Halbig: Documents show either that Congress wanted federal exchange consumers to get subsidies or, er, the opposite

posted at 7:21 pm on July 29, 2014 by Allahpundit

Conservatives are having fun with this Greg Sargent post arguing that the legislative history of ObamaCare proves the Halbig case was wrongly decided. There were two versions of the exchanges drafted by congressional Dems in 2009, says Sargent. The first, the HELP Committee bill, was the Democratic dream scenario: It called for state exchanges and a federal exchange for those states that refused to build their own exchange and subsidies for consumers in both exchanges. The staff memo quoted by Sargent is pretty explicit about it. Any exchange, including the federal one, gets subsidies. That’s exactly the system we ended up with, Democrats now maintain — with one wrinkle:

Now, to be fair, the memo notes that the HELP Committee bill’s structure did delay subsidies to those in states that hadn’t yet set up their exchanges.

So even in the HELP bill, which gave Dems basically everything they wanted, there was some impulse to punish states that refused to build their exchange by withholding subsidies from their residents temporarily. Back to that in a minute.

The second bill was the Senate Finance Committee bill. In that one, there was no federal exchange. There were only state exchanges, with the feds empowered to build an exchange for any state that refused to build one but required to appoint some nonprofit entity to actually run the darned thing afterward. Here too, subsidies were available to consumers on both types of exchange. But the Finance Committee clearly wanted a smaller role for the feds than a full federal exchange, just as HELP wanted a smaller role for the feds by giving states a (temporary) incentive via subsidies to create their own exchanges.

Eventually these two bills were merged — and, if you believe Sargent, the resulting bill somehow gave the feds more power even though each of the underlying bills sought to limit federal power in different ways. Essentially, and very conveniently, he’s arguing that we ended up with a version of the HELP bill except without that little wrinkle about withholding subsidies from states that delayed building their own exchanges. Subsidies for everyone, right from the start! You could just as easily argue, though, that the fact that the final ObamaCare bill isn’t as explicit as HELP in extending subsidies to the federal exchange means — ta da — that Congress didn’t intend to extend those subsidies. When language from an earlier version of a bill disappears from a later version, courts tend to assume, understandably, that it disappeared for a reason:

As Leon Wolf puts it:

Even for people who take legislative history as a thing that ought to be given great weight, the fact that Congress included a clause in an earlier version of the bill but then changed or removed it in the final version is considered to be conclusive evidence that Congress specifically desired the change in question, not that they intended the earlier version. Let’s say hypothetically that you had a bill that said when it came out of committee, “Congress hereby appropriates $10 million for the funding of studies the mating habits of pink salmon and $5 million for the funding of studies of the mating of silver salmon,” but the final version of the bill merely said “$1o million for the funding of studies of the mating habits of pink salmon,” courts (like reasonable people) come to the inescapable conclusion that the clause about the silver salmon was removed per the deliberate intent of Congress otherwise it would have remained in the bill.

If Congress wanted the HELP bill, why didn’t it just enact the HELP bill? By watering down the language and merging it with the Finance Committee bill, which dropped the idea of a federal exchange entirely, it pointed to a more state-centric structure for ObamaCare. And if they wanted the states to have a bigger role, go figure that they might have ramped up the incentive to have states build their own exchanges by tweaking that little wrinkle in HELP so that consumers in state exchanges were the only ones eligible for subsidies permanently.

Read all of Sargent’s post, as he has quotes from a few Senate staffers at the time insisting that they wanted everyone to have subsidies. I guess, in the battle of experts, our side will just have to make do with Jon Gruber.


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Opposite Man!

/Whatevah he say? It’s the opposite.

Key West Reader on July 29, 2014 at 7:25 PM

Wouldn’t liberal logic dictate that congress could have just passed an ACA bill that read simply:

“This is a bill to make health care better for everyone.”

And then it could have been interpreted any which way Obama wanted, because of the obvious intent.

