Talk:King v. Burwell/Archive 1

For the record

This article was originally created by a user who had been blocked from editing Wikipedia, and who was using a sockpuppet account to evade the block. Standard practice for articles created by means of block evasion is that the articles are to be deleted regardless of their merits (and with no prejudice against their being re-created by other users), unless the article has been substantially expanded by other users. Because this article has been substantially expanded by other users, it will not be deleted (or, at least, it will not be deleted solely on the grounds of having been created by a blocked user).

Who is halbig

Who is Halbig, and who is funding the legal action? Nodekeeper (talk) 02:19, 16 July 2014 (UTC)

Those are excellent questions. Unfortunately, none of the articles that I have read contained that information. Dfwe3401 (talk) 02:36, 23 July 2014 (UTC)

The plaintiff is Jacqueline Halbig, who was the senior policy adviser to the Department of Health and Human Services under President George W. Bush. http://www.motherjones.com/mojo/2013/12/dc-appellate-court-hear-latest-aca-attack Dfwe3401 (talk) 02:52, 23 July 2014 (UTC)

It is interesting that some commentators view the plaintiff's effort in this case as a serious challenge to "Obamacare" (which it may well be) -- even though the Court of Appeals decision on July 22, 2014 is a decision about the validity of a Treasury regulation -- not the validity of the Patient Protection and Affordable Care Act itself.

There might be some confusion from time to time, because some people use the term "Obamacare" to refer to the Act itself, while others use the term to refer to the Act plus all the regulations issued by the Treasury Department plus all the regulations issued by any other executive branch units, plus the actual health care that is delivered -- much of which is not delivered by the government at all.

The dissenting opinion in the case, which is mentioned in the article, is basically saying that attacking a regulation issued under the statute is an indirect way of attacking the statute itself, without actually asking for (and without actually obtaining) a court ruling that the statute itself is invalid.

I express no opinion on the matter one way or the other. I just want to point out the possible confusion over multiple uses of the same term, "Obamacare." Famspear (talk) 03:32, 23 July 2014 (UTC)

Your edits have improved the article substantially. I'm no legal expert - I just cite what I see in the articles. Dfwe3401 (talk) 03:53, 23 July 2014 (UTC)

Dear Dfwe3401: Thanks, and hey, it looks good to me. I haven't been following this case, so I"m pretty much winging it -- based on some quick reading. Famspear (talk) 04:04, 23 July 2014 (UTC)

I'm surprised there are so few people working on this. I would have expected at least a few dozen editors by now. Dfwe3401 (talk) 04:54, 23 July 2014 (UTC)

Gruber's comments are irrelevant to the lawsuit itself and shouldn't be included on this page. — Preceding unsigned comment added by 192.213.136.129 (talk) 00:44, 9 August 2014 (UTC)

Not sure if this is appropriate for the article, but the lawsuit is a real challenge to the ACA itself. If the reg is stricken (essentially, because it defines "exchange" more broadly than the statute itself), then individuals in states with Federally run exchanges, rather than exchanges run by the states themselves, will be unable to get subsidies. This will render insurance offered in those states (and there are quite a few) much more expensive to individuals and, in some people's opinion, will render the ACA unworkable. (sorry if this was not the right way to do this...new to wikipedia...) 16:15, 9 October 2014 (UTC) — Preceding unsigned comment added by 38.98.229.171 (talk)

Dear IP 38.98.229.171: I understand what you're trying to say, but I think we still have a terminology issue here. What you are describing would not be a challenge to the ACA. It would be a challenge to the programs enacted under the ACA -- to the way Obamacare is being administered. Again, some people refer to the ACA itself as "Obamacare," while others use the term "Obamacare" to refer more broadly, to the entire program (including any and all rules and regulations). The ACA is a specific statute. Nothing in the lawsuit challenges the ACA itself. A statute is challenged by challenging its validity, not by challenging the validity of some regulation that was issued under the purported authority of the statute. Famspear (talk) 22:17, 9 October 2014 (UTC)

reconciliation

RJaguar3 The vox source says it, although in a bit of a convoluted way

When Senator Ted Kennedy died in 2009 and was replaced by Republican Senator Scott Brown, Democrats no longer had a filibuster-proof majority in the Senate. So the law was passed through an unorthodox budgetary process. As a result it never went to conference committee, where messy drafting gets cleaned up. As a result, the text of the law may be less precise than statutory language usually is. There is evidence elsewhere in the law that Congress was not careful in differentiating between "exchanges established by the state" and exchanges more generally.

