[EL] ELB News and Commentary 3/25/14
Rick Hasen
rhasen at law.uci.edu
Tue Mar 25 08:08:47 PDT 2014
"After Ruling, Alabama Joins 2 States in Moving to Alter Voting
Rules" <http://electionlawblog.org/?p=59656>
Posted on March 25, 2014 8:06 am <http://electionlawblog.org/?p=59656>by
Rick Hasen <http://electionlawblog.org/?author=3>
NY Times
<http://www.nytimes.com/2014/03/22/us/after-ruling-alabama-joins-2-states-in-moving-to-alter-voting-rules.html?action=click&module=Search®ion=searchResults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry154%23%2Fhasen%2Fsince1851%2Fallresults%2F1%2Fallauthors%2Fnewest%2F>:
Alabama says it plans to move ahead with a requirement for potential
voters to show concrete proof of citizenship, in the first sign of a
wider impact from a court decision
<http://www.nytimes.com/2014/03/20/us/judge-says-us-must-help-states-enforce-voter-id-laws.html>
on Wednesday ordering a federal elections agency to help Arizona and
Kansas enforce their own such requirement.
Alabama is one of the four states that have adopted the extra layer
of proof for people registering to vote. With such rules under a
legal cloud, it held off on carrying them out. Now that may change....
Politics aside, the decision was a victory for the states in a turf
battle over electoral rules. It is a legally murky area because the
Constitution gives the federal government power over how elections
are conducted for Congress and the presidency, but says the states
can decide, within limits, who is eligible to vote.
"I think this decision shifts the balance of power from the federal
government to the states on how to run federal elections," said
Richard L. Hasen, an expert on voting law at the University of
California, Irvine. "This is one step in much larger battles, not
only between Republicans and Democrats, but also between the federal
government and the states."
Many conservatives, citing rare reports of voter fraud, see the
decision as a victory for common sense. They predict that more
states will act to tighten registration procedures, complementing
the more widespread recent drives to require picture identification
at the time of voting and reduce early voting.
"The Kansas decision is going to encourage more states to pass these
kinds of requirements," said Hans A. von Spakovsky, a senior legal
fellow at the Heritage Foundation, a conservative research
organization. He asserted that registration by noncitizens was a
genuine problem, and that more stringent rules would not deter
legitimate voters.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Elections Clause <http://electionlawblog.org/?cat=70>, The Voting Wars
<http://electionlawblog.org/?cat=60>
"Volunteering Professional Services: An In-Kind Contribution or
Not?" <http://electionlawblog.org/?p=59654>
Posted on March 25, 2014 8:05 am <http://electionlawblog.org/?p=59654>by
Rick Hasen <http://electionlawblog.org/?author=3>
This item
<http://www.cityethics.org/content/volunteering-professional-services-kind-contribution-or-not>appears
at the City Ethics blog.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"The Long-Term Impact of Voting Changes"
<http://electionlawblog.org/?p=59652>
Posted on March 25, 2014 8:02 am <http://electionlawblog.org/?p=59652>by
Rick Hasen <http://electionlawblog.org/?author=3>
Governing reports.
<http://www.governing.com/topics/politics/gov-long-term-impact-voting-law-changes.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"Move to slash early voting defeated in Georgia"
<http://electionlawblog.org/?p=59650>
Posted on March 25, 2014 7:57 am <http://electionlawblog.org/?p=59650>by
Rick Hasen <http://electionlawblog.org/?author=3>
Facing South reports
<http://www.southernstudies.org/2014/03/move-to-slash-early-voting-defeated-in-georgia.html>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"Money, politics and judges: Do judicial candidates pay to play?"
