Morning Report – The Left continues to push Mel Watt to do principal mods 7/25/14

Stocks are lower this morning on no real news. Bonds and MBS are up.

Durable Goods orders rose .7% in June, topping expectations. Capital Goods ex air / defense rose 1.4%, although May was revised downward in a big way.

The left continues to push Mel Watt to do principal mods on loans held by Fannie Mae. Not sure it is going to happen, as it would undoubtedly trigger a wave of strategic defaults. Interesting that the couple mentioned in the article said they refinanced into a loan with “abusive” terms. A Fannie Mae loan was abusive? Or was this part of the American Dream Commitment, where Fannie partnered with the big subprime players like Countrywide, Irwin, Doral, etc. and agreed to buy their loans for their own balance sheet. Anyway, it looks like Mel Watt is giving the affordable housing advocates the Heisman and running out the clock on principal mods, much to the chagrin of the left.

Potential merger in the real estate data industry: Zillow and Trulia are examining a potential merger.

Good summary of earnings from the homeboys. Orders in units are flat / down (except for D.R. Horton), and ASPs are up. With home prices leveling out, that game isn’t going to last.

48 Responses

  1. Heh.

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  2. & the story gets traction due to the video. Vox has picked it up.

    http://www.vox.com/2014/7/25/5936239/obamacare-jonathan-gruber-subsidies-illegal-halbig

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  3. what’s really interesting is Cannon’s remarks. nuanced and thoughtful. imagine that.

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  4. Juicers starting to freak about Gruber.

    This says a lot about Juicebox and his cohorts.

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  5. Delicious!

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  6. Boom.

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  7. Like

  8. well played. give them a day to say “i misspoke” before asking “repeatedly?”

    http://www.breitbart.com/InstaBlog/2014/07/25/Obamacare-Architect-Jonathan-Gruber-Once-Again-Ties-Subsidies-to-State-Based-Exchanges

    also, everyone was focused on what Bart Stupak would do.
    I got laughed out the room when i mentioned “woodwork effect” for Medicaid. oops.

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  9. Another tape of Gruber committing a “Speako-O.”

    https://m.youtube.com/watch?v=LbMmWhfZyEI

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  10. Oh, ok, I’m satisfied.

    A second recording has surfaced showing Gruber making similar statements about subsidies not being available on federally run exchanges. Asked over email whether those remarks were a mistake, too, Gruber wrote back, “same answer.”

    http://www.msnbc.com/msnbc/jonathan-gruber-video-obamacare

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  11. go back to Ace – apparently the “speak-o” was in his prepared remarks.

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  12. As fun as it is,this.

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    • Although I think Chevron deference is called for here, George, I wouldn’t bet that Roberts does.

      All of you are infatuated with the argument that this section of ACA was not written broadly, and he may be too. It is a plausible line of argument. One has to look at the statute as a whole to draw the inference that the subsidies do apply. Roberts had no problem with finding that the most expensive part of ACA – Medicaid expansion – was an overreach. So he would have no problem, I think, simply ruling that there is no Chevron discretion here. But I think it is more complicated than that.

      Sweet Home is often used as a teaching tool. Stevens and Scalia have made a history of analysis of statutory construction and in a 2012 book Scalia praises Stevens work in that regard. In that case, in 1995, the Supremes considered a Department of Interior reading of the word “harm” as any activity that “actually kills or injures” endangered species, including an activity that results in
      “significant habitat modification or degradation . . . [that] significantly impair[s] essential behavioral patterns, including breeding, feeding or sheltering.”77

      Scalia’s book outlines the Stevens matrix and the Scalia matrix for that case.