"budgetary process" in vox links to http://isps.yale.edu/news/blog/2013/12/how-congress-works-and-the-obamacare-subsidies-lawsuit#.VF2UNfnF98G which says

Because Senator Ted Kennedy died in the middle of the legislative process and was replaced by Republican Scott Brown, the statute never went through the usual legislative process, including the usual legislative clean-up process. Instead, because the Democrats lost their 60th filibuster-preventing vote, the version that had passed the Senate before Brown took office, which everyone initially had thought would be a mere first salvo, had to effectively serve as the final version, unchangeable by the House, because nothing else could get through the Senate. In the end, the statute was synthesized across both chambers by an alternative process, called “reconciliation,” which allows for only limited changes but avoids a filibuster under Congress’s rules.

Gaijin42 (talk) 03:58, 8 November 2014 (UTC)

Thank you for clarifying the sources. I look for a way to rewrite. RJaguar3 | u | t 04:03, 8 November 2014 (UTC)

legislative intent and history

There are several RS that dig into earlier drafts of the obamacare bills, statements by politicians etc, that are used in arguments (in both directions) for legislative intent. Also we have the various briefs filed by the parties. Its very likely that SCOTUS will dig into this as well. How much should we cover now?

• http://www.forbes.com/sites/michaelcannon/2014/08/07/halbig-critics-struggle-with-the-acas-legislative-history/
• http://online.wsj.com/news/articles/SB10001424052970203687504577006322431330662
• http://www.washingtonpost.com/blogs/plum-line/wp/2014/07/29/senate-documents-and-interviews-undercut-bombshell-lawsuit-against-obamacare/
• http://patterico.com/2014/07/29/liberal-wapo-blogger-inadvertently-strengthens-argument-from-halbig-majority/
• http://blogs.law.harvard.edu/billofhealth/2014/04/17/halbig-and-the-acas-peculiar-legislative-history/
• http://www.cato.org/publications/legal-briefs/halbig-v-sebelius
• http://thefederalist.com/2014/07/23/no-halbig-did-not-gut-obamacare-because-of-a-drafting-error/
• http://www.salon.com/2014/07/22/right_wing_judges_push_to_gut_obamacare_what_you_should_know_re_halbig_case/
• http://www.newsweek.com/case-could-topple-obamacare-224747

Gaijin42 (talk) 02:52, 8 November 2014 (UTC)

@Gaijin42: We should probably look for secondary/tertiary sources that summarize the arguments based on legislative history to give appropriate WP:WEIGHT. RJaguar3 | u | t 03:33, 8 November 2014 (UTC)

Obviously - my question was more basic, should we go into the arguments about legislative history/intent at all right now (past the super high level summary we have now) Gaijin42 (talk) 03:50, 8 November 2014 (UTC)

There has certainly been coverage of the arguments made, so I think it would be good to begin. It's going to be very difficult to judge weight, so I would be very cautious and keep a look out for reliable sources that discuss the arguments to give them the appropriate weight. RJaguar3 | u | t 03:55, 8 November 2014 (UTC)

Nuclear option

I have added a small paragraph on the ue of the nuclear option and its affect on this case. In particular I want to draw attention to my sentence "Analysts have opined that this was done to improve the odds of a favorable ruling from the en banc court" which I think could be improved. (Some think it was done for this specific reason, some think its just a convenient side-effect - how does one word that neutrally?) I think something along these lines is important, but I wasn't able to put together a wording I was happy with. I included several sources that address this point directly, please feel free to adjust my wording. Gaijin42 (talk) 21:55, 10 November 2014 (UTC)

ObamaCare Architect Jonathan Gruber: "If You're A State And You Don't Set Up An Exchange, That Means Your Citizens Don't Get Their Tax Credits"

I just added the following to the "legislative intent" section of the article:

On January 18, 2012, Jonathan Gruber, a Massachusetts Institute of Technology economist who helped write the ACA, said, "What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits." On January 10, 2012, Gruber said, "... if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens."

Lkiode43 (talk) 00:42, 9 November 2014 (UTC)

References

For whom it may concern, I opened an SPI case against User:Lkiode43, the author of the above comment. RJaguar3 | u | t 17:03, 9 November 2014 (UTC)

SPI considerations aside, I was considering adding similar information myself. There are numerous sources discussing those prior statements (as well as Gruber's involvement in general with the ACA) Although I do admit your evidence regarding SPI is fairly persuasive. Gaijin42 (talk) 20:30, 9 November 2014 (UTC)

If User:Lkiode43 is blocked for sockpuppetry, I plan to revert the contributions (as being made to evade a community ban), without prejudice to another editor readding the material (and thereby taking responsibility for it). RJaguar3 | u | t 01:59, 10 November 2014 (UTC)

Lets just cut out the middle man, since I have modified his original addition, I hereby take responsibility. Gaijin42 (talk) 02:05, 10 November 2014 (UTC)