<http://electionlawblog.org/?p=59648>
Posted on March 25, 2014 7:53 am <http://electionlawblog.org/?p=59648>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Indy Star reports
<http://www.indystar.com/story/news/2014/03/15/money-politics-and-judges-do-judicial-candidates-pay-to-play/6470879/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
judicial elections <http://electionlawblog.org/?cat=19>
"Project Vote Smart Lays Off 6, Considers Closing"
<http://electionlawblog.org/?p=59646>
Posted on March 25, 2014 7:41 am <http://electionlawblog.org/?p=59646>by
Rick Hasen <http://electionlawblog.org/?author=3>
This
<http://missoulian.com/news/local/project-vote-smart-lays-off-considers-closing/article_0ec6e3b0-b169-11e3-95b7-001a4bcf887a.html>
was not handled well.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
Court Strikes CA Rule Limiting Contributions from Candidate
Committees to Super PACs? <http://electionlawblog.org/?p=59644>
Posted on March 25, 2014 7:40 am <http://electionlawblog.org/?p=59644>by
Rick Hasen <http://electionlawblog.org/?author=3>
At least that what it appears from this WSJ column
<http://online.wsj.com/news/article_email/SB10001424052702304256404579451383437992884-lMyQjAxMTA0MDIwMTEyNDEyWj>.
Anyone have the opinion? I'm guessing this could well be reversed on
appeal if this is the holding.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Watchdog Groups Say Kentucky Opportunity Coalition is Violating
Campaign Finance Law by Republishing McConnell Campaign Materials in
its TV Ad" <http://electionlawblog.org/?p=59642>
Posted on March 25, 2014 7:36 am <http://electionlawblog.org/?p=59642>by
Rick Hasen <http://electionlawblog.org/?author=3>
See here
<http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/watchdog-groups-say-kentucky-opportunity-coalition-is-violating-campaign-finance-law-by-republishing-mcconnell-campaign-materials-in-its-tv-ad/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Oklahoma For-Profit Corporation Not Subject to 501(c)(4) Rules
Established to Support Republican Senate Candidate"
<http://electionlawblog.org/?p=59640>
Posted on March 25, 2014 7:32 am <http://electionlawblog.org/?p=59640>by
Rick Hasen <http://electionlawblog.org/?author=3>
Paul Caron blogs
<http://taxprof.typepad.com/taxprof_blog/2014/03/oklahoma-for-profit.html>,
and adds, "For more, see Donald B. Tobin (Ohio State), /The 2013 IRS
Crisis: Where Do We Go From Here?
<http://taxprof.typepad.com/files/tobin-142-tax-notes-1120.pdf>/, 142
Tax Notes 1120 (2014)."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Selective Prosecution Claims in John Doe Filings Fall Flat"
<http://electionlawblog.org/?p=59638>
Posted on March 25, 2014 7:31 am <http://electionlawblog.org/?p=59638>by
Rick Hasen <http://electionlawblog.org/?author=3>
Brendan Fischer blogs
<http://www.prwatch.org/news/2014/02/12384/selective-prosecution-claims-john-doe-filings-fall-flat>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"The Kobach Case as Voting Rights Jurisprudence"
<http://electionlawblog.org/?p=59636>
Posted on March 25, 2014 7:30 am <http://electionlawblog.org/?p=59636>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2014/03/kobach-case-voting-rights-jurisprudence/>.
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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, NVRA
(motor voter) <http://electionlawblog.org/?cat=33>
"California to Comply with Voter Registration Law According to
Settlement" <http://electionlawblog.org/?p=59634>
Posted on March 25, 2014 7:29 am <http://electionlawblog.org/?p=59634>by
Rick Hasen <http://electionlawblog.org/?author=3>
Demos
<http://www.demos.org/press-release/california-comply-voter-registration-law-according-settlement>:
In a victory for voting rights, the state of California has agreed
to mail voter registration cards to nearly 4 million Californians
who have signed up for health insurance through the state health
exchange, Covered California, and to ensure that Californians who
apply for health benefits through the exchange going forward are
provided voter registration opportunities. The action is the result
of a settlement agreement reached with the ACLU of California, the
ACLU's Voting Rights Project, Demos, and Project Vote, which
threatened legal action over the state's failure to comply with the
National Voter Registration Act and state laws.
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Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33>
"Both parties jeer embrace of fraudulent voter"
<http://electionlawblog.org/?p=59632>
Posted on March 25, 2014 7:27 am <http://electionlawblog.org/?p=59632>by
Rick Hasen <http://electionlawblog.org/?author=3>
Cincinnati Enquirer:
<http://www.cincinnati.com/story/news/politics/elections/2014/03/21/democrats-convicted-poll-worker-hero/6712981/>
A Hamilton County poll worker who has been held up nationally as an
example of voter fraud took the stage at a local voting rights rally
-- outraging Republicans and dismaying even top local Democrats.