FadeToBolivia on July 29, 2014 at 7:27 PM

Jeez, I teach this in advance legal research: compare versions of the bill. If something is in one version, but not in the final, it is presumed the legislature knows what it is doing. It’s not for the courts to play mind reader.

rbj on July 29, 2014 at 7:28 PM

Whut? Whea mah dam sbtidy?

vnvet on July 29, 2014 at 7:29 PM

It was a mistake-o.

BacaDog on July 29, 2014 at 7:29 PM

As usual Sargent’s “evidence” actually bolsters his opponents’ point of view. He’s up there with O. Willis and M. Yglasias for the title of dumbest person on the internet.

forest on July 29, 2014 at 7:30 PM

Rearranging deck chairs on the titanic …

ShainS on July 29, 2014 at 7:32 PM

It was a mistake-o.

BacaDog on July 29, 2014 at 7:29 PM

Do you happen to have a time machine?

/I wish. We’re stuck with him. We’ll survive.

I hope.

Key West Reader on July 29, 2014 at 7:32 PM

I think Mr Sargent needs to have a short, insightful debate with The PunchMaster.
Can’t possibly be less intellectually compelling than, say speaking to Nancy Pelosi.

orangemtl on July 29, 2014 at 7:33 PM

If we’re to accept that the “intent” of the law, not the text, is what matters, then it’s clear that Obamacare as a whole does not satisfy the intent (of improving access while reducing consumer costs).

The implementation of Obamacare is therefore unconstitutional.

malclave on July 29, 2014 at 7:33 PM

If Congress wanted the HELP bill, why didn’t it just enact the HELP bill?

Because that bill was never introduced in the House as a “shell bill”, and the Senate never voted on it, so, they could not “deem” it passed. Or some such other legal double speak.

See what happens when you play Shenanigans when writing Laws and trying to bend things to make them look OK to CBO ten years down the road as revenue neutral but only with 4 years of penalties built in? Sucks.

And the whole thing boils down to the fact that the Dems had complete control of all three branches of the Government and those idiots still could not get anything right.

Johnnyreb on July 29, 2014 at 7:34 PM

I can’t remember which doctor said this but it was a doctor…..

Nancy Pelosi: “We have to pass the bill to find out. What is in it.

Doctor: Like a stool sample

/I just love that one.

Key West Reader on July 29, 2014 at 7:35 PM

Key West Reader on July 29, 2014 at 7:32 PM

No, no time machine KWR. I wish.

I wish I could fast forward 2 years so this nightmare would be over.

BacaDog on July 29, 2014 at 7:37 PM

Here are the facts, and when you think about it these are the only facts that count. The bill passed without Republican votes and it spawned the tea party. The bill, after spawning the tea party, got Scott Brown, elected to the Senate. The bill, after spawning the tea party, got the Republicans House of Representatives. After that, the Democrats decided to pass the bill as it was at the time and deal with it later, hoping the win back the House in 2012. Since the Republicans won the House, the Democrats have played keep away with every single aspect of the ACA, no matter what they had to do. Work around the Constitution, who cares, they kept the bill out of Republican hands. Steal a Presidential election and keep the Senate, who cares they kept the bill out of Republican hands.

The President and the Democrats have successfully made the House of Representatives out of the legislative loop and have virtually made them powerless. The House, the one chamber with the power of the purse, has been neutered by the Democrats and the President. How did that happen? It happened, IMHO, because the House leadership is feckless.

bflat879 on July 29, 2014 at 7:37 PM

Key West Reader on July 29, 2014 at 7:32 PM

No, no time machine KWR. I wish.

I wish I could fast forward 2 years so this nightmare would be over.

BacaDog on July 29, 2014 at 7:37 PM

We’ll make it. I really know we will.

/Shut off the Obama Phones first….

Key West Reader on July 29, 2014 at 7:41 PM

I’m confused about what Obamacare is anymore aside from Obama’s overweight crack baby….that’s dying…

sorrowen on July 29, 2014 at 7:42 PM

Can’t possibly be less intellectually compelling than, say speaking to Nancy Pelosi.

orangemtl on July 29, 2014 at 7:33 PM

Her lips stopped moving when Botox was invented.

