Paul Krugman reminds me of the most famous typographical error in the history of printing: the omission of the word “not” in the printing of the Sixth Commandment of the Ten Commandments in a 17th century edition of the Bible. I think that Dr. Krugman is wrong. The best contemporaneous evidence we have of the authors’ intentions in the PPACA is the issue he notes was not a typo but a miscalculation on their part. They wanted to provide an incentive for states to set up their own exchanges. Oops.
Now Dr. Krugman wants the Court to correct the law’s design errors.
The PPACA is an enormous Rube Goldberg, as most of our major programs are. The differences between it and other major social programs is that it has never enjoyed bipartisan or popular support, yet another miscalculation, and its ambitions and scope are so sweeping. Draft in haste, repent at leisure.
The thing is you’re accusing an entire set of people of lying and being weak-willed, and overall working in absolute bad faith.
Because no one who orchestrated the law–not even Gruber, after being caught–is saying that the desire to have states set up their own exchanges meant that the federal exchange would not have a mandate. And there’s not even evidence after the law was passed that it was intended for anything other than giving insurance to as many people as possible.
I think we’re heading to a situation where conservatives–who lose their shit daily whenever they are not treated as totally honest actors–will happily toss out an enormous law that they oppose because liberals are all hacks, and no doubt, two days after the decision, take more offense at their own integrity.
Yeah. It’s pretty obvious that they meant to cover as many people as possible, and that subsidies were meant for everyone on the exchanges, federal or no. (There substantial documentary evidence of this, as well.)
Under normal workings of government, the Congress would just pass quick fix, but the system is broken. The Republicans would rather the entire enterprise fail than try to make it work.
” there’s not even evidence after the law was passed that it was intended for anything other than giving insurance to as many people as possible.”
That’s not true. It was also intended to keep down federal costs. Few laws have a single purpose. The law’s final language was also intended to satisfy Max Baucus’ concerns over federalizing healthcare.
It’s silly to support Obamacare with Zachriel’s rationale “It’s pretty obvious that they meant to cover as many people as possible.” No doubt a majority of Senate Democrats did mean to cover as many people as possible, but if only a few did not, Obamacare might not have passed in the Senate.
“The Republicans would rather the entire enterprise fail than try to make it work.”
Or find a point of leverage in negotiation, not repeating the jam job at PPACAs inception. Here, you dropped your pacifier.
http://hotair.com/archives/2014/11/10/video-obamacare-architect-brags-about-lack-of-transparency-in-law/
@ Guarneri : I think if you asked appellate/supreme court justices behind closed doors, they would say legislatures are always engaged in deception. They try to conceal the costs, minimize negative political repercussions, hoodwink their adversaries, manipulate the CBO, and deceive the courts.
That’s why most justices don’t really give a damn about what the legislator “says it’s doing,” as opposed to what it wrote.
The thing is you’re accusing an entire set of people of lying and being weak-willed, and overall working in absolute bad faith.
Why not? That’s what Democrats in general and elected Democrats in particular have been doing for decades now, all day every day. The next time I meet a Democrat who thinks that someone might be opposed to a Democratic proposal for anything other than the most nefarious of purposes will be the first.
Why not?
So basically you are for yanking insurance subsidies for millions of people because you were called names? And you’re willing to pretend that there was some vast conspiracy going on with the PPACA in order to get your five seconds of satisfaction? Because in no way will this be satisfaction–you’re going to be filled with rage about liberals pre-, mid-, and post- gloat.
“It’s pretty obvious that they meant to cover as many people as possible”
Well, if that were true then they could simply have extended Medicare to everyone. Of course there weren’t the votes for that. What is actually obvious is that the authors had to put stuff in the bill to get the bare majority needed for passage – one of those things was this “feature” of the exchanges.
What other explanation is there? I suppose one could argue that the Democrats who wrote the bill and put this in were simply incompetent and didn’t understand what that provision would actually do and now the wisdom of the judiciary is necessary. For the die-hard supporters of the PPACA then ends justify the means. The law they wanted couldn’t get passed and the fixes they want also cannot pass, so the only means available are Executive fiat and the courts. Personally, this aspect of politics is what troubles me most – how we get to a policy future is, IMO, more important than what that policy is. Process matters. Legitimacy matters. We have neither when a law is butchered into an incomprehensible mass to win the thinnest transitory majority for passage and then the “fixes” have be accomplished with end-runs.
Andy,
I don’t understand what you are talking about. The law clearly was passed; there was nothing illegal about how it was passed, and despite the fuck-ups with the federal exchange, the law seems to be working, at least on the side of providing insurance. Who knows about the containment of costs?
And I don’t think ‘they’ wanted anything other than a health-care law that within the constraint of not blowing up the current system would give as many people as possible insurance. In fact, the craziest part about arguing that the subsidies were not intended for the federal exchange is that it means Congress was willfully going to deny the insurance industry–who supported the law–more people paying into the system. It makes utterly no sense; which is why the CBO did not even contemplate the possibility that there would be federal exchanges w/out the subsidies.
I was quoting you about accusing others of acting in bad faith. I didn’t mention the PPACA at all.
And when this particular subsidy issue came up a few months back I was rather clear that Congress should have gotten their asses back in session to fix it.
After that, however, it became clear that the law actually HAD BEEN WRITTEN to punish states that didn’t set up exchanges by withholding subsidies. Given that, I believe the law should be enforced as written. The fuck up isn’t a fuck up, it’s a screw job intended to punish states that don’t vote Democratic. Therefore, this is the shit sandwich you guys intended to serve up, and I think it should be made clear what you did and why. Not to mention, it is the actual law as written. Not that the modern Democratic Party gives a shit about rule of law anymore.