      Canons Invoked by Justice Stevens
      Interpretive direction
      Ordinary meaning
      Surplusage
      Presumption against ineffectiveness
      Whole text

      Canons Invoked by Justice Scalia
      Ordinary meaning
      common law meaning
      associated words
      Presumption against ineffectiveness
      lenity
      whole text
      consistent usage
      material variation

      Notice the overlap, especially “whole text” and “presumption against ineffectiveness”. These are the two that I think are stronger in the current case. BTW, in that case, Stevens and Scalia came to opposing positions and I think it turned on Scalia’s use of the lenity presumption. That is, the Interior Department’s view could lead to a criminal enforcement proceeding and a criminal statute must be construed strictly AGAINST the government. I think Scalia was correct. I don’t think the rule or canon of lenity applies here – no criminal proceeding seems to me to be at stake. I do think that the material variation [and failure of consistent usage] canon between sections of the statute will be used by Scalia to say the statute does not have an implied over-arching effect, against which one must weigh the presumption against ineffectiveness. If Roberts wants to he will agree with that.

      I am just trying to explain how much more complex this kind of statutory/admin stuff is then meets the lay person’s eye. This is how we build precedents.

      If the Supremes hear this I would not even bet on 5-4, never mind which side wins.

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      • Mark:

        Can you explain to me how the state exchanges might become “ineffective” if subsidies are not granted on the federal exchanges? Let’s suppose, for example, that Hawaii decided not to create an exchange, but all other states did. So the fed stepped in and created an exchange for Hawaii. How does ACA become “ineffective” simply because Hawaii residents don’t get subsidized?

        Also, where in the constitution does it say that it is up to the courts to rescue congress from writing stupid and self-defeating laws? It is quite plausible (and in fact, based on the recent evidence, increasingly likely) that congress intended to deprive states that didn’t set up exchanges of subsidies, in order to pressure them into setting them up. So let’s assume for the moment that this indeed was congress’ intent. Even if this had the effect of rendering the law less or even ineffective, proving the stupidity of congress, how can it possibly be proper for the court to overturn the intention of congress, and save the law from itself?

        Regardless of all the legal argle bargle and methods of analyzing text, the issue really seems to me quite straight forward. Is the language of the law unclear/ambiguous? No, it is perfectly clear. Could the law plausibly mean what it actually says? Yes, it is plausible, albeit not certain. Can congress change the law if it says something other than intended? Yes. Therefore the courts should enforce the law as written, and let congress change it if it doesn’t like the result. There is no sensible reason, outside of pure politics, for the courts to rule that the law means something other than what it actually says. If it is not even a sure thing that clear-thinking justices like Scalia would rule against the admin, then it seems to me that legal over-thinking is preventing the courts from seeing the forest for the trees.

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  13. what a killjoy.

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  14. Scott, if it is not ambiguous then from the entirety of the statute it seems the HHS exchanges stand in lieu of the state exchanges and are therefore covered by the same subsidy as the state exchanges. The authors of the bill filed an amicus brief saying that was their intent. The legislative record says the intent was to subsidize all persons who income qualified. It even says that at another place in the statute.

    If it is ambiguous because the section that plaintiffs are focusing upon only refers to state exchanges, then the ambiguity is to be decided by the Agency, not the Courts under Chevron.

    I am sure that Scalia will in fact do what you suggest, say the statute is effective where it is effective, and decide that it is not ambiguous in the other direction because the presumption against ineffectiveness will not apply in that analysis. He will also divine inconsistent usage and a material variation. I think that is the stretch, because I think this is a muddy statute that is ambiguous, and that IRS must then resolve the ambiguity, not the Court.

    I have refrained from this sort of conversation exactly because non-lawyers think this is legal mumbo-jumbo. Scalia, especially, and most of the Justices, attempt to follow the rules of statutory construction. I think Scalia has identified 100s of them but I only recall ever learning about 20. So his book on the subject, which I have only skimmed in another lawyer’s office, is fascinating to me and is in fact one every appellate lawyer who has a statutory construction case in federal court must read. It was published in 2012.

    Statutory construction/administrative discretion is a specific but rich segment of appellate practice. Part of what you do not seem to grasp is that the Court will not be “bailing out” Congress if it lets the IRS ruling stand. It will be continuing its practice of not interfering with the political branches unless the statute is completely unambiguous but wrongly interpreted by the Agency. This is not a constitutional matter where the Court gets to decide whether the statute is valid.