Of course it's me. I am Grundle2600. I never try to hide the identity of my socks. It's interesting that everyone was OK with the edits from this particular sock until they started to suspect that it was a sock. The only reason I was banned in the first place was to prevent me from adding reliably sourced info that was critical of Obama. Many articles created by my various socks are still in existence, and the content that I added is still in them. I never should have been banned in the first place. Lkiode43 (talk) 05:41, 10 November 2014 (UTC)

Gruber is racking up the hits. I'm going to go out on a limb here and say Gruber has a heart attack, or a car accident before this case goes to court. https://www.youtube.com/watch?v=G790p0LcgbI Gaijin42 (talk) 15:31, 10 November 2014 (UTC)

I'm not sure what this comment has to do with improving the King v. Burwell article. See WP:TALK#USE. RJaguar3 | u | t 01:52, 11 November 2014 (UTC)

irs earlier drafts, congressional hearings & report

I'm looking for additional sources before I put anything in. This is here for holding so I don't lose the refs for now. If you want to read the full WSJ article, google the headline (WSJ gates it for direct links, but gives the full text if you come from google).

• http://online.wsj.com/articles/kim-strassel-the-obamacare-irs-nexus-1406244677
• http://www.nationalreview.com/corner/392431/incompetence-their-only-defense-understanding-latest-obamacare-scotus-case-david (largely just quoting the previous source)
• http://www.scotusblog.com/2014/11/symposium-seven-myths-about-king-v-burwell/
• http://www.forbes.com/sites/michaelcannon/2014/02/10/congressional-report-treasury-irs-hhs-conspired-to-create-an-unauthorized-half-trillion-dollar-entitlement/
• http://oversight.house.gov/wp-content/uploads/2014/02/IRS-Rule-OGR-WM-Staff-Report-Final1.pdf house report
• http://oversight.house.gov/release/oversight-committee-asks-irs-to-explain-recent-rule-that-expands-obamacares-reach-in-a-way-not-authorized-in-law/ (Important quote from CRS)

Gaijin42 (talk) 22:54, 10 November 2014 (UTC)

Not to rain on your parade, but you may want to have a second look at the sources before you start writing an article based on them. The two Oversight Committee links are certainly not reliable sources for anything other than individual legislator's opinions. The third and fourth sources are by the same author, Michael Cannon (who first described the attack raised by the challengers); those sources should be used with extreme caution. The WSJ editorial is an opinion piece, so it should be attributed in-text to its author, Kim Strassel. The National Review article is suspect, as you mention, for quoting an editorial. These could be usable for developing an "Arguments" section, where sources advocating a particular position may be the most usable. I also think it may be a good idea for you to ask another editor for assistance, especially given your previous issues with undue weight in articles. Thanks, RJaguar3 | u | t 01:36, 11 November 2014 (UTC)

I don't appreciate the poke. AGF please. I am well aware of WP:ATTRIBUTEPOV . My thought was that similar as to how we have arguments about legislative intent, similar arguments showing the background of the IRS process would be valuable. Of course arguments to the contrary would also need to be found and included - I stumbled across the WSJ article at top and the rest was just following the rabbit trail. Gaijin42 (talk) 03:26, 11 November 2014 (UTC)

government POV legislative intent source

I came across a soruce today, but I cannot find it again. It was making a government POV argument using the argument of some legislation that was passed after the ACA that also referenced subsidies and some sort of accounting/reporting of the subsidies. Apparently that reporting law explicitly mentioned federal exchange subsidies. Ill continue looking for the source, but I thought I'd drop the hint in case someone else knows what to look for. Gaijin42 (talk) 03:42, 11 November 2014 (UTC)

Found it. May not be an RS on its own, but it may be a lede to track down other sources discussing this argument. http://www.healthreformwatch.com/2011/09/11/yes-the-federal-exchange-can-offer-premium-tax-credits/. Can't find anything except some clearly non-rs blogspot blogs talking about it from the government pov.

Forbes mentions it as well, but tries to interpret it to the opposite POV http://www.forbes.com/sites/michaelcannon/2014/10/09/halbig-evolution-of-statutory-text-shows-drafters-intended-to-limit-aca-subsidies-to-state-established-exchanges/ The Plantiffs halbig brief also brings it up. http://object.cato.org/sites/cato.org/files/pubs/pdf/halbig_-_adler_cannon_amicus_brief.pdf Gaijin42 (talk) 03:54, 11 November 2014 (UTC)

Effects on employer mandate

User:Gaijin42 removed attribution for the effects of a decision in favor of the challengers on the enforceability of the employer mandate, stating in the edit summary, "we don't need to attribute this, it is a very well documented part of the employer mandate." In my view, the effects are far from clear, and, to avoid WP:SYNTH a reliable source is required that ties a victory for the challengers to unenforceability of the employer mandate (as is described in the Tolbert and Adler sources). Attribution is entirely appropriate. (It may be better to move discussion of the effects of a decision in favor of the challengers into a section of the article and summarize it in the lede.) RJaguar3 | u | t 03:11, 10 November 2014 (UTC)

RJaguar3I'm not sure whats unclear here. The law says that the employer mandate applies only to those companies where at least one employee gets a subsidy. (To be technical, the penalty for not offering insurance only applies if...) The core of this case is that the plaintiffs are arguing that only state exchanges qualify for subsidy. We have multiple sources putting this together. In addition to the sources below, the DC court ruling explicitly dealt with this too

The availability of the subsidy also effectively triggers the assessable payments under the employer mandate, inasmuch as the payment is only triggered if at least one employee enrolls in a plan, offered through an Exchange, for which “an applicable premium tax credit . . . is allowed or paid.”

