Home / General / “Well, Conjecture, Tendentious Misreadings, and Cherry Picking Are <i>Kinds</i> of Evidence.”

“Well, Conjecture, Tendentious Misreadings, and Cherry Picking Are Kinds of Evidence.”

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Neil Seigel summarizes the problems with the hackwork of the 2 (of 8) federal judges who accepted the latest and possibly very weakest ad hoc challenge to the ACA perfectly:

Halbig and King (plus the Indiana and Oklahoma cases) are different. I can accept as reasonable, even if ultimately unpersuasive, the argument that the relevant provisions of the ACA are ambiguous. What I cannot accept as reasonable or responsible, however, is the argument—accepted by the D.C. Circuit panel majority in Halbig—that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished when it passed the ACA: self-destructively limit the tax subsidies that make health insurance affordable for millions of Americans to those who have the good fortune of happening to reside in states that set up their own health insurance exchanges.

As we’ve discussed before, the bolded fact is critical — we’re being asked to believe that Congress “clearly and unambiguously” did something that both makes no sense on its face and that neither federal officials nor state officials (some who certainly would have established exchanges had they thought their citizens wouldn’t be eligible for the tax credits) thought it did.

Trying to get around this problem, some conservertarians who are gleeful over the prospect tens of millions of people being denied medical care and hence determined to stop the legislation from working believe they have a smoking gun: a youTube video featuring ACA “architect” Jonathan Gruber seeming to claim that subsidies would not be available on federally established state exchanges. Well, I happen to have Jonathan Gruber right here, and:

Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. “I honestly don’t remember why I said that,” he said, attempting to reconstruct what he might have been thinking at the time. “I was speaking off-the-cuff. It was just a mistake.” As evidence that it was not indicative of his beliefs, he noted that his projections of the law’s impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.

[…]

[Gruber:] But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.

There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.

I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsides would be conditional of who ran the exchanges.

So much for that. Gruber seems to gave been suggesting that states that didn’t set up their own exchanges might have their citizens temporarily denied the tax credits depending on the progress of the federal backstop, not that any such denial would be permanent.

But let’s assume for the sake of argument that Gruber, not only when asked to clarify his remarks but in his contemporaneous cost projections, was mistaken and the interpretation of some of Gruber’s extemporaneous remarks most favorable to the arguments of those who hate the ACA is correct. The argument is still roughly 99 parts water to 1 part tea.  We still have essentially everyone responsible for drafting, voting on and/or implementing the legislation at the federal and state levels (not to mention the Sebelius conservative joint opinion) assuming that the federally established exchanges were intended to work, and a consultant making a bare assertion with no explanation that the federally established exchanges weren’t intended to work. It’s pretty obvious which is more significant, particularly since the next decent explanation for why Congress would bother to create a federal backstop that couldn’t actually function would be the first.  Picking a single cherry out of a massive vat of nectarines is exceptionally weak evidence that we’re looking at a vat of cherries.

And, again, let’s return to Seigel’s first point. The challengers don’t just have to show that their interpretation is plausible; they have to show that it’s the only possible reasonable interpretation. Even if we assume that Gruber in a a single ambiguous YouTube video trumps everything Gruber has said before or since, a single ACA supporter agreeing with the silly interpretation of the law created after the fact by some of its most fanatical enemies is of little help in climbing Mount Chevron.  Congress didn’t establish a federal backstop that was designed to fail; they established a federal backstop because they knew some states wouldn’t establish health care exchanges and they wanted to substantially reduce the number of people without health insurance.  Unless you insist on projecting your own hostility to the federal government acting to expand coverage onto members of Congress who rejected it, this is entirely obvious.

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  • Ah, thanks for the Gruber link. Didn’t mean to derail the last thread like that!

    … Also, Google suggests you just coined “climbing Mount Chevron.” Nice!

    • sharculese

      It wasn’t really you who derailed it so much as the paid spambot.

    • Marek

      Great phrase, destined to become a euphemism.

    • Joe_JP

      you are such a troublemaker

  • sibusisodan

    Well summarised, thank you.

    I’m curious about the calculus here: at what point did the these kind of frivolous legal arguments start gaining traction in the courts?