    Which brings up another possibility here. Four Justices think ACA is unconstitutional. I suppose they could bloc vote on that basis, although they did not do so in Hobby Lobby. If they honor the question presented it will be decided on statutory construction/administrative discretion. If they do that, my guess is that they will say this is a Chevron discretion case, 6-3. Scalia, Thomas, and Alito will say it is unambiguous because this part of the text is inconsistent with the rest of the statute and the statute can be effectively severed [not made ineffective]. Again, I think that is a plausible construction but not the sounder one.

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    • Mark:

      Scott, if it is not ambiguous then from the entirety of the statute it seems the HHS exchanges stand in lieu of the state exchanges and are therefore covered by the same subsidy as the state exchanges.

      I think it is clear that the language in question is not ambiguous. The rest of the statute might conceivably raise ambiguity, but not necessarily. If it is possible to interpret and implement the statute while honoring the unambiguous language, surely that must be the proper thing to do. Only if implementing that language makes it impossible to implement another part of the statute is some kind of discretion required.

      As you know, I object to the fact that the regulatory bureaucracy is allowed to essentially write laws when congress writes deliberately vague statues, granting the regulatory agencies the power to eliminate the vagueness in any way it wants by exercising its discretion. Allowing the regulatory agency to exercise discretion even when the statute isn’t remotely vague is just outrageous to me.

      The authors of the bill filed an amicus brief saying that was their intent.

      But, of course, we also have plenty of evidence suggesting otherwise, including one of the architects of the bill and a paid Obama advisor making the fact that subsidies will only go to state run exchanges a key part of his explanation and marketing of the bill to the states.

      I have refrained from this sort of conversation exactly because non-lawyers think this is legal mumbo-jumbo.

      To be fair, I am not generally dismissive of the tall grass of legal analysis. I actually find it quite interesting. But I do think there can be a danger of obscuring the big picture, a danger that lawyers and judges fall prey to often by getting into the weeds of precedent.

      Part of what you do not seem to grasp is that the Court will not be “bailing out” Congress if it lets the IRS ruling stand. It will be continuing its practice of not interfering with the political branches unless the statute is completely unambiguous but wrongly interpreted by the Agency.

      My bailing out comment was meant in the context of the possibility that congress’ intent to use subsidies as a stick/carrot to compel states to set up exchanges might render the statute “ineffective”. The point is that, if that is what congress intended, then it is neither the role of the court nor of the regulatory agency to subvert it for the sake of “effectiveness”. And, of course, as I pointed out, it is unambiguous, as even the claims about a “drafting error” implicitly admit.

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      • The “drafting error” claim is an admission of having written an ambiguous statute – one which says all poor people will get subsidies in one part but then only refers to state enabled exchanges in another. I wonder if Gruber’s intent is actually relevant to Baucus’ intent. He stands in the posture of a lobbyist. It is as if NoVA wrote a bill which was then changed and reworked by the Congress for an agonizing year and then when part of it is challenged NoVA said “well, that was my idea.” I think Gruber’s intent is not relevant, at all. His baby is in there somewhere, sure. But it is buried in there.

        Congress should have made the 2000 pages unambiguous. Ambiguity goes to the Agency.

        I am fully cognizant of the power this leaves in the Executive branch. The more complex a bill, the more lobbyist and legislative fingers stir the pot, the more power it gives the Executive branch. In the bigger picture, beyond this case, the IRS is an Agency with great power to resolve ambiguity because it oversees the Internal Revenue Code.

        It is also one reason McC always hated Omnibus bills – the kind Congress lives by, now. They are too big to parse for consistency and computer programs do not pick up ambiguities, yet.

        From the Court’s perspective it can either rewrite legislation itself or Leave it to Beaver. So far, it has generally refused to rewrite legislation, except where a rule of construction forces it to do so. That rule of lenity I mentioned does mean that criminal statutes get closer scrutiny. Strict construction applies to criminal statutes, but not to civil. Ambiguity is death for a criminal statute, but an invitation to mischief in a civil one.

