These nine points could undermine the plaintiffs case before the Supreme Court (which isn’t to say that they wont prevail). 1.At the time of the ACA’s enactment, it was well understood that without the subsidies, the individual mandate was not viable as a mechanism for creating a stable insurance market. 2.The ACA would be self-defeating if taxpayers who purchase insurance from an HHS-created Exchange are deemed ineligible to receive subsidies. 3.The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. 4.Simply put [the law] interpreted as Appellants urge would function as a poison pill to the insurance markets in the States that did not elect to create their own exchanges. That is surely not what Congress intended. 5.It makes little sense to think that Congress would have imposed so substantial a condition in such an oblique and circuitous manner. 6.The simple truth is that Appellants incentive story [see below] is a fiction, a post hoc narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges. 7.If an HHS-created Exchange does not count as established by the State it is in, there would be no individuals qualified to purchase coverage in the 34 States with HHS-created Exchanges. This would make little sense. 8.The record indicates that, when the ACA was enacted, no State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf. Not one. 9.The IRSs and HHSs constructions of the statute are perfectly consistent with the statutes text, structure, and purpose.
Posted on: Sun, 09 Nov 2014 14:43:26 +0000
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