The Rev. Al Sharpton, keynote speaker at Thursday's rally to
kick-off the campaign for an Ohio Voters' Bill of Rights Ohio
Constitutional amendment, even hugged Melowese Richardson.
Al Sharpton needs to explain himself. This woman, who is a convicted
felon, perhaps deserves some leniency because of possible mental illness
<http://electionlawblog.org/?p=59413>. She should not be held up by
anyone as a hero or martyr. Awful.
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Posted in chicanery <http://electionlawblog.org/?cat=12>
"Forget the Dictionary, Super PACs Aren't New'
<http://electionlawblog.org/?p=59630>
Posted on March 25, 2014 7:25 am <http://electionlawblog.org/?p=59630>by
Rick Hasen <http://electionlawblog.org/?author=3>
Francis Barry writes
<http://www.bloombergview.com/articles/2014-03-21/forget-the-dictionary-super-pacs-aren-t-new>for
Bloomberg View.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"How the Koch brothers are dominating the Senate ad race (in one
chart)" <http://electionlawblog.org/?p=59628>
Posted on March 25, 2014 7:19 am <http://electionlawblog.org/?p=59628>by
Rick Hasen <http://electionlawblog.org/?author=3>
Aaron Blake blogs.
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/25/how-the-koch-brothers-are-dominating-the-senate-ad-race-in-one-chart/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Pinellas County -- Latest Flashpoint in Florida Election Policy
Debates" <http://electionlawblog.org/?p=59626>
Posted on March 25, 2014 7:16 am <http://electionlawblog.org/?p=59626>by
Rick Hasen <http://electionlawblog.org/?author=3>
A ChapinBlog
<http://blog.lib.umn.edu/cspg/electionacademy/2014/03/pinellas_county_-_latest_flash.php>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"What About the Voters? Requiring Proof of Citizenship to Register
to Vote in Federal Elections" <http://electionlawblog.org/?p=59624>
Posted on March 25, 2014 7:14 am <http://electionlawblog.org/?p=59624>by
Rick Hasen <http://electionlawblog.org/?author=3>
Franita Tolson blogs
<http://www.huffingtonpost.com/franita-tolson/what-about-the-voters-req_b_5021393.html>.
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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, NVRA
(motor voter) <http://electionlawblog.org/?cat=33>
Steve Hill LA Times Oped on Cumulative Voting Settlement in Santa
Clarita Voting Rights Case <http://electionlawblog.org/?p=59622>
Posted on March 25, 2014 7:06 am <http://electionlawblog.org/?p=59622>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.latimes.com/opinion/commentary/la-oe-hill-santa-clarita-elections-20140325,0,5186539.story#axzz2wy4OV4P8>.
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Posted in alternative voting systems
<http://electionlawblog.org/?cat=63>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Billionaire mogul Sheldon Adelson looks for mainstream Republican
who can win in 2016? <http://electionlawblog.org/?p=59620>
Posted on March 25, 2014 7:01 am <http://electionlawblog.org/?p=59620>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/politics/billionaire-mogul-sheldon-adelson-looks-for-mainstream-republican-who-can-win-in-2016/2014/03/25/e2f47bb0-b3c2-11e3-8cb6-284052554d74_story.html?hpid=z1>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Interesting Voting Contests Alleging Fraud in Hidalgo County, TEX
<http://electionlawblog.org/?p=59617>
Posted on March 25, 2014 6:57 am <http://electionlawblog.org/?p=59617>by
Rick Hasen <http://electionlawblog.org/?author=3>
*6 CANDIDATES CHALLENGE ELECTION RESULTS.*
<http://www.themonitor.com/news/local/candidates-challenge-election-results/article_c6457dd8-b3b9-11e3-ad6e-0017a43b2370.html>
More here.