        QB, there may be some civil areas where strict construction applies [other than in constitutional matters], but I cannot think of any.

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  15. In defense of legislators.

    What percentage of the electorate will this resonate with?

    What’s really funny is he wrote this THE DAY BEFORE!

    Mark, what it it was inconceivable, at the time of The Abomination’s drafting, that states would refuse to be coerced? That it was a given that subsidies only went to States that set up exchanges? That Nelson and Lieberman’s votes at the time were conditioned on it?

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  16. “Legally, this provides the required final key to victory. Congress had a rational purpose in limiting the subsidy to the state exchange. It was the necessary and available incentive chosen by Congress to induce states to act. It also reflects a key political bargain that must be respected by the judiciary. As the price of the 60th decisive vote, Ben Nelson insisted on state-run exchanges, not a federal exchange.

    http://www.powerlineblog.com/archives/2014/04/william-levin-obamacare-death-throes-updated.php

    Sen. Ben Nelson (D-Neb.) said Monday that he would oppose any health care reform bill with a national insurance exchange, which he described as a dealbreaker.

    “The national exchange is unnecessary and I wouldn’t support something that would start us down the road of federal regulation of insurance and a single-payer plan,” Nelson told reporters Monday.

    http://www.politico.com/livepulse/0110/Nelson_National_exchange_a_dealbreaker.html

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  17. Better evidence of intent than Gruber, but inconclusive because Nelson simply was insisting on state run exchanges, rather than a single national exchange, at least without more. He apparently was OK with HHS providing an exchange in a state that did not choose one for itself. Perhaps there is more.

    I see the point. I will try to follow up on that trail. It could be that the bargain actually was for no subsidies to some poor people even though the statute says poor people get subsidies. That seems to be the hurdle one must cross to get to “no ambiguity” in the statute, rather than isolating one apparent contradiction against the other.

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    • Mark:

      Can you direct me to, or cite, the language in the statute that says all poor people will get subsidies? Thanks.

      Also, on this:

      I wonder if Gruber’s intent is actually relevant to Baucus’ intent.

      I wonder if Baucus’ intent is indicative of Congress’ intent.

      From the Court’s perspective it can either rewrite legislation itself or Leave it to Beaver.

      Actually it seems to me there are three options. It can re-write legislation, it can allow unelected bureaucrats to re-write legislation, or it can enforce the law as written and leave the re-writing to congress. The first two are improper uses of its power.

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      • Mark:

        The “drafting error” claim is an admission of having written an ambiguous statute – one which says all poor people will get subsidies in one part but then only refers to state enabled exchanges in another.

        I’ve just finished reading the majority opinion from the 4th. From what I can tell, the ambiguity claimed by the majority has nothing at all to do with any language in the statute claiming that all poor people will get subsidies. The claimed ambiguity derives from just two simple words: “such exchange”. In the contingency provision allowing for the creation of a federal exchange should a state fail to create an exchange, the statute states that the secretary “shall…establish and operate such exchange in the state…” The law mandates “exchanges established by the states”, and the defense claims that “such exchange” therefore means an exchange established by the state. So, applying logic that strikes me as pure, unadulterated sophistry, the defense concludes that if the Feds establish “such an exchange”, then the Feds have established an “exchange established by the state”. The court claimed that, while this thinking is not necessarily correct, it is plausible enough to make the phrase “exchange established by the state” ambiguous, and therefore subject to interpretation by the IRS.

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        • From what I can tell, the ambiguity claimed by the majority has nothing at all to do with any language in the statute claiming that all poor people will get subsidies.

          Attend, please.
          1] states are to set up exchanges – Sec. 1311.
          2] HHS is to set up an exchange in a state that elects not to. – sec. 1321.
          3] IRS is to determine subsidies for poor people under IRC sec. 36.
          4] Exchanges formed under either 1311 or 1321 are to report patient income data to IRS so it can determine the tax credit [subsidy] for folks under either kind of exchange.
          See pp.20 to 22 of the opinion.

