.

 

[HylianTom]

Ah, Obergefell! (Ah-BERG-eh-fell ?)

Also, we all missed this very important part of the King oral arguments which really could turn it on its head.

Ahh.. yes.. that doctrine. An antecedent to the Bofa precedent. Impressive work on the part of Ginsburg.

 

[Aaron Strife]

Warning early 2016 poll incoming commence whining

PPP internal poll for Ohio has Strickland and Portman tied 45-45. Hillary leads Bush 45-40 and Walker 49-41

http://www.publicpolicypolling.com/main/2015/01/OhioResults1.pdf

 

[speculawyer]

Warning early 2016 poll incoming commence whining

PPP internal poll for Ohio has Strickland and Portman tied 45-45. Hillary leads Bush 45-40 and Walker 49-41

http://www.publicpolicypolling.com/main/2015/01/OhioResults1.pdf

GOP really needs some kind of big disruption to have a chance.

 

[Crisco]

No, the statute sets the rules for what qualifies as an Exchange. If HHS implements regulations that are contrary to the statutory requirements, then someone's just going to bring another lawsuit challenging those regulations.

There are no statutory requirements that preclude quickly establishing an Exchange though, only regulatory ones set by HHS that are quickly resolved through healthcare.gov's existing architecture. There is nothing in the law mandating how technology is shared between HHS and States for Exchanges so there would be nothing to sue over. Obviously politics will block the effort in red states, to the detriment of their own populace, but blue states legislatures will rubber stamp anything that resolves a crisis caused by King.

And I'm not sure that 1311(c)(5)(B) is referring to healthcare.gov, because 1311(c)(5)(A) ("the Internet portal developed under section 1103(a)") clearly is, and (A) and (B) seem to refer to different things ((B) doesn't refer to "the Internet portal developed under section 1103(a)," but to "a model template for an Internet portal"). Also note that (A) suggests that state-established Exchanges are supposed to build their own websites, since it directs the Secretary of HHS to "assist States in developing and maintaining their own such portal."

You consider this a basis for a lawsuit? Don't answer that, it's actually more substantive than the challenger's argument in King.

Not at all. 1311(b) uses mandatory language in directing each state to establish its own Exchange. 1311(a) appropriates funds for HHS to use as grants to assist states in establishing their own Exchange (in notable contrast to the law's provision for FFEs). 1321 echoes this preference, since it directs HHS to establish "such Exchange" only if a state fails to do so.

Spoiler

1401 (IRC 36B) likewise echoes this preference, since it restricts credits to state-established Exchanges.

.

Nope, that's just an inaccurate analysis of the statute. There is no language denoting "preference" anywhere in 1311 or 1321. As you said there is "mandatory language" requiring states to establish an Exchange, and "mandatory language" requiring HHS to provide a fallback. That's it. You can't make any affirmations about Congress's preference from those statutes, other than not wanting to violate the constitution.

To elaborate, maybe Congress hated the idea of state's running their own Exchanges, but were forced to do it this way to avoid potential constitutional challenges and comparisons to single payer. Maybe the statute was in fact structured in a way, as Orrin Hatch once suggested, to discourage as many states as possible from establishing their own Exchange since there is practically no benefit in doing so. While still wrong, it's a much more plausible analysis of Congressional preference than yours.

 

[benjipwns]

Also, what are we short-handing the marriage cases as? DeBoer v. Snyder seems to be the one everyone's sort of gravitating towards. That makes sense -- it was the only one with a trial?

The Snyder is Rick Snyder.

Just sayin....

 

[NeoXChaos]

Warning early 2016 poll incoming commence whining

PPP internal poll for Ohio has Strickland and Portman tied 45-45. Hillary leads Bush 45-40 and Walker 49-41

http://www.publicpolicypolling.com/main/2015/01/OhioResults1.pdf

Too early aaron. This wont hold.

#emails, #Benghazi

 

[eBay Huckster]

Too early aaron. This wont hold.

the presidential margins won't hold

the senate margin, on the other hand...

 

[Teggy]

Warning early 2016 poll incoming commence whining

Hillary leads Bush 45-40 and Walker 49-41

If I'm reading this correctly, Democrats/Independents definitely don't want Walker, but once the hard right is taken out of the picture they need to think a little bit about backing Hillary.