Gaijin42 (talk) 03:28, 10 November 2014 (UTC)

Maybe to say it a different way, the employee mandate is an either/or. "Either you provide acceptable insurance, or you are responsible for paying a portion of the subsidy on the marketplace" ("Employer Shared Responsibility"). If there is no subsidy, there can be no employer portion of the subsidy. It wasn't written as a generic fine/tax that would be applicable in any case. Gaijin42 (talk) 15:14, 10 November 2014 (UTC)

RJaguar3 Do you still object to stating in wiki voice that the employer mandate would not apply in the affected states if the plantiffs win? Gaijin42 (talk) 15:21, 11 November 2014 (UTC)

IMO, this discussion has now been rendered moot by MastCell who largely rewrote the paragraph in question, and swapped out all the sources. The new source he used (written by Jost who it should be noted is somewhat involved in the debate/evidence itself, so we may need to be careful with him, just like Adler's papers etc) says "Since the enforceability of the ACA mandates that large employers provide and individuals obtain health insurance depends on the availability of tax credits, those mandates could also disappear or be seriously undermined in two thirds of the states". Based on that sentence, I have tweaked MastCell's version in this diff [1] Gaijin42 (talk) 00:27, 12 November 2014 (UTC)

See also

@Gaijin42:, can you please add a explanation as to how the links to Commandeering and Federalism in the United States are relevant to the article? As per WP:ALSO, "The links in the 'See also' section should be relevant [and] should reflect the links that would be present in a comprehensive article on the topic", and "Editors should provide a brief annotation when a link's relevance is not immediately apparent". Thanks, RJaguar3 | u | t 02:03, 11 November 2014 (UTC)

Commandeering is a federalism issue which which regards that the feds can't force states to do things, and certain inducements are de-facto forcing. There are several sources discussing commandeering in the context of the ACA and in particular the subsidies at issue here.. In particular, the dispute at hand in these cases (are the subsidies intended to induce states to want to create exchanges) is a commandeering issue (or more accurately a way to avoid the commandeering issue)

sources (collapsed by self)

http://www.scotusblog.com/2011/08/the-aca-and-the-tenth-amendment/ http://oversight.house.gov/wp-content/uploads/2014/02/IRS-Rule-OGR-WM-Staff-Report-Final1.pdf Page 5 of the house report on this specific issue discusses if the "commandeering problem" http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1022&context=ois_papers This 2009 paper specifically discusses subsidies as a method of avoiding the commandeering problem and suggests it for the ACA http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/19/professor-james-blumstein-on-halbig-v-sebelius/ http://www.breitbart.com/InstaBlog/2014/07/29/The-Senate-HELP-Bill-Limited-Exchange-Subsidies-to-Compliant-States-but-No-One-Mentioned-It (Not suggesting this for use in the article, just for an example of showing the relevance) http://www.realclearpolitics.com/articles/2013/10/29/how_the_court_case_against_obamacare_subsidies_stacks_up.html http://www.nationalreview.com/bench-memos/375691/halbig-v-sebelius-making-states-offer-they-cant-refuse-jonathan-keim Pruitt specifically raises commandeering in their ruling http://www.ok.gov/oag/documents/Oklahoma%20v%20Burwell%20ruling.pdf

To be clear, I'm not suggesting making an argument re commandeering in the article at this time, but I think it clearly relevant enough to give users a link to know what the term means (similar to Chevron, which I did expand out into a mini section Gaijin42 (talk) 03:22, 11 November 2014 (UTC)

RJaguar3 I apologize, I may have misread your comment above. I thought you were asking me to justify their inclusion. But it appears you were just asking me to provide some explanatory text in the article? Gaijin42 (talk) 03:35, 11 November 2014 (UTC)

In any case, I have now used the Jost sources to put a brief bit on commandeering into the body, so I have removed that see also. Ill look for a good way to do the same for the federalism link. Gaijin42 (talk) 15:37, 11 November 2014 (UTC)

Thank you. I meant incorporating the explanation into the article alongside the link, but you did good work in incorporating the link into the body of the article. RJaguar3 | u | t 03:29, 12 November 2014 (UTC)

DC didn't set up an exchange?