    Obviously I’m more aware of them post-ACA, but when did this kind of stuff go from ‘you want me to do what? Any judge will throw that out, thanks, you’ll receive my bill in the mail’ to ‘well, it’ll get overturned on appeal, but we have a chance of getting it before SCOTUS’?

    • sharculese

      12 noon on January 20, 2009.

      • Fearless Navigator of the New LGM Comment System

        There are at least two pre-2009 cases with a party named Gore that fall into this category.

        • Scott Lemieux

          I once had a talk with someone involved with the early stages of the Bush v. Gore litigation. Both sides considered the equal protection argument so frivolous that they made little effort to even prepare for it.

          • Fearless Navigator of the New LGM Comment System

            Email me (I assume the new comment system can facilitate that) and I have a similar NFIB parable that I’m not going to post on here.

          • Oh, did I ever get burned on a case once, where the “too goofy to address at length” argument ended up being the holding.

            Explained its deficiencies on rehearing, but that was too late.

          • Joe_JP

            One thing that came to mind in the Hobby Lobby case is that the claimed alternative means the government had is so cloudy. It isn’t clear HL would even accept it.

            A sane conservative response might have been there to remand for a re-hearing on the specific point. We don’t have Justice Harlan (II) around any more though.

            • Fearless Navigator of the New LGM Comment System

              One thing that came to mind in the Hobby Lobby case is that the claimed alternative means the government had is so cloudy. It isn’t clear HL would even accept it.

              Marty Lederman had a post on it yesterday in Balkinization. At least some of the religious accommodation plaintiffs won’t accept it (obviously, because they’re suing), and they won’t accept the Wheaton College modified accommodation where they don’t fill out a form, they just notify HHS or their TPA by whatever means they want.

              These plaintiffs point blank oppose participating in any system that results in their employees being offered contraceptive coverage regardless of who pays for it, who offers it, or what they have to do (or not) that results in it.

              • Hogan

                So are they going to stop paying income tax on their UBI? Because that still implicates them in this system. Maybe they should just move to Uganda and be done with it.

                • cpinva

                  “So are they going to stop paying income tax on their UBI?”

                  they’ve been shrieking about this forever, so it wouldn’t at all surprise me if some religious non-profit were to now argue, based on hobby lobby, that anything remotely connected to the religious activity itself (well, the money earned is eventually going to the religious activity, right?), should be treated as exempt income. just you wait and see ‘enry ‘iggins!

              • Joe_JP

                At least some of the religious accommodation plaintiffs won’t accept it

                This was red flagged in orals though the SG to me was a bit lackluster covering the point. This case could have used amicus time for the employees. ML btw has a marathon going on regarding this case. It’s somewhat silly by this point.

    • Fearless Navigator of the New LGM Comment System

      Ever since lawyers started having the revelation (true or not) that if you can get your case before a sympathetic judge, all you need is for your argument to be barely plausible.

      So pretty much forever.

      • Ever since lawyers started having the revelation (true or not) that if you can get your case before a sympathetic judge, all you need is for your argument to be barely plausible.

        Or perhaps, “for your argument to be to ends the judge likes.”

        • DrDick

          Pretty much the central principle of the conservative caucus at SCOTUS.

    • catclub

      The Roberts decision on Medicaid expansion is certainly a signpost on the journey.

    • rea

      It dates back to the early 80’s, when these guys started gaining influence.

  • c u n d gulag

    “…we’re being asked to believe that Congress “clearly and unambiguously” did something that both makes no sense on its face and that neither federal officials …”

    Me thinks these judges thought that a Republican Congress must have passed the PPACA bill, and George W. Bush signed it into law.

    No, it was passed by a Democratic Congress, and signed by the Democratic President – you know, people who actually care about governing, and not just power and control.

  • catclub

    You don’t want to read McArdle on this. Trust me.
    http://www.bloombergview.com/articles/2014-07-25/the-surprise-obamacare-ruling-that-wasn-t

    Day late, dollar short. No mention of the 4th District ruling.
    No mention of Siegel’s argument. No surprise.

    • Aimai

      Not going to do it. You can’t tmake me.

    • Fearless Navigator of the New LGM Comment System

      Fourth Circuit.

      • catclub

        Oops, my mistake. Thanks.