 

[ivysaur12]

Warning early 2016 poll incoming commence whining

PPP internal poll for Ohio has Strickland and Portman tied 45-45. Hillary leads Bush 45-40 and Walker 49-41

http://www.publicpolicypolling.com/main/2015/01/OhioResults1.pdf

Interesting cross tabs for Strickland-Portman

Strickland has 79% Ds, 12% Rs, and 38% I
Portman has 12% Ds, 77% Rs, and 52% Is

8% D undecided, 11% R, 11% I

If Strickland can cut into that Independent slice even moderately, he could do really well.

If I'm reading this correctly, Democrats/Independents definitely don't want Walker, but once the hard right is taken out of the picture they need to think a little bit about backing Hillary.

Hillary is actually losing Independents!

 

[speculawyer]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

Oh that thread was hilarious.

 

[ivysaur12]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

Wait what what wait what wait why wait what why wait what what

 

[eBay Huckster]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

god damn that's still my favorite thread of all time

 

[gcubed]

Love the gnashing over religion with same sex marriage.

This was said by an elected human being in 2015.

“They don’t have a right to be served in every single store,” said Mr. Silk, the Oklahoma state senator, referring to gay people. “People need to have the ability to refuse service if its violates their religious convictions.”

http://mobile.nytimes.com/2015/03/0...eigh-religious-exemption-bills.html?referrer=

 

[B-Dubs]

After the Atlantic Slave Trade Denier nothing on GAF really surprises me anymore.

Man, that dude was straight up "Time Cube: part 3" nuts

Love the gnashing over religion with same sex marriage.

This was said by an elected human being in 2015.



http://mobile.nytimes.com/2015/03/0...eigh-religious-exemption-bills.html?referrer=

Fucking hell man, we're supposed to be getting better not this

 

[Ignatz Mouse]

Man, that dude was straight up "Time Cube: part 3" nuts



Fucking hell man, we're supposed to be getting better not this

We ARE getting better. The fact is, in the past casual homophobia/bigotry was just allowed to exist. By addressing it, we hit pockets of resistance. But the trend has been growing acceptance for some time. I've seen people who take a pretty straight-line conservative right wing stance whose big exception is that they are OK with gay whatever.

 

[benjipwns]

Sheriffs sue Colorado over legal marijuana

DENVER — Sheriffs from Colorado and neighboring states Kansas and Nebraska say in a lawsuit to be filed Thursday that Colorado's marijuana law creates a "crisis of conscience" by pitting the state law against the Constitution and puts an economic burden on other states.

The lawsuit asks a federal court in Denver to strike down Colorado's Amendment 64 that legalized the sale of recreational marijuana and to close the state's more than 330 licensed marijuana stores.

Lead plaintiff, Larimer County, Colo., Sheriff Justin Smith, calls the case a "constitutional showdown." Each day, he says, he must decide whether to violate the Colorado Constitution or the U.S. Constitution. Colorado legalized recreational marijuana sales Jan. 1, 2014, but marijuana remains illegal at the federal level.

Colorado is "asking every peace officer to violate their oath," Smith said. "What we're being forced to do ... makes me ineligible for office. Which constitution are we supposed to uphold?"

The out-of-state sheriffs say the flow of Colorado's legal marijuana across the border has increased drug arrests, overburdened police and courts and cost them money in overtime.

Felony drug arrests in the town of Chappell in Deuel County, Neb., 7 miles north of the Colorado border, jumped 400% over three years, a USA TODAY report tracking the flow of marijuana from Colorado into small towns across Nebraska found. Deuel County Sheriff Adam Hayward is one of the plaintiffs.

Wow, drug legalization is so bad that it increases trafficking of it three years into the past!

Hopefully the Supreme Court comes down hard on Colorado for daring to opt out of federal drug laws at the expense of communities in other states:

The lawsuit invokes the federal government's right to regulate drugs and interstate commerce and argues that Colorado's decision to legalize marijuana hurt communities on the other side of the state lines. Attorneys general of Nebraska and Oklahoma filed a similar lawsuit late last year.

 

[speculawyer]

Sheriffs sue Colorado over legal marijuana

Wow, drug legalization is so bad that it increases trafficking of it three years into the past!

Hopefully the Supreme Court comes down hard on Colorado for daring to opt out of federal drug laws at the expense of communities in other states:

I see the right is sticking hard to their 'states rights' principles. :-/

 

[Poodlestrike]

Wait what what wait what wait why wait what why wait what what

One of my eternal regrets is that I didn't get confirmed in time to participate in that thread. Legendary.