Collapsing conversation with self

It must not have since Halbig exists, but this is surprising to me since DC's own home-rule council is reliably liberal. Was this an area that was done (or rather, not done) by Congress after the house flipped in 2010? Anyone have any sources discussing why DC didn't get an exchange? Gaijin42 (talk) 16:07, 14 November 2014 (UTC) Ok, i'm more confused now. the DC ruling reads "As of today, only fourteen states and the District of Columbia have established Exchanges. The federal government has established Exchanges in the remaining thirty-six states, in some cases with state assistance but in most cases not." - If this is the case, how is Halbig an issue since its exchange is apparently under 1321? Gaijin42 (talk) 16:11, 14 November 2014 (UTC) Interesting. The Halbig plantiff is from West Virginia, but per our article on the DC court, apparently the DC circuit court has jurisdiction over any issue involving an agency that is based in DC. So Now I am confused as to how king exists since I would think they would have said DC should have taken it. But now I'm quite deep down in the rabbit hole. If I find something reasonably citeable about why Halbig is in DC, Ill add it Gaijin42 (talk) 16:18, 14 November 2014 (UTC)

I have added a paragraph to the Halbig bit talking about why it is in the DC circuit, even though West Virginia is in the 4th circuit, and linked over to the Administrative Procedure Act (which is apparently where the Chevron test comes from)Gaijin42 (talk) 20:08, 14 November 2014 (UTC)

The Chevron test does not come from the Administrative Procedures Act. However, both the Administrative Procedures Act and the Chevron test are related to "administrative law" generally. Famspear (talk) 05:46, 20 November 2014 (UTC)

Sources

The opinions of Jonathan H. Adler (five refs: 4, 14, 28, 33, and 55), and Michael F. Cannon (eight refs: 6, 10, 16, 21, 22, 25, 30, and 51) are primary sources and are being given undue weight in the article.

It all started in 2011, when Jonathan H. Adler, a conservative law professor at Case Western Reserve University in Ohio, shot an email to his friend Michael Cannon, a health policy expert at the libertarian Cato Institute in Washington, D.C. Adler thought he had spotted an error in Obamacare that could unravel a significant portion of the law.

— Levy, Pema (December 17, 2013). "The Case That Could Topple Obamacare". Newsweek.

I also question the use of editorials (E.g., refs 8, 27, and 44) and generally partisan outlets (currently greater than %60) as being the most reliable secondary sources for the topic. — ArtifexMayhem (talk) 10:48, 29 November 2014 (UTC)

I agree that editorial sources are not properly being used. However, the editorial sources are certainly usable for discussing the various positions. Even so, we should refer to secondary sources to determine the appropriate WP:WEIGHT to be given to various sides of the controversy. RJaguar3 | u | t 14:51, 29 November 2014 (UTC)

I removed the reference to Gruber in the legal papers. SCOTUSblog's coverage of the court filings does not mention Gruber at all. Hence, it appears to be WP:UNDUE weight to mention the mention of Gruber in the legal papers. RJaguar3 | u | t 15:00, 29 November 2014 (UTC)

The only articles on SCOTUSblog about King that mention Gruber are outside contributions as part of a symposium on the granting of King; one is by Michael F. Cannon, the other by the Solicitor General of Oklahoma (note that Oklahoma is a party to a similar challenge). RJaguar3 | u | t 15:13, 29 November 2014 (UTC)

other gruber quotes

Slow moving edit war with IP 173.67.163.239 Keeps reinserting the following. Bringing it to talk per BRD to get some wider opinion. While the initial Gruber "subsidy" comments are certainly relevant (and have been directly cited by the cases) I do not believe these other quotes are relevant to this particular lawsuit (although may be relevant for broader articles about Obamacare). The only source cited for these quotes which links Gruber to the cases is the NYT link, which is clearly referring to the "subsidy" quotes. None of the sources discussing the additional quotes mention the lawsuits.

On November 13, 2014, Comments made by Jonathan Gruber—Obamacare’s architect—in which he stated he and his colleagues that were Democrats had concealed the health law’s true costs from the public in order to take advantage of the “stupidity of the American voter” just to pass the bill. Based on statements made in videos that Gruber’s remarks about the intelligence of the American voter were not spontaneous remarks, but a regular remark “punch line” in his standard speeches to audiences around the country. Three videos have been discovered. The first one made widely public was from the University of Pennsylvania of the 24th Annual Health Economics Conference in October 2013; the second was from a lecture that Mr. Gruber delivered at Washington University in St. Louis in October 2013, called the “Cost of health Care,” and third discovered to date was from the Fall 2012 Honors Colloquium, at the University of Rhode Island on November 1, 2012. The the University of Rhode Island speech was just prior to presidential election. Critics have cited these comments as important to the Supreme Court agreeing to review the case

