Taking as his point of departure the same Paul Krugman column that was a point of departure for me yesterday, James Taranto makes a similar response to mine:
Left-liberal commentators are characteristically apoplectic, but few if any dispute the plaintiffs’ central contention: that the language of the statute does limit the subsidies to taxpayers who purchase policies on state exchanges. Today’s column by former Enron adviser Paul Krugman—who asserts that “the court shocked many observers†by taking the case—goes through all the alternative arguments and adds a new one that is particularly imaginative and revealing.
The column’s title, “Death by Typo,†signals two of the arguments. The oft-heard claim that the statutory provision is a mere “typo†is frivolous. “There is a specific legal doctrine that deals with typos—the scrivener’s error doctrine,†observes Sean Trende of RealClearPolitics. “As far as I can tell, the government has not asserted the scrivener’s error doctrine in this case. It isn’t that someone mis-copied the bill upon publication. At best, it is that the bill was not carefully edited enough before being debated and voted upon.†(He means “carefully enough edited†or “edited carefully enough.â€)
Krugman asserts further that regardless of what the law actually says, it is “clear from everything else in the act that there was no intention to set such limits,†and, moreover, that “you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.â€
That is at best debatable. As we noted in July, one of the law’s architects, Jonathan Gruber, endorsed the plaintiffs’ claim in early 2012, although he now disavows it and falls back on the “typo†excuse.
Moreover, many lawmakers who voted for the act—along with the president—asserted at the time that it was their intention to ensure that “if you like your plan, you can keep your plan.†In that respect, the law trumped the intention. Does Krugman think the executive branch has the authority to nullify a law based on its preferred view of the “intention� We’ll believe that if he makes an analogous argument when a Republican is in the White House.
He does put more flesh on the bones of the argument than I did as befits a man who makes his living by stating opinions unlike me for whom it is merely a hobby.
I wish that those who want the Supreme Court to make up for the Congress’s miscalculation would produce a clear statement of how they would like the Court and, more generally, the government to function not just in this specific case but as a general rule. Is it their preferred approach to government that the president articulate some lofty goals, the Congress endorse that by dumping a boatload of hastily drafted thoughts onto pages, basically whatever they can get the votes to enact, and the Court, the least democratic of the three branches of government, remedy the deficiencies later?
What was it that the road to hell was said to have been paved with? The idea that intentions can be imputed from political affiliation makes me very uncomfortable.
Quite to the contrary I think that you can infer intentions from what people actually do.
Well, what people did was have the federal exchange offer subsidies. It’s a pretty straight line with this law.
And outside of hand-waving about Jonathan Gruber, there’s nothing debatable about what the laws’ drafters are saying. The subsidies were intended for the federal exchange. If Taranto want to say that the drafters are lying, he should say it, rather than hiding behind the idea that it’s ‘debatable’.
The law was passed 5 years ago. This could have been challenged anytime since then. Instead, it has been brought after the exchanges were up and running, clearly intended for maximum embarrassment.
So what I want is functional govt. If a law gets passed by both houses, let it get reconciled with needed changes without needing 60 votes. If the law is being implemented in line with the intent of the writers of the law, let’s not have endless lawsuits quibbling over possible meanings. I, and I think a lot of other people, are pretty cynical and skeptical now about the whole issue of what laws mean. It clearly means whatever SCOTUS says it means, and I don’t see how we can pretend they are remotely objective or committed to a fair interpretation of the law.
How is this for an offer. Once a law passes you have a year to make legal challenges. That way we don’t see taxpayer money wasted like this.
Steve
I don’t think you need to look for conspiracies to explain the timing, steve. The timing is inherent to the way the law was written with different aspects phased in over time. An earlier challenge would not have had standing.
How’s this for a counter-offer: every component of every law must take effect immediately.
@steve
How is this for an offer. Once a law passes you have a year to make legal challenges. That way we don’t see taxpayer money wasted like this.
This will be quickly followed by, “It seemed like a good idea at the time.” It is politically advantageous to this particular law, but you will suddenly change the terms when it is politically disadvantageous.
As with any hustle you have bent the card, and you are expecting the suckers to go for it.
Boys and girls, the way to deal with a hustler is not over the hustle. Force the hustler to define the terms using concrete concepts. This will take patience because anything concrete will destroy the hustle. The hustler works by twisting vague and undefined terms.
Boys and girls, you must be especially carefully when dealing with a hustler. Many are harmless, but some are dangerous. As the hustle is exposed, they will begin to lash out, and they will attack you personally. This a tactic to distract you from the hustle. Stay focused. Do not address the attacks – at all.
Just jumped back into the archives to see what was going on this time last year at The Glittering Eye.
A) Props to PD Shaw for noting Halbig in Worst Scenario for the PPACA.
B) Obamacare, oddly enough, is still around, and vibrating.