 

[Metaphoreus]

But that's still a legal quagmire. See, the State Veto doesn't solve anything for a state like Virginia. Virginia says, hey, we didn't know a rejection meant no subsidies and that's a problem because they want the exchange!

Well, they'd have the Exchange but they wouldn't have subsidies. But, because this question wouldn't be addressed by King, by the time it's decided, it could very well have been long enough for Virginia to establish its own Exchange. And, not only that, but it's possible that they could obtain a preliminary injunction requiring the government to continue providing credits until a decision is rendered on the merits. But however distasteful you or Kennedy might find this result, if the ACA unambiguously says what the challengers claim, then Kennedy should not pretend otherwise just because he doesn't like the consequence of such a decision.

Furthermore, unlike NFIB, the federal government has the ability to force community rating and such through ICC and it isn't a threat. Previous coercion cases required the states to do something it didn't want to do that is in only their sphere. Expanding medicaid is strictly a state program. The Feds cannot do it for them.

The federal government could not compel a state to expand its Medicaid program, true. But the federal government could create its own program that acts like Medicaid but is entirely administered at the federal level. So I don't think NFIB and King are as disanalogous as you suggest.

I don't think the "state veto" is a proper remedy.

Neither did the four dissenters in NFIB. Instead, they believed that the Medicaid expansion had to be struck down, that the expansion was not severable from the rest of the ACA, and that, therefore, the entire law had to be invalidated. They could believe likewise here, and the "Diablos Scenario" I describe is precisely how they might.

There are no statutory requirements that preclude quickly establishing an Exchange though, only regulatory ones set by HHS that are quickly resolved through healthcare.gov's existing architecture.

You suggested that a state could comply with the requirement that it establish an Exchange by providing a hyperlink to healthcare.gov. That was incorrect.

It's also incorrect to say that "[t]here are no statutory requirements that preclude quickly establishing an Exchange," since, as you and I have discussed before, the Exchanges must perform numerous functions under 1311(d) (which are requirements that an Exchange must satisfy, according to 1311(b)).

Nope, that's just an inaccurate analysis of the statute. There is no language denoting "preference" anywhere in 1311 or 1321. As you said there is "mandatory language" requiring states to establish an Exchange, and "mandatory language" requiring HHS to provide a fallback. That's it. You can't make any affirmations about Congress's preference from those statutes, other than not wanting to violate the constitution.

To elaborate, maybe Congress hated the idea of state's running their own Exchanges, but were forced to do it this way to avoid potential constitutional challenges and comparisons to single payer. Maybe the statute was in fact structured in a way, as Orrin Hatch once suggested, to discourage as many states as possible from establishing their own Exchange since there is practically no benefit in doing so. While still wrong, it's a much more plausible analysis of Congressional preference than yours.

There is sufficient textual evidence (even just in 1311) to support Carvin's statement, but this isn't really an issue that's subject to empirical confirmation. You're complaining about a label, not the substance of his argument.

EDIT: In Texas v. U.S. news:

On Wednesday, shortly after Texas filed its brief opposing the government’s motion for a stay, the United State filed a strange “Advisory” with the court. In short, even though the government represented that no new relief would be issued under the November 20, 2014 memorandum until February 18, 2015 (two days after the preliminary injunction was issued), it turns out that the administration deferred the deportations for 100,000 aliens for a period of 3 years (the previous policy was limited to 2 years).

...

What makes this late admission so stunning–after all of the briefs had been filed and the injunction was issued–is that the DOJ consistently represented that no new relief had been issued under the November 20, 2014 memorandum. On that basis, Texas and the Court proceeded under the assumption that the status quo would be maintained until February 18, 2015. Now, we see that this wasn’t the case.

In response, Texas admits it was “surprised” by this late representation[.]

...

In its brief, Texas offers a helpful timeline of all the times the DOJ made clear they would not implement any of the programs, authorized by the November 24, 2014 memorandum until February 18. In particular, on January 14, DOJ stated that “Plaintiffs will not be prejudiced” by the extension “because U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015.”

During oral arguments on January 15, the DOJ again repeated that none of the expanded programs would go into effect before February 18.

 

[Black Mamba]

Sheriffs sue Colorado over legal marijuana

Wow, drug legalization is so bad that it increases trafficking of it three years into the past!