          All poor people get tax subsidies under IRC 36 if they are in any kind of exchange. Davis says this more emphatically in the concurrence. But there it is in the statute and in the opinion.

          I, having read the fucker 3 years ago, knew that it was in the IRC as amended by the ACA. So the Commissioner of IRS is definitely going to say this means we are charged to provide subsidies to all the poor in both kinds of exchanges. Because that what it says. And then it says both kinds of exchanges have to make the same reports so IRS can figure the credits.

          At the human level, I really can see how Gruber might have intended this to only apply to pressure states – he’s a freaking professor of econometrics at MIT. But then the staff was writing the subsidy determination method for IRS and they naturally wrote that all exchanges had to report so IRS could subsidize all the poor people.

          It wouldn’t occur to a lawyer that IRS was going to be allowed to give tax credits to Joe Goombah in Connecticut but not to Manny Fernandez in Texas if they were both in the same circumstances, IN ORDER TO PUNISH RICK PERRY. Heck, when I say it that way, that might not even be constitutional. Federal personal income taxes determined by residency is a new one on me, if I am an IRS staff lawyer reviewing the language.

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        • Mark:

          See pp.20 to 22 of the opinion

          I already did. The court began its analysis of that defense claim by explicitly calling it a “less directly relevant” provision. The primary, and in the opinion of the court strongest, indication of ambiguity derived, as I said, from the two words “such exchange”.

          But with regard to this, there is still no claimed ambiguity created by language stating that all poor people will get subsidies. The claimed ambiguity supposedly derives from the absence of any distinction between state exchanges and federal exchanges when requiring the exchanges to provide information. Certain information on the list of required reporting by “the exchange”, with no distinction between state and federal, is used to determine the amount of credits to be granted. So, the argument goes, why would federal exchanges be required to report this particular information if credits were not available on the exchange? For example, why would a federal exchange be required to report “Any information provided to the exchange, including any change of circumstances, necessary to determine eligibility for, and the amount of, such credit”?

          Plaintiffs pointed out, however, that several items on the list of required reporting would be relevant to both state and federal exchanges, and so congress was simply writing a single, comprehensive list rather than writing two separate lists, much of which would be repetitive. And, of course, just as “any change in circumstances” doesn’t mean that there will necessarily be a change in circumstances to report, “any information” doesn’t mean there will necessarily be information to report, and so can apply both to exchanges that have relevant information to report and those that don’t. For a federal exchange on which credits are not available, the provision to provide “any information necessary to determine credits” would simply result in no information being recorded. There is no obvious ambiguity created.

          It wouldn’t occur to a lawyer that IRS was going to be allowed to give tax credits to Joe Goombah in Connecticut but not to Manny Fernandez in Texas if they were both in the same circumstances, IN ORDER TO PUNISH RICK PERRY.

          Aren’t the actions taken by the government of Texas actions of “the people”, and not just one guy, Rick Perry? And, does this mean that you think that anyone who doesn’t get credits is being “punished” by the government?

          BTW, I thought this was interesting from the concurring opinion from the 4th:

          [Appellants] have a clear choice, one afforded by the admittedly less-than- perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. Id. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

          “…deny to millions of Americans desperately-needed health insurance…”? I think that makes it pretty transparent that the politics of the judge were obviously at play.

          EDIT:. I removed the reference to federalism. On reflection, it didn’t make sense.

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        • Mark:

          With regard to this:

          It wouldn’t occur to a lawyer that IRS was going to be allowed to give tax credits to Joe Goombah in Connecticut but not to Manny Fernandez in Texas if they were both in the same circumstances, IN ORDER TO PUNISH RICK PERRY.

          I suspect that, prior to ACA, it wouldn’t occur to a lawyer that IRS would be allowed to impose a penalty on people for not engaging in commerce. This abomination of a law is breaking all kinds of new ground.

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        • Getting away from the politics of it again, but concentrating on the actual statute, the reason I don’t agree with Davis that it is a slam dunk for the government so that no Chevron discretion is necessary – the reason I think it is murky, is ultimately in the IRC part of the bill.