References

Gaijin42 (talk) 15:36, 18 November 2014 (UTC)

MastCell Though I think I disagree with your reasoning in your revert thanks for stepping in (IE its not that its partisan that is the issue, its that its not relevant to these specific lawsuits) Gaijin42 (talk) 18:57, 18 November 2014 (UTC)

I'm thinking that the Gruber material is pretty tangential to this article. The material is more material to the article on Gruber or to the article on the Affordable Care Act. Famspear (talk) 05:48, 20 November 2014 (UTC)

For the stupid/transparent quotes I agree 100%. As I stated above, the "subsidy" quotes are relevant to the case as they are directly on the issue at hand, and have been cited by the lawsuits. The material in question has been put back in by the same editor from a new IP. I have made an edit warring report, and also asked for semi protection on the article since the IP is not static. Gaijin42 (talk) 16:03, 20 November 2014 (UTC)

I removed the November 2014 quotes about the passage of the ACA because the editor who added them has not demonstrated their relevance to the legal case as discussed in reliable sources. I also lean towards deleting Gruber's exchange comments unless further reliable sources can be made about their impact on King. RJaguar3 | u | t 23:33, 28 November 2014 (UTC)

In addition to being directly cited in the lawsuits themselves, the gruber subsidy quotes have been discussed in the context of the cases by many sources. (To be fair to the warring IP, a number of these sources also discuss the other quotes

Gaijin42 (talk) 02:17, 29 November 2014 (UTC)

• FYI: Semi-protection requested. — ArtifexMayhem (talk) 08:54, 29 November 2014 (UTC)

I retract my position about the Gruber subsidy comments not belonging in the article, in light of the source I added in this edit. RJaguar3 | u | t 01:27, 12 December 2014 (UTC)

Describing the potential consequences

The 2nd and 3rd paragraphs are speculative at best and should be removed. In the 3rd paragraph, what is the source for the statement that "many" believe such and such consequences will occur. The citation is to two journalist.04:52, 11 December 2014 (UTC)38.111.19.130 (talk)

The consequences described in the second paragraph of the lede are discussed in, and cited to, the reliable source at the end of the paragraph. I do agree that the third paragraph has problems with WP:WEASEL. There is a point of view (exemplified in the last section in this opinion piece) that suggests that a ruling in favor of the challengers will not cause massive disruption of the ACA, but further discussion is needed to see how much, if any, weight should be given to this view. RJaguar3 | u | t 01:25, 12 December 2014 (UTC)

I ran across this NEJM article (via SCOTUSblog) yesterday, which discusses the impact of a ruling in favor of the challengers. The authors discuss at length the position by others that the impact would be mitigated by Congressional or state action in the process of rebutting those arguments. This indicates that the "mitigation" position is not WP:FRINGE, so it should probably be discussed in the article. I will add a sentence about it to the lede. RJaguar3 | u | t 15:15, 13 December 2014 (UTC)

Employer mandate, redux

@Gaijin42: I read the government's merits brief in King. In contrast to the article's statement that the employer mandate would not be in effect in states declining to set up an exchange if the plaintiffs win, the government argues (p. 54) that the employer mandate "would not cease to apply altogether in States that declined to establish their own Exchanges. Instead, employers in such a State (e.g., New Jersey or Virginia) could still face the tax based on their total number of employees if they hired even a single worker living in a neighboring State that had established an Exchange for itself (e.g., New York or Maryland)." (emphasis in original). Of course, I'm very cautious about using a self-published source designed as express advocacy, but perhaps we will be able to find secondary sources to show that the government's POV is significant. RJaguar3 | u | t 04:34, 3 February 2015 (UTC)

You don't need to find secondary sources to show that the government's POV is significant. Of course it's significant. --Dr. Fleischman (talk) 07:17, 3 February 2015 (UTC)

I don't see a problem with our current text. It says [The] employer mandate [...] might also be overturned in states with federal exchanges. However, I do not object to adding a sentence afterwards saying "The government argues that the employer mandate would apply in some circumstances". actually describing the govt's position in the lede might be too wordy - "argues that the mandate would apply when a company hires an employee across state lines, and that employees home state has an exchange (and that employee gets credits from that exchange)" We could use a wordier version in the body in the King section (perhaps we should add a plantiffs/govts arguments section?) In any case, I would agree that the govt's view is significant enough for inclusion without a secondary,

Its an interesting loophole. Note the previous paragraph though, that does say for that in general ("Alltogether") the mandate would not apply, then qualifies that with the loophole (and then the subsequent paragrah discussing how it would apply to some and not others). also, I think their description of the loophole is probably off, its not just hiring across state lines, its hiring across state lines and having that particular employee get a tax credit This is correctly stated in the previous paragraph, so I think its probably more just poor writing in the brief than actually arguing for a broader loophole.