Hopefully the Supreme Court comes down hard on Colorado for daring to opt out of federal drug laws at the expense of communities in other states:

Colorado isn't opting out of anything. Marijuana is illegal on the federal level. State authorities are not at all required to enforce these federal laws. If the Feds wants to arrest someone for marijuana, they can. Still. The Admin simply chooses not to bother with it, right now.

That case seems so bad. There is no Constitutional Crisis. The sheriffs have to enforce Colorado law and Constitutional Law Incorporated into the states, nothing else.



On another note, Rubio and Lee proposed tax reform and to no surprise, it mostly kills the lower and middle classes. Eliminating capital gains taxes and reducing S-corp taxes massively. But hey, at least the child tax credit was increased.

Oh, and it is a huge deficit driver.

 

[Black Mamba]

Well, they'd have the Exchange but they wouldn't have subsidies. But, because this question wouldn't be addressed by King, by the time it's decided, it could very well have been long enough for Virginia to establish its own Exchange. And, not only that, but it's possible that they could obtain a preliminary injunction requiring the government to continue providing credits until a decision is rendered on the merits. But however distasteful you or Kennedy might find this result, if the ACA unambiguously says what the challengers claim, then Kennedy should not pretend otherwise just because he doesn't like the consequence of such a decision.

The exchange would be worthless, though. quite honestly, if the King side prevails, there's a chance there will be no sellers at all.

And I'd like to reiterate it will take years to set up the Exchange if they can't contract HSS. The Courts will have to make a decision. Either allow the subsidies until an exchange is set up (assuming they want one) or fuck the entire insurance market up for years until they get one.

Maybe I am not explaining my problem as well. If the Courts agree with King and remove subsidies, here's the problem for Virginia.

"hey guys, we want the subsidies. We were under the impression we didn't need to set up the Exchange to get them but now we're told we do. And it will be 3 years before we have one up and running so in the mean time, because we were misled on this issue, our insurance market is going to be fucked over sideways and you're telling us, OH WELL SORRY BYE."

You're punishing Virginia for something completely out of their control...I don't believe in the context of this that it is Constitutional.

The only out I see is telling states to declare an imminent exchange and then you receive subsidies throughout. But all of these solutions are legally flimsy.

The federal government could not compel a state to expand its Medicaid program, true. But the federal government could create its own program that acts like Medicaid but is entirely administered at the federal level. So I don't think NFIB and King are as disanalogous as you suggest.

But it didn't so it's a red herring. Once again, the federal gov't can enforce community rating no matter what.

Neither did the four dissenters in NFIB. Instead, they believed that the Medicaid expansion had to be struck down, that the expansion was not severable from the rest of the ACA, and that, therefore, the entire law had to be invalidated. They could believe likewise here, and the "Diablos Scenario" I describe is precisely how they might.

I guess that makes sense. The dissenters were wrong on medicaid. The rest of the ACA did not rely on it. But the ACA does rely on the subsidies, mandate, and community rating to function (and guaranteed provision).

I'll reiterate, though. It's too late to undo the ACA overnight. Even if it's theoretically right, it's just nothing something any sane person would do. In 2012 it was fine. In 2015, it's not.

 

[benjipwns]

it mostly kills the lower and middle classes. Eliminating capital gains taxes and reducing S-corp taxes massively

How do these kill the lower classes?

Even their bracket consolidation for income taxes raises taxes on individuals making between $75,000 and $411,500. Cutting taxes from 25% to 15% for individuals making $37,451-$74,999.

Personally, I'd do what the Bush Tax Cuts did and drop everyone in the current 10% bracket out all together (instead of almost doing it through deductions), but whatever they're dicks.

Any kind of corporate/capital tax consolidation is a good thing, elimination is even better. Especially if you're a weirdo who wants American companies to be more competitive and stay in America.

Never going to pass or probably get voted on Rubio 2016 plan is here: http://www.rubio.senate.gov/public/...?File_id=2d839ff1-f995-427a-86e9-267365609942

 

[benjipwns]

Amid Clinton controversies, Democrats seek alternative

Democratic activists in early presidential nominating states say that new controversies swirling around Hillary Rodham Clinton have made them more eager than ever for alternatives in 2016.

The undercurrent of anxiety about Clinton’s vulnerabilities has grown in recent days with potentially damaging news of foreign donations to the Clinton Foundation and the former secretary of state’s use of private e-mail accounts to conduct official business.