          1301 defines a qualified health care plan to include one offered by an exchange that meets the standards of 1311 [standards that are met by 1321 exchanges]. “…such plan meets the criteria for certification described in section 1311(c)…”

          IRC 36B defines a qualified health care plan based on 1301 [no problem yet].

          But another part of 36B specifically says in the same section:
          “The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—
          (A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer NOT A PROBLEM,
          the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311…LIMITS CREDITS ONLY TO 1311 PLANS

          I don’t know if anyone argued from that section, but despite the language further down in 36B, that makes the government’s position no slam dunk.

          So I think Davis is wrong to assert that it is.


          Summary:

          I hope I have made clear how seriously flawed I think these contradictions in the statute are. To go back to Scalia’s matrix, I think he will, assuming the Supremes hear this case, find that two of his criteria outweigh the two I would rely upon, and you have pointed out the key difference in viewpoint. That is, if 1321 exchange users are not eligible for tax credits does that actually make the statute ineffective?

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        • Mark:

          Getting away from the politics of it again…

          But that is what I am curious about it. Do you agree that Davis’ opinion, and specifically the words I highlighted, suggest pretty strongly that his politics played a part in his opinion?

          I hope I have made clear how seriously flawed I think these contradictions in the statute are.

          You have, but I still maintain that they are not obvious contradictions. They can conceivably be interpreted to be contradictory and thus raise ambiguity and the need for discretion. However, they can also be interpreted in such a way as to be perfectly consistent, and if they can be, they should be. Only obvious contradictions that cannot be reconciled by any interpretation require discretion. That is why I asked for language that declared that all poor people will get credits. If the statute did indeed say that somewhere, but then elsewhere declared that not all poor people would get credits, then that would be an obvious contradiction. But I have not seen such language, and certainly the 4th did not rely on any such language to make its decision.

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        • Scott, here are two sections of IRC 36 B that say 1] all poor people and 2] in ALL exchanges get subsidies.

          (i) In general Except as provided in clause (ii), the applicable percentage for any taxable year shall be the percentage such that the applicable percentage for any taxpayer whose household income is within an income tier specified in the following table shall increase, on a sliding scale in a linear manner, from the initial premium percentage to the final premium percentage specified in such table for such income tier:

          (3) Secretarial authority
          The Secretary of Health and Human Services, in consultation with the Secretary, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.

          “Any taxpayer…within an income tier”, first, and in determining subsidy by calculating income and family size “least burden…on individuals enrolling in qualified health plans through an Exchange”, second.

          I am not making this up.

          Davis’ politics are obvious from his remark even though he thinks he is making a non-political decision. These sorts of remarks, now more common than ever from judges, do not help the lawyers briefing these close and serious cases and they cause lay people to disrespect the judiciary.

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        • Mark:

          These sorts of remarks, now more common than ever from judges, do not help the lawyers briefing these close and serious cases and they cause lay people to disrespect the judiciary.

          And rightfully so. I think they should cause lawyers to do so too.

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  18. Tomato, tomahto. You see Davis’ politics, he sees your tortured denial of the plain meaning as politics.

    Which is not to say that I think the Plaintiffs’ case is tortured – I only think the government’s case, viewing the whole statute, is sounder. Close call. But thus ambiguous and Chevron worthy.

    So you think a state could opt out of the IRC, with congressional approval? I think it would take an amendment to the Constitution.

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    • Mark:

      Tomato, tomahto. You see Davis’ politics, he sees your tortured denial of the plain meaning as politics.

      Does this mean you do or do not see Davis’ politics playing a role?

      So you think a state could opt out of the IRC, with congressional approval?

      If this is a reference to my federalism comment, note that I removed it before I saw your response. I agree that it didn’t make sense. In my head I totally misconstrued what you said.

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  19. This from that raging Bagger Jonathan Turley.

    The language that the qualifying exchange is “established by the State” seems quite clear, but the Administration faced a serious threat to the viability of the Act when 34 states opted not to create exchanges.