Ultimately, the point is this: either you guys did a shitty job writing the legislation, or you meant to punish red state voters. One of the architects of the law was running around claiming it was a hammer to punish red states, so that seems clear. However, utter incompetence has been the hallmark of the Dem party these last six years, so maybe that guy was just talking out of his ass….
If the law was intended to punish states by withholding subsidies, why didn’t it happen? Where was the debate? You flip from intent to text without even grasping it. Textually,there’s nothing in the law’s writing that hints at punishment. I mean, it could be a ploy to punish the states. But it could also be a typo.
And when this particular subsidy issue came up a few months back I was rather clear that Congress should have gotten their asses back in session to fix it.
So you’re getting the subsidy then?
Andy, I don’t understand what you are talking about
Evidently you were in a coma from 2009 through early 2010.
“Personally, this aspect of politics is what troubles me most – how we get to a policy future is, IMO, more important than what that policy is. Process matters. Legitimacy matters.”
This was a recent event. There is no public discussion, or leak of private ones, indicating that they intended subsidies to be so limited. There is evidence to the contrary. So, what I find objectionable, is using the courts to invalidate laws secondary to ambiguous wording when the intent was known. Just more of the lawyerization of the country.
Steve
I think you are correct, PD. They had competent lawyers who knew what words to use.
One of the architects of that proviso went around giving speeches at the time stating that was the intent. Too lazy to look itvup now. But if your defense is that they were too incompetent to write clearly, fine.
As for why they didn’t do it? It proved more unpopular from the get go, more states rejected it than anticipated, and the political calculations changed. Not to mention that the Obama Administration hasn’t exactly been noted for its follow-thru on anything other than running Obama for office. (No wonder they’re drifting now.)
CStanley.
How was this law illegitimate?
Drew, the law means what they say it means today. They know the intent of the writers! Just like they know that Madison, Adams & Co meant for the Constitution to guarantee the right of transsexual hermaphrodites* to get married after adopting Third World children with Ebola while smoking weed.
* They switch their boy parts to girl parts & vice versa. Don’t even get me started on blum…. No, nevermind…..
“There is no public discussion” Well yes, that was a problem. There was not enough public discussion of many parts of the law which was probably intentional and definitely problematic.
What is your explanation for the language of the law? Incompetence by the authors? Something else? That passage didn’t write itself.
“How was this law illegitimate”
I don’t think anyone is saying the law was illegitimate or illegal. One can disagree with the way it was passed and the law’s contents and effects without declaring it illegitimate.
Andy, those declaring that the law means something other than what was written seem to think that at least one section is illegitimate, and should be fixed by executive fiat. (I guess they think the parts of the Constitution about who does and doesn’t write the laws are illegitimate, too.)
Modulo- illegitimate and illegal were your words, not Andy’s. What he was describing was the torturous process by which the bill was crafted and dragged across the finish line, which no one in the US at the time could have missed.
And I don’t think the intent was to lessen the number of subsidies but the language was clearly not a mistake either. They wrote it as they did because they thought it created leverage to get the states to create exchanges. It was essentially a really stupid bluff, and a lot of states called them on it.
And full disclosure here, while I’m no fan of the PPACA and especially the method by which it was passed, I am not in the “conservative’ camp, so I hope people don’t make assumptions based on my comments. I’m not ideologically invested in any particular major health care reform – if moving to vouchers or single-payer would produce a sustainable system that provides adequate care at acceptable cost then I would support it. Sustainability must be demonstrated, however, I do not take advocate’s claims at face value.
There have been two court of appeals decisions on this issue. One for each side, and neither relied upon “evidence” from public or private discussions.
Whether or not the law is ambiguous is disputed. The D.C. Circuit Court of Appeals found that the law was not ambiguous. The 4th Circuit Court of Appeals was persuaded that the contrary argument was “the stronger position, although only slightly.”
Such certainty and hostility resting on such slender threads. This is a reasonably disputed issue.
Ice
Look at my link. It’s not even Politics of Dancing.
To put it another way, when one argues (as the Administration does) that the law is ambiguous, as a legal matter, one is arguing that the law is susceptible to two or more interpretations. (This is the first step to arguing that the IRS therefore has discretion to choose).
@CStanley
Modulo- illegitimate and illegal were your words, not Andy’s.
He/she knows that, but it is a hustle. This is three card Monte. You all are following the bent card, but it is a setup. In the unlikely event that you actually guess right, they will have their buddy mug you and steal the money back.
The states were supposed to setup their own exchanges. The subsidy penalty was the bent card. They were not supposed to pick it, but they did. A baseball bat can solve the problem, and Obamacare will pay for the wheelchair.
Heads, I win. Tails, I break your legs. It is a win-win.
Yves Smith posted a one-minute video clip of Jonathan Gruber, one of the architects of the ACA, describing how “the stupidity of the American voter” was key to passing the bill.
https://www.youtube.com/watch?feature=player_embedded&v=G790p0LcgbI
Heh, yes, great analogy TB.
Drew, didn’t have you pegged as a Re-Flex fan, but that was a great tune.
As for Gruber’s comment: Given that the bill essentially didn’t get a public hearing, his call for a lack of transparency to fool the stupid American voter was just overkill.
That’s some of what I saw and read a few months ago that convinced me the subsidies were to be a club to force the states to run the exchanges and expand Medicaid. So the President wanted this club, let him use it. It’ll be funny seeing him whack poor people (again) in order to ‘punish’ powerful state legislators. “This is gonna hurt them way more than it hurts you or me, so you’d better cave in now!”
The video is pure, undiluted ’80s…..
http://m.youtube.com/watch?v=eabefjsJsAQ
The Gruber video is a pretty disturbing example of the ends-justify-the-means attitude that bothers me so much. Who cares about process, legitimacy, sustainability and longevity when you’d “rather have the law than not.”