C) There is absolutely no care, concern, mention, or fixation on the evil attack by the federal government on the states with the vile subsidy.
D) Steve deserves some sort of award.
@steve, this is how our system works.
Congress passes a law, giving executive agencies discretion to promulgate rules to implement it. Congress restrains abuses of that discretion through (a) specificity in the legislation, (b) legislative oversight and (c) right of judicial review. One of the most frequent means of seeking judicial review is the Declaratory Judgment Act of 1934, which among other things gives anybody adversely affected by an agency rule, the right to ask for the courts to interpret the law and enjoin an agency misinterpretation. I don’t think it is at all a coincidence that the rise of the regulatory state with expanded judicial review(*); it builds confidence that the executive won’t abuse the power given to him. If you reduce legislative checks on that power, you reduce the willingness of the legislature to grant it in the first place. And do you know who brings these lawsuits? The ACLU, the Sierra Club, NARAL, AFL-CIO.
In any event, this lawsuit challenges the IRS Rule promulgated May 23, 2012. A lawsuit was filed in D.C. court May 2, 2013. Even if there was political support for a one-year statute of limitation on rule-challenges, it would only harm less sophisticated individuals.
(*) Also, Administrative Procedure Act of 1946
PDShaw from October 23, 2013:
“I think this lawsuit, Halbig v. Sebelius, is a big issue/unknown as well. If the Administrations loses then I’m not sure what happens to the countless people who will have bought insurance on the federal exchange in reliance upon the availability of the subsidies. Its my understanding that as initially written the subsidies were in the form of tax credits to be claimed on the following year’s tax return. Then by rulemaking, participants were allowed to get premium reductions at the time of payment subject to income verification both at enrollment and on the subsequent year’s tax returns. Unless there is some law that allows the taxpayer to rely on IRS rules later determined to be invalid, there could be a huge tax liability in the future if the lawsuit is lost.
The two ironies here: (1) Most of the computer problems on the federal exchange appear to stem from these issues of the subsidies and income verification. (2) To uphold its interpretation of the ACA, the administration will have to argue that the ACA was not written very well and there are multiple reasonable interpretations of the subsidy-provisions, which entitles the executive to select one.”
I think that holds up pretty well. I don’t think it conveys how upset I was at the risk to people/states relying on an IRS Rule later determined to be invalid. I still don’t know what that would mean, but it was reported this week that Illinois has no current plans to develop a state exchange.
I think it’s worth adding that for a rules-based regime to work there’s got to be a way to know what the rules are. The farther we travel down a road of interpreting laws and regulations based on intentions divined from post hoc recollections the less possible it is to know at any given point in time what the rules are.
As I have said any number of time since the president signed it into law, I’m not an opponent of the PPACA. I wish it had been written better, I wish it had not been phased in, and I wish the president had not seen fit to delay implementation on some of its aspects because I think that those three things keep the ball up in the air.
We need to determine what the effects of the PPACA are so we can get back to the urgent task of reforming healthcare.
I can tell you based on firsthand knowledge that there many, many state employees who were very crestfallen with the results of last Tuesday’s election. There had been hopes that Gov. Quinn would push for a state exchange in a second term and those hopes have been very badly shaken.
It may happen yet. The Illinois legislature could mandate the creation of an Illinois exchange and override a Rauner veto if any. However, based on experience the legislature probably won’t act until the regular session is at or nearing its end which could make overriding a veto impossible.
“If the law is being implemented in line with the intent of the writers of the law, let’s not have endless lawsuits quibbling over possible meanings.”
How about, instead, we have laws where the meaning is clear in the language of the law?
Regardless, there are always disputes, differences in interpretation, etc. that will require adjudication and that can only happen in a court, not what some legislator or staffer claims he/she intended after the fact.
This is a good post from a lawyer opposed to the challenge to the IRS rule, trying to explain how to argue about the government’s side of the case:
“The liberal critics of the Halbig decision have fallen into this trap not once, but twice. First, folks started by saying that the decision (or the challengers’ arguments) were “absurd!†In matters of statutory interpretation, “absurd†has a special meaning. A law isn’t absurd just because you don’t think that’s what the legislature intended. The law must be objectively absurd! . . .”
“The claim of absurdity in Halbig was easily rebutted by conservative scholars who pointed out that in numerous other instances, Congress had done precisely what the critics were calling “absurd†in this case: Congress had conditioned benefits for a state’s citizens on the state’s agreement to go along with some sort of congressional plan. If Congress had set up precisely this sort of system of sticks and carrots before, then it can’t be “absurd†to say that’s what Congress was doing here.”