I expect the actual effect would be minimal. Large employers are already generally providing benefits to their full time employees. Those are the ones that are also most likely to be hired across state boundaries. Just like the shifts we've seen in cutting back of hours for part time workers to avoid ACA requirements, I would expect companies to stop hiring part time workers across state lines (and fire existing ones) (or promote that one employee to benefits to save on the rest). Also more companies will go the costco/wallmart route and outsource all the part time people. Gaijin42 (talk) 14:45, 3 February 2015 (UTC)

Bloomberg source

I'm not interested in taking the time now to incorporate this source into the article, but anyone is welcome to do it. [2]. RJaguar3 | u | t 00:03, 16 February 2015 (UTC)

Roberts and Kennedy

Orser67 has added and re-added the sentence: "Many expect a close decision, with Chief Justice John Roberts and Associate Justice Anthony Kennedy the likely swing votes." supported by the source: Baker, Sam (16 February 2015). "Will John Roberts or Anthony Kennedy Save Obamacare?". National Journal. Retrieved 18 February 2015. The content appears to fail verification as it doesn't say that many expect a close decision and it doesn't say that many expect Roberts and Kennedy to be the swing votes. Please see our policy on verifiability. And please don't edit war. --Dr. Fleischman (talk) 23:55, 18 February 2015 (UTC)

In the first three paragraphs, the article states, "Obamacare's future rests with one of the Supreme Court's conservative justices. But no one is quite sure which one." It also states, "Kennedy, of course, has the reputation as the Court's traditional swing vote. Yet it was Roberts who cast the deciding vote to uphold Obamacare in 2012." For anyone who follows the court or this case, the article is pretty clearly stating that this will be a close decision and that one or either justice will be the key vote. Orser67 (talk) 00:16, 19 February 2015 (UTC)

This is known as improper synthesis. We aren't allowed to impute independent knowledge ("For anyone who follows the court or this case, the article is pretty clearly stating..."). Clear in your mind, but that's not how WP works. Now, onward. You added a second source: Sanger-Katz, Margot (3 February 2015). "Obamacare, Back at the Supreme Court: Frequently Asked Questions". New York Times. Retrieved 19 February 2015. This looks like it says "many expect Roberts and Kennedy will be the swing votes," but it doesn't say "many expect a close decision." --Dr. Fleischman (talk) 01:19, 19 February 2015 (UTC)

I disagree with you, I think both articles are clear in saying that it will be a close decision, with the four liberal-leaning justices voting to uphold the law, three of the conservative justices voting to strike down the law, and the remaining two justices acting as the swing vote. This would make the decision either 6-3 or 5-4, which qualifies as a "close decision." The first source states "When the case first reached the high court, the popular assumption among legal experts was that it would fall along the same lines as the 2012 case over the individual mandate: four locked-in votes on each side, with Roberts caught in the middle." It then goes on to describe why either Kennedy or Roberts might change their vote (as compared to the "2012 case"), without challenging the earlier assertion that the other seven justices would likely vote in a similar manner as they did in 2012. Also, while Wikipedia doesn't allow for synthesis, Wikipedia writing also requires writing in a summary style and sometimes relies on the editor's own ability to understand the source. However, I don't think the article would be harmed by the removal of "many expect a close decision," so if you'd like to remove that part of the sentence, then go ahead. Orser67 (talk) 04:51, 19 February 2015 (UTC)

Who is King?

So, I read the entire article without any sense of who King is? Can someone address? 161.150.176.2 (talk) 15:57, 23 February 2015 (UTC)

Agree, there is no factual background, which is surprising for such a high profile case. This ought to be addressed. --Dr. Fleischman (talk) 17:25, 23 February 2015 (UTC)

The "Legal Standing" section covers this, but could be moved or emphasized perhaps. King as an individual is not super important, as he is just one of the plaintiffs. While there are the recent standing issues, only one plaintiff needs to end up with standing in the end, and it is unlikely that all would be disqualified. The bloomberg link at the end of that section has some biographical details about the plaintiffs, but I'm not sure they are super important to the article, as they are just placeholder plaintiffs really. Gaijin42 (talk) 17:36, 23 February 2015 (UTC)

Every case article should have at least a sentence or two identifying the parties and explaining what happened. The content in the standing subsection is useful but it only gets us halfway there. It doesn't explain what these people have to do with the subsidies. And I do think it ought to me moved into a short "Factual background" section at the top of the article. --Dr. Fleischman (talk) 17:48, 23 February 2015 (UTC)

I think there are possible WP:BLP issues with including specific personal details about plaintiffs in the article. Although some sources have commented on those details, I used discretion when I wrote up that section in order to respect the privacy of the plaintiffs. That said, if specific issues become central to the resolution of the case, then they should be included in the article. RJaguar3 | u | t 04:52, 24 February 2015 (UTC)

