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May 02, 2013



Eric, I think that your certainty is misplaced. I don't know the legislative history (though I'll note that the IRS and the plaintiffs seem to disagree about what it is, which is usually the case). But the language of the provision in question is not nearly as clear cut as you and the plaintiffs seem to think. It authorizes subisidies for people who enroll in state exchanges, but it says nothing about those who enroll in the federal substitutes.

Now, there's certainly a good argument that the failure of Congress to provide for subsidies in that context IMPLIES that they were intended to be precluded, but at this point you're moving past the plain language of the statute. And you poo-poo the argument that changed or unforeseen circumstances (i.e., the decision by a majority of states not to set up exchanges) might support the government's interpretation, but guess what? That's a valid canon of interpretation. Just as valid that the one that you're relying on, in fact.

This is why the legislative history is so crucial, by the way. If that's clear cut one way or the other, it should control. If it's ambiguous, the government's interpretation probably should prevail under Chevron principles.

Eric Rasmusen

I'm surprised to see comments like these on a legal blog. This lawsuit is serious, and it's not about whether Obamacare is good or bad--- it's about the law. The government loses, on plain language and legislative intent. Its only hope is the "Well, we didn't expect the states to ignore our threats and lose the subsidies" argument, which no principled court would accept.

Robert A

People have no problem going broke on unnecessary wars, spending trillions on defense, but man oh man helping people stay healthy while avoiding bankruptcy when sick, well now that's just evil, go USA

Ralston Champagnie

The objection(s) reminded me of the stance to eliminate child labor years ago. The same reaction existed, and those who objected often spent an enormous amount on legal fee...the same or larger amount than it would have taken to comply the first year or two.

Marilyn Goodrich, Ph.D.

What is the alternative? Having the uninsured file bankruptcy when they can't pay their medical bills or being turned away from care because they can't pay for it are just a few of the possibilities. The law may not be perfect, but other developed countries seem to be able to provide healthcare to their citizens. Perhaps we should have missionaries from other countries come to the USA to provide healthcare services just as there are medical faith-based missionaries from the USA going abroad.

Tim Morgan

So, in a nutshell (pun intended), these folks want to preserve the States' right to keep a lot of people uninsured, and employers' rights to avoid providing insurance to their underpaid employees?

Unclean hands, anyone?

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