        Also, good on ya, aimai.

    • sharculese

      To be sure, this was still two years after the law passed, and my understanding is that the court is not supposed to pay attention to post-facto statements about the law’s effect or intent. But unless this is some sort of elaborate hoax, I think this definitively puts to rest the notion that none of the bill’s architects could possibly have thought or intended that the law would have this effect. Gruber thought the law would have this effect — and if anyone would know, he would.

      To be fair, she said that it was just her understanding, so she’s not technically lying. But dear god, what a stupid, stupid person.

      • Fearless Navigator of the New LGM Comment System

        Ironic Point: She’s actually wrong, though it’s in favor of her main point. Courts will often give some weight to how the main drafters of an ambiguous law apparently thought it should be enforced in the immediate aftermath of passage, especially when that was several decades before.

        Serious Point: I think a pretty decent argument could be made that when Congress took no action to address the IRS’s regulatory guidance in 2012, this demonstrated that they thought the guidance was at least consistent with legislative intent.

      • David Hunt

        To be fair, she said that it was just her understanding, so she’s not technically lying.

        Any time that McMegan says she understands anything more complicated than “Microwave on full for two minutes”, she’s lying.

        • KadeKo

          Do you think she’s never had a “Crap, I forgot to take the foil off!” moment?

          (h/t Barry Zuckercorn)

    • Srsly Dad Y

      And not even a passing mention of a certain Mr. McSuderman, who wrote basically the same post for Reason a day earlier.

      • sharculese

        McMegan is totally aware that she’s one mistake away from Bloomberg realizing that she can be replaced with an intern who aggregates links.

        • Srsly Dad Y

          Oh, come on, like an intern without a Chicago MBA could really crank out instant classics like “Everyone Wins When You Buy a Rotisserie Chicken” and the “The Fed Can’t Lower Your Grocery Bill.”

    • Rob Patterson

      Ha! She cites Gruber’s 2012 comments as the “smoking gun” in an article published about 3 hours before Gruber repudiated said comments. Even given who wrote it, that article is just comically inept.

  • Cervantes

    Your dreams of reason are in vain. We all know that the Supreme Court will rule, 5-4, that people in states with federal exchanges are not eligible for the tax subsidies. Nothing anyone writes or thinks or argues can change that.

    • Snarki, child of Loki

      Of course, and Roberts et al will justify it based on some lint that got stuck on his pocket copy of the CSA Constitution, that guides all of his most important decisions.

      Because, what are ya gonna do? Impeach him?

      • humanoid.panda

        As much as the Roberts five are hacks, I doubt Roberts himself will sign up for that. First, he already indicated he doesn’t want his blood on this specific knife. Second, and more importantly, going with Halbig will a) totally disrupt insurance company business and b) put republicans everywhere in really tight spot. I don’t think he goes there, and I’d even guess that when the en-banc panel of the DC circuit reverses decision, he will lobby his friends to deny cert to keep that hot potato off his hands.

        • Pat

          Agree that Roberts will go all in to protect corporate interests. It’s been a pretty safe bet so far.

        • efgoldman

          I don’t think he goes there, and I’d even guess that when the en-banc panel of the DC circuit reverses decision, he will lobby his friends to deny cert to keep that hot potato off his hands.

          That’s been my question right along. If two appeals circuits eventually rule against Halbig (and isn’t there another one on the way, somewhere) and no circuit appeal succeeds at that level, would even the Five Savonarolas take it up? Because under those circumstances, the only reason to do so is specifically to reverse, in one tendentious way or another, right?

          • Fearless Navigator of the New LGM Comment System

            They certainly could under Rule 10(c). I’m not sure whether they would. The realist in me thinks that it depends on who wins in 2014 and 2016. If the issue could be resolved — either through a statutory clean-up or by a GOP administration reversing the IRS interpretation or taking ownership of it — then I suspect that SCOTUS wouldn’t grant cert in the absence of a circuit split. But I don’t know.