“A similar thing happened with arguments about congressional intent. Yes, the vast majority of contemporaneous analysis and coverage of the ACA drafting and debates assumed that state citizens enrolled under federal exchanges would be eligible for tax subsidies under the ACA. Nicholas Bagley has a nice summary here. But that’s not really the argument liberals were making in the wake of the Halbig decision. Nope. Instead, what I heard was a lot of “no evidence†claims—a lot of articles along the lines of “Nobody with any knowledge of the ACA who was paying any attention or was in any way involved during the drafting of this legislation ever even considered that the subsidies wouldn’t apply to citizens of states with federal exchanges.â€
“You know what happened next. Folks found two clips of a person intimately involved with the legislation saying that exact thing. And now, because liberals led with the “no evidence†sort of argument, they are left on the defensive while conservatives think they’ve found their silver bullet. Of course the Gruber clips need to be weighed against the greater context, but the “no evidence†argument has been lost. It wasn’t even an argument we should have had in the first place.”
He argues for making the case based upon the text.
What was that URL, PD? I’ll paste it in.
@Dave, a local newspaper story suggested that the federal/state co-operative arrangement hit some sort of sweet spot for the state in terms of degree of state control over the program, plus federal money. That’s all well and good as far as I’m concerned, but I think it puts participants at risk from an adverse SCOTUS ruling.
Oops: Link
That touches on a point I’ve made here pretty persistently over the years. Risk tolerance varies. It’s not just that one person’s tolerance is right and the other’s wrong. It’s that they’re different.
If the Congress doesn’t move to extend the federal underwriting of expanding Medicaid (and that’s looking decreasingly likely) and/or if healthcare costs rise sharply there are some governors who are going to look like f*ing geniuses.
Done. Thanks.
PD Shaw–
Well, the text is ambiguous:
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 …
….
(E) Any information provided to the Exchange, including any change of circumstances, necessary to determine eligibility for, and the amount of, such [1402, tax subsidy] credit.
To me, a non-lawyer, this sounds like the law is saying that the federal exchange (1321) is involved in the subsidy, which undercuts the whole idea that the drafters intended to use the subsidy to force the states to create exchanges. And without that, what exactly is there in this case?
Here is an excerpt from the case of Roe v. Wade:
“Texas first enacted a criminal abortion statute in 1854. This was soon [in 1857] modified into language that has remained substantially unchanged to the present time. . . . Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the
county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. ”
Jane Roe didn’t challenge the law in 1857 because she wasn’t born yet, and if she had been alive, the law didn’t effect her then anyway. And the rule of law was more receptive to her complaint in 1970.
MM: I’ve never read the text of the ACA so I have no opinion about the ultimate merits. My link at 3:08 encourages people to make arguments from the text, but unfortunately that’s probably hopelessly naive because the reading assignment is too large. I’ve read the Court of Appeals decisions, and from that it seems like it could go either way.
Me neither. And I don’t plan on starting.
I think it could go either way, but that’s like making a guarantee that it will be 5-4. Not very hard.
There’s this:
The Chevron decision established a two-step test to be used by courts in such situations. Under “step one” of the Chevron doctrine, the court should determine whether Congress has directly spoken to the precise question at issue. If it has, that is the “end of the matter.” If however the statute is silent or ambiguous on the issue, the court moves to “step two.” The question then is whether the agency’s answer is based on a “permissible” construction of the statute. If so, then the court should defer. Under this test, courts usually defer to the agency interpretation if they get to step two. Therefore the key question tends to be the step-one question of whether the statute is clear.
There’s a ton of evidence that Congress intended for the subsidy to exist in the federal exchanges, including CBO projections and emails sent during that time. The statute clearly has wording that indicates that the federal exchange is involved with subsidies, and after the law was passed, sure enough, the federal exchange had subsidies.
The Supreme Court is going to be faced with arguing something very extreme. This isn’t like talking about the Commerce Clause. It’s like making Congress into conspirators to coverup an alien crash landing. .
That “ton of evidence” doesn’t appear to be legal evidence though, the court’s won’t consider it. Here is a quick thumbnail of why:
When courts interpret statutes, they always start with the text and end with the text unless they determine the statute is ambiguous. “Ambiguous” means capable of more than one proper interpretation. If you look at the description of the Chevron test, you can see that if the statute is ambiguous, it is pretty much “game, set and match” because the IRS rule will be considered a possible interpretation. There is no need consider other evidence to find out what is the best or preferred interpretation, the Congress implicitly allowed the IRS to make that decision.
The D.C. Circuit ruled against the Administration because it found the statute was not ambiguous. If the statute is not ambiguous, the courts do not look at extrinsic evidence.
So, in this particular type of case, which challenges an agency rule, non-textual evidence is irrelevant.
Part II — If courts consider “extrinsic evidence,” they consider a very limited range. It must be legislative history, official public materials that existed prior to the law being passed. The three most common are (1) prior versions of the bill introduced during the session; (2) reports of committees that pass the bill to the floor; and (3) transcripts of floor debates on the bill.
There really is no legislative history on the ACA to speak of because it was formed by Reid from pieces of other bills outside the normal committee process and only released when he had 60 votes to shut-off argument.