<http://www.themonitor.com/news/local/false-addresses-forgery-alleged-in-st-day-of-weslaco-election/article_6da50348-b3cc-11e3-94d0-0017a43b2370.html>
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Posted in chicanery <http://electionlawblog.org/?cat=12>
Update on ObamaCare Subsidies Post- Brief Response to Cannon
<http://electionlawblog.org/?p=59615>
Posted on March 25, 2014 6:37 am <http://electionlawblog.org/?p=59615>by
Abbe Gluck <http://electionlawblog.org/?author=15>
Quick update to my ObamaCare Subsidies Case post
<http://balkin.blogspot.com/2014/03/obamacare-subsidies-before-dc-circuit_24.html>of
yesterday:Michael Cannon has written a response
<http://www.forbes.com/sites/michaelcannon/2014/03/24/the-irss-case-in-halbig-v-sebelius-is-crumbling-with-a-little-help-from-its-friends/>,
in which he claims that the statutory history that my post unpacked
helps the challengers. The crux of his argument is the same as the one
in the briefing; namely, that because there was a provision in an
earlier draft of a bill from the HELP Committee (that did not become the
ACA) that would have denied subsidies to the states if they did not
establish their own exchanges and also refused to let the government do
it, that proves denying the subsidies is logical within the structure of
the current statute.First off, as I have argued, early drafts of bills
that changed considerably before becoming law should have little weight,
so I don't think any real weight should be put on the HELP bill. That
said, I read the history the other way.As I detailed yesterday, the HELP
bill posited three options for the states and the exchanges:1) the
states could establish the exchanges themselves and get the subsidies;
2) the states could invite the federal government to establish them for
the states /and get the subsidies/; or 3) the states could refuse to
have exchanges altogether, in which case there would be no exchanges and
no subsidies for four years---at which time the federal government would
come in and, once it did, /the subsidies would be available/. Nothing in
the HELP bill contemplates a federally operated exchange with no
subsidies. That's the key point; with respect to every option in the
HELP bill, once the feds come in, the exchanges are available. Read it
the whole thing
<http://beta.congress.gov/bill/111th-congress/senate-bill/1679/text?q=%7B%22search%22%3A[%22affordable+choices+act%22]%7D>
(all of section 3104) for yourself. (The only limitation on the
subsidies, for federal and state exchanges alike, was if the state
refused to apply the employer mandate to its own state government
employees; that limitation never got into the final ACA and is
irrelevant here.)
Further, the final version of the ACA did not adopt option 3 above. The
final version of the ACA does not give states the option of refusing to
have exchanges altogether.Thus, if we care about what provisions about
state vs. federal exchanges survived the HELP bill, it was option 1 and
option 2.Either way---including with respect to option 3---Congress
never contemplated a federal exchange with no subsidies. And that's
what makes sense--for all the reasons about how the ACA functions and
its other provisions, which I and others already have amply detailed.
(Cannon also nits that I did not provide a link to his amicus
brief (which I did not do because my post referred to his arguments on
the blogs). Glad to provide it here
<http://www.cato.org/sites/cato.org/files/documents/adlercannon_amicus.pdf>.)
More after the oral argument...
[cross-posted at Balkinization]
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
ObamaCare Subsidies in the D.C. Circuit: Clearing Up Some ACA Facts
and History <http://electionlawblog.org/?p=59609>
Posted on March 24, 2014 6:36 am <http://electionlawblog.org/?p=59609>by
Abbe Gluck <http://electionlawblog.org/?author=15>
The ObamaCare subsidies challenge, /Halbig v. Sebelius/, will be
argued tomorrow in the D.C. Circuit. In this latest round of
litigation, the challengers have made a variety of kitchen-sink
arguments, many of which are incompatible with the basic principles of
statutory construction on which their briefs purport to rely and which
evince a misunderstanding of the ACA's procedural
history. The Government's briefing and the lower court opinions
understandably chose not to respond in detail to all of them; but given
the intensity with which some of these arguments have appeared on the
blogs in recent days, I will use this post to try to clear up some of
these matters.