/Disregard whatever she says. She’s an entitled Gubmint Hack.

Key West Reader on July 29, 2014 at 7:43 PM

The President and the Democrats have successfully made the House of Representatives out of the legislative loop and have virtually made them powerless. The House, the one chamber with the power of the purse, has been neutered by the Democrats and the President. How did that happen? It happened, IMHO, because the House leadership is feckless.

bflat879 on July 29, 2014 at 7:37 PM

You make several good points…

I think that Skeletor Ried has been kinda quiet lately… I think they’re inflating him with air and pumping up his abs, replacing his eyes…

/Oh, I could go on and on LOL!!!

Key West Reader on July 29, 2014 at 7:47 PM

unexpectedly

workingclass artist on July 29, 2014 at 7:50 PM

I’m confused about what Obamacare is anymore aside from Obama’s overweight crack baby….that’s dying…

sorrowen on July 29, 2014 at 7:42 PM

HA!

workingclass artist on July 29, 2014 at 7:50 PM

It was a mistake-o.

BacaDog on July 29, 2014 at 7:29 PM
.

Do you happen to have a time machine?

/I wish. We’re stuck with him. We’ll survive.

I hope.

Key West Reader on July 29, 2014 at 7:32 PM

.
No, no time machine KWR. I wish.

I wish I could fast forward 2 years so this nightmare would be over.

BacaDog on July 29, 2014 at 7:37 PM

.
KWR … I wish we could go back in time, and save your husband … : (

listens2glenn on July 29, 2014 at 7:51 PM

KWR … I wish we could go back in time, and save your husband … : (

listens2glenn on July 29, 2014 at 7:51 PM

I am a person of Faith. I’m fine, and I’m privileged to know you.

Key West Reader on July 29, 2014 at 7:53 PM

KWR … I wish we could go back in time, and save your husband … : (

listens2glenn on July 29, 2014 at 7:51 PM

.
I am a person of Faith. I’m fine, and I’m privileged to know you.

Key West Reader on July 29, 2014 at 7:53 PM

.
. . . ( * blush * ) . . . . . . . . . . . . . .
.
Honestly, it practically SHOUTED at me when I read your 7:32 PM comment.

I couldn’t think of anything else.

listens2glenn on July 29, 2014 at 7:58 PM

I’m confused about what Obamacare is anymore aside from Obama’s overweight crack baby….that’s dying…
sorrowen on July 29, 2014 at 7:42 PM
HA!
workingclass artist on July 29, 2014 at 7:50 PM
Well O say’s I have a pen and phone!! Well his pen and phone have made the overweight crack baby a retarded methhead crack baby…no one even knows what is it anymore is it a law?? It sure as hell doesn’t seem like one with O changing it whenever he gets a tingle up his leg….

sorrowen on July 29, 2014 at 8:00 PM

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Mr. Nelson was a Democratic senator from Nebraska at the time the Affordable Care Act passed. He was viewed as the swing vote and appeared wary of expansive federal control of the health care system.

The subsidies were one way to entice states to set up their own exchanges and exert their sphere of influence, Mr. Carvin said.

Judge Randolph added several other pieces of evidence that the wording was deliberate. He said it appeared to be copied from a law that made a distinction between federal government and state programs.

All sides seemed to agree that the law was poorly drafted.

Read more: http://p.washingtontimes.com/news/2014/mar/25/federal-court-skeptical-obamacare-subsidies/?page=2#ixzz38uCrGyGn
Follow us: @washtimes on Twitter

journeyintothewhirlwind on July 29, 2014 at 8:08 PM

If it makes anyone feel better, the democrats think they are going to lose between 8-10 seats in the senate. A whole lot of staffers are getting ready to be out of a job this January 2015. I found it hard to believe till the white house started that impeachment talk. Well, we’ll see.

flackcatcher on July 29, 2014 at 8:19 PM

Lame-o evidence-o.