  • FlipYrWhig

    I think this set of remarks by Gruber gives some credence to my idea that he said “tax credits” because he had just been talking about the subsidies, but his real subject in the part about “squeezing” was the Medicaid expansion, especially because at the time of his remarks the SCOTUS had not yet ruled that the Medicaid expansion was optional. In essence, he says “tax credits” while thinking about the broad category of “what your citizens’ tax money buys,” and doesn’t realize he’s said a phrase from the first part of the argument (why set up exchanges) while discussing a separate part of the larger argument (why would states choose to follow the law). IOW, if he had simply said “tax money” instead of “tax credits,” there’d be no discrepancy between what he said at that moment and the way the law was written and passed and understood before the NFIB decision.

    • catclub

      Another convincing part to me was no one put it in their models.
      They understood that some states would not set up their own exchange, but the models still put 100% in subsidies if they were eligible.

      The fact that no one, from Obama on down, Democrat or Republican, mentioned this aspect of the law, is also pretty important.

    • Rob Patterson

      The subsidies are the tax credits. He was asked specifically about the exchanges, and how the Federal government would establish them in states that did not set up their own, and said, “The important thing to remember politically is that …” (if a state doesn’t set up its own exchange, its citizens won’t get tax credits). He certainly didn’t appear to be confusing the exchanges with Medicaid, but I have no idea why he then appeared to buy the Halbig argument.

      As has been noted, Scalia’s dissent in NFIB v. Sebelius cites the CBO’s exchange projections, and so implicitly accepts that subsidies are available on Federal exchanges.

  • CaptainBringdown

    If Congress intended for the federal exchanges not to work in order to incentivize states to create their own exchanges, why on earth did they bother to create the federal exchanges at all?

    Jesus.

    • Fearless Navigator of the New LGM Comment System

      It’s a nice place to shop online for the 14% of healthcare.gov enrollees who don’t need subsidies?

      • catclub

        Funny. It was a terrible place to shop for the first 3-4 months or so. Going direct to the insurers was much better.

    • dave_m

      Apparently the idea was to force the states to comply and build their own exchange by threatening to allow them to completely drop out and not comply with the law at all. It makes total sense.

    • mpowell

      It’s funny and sad at the same time. Go read some conservative blogs and the posts. Part of the problem is that they aren’t even talking about Chevron. So many of those folks don’t even realize the burden here. They just think, hey, I prefer this other interpretation. They don’t even realize that if the IRS interpretation is plausible, their side has already lost. This is how you get group think. You’re just missing important information/details. And then a bunch of people repeat to each other that their interpretation is obviously more plausible. If you hear a story enough times, you start to believe it, all else being equal. That’s just a part of being human.

      • Fearless Navigator of the New LGM Comment System

        Part of the problem is that they aren’t even talking about Chevron. So many of those folks don’t even realize the burden here. They just think, hey, I prefer this other interpretation. They don’t even realize that if the IRS interpretation is plausible, their side has already lost.

        There’s been a ton of empirical work in the past decade or so showing that Chevron is basically the reverse strict scrutiny. If the court is citing it (except to say it doesn’t apply), the government has already won.

    • David Hunt

      Of course, the entire purpose of a Doomsday Machine incentive is lost…if you keep it a secret. Why didn’t they tell the wolrd?

      • catclub

        I did not know, until someone posted the script, that the Russian Ambassador in the movie was named deSadesky.

      • Alvin Alpaca

        They like surprises?

        • Alvin Alpaca

          Missed it by that much! Should have scrolled down a little further…

    • Code Name Cain

      It seems to me there are weak legal arguments, there are incoherent legal arguments, and then there’s this case which is the legal equivalent of homeopathy.

      The number of conservatives coming out to support this farce would be embarrassing if anyone left in modern American conservatism was capable of feeling shame.

  • jamesjhare

    The really telling bit is that Lionel Hutz would be embarrassed to bring either of those cases.

    • Lionel Hutz

      And I sued a movie!

      • Stan Gable

        Works on contingency? No, money down!

        Always loved that one…

        • Hogan

          Also I should take out that bar association logo.

          • Stan Gable

            Lionel Hutz: Now don’t you worry, Mrs. Simpson, I… uh-oh. We’ve drawn Judge Snyder.
            Marge: Is that bad?
            Lionel Hutz: Well, he’s had it in for me ever since I kinda ran over his dog.
            Marge: You did?
            Lionel Hutz: Well, replace the word “kinda” with the word “repeatedly,” and the word “dog” with “son.”