For readers just getting up to speed, the lawsuit aims to prevent the
Administration from subsidizing insurance purchases in those states in
which the federal government, rather than the states, is operating the
Affordable Care Act's (ACA) new insurance marketplaces (called
"exchanges").The case is a big deal: more than 12.5 million people are
expected to be eligible for this financial assistance on the federal
exchanges; the subsidies average more than $5,000 per person; and the
subsidies are essential to supporting the insurance-purchase
mandate---which in turn supports the insurance-market reforms at the
heart of the ACA. The challengers' argument is based on a line in the
ACA that provides that the subsidies shall be available to individuals
enrolled in insurance "through an Exchange established by the State
under section 1311," which they argue clearly excludes individuals
enrolled through federally-operated exchanges. I have already written
extensively (here <http://www.nejm.org/doi/full/10.1056/NEJMp1400707>*,
*here
<http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html>**and**here
<http://balkin.blogspot.com/2014/01/tax-subsidies-upheld-on-obamacare.html>)
about why that textual argument---although superficially
appealing---should be rejected on its own terms: The ACA's overall
textual structure and context dictate the opposite result. The D.C.
district court reached the same conclusion; and it is on those grounds
that this case will hopefully be decided on appeal.
This post has a different aim: namely, to clear the air on some of
those additional, throw-and-see-if-it-sticks assertions that have been
made, and to provide the factual and legal background.
**#1: This is not a conditional spending program analogous to Medicaid.**
The challengers' strategy in this round has been to contend that the
subsidies are part of an overarching ACA "carrots and sticks" strategy
to lure states into health reform and penalize them if they decline. On
that version of the story, it might make sense that subsidies would be
unavailable in states that do not run their own exchanges. In their
view, the subsidies are therefore exactly like the ACA's Medicaid
provision (from appellants'brief
<http://cei.org/sites/default/files/Halbig%20appeal%20-%20Appellants%20Brief.pdf>:
"The ACA's subsidy provision offered an analogous 'deal' to entice
states to establish Exchanges---because Congress (wisely, in hindsight)
knew it had to offer huge incentives for the states to assume
responsibility for that logistically nightmarish and politically toxic
task.")
Putting aside the fact that /no one/ thought the states wouldn't want to
run the exchanges themselves (indeed, Senators were demanding that
option for their states), the exchange provisions simply do not work in
the same way as Medicaid.Unlike the ACA's Medicaid provisions, the
exchange provisions have a federal fallback:Medicaid is use it or lose
it; the exchanges are do it, or the feds step in and do it for you.In
other words, this isn't Medicaid; it's the Clean Air Act (CAA).If a
state decides not to create its own implementation plan under the CAA,
its citizens do not lose the benefit of the federal program---the feds
run it. The same goes for the ACA's exchanges and so it would be
nonsensical to deprive citizens in federal-exchange states of the
subsidies.More importantly, if we are going to compare apples to
oranges, the ACA's Medicaid provisions have an /explicit /provision
stating that if the state declines to participate, it loses the program
funds (this was the provision at issue in /NFIB v. Sebelius/ in 2012).
The ACA's subsidy provisions, in contrast, have no such provision,
strong evidence that the subsidies were was not intended to be forfeited
if the states did not participate.If the challengers are going to insist
on strict textual arguments, this is /exclusio unius 101:/ the rule of
interpretation that provides that where Congress includes a specific
provision in one part of the statute but does not include an analogous
provision elsewhere, that omission is assumed intentional.