There's nothing in WP:BLP preventing us from writing a concise summary of the factual background of the case, including the plaintiff's role. These people have chosen to be in the public eye, and all of the material we'd be drawing from reliable secondary sources. See WP:NPF. There's no policy basis for restricting ourselves to facts that end up being central to a resolution of the Supreme Court appeal. No one is suggesting a detailed expose or other original research. --Dr. Fleischman (talk) 18:10, 24 February 2015 (UTC)

Editing

Has the article been protected? I see no "edit" links. Xuinkrbin. (talk) 16:23, 25 February 2015 (UTC)

It is semiprotected, so if you are a new user you will not be able to edit it directly, but you may make an edit request here. Gaijin42 (talk) 16:29, 25 February 2015 (UTC)

Thanks, I would like to make such a request. What information is required? Xuinkrbin. (talk) 17:01, 25 February 2015 (UTC)

You would use the {{Edit semi-protected}} template to request the edit, and then provide the specific change/addition you are requesting, along with any reasoning/justification required, and appropriate sources to back up the content. Then the editors here will evaluate if the requested change meets applicable policies, and make the change. Gaijin42 (talk) 17:17, 25 February 2015 (UTC)

34 vs 36 states

The third paragraph, citing a Vox article, says that there are 36 Federally-facilitated exchange states. If I'm reading the APHA amicus brief correctly, I think there are actually 34 such states. I think the ambiguity here is that Idaho and New Mexico have state exchanges but they use healthcare.gov for enrollment. It looks like the DC circuit counted Idaho and New Mexico as federal exchanges but the Fourth Circuit did not. See [3].GabrielF (talk) 17:46, 1 March 2015 (UTC)

I asked the author of the Vox piece we cite for the 36 state figure about the discrepancy. She responded immediately and was tremendously gracious. Her response was "I'll see if I have time to correct that tomorrow—after discussing more with others, I think 34 is accurate." She also said, referring to Idaho and NM "Their status would likely be re-litigated, but there's reason to lump them with the state-run.".[4] Obviously the twitter conversation is not citable in and of itself, but it leads me to believe we should rely more on the sources that give the 34 figure. I'd like to change the text to 34 states from 36 and put 36 in the footnote.GabrielF (talk) 03:44, 3 March 2015 (UTC)

Reversing King would not "overturn" mandates

Timothy Jost has been cited in the introduction as support for the proposition that reversing King might also overturn the individual mandate, employer mandate, and tax credits for employer-sponsored insurance in states that didn't establish their own Exchange. The proposition is false, and not supported by Jost. Rather, the mandates would be severely weakened, and tax credits for employer-sponsored insurance would be unaffected (Jost does not even mention them).

1) If subsidies are unavailable, many lower to middle income families will be eligible for an "affordability" exemption to the individual mandate, by virtue of the price of the cheapest bronze plan exceeding 8% of their income. The mandate will still apply in the state, but fewer people would be subject to it. See 42 U.S. Code 5000A (e)(1)(a). https://www.law.cornell.edu/uscode/text/26/5000A

2) The penalties associated with the employer mandate can only be triggered when an employee receives subsidies through an Exchange. If subsidies are unavailable in particular state, then only employers who have employees living in states where subsidies are available could possibly be penalized (consider New Jersey and New York, for example). The mandate would still apply in the state, but many fewer employers would be subject to it. See page 54 of Respondents Brief:

"But Section 4980H would not cease to apply altogether in States that declined to establish their own Exchanges. Instead, employers in such a State (e.g., New Jersey or Virginia) could still face the tax based on their total number of employees if they hired even a single worker living in a neighboring State that had established an Exchange for itself (e.g., New York or Maryland)." http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/14-114_resp.authcheckdam.pdf

3) Jost does not mention tax credits for employers anywhere in his article.

On a related note, the petitioners' in King are low-income individuals in Virginia who are suing because without the subsidies they would be exempt from the individual mandate. At some point this should be explicitly spelled out.

KennethJohnKelly (talk) 00:15, 30 April 2015 (UTC)

I agree with everything you just said above, but think that for a high level lede summary the best way to describe that would be the mandates getting overturned (since they would apply to greatly fewer employers and individuals). However, if you think we should expand a section on what the details of the ramifications may be, where we can add more nuance, I'm entirely open to that. Gaijin42 (talk) 02:13, 30 April 2015 (UTC)

Thanks. For the moment, I would suggest editing the first paragraph to a) replace "be overturned" with a direct quote from Jost: "disappear or be seriously undermined" and b) remove the reference to employer tax credits. The use of "overturn" in the second paragraph would then have some context suggesting it is not meant to be taken literally. KennethJohnKelly (talk) 03:22, 30 April 2015 (UTC)