    Now he’s just raving.

    In adopting the statutory construction, the Administration committed potentially billions in tax credits that were not approved by Congress. The size of this financial commitment without congressional approval also strikes at the essence of congressional control over appropriation and budgetary matters.

    http://jonathanturley.org/2014/07/26/gruber-challenge-on-second-statement-espousing-the-same-nutty-interpretation-used-in-halbig/

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  20. Nice Brent!

    Ido get this weird feeling though that you don’t think there’s a free lunch? WTF?

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  21. Also have gotten referenced in Reason:

    http://reason.com/24-7/2014/06/06/may-2014-jobs-and-unemployment

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  22. Well done Brent!

    Nice discussion between Mark and Scott, I enjoy those kinds of discussions. A little too legal for me……………..LOL, but very interesting.

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    • The unconstitutional regulatory state strikes again. Pregnancy, while not strictly speaking a “disability”, is apparently close enough for government work, so will now be protected by the ADA.

      http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

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      • Scott, without reading the cases cited in the Guidance, I cannot be sure if it is correct.

        Scott, one intent of “guidances” is to give HR and employers’ lawyers a heads up on what is expected given the latest case law. This Guidance amends one issued in 1991 and should simply have updated for case law under the amendments to ADA since the previous Guidance. If it overeached the amendments to ADA and the case law since then, then I would agree with you, but I do not know that it has. It is not unusual for an administrative guideline to overreach in some area, and that can be a continuing wondrous source of litigation.

        However, this Guidance may be correct and useful. It would take me more than 10 hours of research to conclude otherwise. I vaguely recall most of the cases cited until about two years ago when I stopped full time representation of my last employer side client and stopped attending regular ALI-ABA employment law seminars. So IDK.

        What is accurate to say is that pregnancy related disabilities are covered both under the Pregnancy Discrimination Act AND the Americans with Disabilities Act, as amended, as well as under FMLA. The different reach of the three statutes, plus the overlay of state workers’ comp laws, keep a lot of “us”* in business. Add in the effect of union-management CBAs, which can override the laws and regulations, and you can see how much fun this is.

        * = lawyers.

        Addendum: If any practitioner discovers a possible overreach, all who are members of any big state labor and employment section of the bar will soon become aware of it through daily online chatter followed by formal reference in seminars where the progress of litigation about it will be discussed. There will be ALI-ABA Section notices, to which I still have access, and I used to be able to tap into the Plaintiffs’ attorneys newsletters, too, so were I still actively doing this I would monitor both sources for glitches my client could take advantage of and glitches that someone might use against us.

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        • Mark:

          This Guidance amends one issued in 1991 and should simply have updated for case law under the amendments to ADA since the previous Guidance.

          According to the WSJ, and indeed even one of the two R’s on the EEOC, that is not quite how things work anymore, at least in this case or, I wouldn’t be surprised, more generally under these leftist-controlled agencies.

          Constance Barker (one of two R’s on the commission) wrote in a May memo to her colleagues, these legal gymnastics represent “an entirely new legal interpretation that is unsupported by Congressional intent or court interpretation.”

          The EEOC is well aware that it’s treading on uncertain legal ground. In May, Solicitor General Donald Verrilli counseled the Supreme Court not to accept certiorari on Young v. United Parcel Service, a case that addresses the rights of a pregnant woman who couldn’t perform her job functions and asked the shipping company for special treatment. Mr. Verrilli told the Justices that the EEOC was working on “new enforcement guidance” and so the Justices should wait until the bureaucrats weigh in.

          http://online.wsj.com/articles/the-newest-disability-1406501509

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        • If the word “disability” can sensibly be construed to encompass pregnancy, then the word is far too broad to be meaningful and congress has, through the ADA, yet again unconstitutionally turned over its power to make law to a branch of government that does not exist in the constitution.

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        • BTW, can Gruber get in legal trouble for filing a false amicus brief?

          Like

  23. Congrats Brent.

    Like

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