**#2: The HELP Committee Bill Did Not Deprive All Federal-Exchange
States of the Subsidies**
****As part of their effort to depict the subsidies as "carrots" for
state participation, the challengers have relied on an early draft bill
from the HELP Committee, much of which was later incorporated into the
ACA.**Setting aside the fact that the challengers should not be able to
simultaneously embrace and reject the ACA's legislative history, as the
briefs do, they have focused on the Senate HELP Committee's original
draft, which was subsequently merged with a Finance Committee draft and
further morphed by Majority Leader Reid---all of which should give us
pause about relying on these early drafts in the first place.Regardless,
challengers have asserted that the HELP Committee bill denied premium
credits in states that did not establish exchanges (from the brief:
"Under the HELP bill, if a state established an Exchange ("Gateway"),
residents could receive "credits" almost immediately. Affordable Health
Choices Act, /supra/, § 3104(b)(1) .... If a state neither established
an Exchange nor requested a federal Exchange, "the residents of such
State /shall not be eligible for credits/" until four years after the
date of enactment. /Id/. at § 3104(d) (emphasis added). The HELP bill
/permanently /withheld credits in states that failed to implement the
bill's employer mandate. /Id/.")//
Pull up the**HELP bill
<http://beta.congress.gov/bill/111th-congress/senate-bill/1679/text?q=%7B%22search%22%3A%5B%22affordable+choices+act%22%5D%7D>
for yourself and keep reading. The section of the HELP bill that
challengers' rely upon---§3104--/did/ give the subsidies to the
federally-run exchanges. That section gave the states a choice to adopt
their own exchanges (which it called "Gateways") and adopt the
supporting insurance provisions (§3104(a)(1)), or "request that the
Secretary operate ... a Gateway in such State" and adopt the supporting
relevant insurance provisions (§3104(a)(2)), or do neither
(§3104(a)(3)). The next section required the Secretary to establish the
Gateway herself if the state does not adopt its own Gateway under any of
the three provisions of section (a). (§3104(b)(c)).Critically, section
(b)(3) provides "/the State shall be deemed to be an 'establishing
State'on the date on which the Gateway established by the Secretary is
in effect in Such state."/In other words, as soon as the federal
exchange was set up, it was to be considered a state exchange for all
purposes---the exact argument that the government is now making before
the D.C. Circuit.Finally, the section expressly provided that---exactly
as in the case of state-run gateways---the subsidies would/become
available on the federally-run gateways/ within 60 days.("Any resident
of a State described in paragraph (3) ... shall be eligible for credits
under section 3111 beginning on the date that is 60 days after the date
which such Gateway is established in such State [by the Secretary]."
§3104(c)(4). )
It is true that the HELP bill (§3104(d)) also provided that subsidies
would be denied for four years in states that both refused to adopt the
reforms themselves and also refused to request the federal government to
do it for them. But that conceptualization of state-choice did not make
it into the ACA. Instead, the ACA replicates only the first two
state-flexibility options from the HELP bill--the options for which the
subsidies were always available: the states can establish the exchanges
themselves or the feds will do it for them. The subsidies were to be
given to both. The ACA, unlike the HELP draft, does not give the states
the choice to decline the implementation altogether.(Again, it's the
Clean Air Act. It's not Medicaid.)
**#3: The Question of Subsidies on the Exchanges Had Nothing to Do with
the Jurisdiction of the Senate Finance Committee**
Surprisingly, the challengers also have persisted in citing a stray 2009
remark by Senator Baucus as further proof of their "carrots" argument,
even after the factual premise of that remark has been corrected. (From
the appellant's brief: "Senator Max Baucus, used the conditional nature
of the subsidies to justify his jurisdiction over the Exchanges and
related regulations of health coverage in the draft ACA; that is, the
/Finance /Committeehad jurisdiction over health issues only because the
bill /conditioned /"tax credit" subsidies, within its bailiwick, on
states creating Exchanges subject to regulation." One amicus, on the
blogs, has made the same argument here
<http://www.forbes.com/sites/michaelcannon/2014/03/19/halbig-v-sebelius-amicus-brief-of-baucus-harkin-pelosi-reid-et-alia-ignores-their-roles-in-the-aca-debate-gets-congressional-intent-completely-backward/>.).
As an initial matter, the Baucus comment had nothing to do with
differentiating between the state and federal exchanges. It was an
explanation of why his Committee shared jurisdiction over health reform
with the HELP Committee. (Specifically he was explaining why the Finance
Committee had jurisdiction over amendments relating to health insurance
coverage even though it would not have jurisdiction over medical
malpractice amendments.) But even if it were relevant, it tells us
nothing about whether the subsidies might be offered on one, the other,
or both. (Read the transcript
<http://www.finance.senate.gov/hearings/hearing/download/?id=c6a0c668-37d9-4955-861c-50959b0a8392>for
yourself.) More importantly, it is simply not true, as the challengers
claim, that also including subsidies for the federal exchanges would
somehow have deprived the Finance Committee of jurisdiction over the
ACA. There is zero evidence for any such argument in the record or in
the rules of the Senate. Regardless as I have already detailed (here
<http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html>)a
stray comment early in the drafting process of a statute with a
legislative process as unorthodox as the ACA's has no place in the
judicial decision-making process.