BuckeyeSam on July 29, 2014 at 8:21 PM

I’m confused about what Obamacare is anymore aside from Obama’s overweight crack baby….that’s dying…
sorrowen on July 29, 2014 at 7:42 PM

HA!
workingclass artist on July 29, 2014 at 7:50 PM

Well O say’s I have a pen and phone!! Well his pen and phone have made the overweight crack baby a retarded methhead crack baby…no one even knows what is it anymore is it a law?? It sure as hell doesn’t seem like one with O changing it whenever he gets a tingle up his leg….

sorrowen on July 29, 2014 at 8:00 PM

No see legislation isn’t about the actual words on paper…but using magical pixie dust these can be interpreted as to intent and therefore mean whatever special snow flakes want it to mean…

workingclass artist on July 29, 2014 at 8:22 PM

Here, the plain language of the ACA is straightforward: Section 1401 of the ACA, codified at Section 36B of the Internal Revenue Code, provides tax credit subsidies to individuals who buy insurance on exchanges “established by the State under section 1311″ of the ACA. Section 1304(d) clearly sets forth the definition of “State,” and it’s what you would expect: “the term ‘State’ means each of the 50 States and the District of Columbia.” A separate section of the ACA, section 1321, allows the federal government to “establish and operate such Exchanges within the State” if the State does not do so, and the statute nowhere provides a similar subsidy to buyers on the state exchanges or states that the federal exchange should be treated as a state exchange for purposes of the subsidies. This is not at all ambiguous.

Resist We Much on July 29, 2014 at 8:32 PM

They’re really treading water on this.

formwiz on July 29, 2014 at 9:14 PM

Maybe next time, Democrats will READ the bill BEFORE they pass it into “law”.

Doesn’t really change anything. King Barack evidently fancies himself “the law”.

“The law” is what King Barack declares it to be at any particular moment in time.

GarandFan on July 29, 2014 at 9:17 PM

bflat879 on July 29, 2014 at 7:37 PM

While the Tea Party almost managed to kill ObamaCare, but for Reid’s legislative shenanigans, the Tea Party Movement began long before ObamaCare. Rick Santelli’s rant was on February 12, 2009, just under a month after Obama’s inauguration. Transcript at the first link.

what amounts to the founding document of the tea party movement, Rick Santelli’s “rant” on the CME trading floor in Chicago, telecast live by CNBC on Feb. 19, 2009.

That was less than one month into the Obama administration. The stimulus package had been jammed through Congress almost entirely by Democratic votes six days before, but the Democrats’ health care and cap-and-trade bills were barely into gestation. Chrysler and General Motor had received temporary bailouts, but their bankruptcies were months in the future.

“The government is promoting bad behavior,” Santelli began. The object of his scorn was the Obama administration’s Homeowners Affordability and Stability Plan providing aid to homeowners delinquent on their mortgages.

I was fed up, the country was fed up….taxpayers were on the hook after the credit bubble popped…..the country was a tinderbox and I said something that lit the fuse.

INC on July 29, 2014 at 9:33 PM

“We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980).

“[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992).

“When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” 503 U.S. 249, 254.

There is no ambiguity. No subsidies for federal exchanges.

slp on July 29, 2014 at 11:27 PM

It was in the bill before we took it out which proves that we wanted it in the bill.

PackerBronco on July 30, 2014 at 1:47 AM

Duh…I’m kinda stoopid. What does the words in the law say?

jbspry on July 30, 2014 at 2:00 AM

Jeez, I teach this in advance legal research: compare versions of the bill. If something is in one version, but not in the final, it is presumed the legislature knows what it is doing. It’s not for the courts to play mind reader.

rbj on July 29, 2014 at 7:28 PM

We have a winner.

dogsoldier on July 30, 2014 at 8:59 AM

Then let’s have congress pass a bill that says:

Now let’s have the executive branch bureaucracy divine what it wants out of that because not saying anything is clear intent of something.

Or something.

tkc882 on July 30, 2014 at 9:59 AM