But as they survey the landscape, few Democrats see other credible contenders.

“The problem is, there’s nobody out there who’s not Clinton who’s the equivalent of Barack Obama,” said Larry Drake, chairman of the Portsmouth Democrats in New Hampshire. “He was a fresh face . . . and he gave great speeches and he turned out to be electable.”

The angst among Democrats offers new evidence that opportunities remain for other candidates despite Clinton’s commanding lead in early polls. H. Boyd Brown, a member of the Democratic National Committee from South Carolina who supports former Maryland governor Martin O’Malley, said Clinton will not wear well as Democrats are exposed to a continuing drumbeat of press scrutiny.

“Nobody down here wants a coronation,” Brown said. “We need options. Who knows what could happen. It’s always good to have more than one candidate running.”

“Those aren’t some tabloid scandals,”he said of the Clinton controversies. “Those are job-related, national-security-related issues that matter.”

...

Though O’Malley did not mention Clinton by name, he said that “triangulation,” a term for compromise with Republicans coined during Bill Clinton’s administration, is no longer “a strategy that will move America forward.”

Others who’ve met with O’Malley say he is trying to subtly push a message about the need for a generational shift in leadership. O’Malley is 52; Clinton is 67.

Despite the strong view among activists who heard him that a Clinton nomination is inevitable, O’Malley left South Carolina with some reason for optimism: His audience liked him and even gave him a standing ovation after remarks that recounted a litany of progressive achievements as Baltimore mayor and Maryland governor.

Bob Noe, a retired public television producer who was in the audience at the issues conference where O’Malley spoke, said he was impressed with all O’Malley had accomplished. And while there is a good deal of enthusiasm for Clinton in his state, “there’s a lot of worry, too,” he said.

Ashlynn Polanco, a senior at the University of South Carolina, said she was “truly inspired. . . . Honestly, after the speech, and seeing how much energy he has, I’m really hopeful he’ll run.”

Polanco, along with some fellow College Democrats, had a chance meeting with O’Malley on his way into the event. They snapped photos and talked about immigration.

“We’re young. We’re students in college,” Polanco said. “We may not be the most important people, but he wanted to hear what we had to say.”

...

One party leader who met him said O’Malley noted that Clinton was also seen as an “unbeatable monolith” in 2008 but focused more on how he wants to run as a “proud progressive” who governed his state well in tough fiscal times. The Democrat spoke on condition of anonymity to share a private conversation.

Clinton boosters say they have little to worry about at this point — although some said that a competitive primary season would make her stronger heading into what is certain to be a bruising 2016 general election.

Dick Harpootlian, a former chairman of the South Carolina Democratic Party and a supporter of Vice President Biden, said he talked privately with O’Malley in recent weeks and did not fully understand the rationale for his candidacy.

“The subtext is he was a governor, and he knows how to get things done, and he brings a fresh approach,” Harpootlian said. “That’s an interesting message, but he’s going to have to come up with something that’s more inspirational and moves the base.”

 

[Metaphoreus]

Maybe I am not explaining my problem as well. If the Courts agree with King and remove subsidies, here's the problem for Virginia.

"hey guys, we want the subsidies. We were under the impression we didn't need to set up the Exchange to get them but now we're told we do. And it will be 3 years before we have one up and running so in the mean time, because we were misled on this issue, our insurance market is going to be fucked over sideways and you're telling us, OH WELL SORRY BYE."

What I'm saying is, Virginia can file a lawsuit and seek a preliminary injunction, saying, "Look, our citizens getting subsidies is the status quo, we're likely to win on the merits regarding our claim that this is coercive, so you should require the federal government to continue providing credits until you enter a judgment."

Amid Clinton controversies, Democrats seek alternative

I hope it's Elizabeth Warren.

 

[Fenderputty]

How do these kill the lower classes?

Even their bracket consolidation for income taxes raises taxes on individuals making between $75,000 and $411,500. Cutting taxes from 25% to 15% for individuals making $37,451-$74,999.

]

Didn't the democrats propose a plan a couple years ago that wouldn't raise taxes on anyone below 250K a year? IIRC it was promptly criticized by the right as a massive tax hike that would slow growth etc etc. I guess it's good taxes for low income brackets would go down, but I would be pretty pissed if a tax hike hit my family right now instead of closing loopholes enjoyed by the mega rich.