**#4: The IRS Has Authority to Issue this Rule **
The challengers also argue that the IRS did not have the authority to
adopt the rule in question in the case.As DOJ has argued, the provision
in question appears /in the Internal Revenue Code/ and expressly states
that the Secretary "shall prescribe such regulations as may be necessary
to carry out the provisions of this section." (ACA §36B(g)). That should
be enough to defeat this argument.The challengers nevertheless argue
that, because the section in question cross-references ACA §1311, and
because §1311 falls under HHS authority, the IRS should not have been
able to interpret the section.At the same time, they claim:
"[c]onversely, the IRS Rule would not be entitled to deference had it
been promulgated by HHS rather than the IRS" because "HHS ... does /not
/administer the subsidy provision, 26 U.S.C. § 36B." Right. That's
because the /IRS/ does.In other words, challengers are claiming that/no
one/ has the authority to interpret the section! This argument
is entirely at odds with a statute that is replete with hundreds of
provisions for administrative implementation and that clearly intends
the agencies to do the lion's share of the gap filling--including in
this very section.The broader argument here is that /Chevron /deference
for administrative rulemaking is not appropriate at allwhen multiple
agencies are involved.In my view, this is not a multiple-agency
question: the section here sits squarely in the Internal Revenue Code
and, unlike classic multiple-implementation cases, the section in
question does not also mention HHS's authority.Instead the ACA simply
gives the IRS full authority here.In any event, I have previously
offered evidence (here
<http://balkin.blogspot.com/2014/01/tax-subsidies-upheld-on-obamacare.html>))
for why a no-deference rule for multiple implementers is inconsistent
with current doctrine.
** #5: State Officials Did not Base Their Decisions Not to Participate
On The Assumption the Subsidies Would Not Be Offered In the Federal
Exchange**
**A group of state officials has filed /amicus/ briefs claiming that
they decided not to run an exchange because they assumed the subsidies
would not be offered on a federally-run exchange (the argument here is
that these state officials were purportedly trying to relieve their
citizens from the insurance mandate: because the subsidies make
insurance more affordable and trigger some employer requirements to
provide health insurance, without the subsidies more people would fall
into the ACA's hardship exemption and not be subject to the mandate).
These assertions are almost certainly false, according to evidence
provided by the Center on Health Insurance Reforms at Georgetown (CHIR).
CHIR has been tracking the states' relevant public statements and
letters throughout implementation. They have demonstrated
<http://chirblog.org/author/christine-monahan/> that the states' public
justifications for their decisions---their official declaration of
intent not to pursue a state exchange---made no mention of this argument
whatsoever. Virginia filed an amicus brief
<http://www.ag.virginia.gov/Media%20and%20News%20Releases/News_Releases/Herring/2014_03_20_Amicus_Brief_for_the_Commonwealth_of_Virginia.pdf>
in the companion case illustrating the same thing. Instead, the states'
official declarations mentioned considerations like lack of state
flexibility and not enough guidance from the Administration CHIR also
has provided <http://chirblog.org/author/christine-monahan/> statements
from some of these states' leaders evincing their understanding that
some subsidies would indeed be offered to their citizens through the
federally run exchanges. In any event, state officials' post hoc
justifications should have no import for an inquiry into congressional
intent.
* #6:Any "Legitimate Method of Statutory Construction" Undermines the
Challengers Case*
**Finally, in an apparent attempt to scare the textualist D.C. Circuit
panel, the challengers have littered their briefs with sentences like
the following:"No legitimate method of statutory construction would
interpret the phrase "Exchange established by the State under section
1311"' to include the federal exchanges.The challengers have two primary
textual arguments: 1) the text just quoted above, standing in isolation
and 2) the textual canon known as the rule against superfluities, which
counsels courts to give effect to every statutory phrase (and not render
any redundant).Any principled textualist will see that there are many
more textual arguments on the other side.I already have mentioned the
/exclusio unius/ canon above.Here are a few more.
