Thursday, July 31, 2014

Some Additional Obamacare Schadenfreude

Another 70 degree day here as July prepares to turn it over to August. Absolutely unbelievable.

GAO finds Administration Mismanagement Behind Obamacare Roll-out Debacle
Management failures by the Obama administration set the stage for computer woes that paralyzed the president's new health care program last fall, nonpartisan investigators said in a report released Wednesday.

While the administration was publicly assuring consumers that they would soon have seamless online access to health insurance, a chaotic procurement process was about to deliver a stumbling start.

After a months-long investigation, the Government Accountability Office found that the administration lacked "effective planning or oversight practices" for the development of, the portal for millions of uninsured Americans.

As a result the government incurred "significant cost increases, schedule slips and delayed system functionality," William Woods, a GAO contracting expert, said in testimony prepared for a hearing Thursday by the House Energy and Commerce Committee. GAO is the nonpartisan investigative agency of Congress.
. . .
Investigators found that the administration kept changing the contractors' marching orders for the website, creating widespread confusion and adding tens of millions of dollars in costs. Changes were ordered seemingly willy-nilly, including 40 times when government officials did not have the initial authority to incur additional costs.
A trick they clearly learned from the Defense Department's method of designing and building planes. However, the DOD has special test pilots to determine whether the final product is air worthy; Obamacare was tested on the body politic.

Obamacare Advocate Accidentally Makes Case for Halbig: Let's look at Ace's take
So now, rushing into the breach, here comes Crack Legal Correspondent Greg Sargent of the Washington Post, with his breathlessly reported scoop that will save the day for the Left:
Senate documents and interviews undercut 'bombshell' lawsuit against Obamacare
Let's pause for a moment and savor that headline on its own for the spectacular own-goal carnage that's about to follow.

Sargent's argument, summarized, is that of course Congress meant all along for the ACA to offer subsidies on both the state and Federal exchanges, and intent only got muddled when two separate versions of the ACA legislation (one coming out of the Senate Finance Committee and one coming out of the Health, Education, Labor & Commerce Committee) were awkwardly and imperfectly merged.

There is so much that is wrong with Sargent's legal reasoning here that it's hard to know where to start. We'll go with the money shot, I guess.
1) The first Senate version of the health law to be passed in 2009 -- by the Health, Education, Labor and Pensions Committee -- explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.
I could stop right here. In fact, I will. And so would the courts, if we were dealing with a less politicized piece of legislation.

Sargent just helpfully informed us that an earlier version of the ACA -- not a draft, mind you, but one that was actually passed out of committee -- included explicit language granting subsidies to people on federal exchanges,language that was later dropped from the final bill.

If Sargent had been an attorney rather than a layman, this is the point where he would have hit "delete" on his draft post and forgotten all about it.

One of most fundamental rules of statutory interpretation used by courts when they are asked to discern legislative intent from ambiguous statutory language is this: if explicit language was in an earlier version of a bill but dropped from the final version, the court will treat that as proof it was removed on purpose.
So they had the subsidies for the federal exchanges in the law, and subsequently dropped it? I guess that part of the hard drive holding the legislation got "scratched".  Oops!

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