The superfluities argument made by the challengers actually cuts in
favor of the Government: ACA §36B(f) provides:
''(3) INFORMATION REQUIREMENT.---/As revised by section 1004(c) of
HCERA/.Each Exchange (or any person carrying out 1 or more
responsibilities of an Exchange under section 1311(f)(3) or 1321(c) of
the Patient Protection and Affordable Care Act) shall provide the
following information to the Secretary and to the taxpayer with respect
to any health plan provided through the Exchange:... ''(C) The aggregate
amount of any advance payment of such credit or reductions"....
Section 1311 refers to the state exchanges; section 1321 refers to the
federal exchanges.Half of this section---which requires reporting to the
IRS of the amount of the subsidies offered on /both/ exchanges---would
be superfluous the subsidies were not available on the federal exchange.
It also would be /absurd/---another favorite textualist canon.
Furthermore, as noted by the words in the statute in italics, this
section, §36B(f), was added to the ACA in the reconciliation
legislation, which followed a week after the ACA's enactment-. That
legislation harmonized House/Senate preferences and took the place of
Conference, which is typically the last stage of legislation and brings
together the versions from each chamber. Every legislation expert knows
that this last stage---where differences across the chambers are
resolved---is the most important. It's why the Supreme Court pays
special attention to Conference Reports, for example.As a result,
§36B(f) is the /latest/ piece to be added to the official original ACA
statute and is part of the /only/ document that was negotiated and
written by both chambers together.As I have written previously (here
<http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html>),
unforeseeable political circumstances made the Senate text of the ACA
the text that had to be adopted virtually unchanged by the House. The
reconciliation bull was the one and only later-coming piece of the ACA
that was negotiated and written by both House and Senate. It is no small
matter, then, that §36B(f) clearly contemplates the subsidies on both
types of exchanges.
Finally, the challengers have ignored two of the most important textual
canons of all:1) that text must be interpreted in context, a point
always espoused by leading textualists, including Justice Scalia and
John Manning; and 2) the whole act rule---also known as the
non-derogation canon---the rule that statutes must be read as a whole,
giving effect to all provisions in a way that makes them work as a
coherent whole.The Government's brief is replete with references to
other parts of the ACA that make no sense---like §36(B)(f) above---if
the court reads the federal subsidies out of the statute.
In a recent blog post, one /amicus's/ response
<http://www.forbes.com/sites/michaelcannon/2014/03/19/halbig-v-sebelius-the-ahas-amicus-brief-calls-the-constitution-a-technicality-that-could-hurt-hospitals/> to
this argument that a single phrase should not be able to undermine the
entire act is the following: "the Obama administration aborted another
PPACA entitlement -- the "CLASS Act" -- because a single statutory
phrase forbade its implementation unless the program could be
actuarially solvent."The CLASS Act was a title of the ACA concerning
long term care---and once again, the comparison actually cuts the other
way.Concerned that a long-term care insurance program would be economic
infeasible, Congress included an economic feasibility requirement in the
/text/ of the statute.****A "single statutory phrase" can indeed halt an
entire statute if Congress /clearly/ so provides its intention for the
entire program to be halted. The absence of a similar clear statement in
the case of the subsidies provisions is telling (/exclusio unius/).
Moreover, virtually every canon of statutory interpretation counsels
courts that, where the statutory meaning is less than clear, they should
render the statute coherent---or defer to the agency..
***
Would it have been preferable had Congress done a better job drafting
this behemoth law? Of course. It likewise would be preferable if our
politics were not such that no one dare touch the statute to make little
fixes that would clean it up, or improve it.But bad politics should not
make bad law. This case raises important matters of statutory
interpretation doctrine that have significance far beyond the confines
of this politically charged case. The District Courtapplied ordinary
rules of statutory construction to sustain the statute.Those of us who
study legislation hope that the D.C. Circuit will give the statute the
same careful look tomorrow.
[cross posted at Balkinization]
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Rick Hasen
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UC Irvine School of Law
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