            • Hogan

              I’ve argued in front of every judge in this state. Often as a lawyer!

              • Katya

                Lionel Hutz: And so ladies and gentlemen of the jury, I rest my case.
                Judge Snyder: Hmm. Mr Hutz. Do you realize you’re not wearing any pants?
                Lionel Hutz: I… Ahh! I move for a bad court thingy.
                Judge Snyder: You mean a mistrial?
                Lionel Hutz: Yeah! That’s why you’re the judge and I’m the law talking guy!
                Judge Snyder: The lawyer?
                Lionel Hutz: Right.

              • Katya

                Lionel Hutz: Well, I didn’t win. Here’s your pizza.
                Marge: But we did win.
                Lionel Hutz: That’s okay. The box is empty.

    • FlipYrWhig

      His doctrine of attorney-dumpster confidentiality was ahead of its time.

  • liberalrob

    Back to the Prof’s Guardian article:

    But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel.

    It’s not remarkable at all. It’s entirely predictable and expected. What do you think has been going on for the past 14 years? The judiciary has been a battleground since the Clinton Administration:

    http://articles.baltimoresun.com/2001-01-08/news/0101080009_1_supreme-court-federal-judiciary

    Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people [it] is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.

    Indeed not.

    Norm Ornstein wrote a piece about this whole situation in The Atlantic a couple of weeks ago:

    http://www.theatlantic.com/politics/archive/2014/07/how-the-courts-could-still-doom-obamacare/374586/

  • Joe_JP

    This discussion is appreciated though it probably gives more credit to the other side than deserved to spend so much time over it. Andrew Koppleman’s New Republic piece is telling too.

    But because he is eligible for a subsidy, the insurance isn’t unaffordable for him, even at his low-income level. So he has to buy subsidized health insurance, at a cost of about $1.70 a month, or $20 a year. (For reasons of principle, he in fact refuses the subsidy.) So he is asking the court to invalidate the subsidy.

    http://www.newrepublic.com/article/118822/halbig-v-burwell-example-moral-dysfunction

    The principle of the thing is the important thing, yes.

    • sibusisodan

      That is just bizarre. So, he’s eligible for subsidies, but not obligated to take them. Because of his income level, he won’t have to pay the fine/tax for not doing so (and – guess what – is ignorant of that fact!). So, he won’t have to use the subsidies, and isn’t penalised for not doing so.

      Can one of you law-talking people explain the harm he’s suing to have removed?

      • efgoldman

        Can one of you law-talking people explain the harm he’s suing to have removed?

        Only if Lewis Carroll or Professor Irwin Cory passed the bar exam.

      • Joe_JP

        My take from the article would be that that he has to pay something — if the provision stands, that is, he has to pay that $20, which is pretty de minimis, but enough to give him standing. If he wins the case, he would save that money. The article explains how this is a bit sociopathic.

        • sibusisodan

          From the New Republic article:

          His income is so low that he would be eligible for an “unaffordability exemption” under the ACA, which would excuse him from paying a tax penalty for going uninsured.

          Having just checked the exemptions it would only be the case for this guy if he was the sole earner in a married household (which is the $20k threshold for the IRS), or had suffered one of the qualifying hardships this year. So perhaps the article is wrong on that point?

          If the article isn’t wrong, does the fact that he would have to file a form to get the exemption confer standing?

          • liberalrob

            His income is so low that he would be eligible for an “unaffordability exemption” under the ACA, which would excuse him from paying a tax penalty for going uninsured. But because he is eligible for a subsidy, the insurance isn’t unaffordable for him, even at his low-income level. So he has to buy subsidized health insurance, at a cost of about $1.70 a month, or $20 a year.

            He doesn’t qualify for the exemption, because of the subsidy he is eligible for but doesn’t want to take because he’s a moron. And therefore he’d be penalized.

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  • cpinva

    “that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished”

    that’s why the 9 get paid the big bucks. they are able to look into the eyes of the law, and see its jet black soul.

  • Matt

    Shorter DC Circuit: “Clearly, the ACA was constructed so as to maximize the GOP’s ability to sabotage it by fucking over their state-level constituents.”

    This follows, of course, the similar ruling from the Supremes: “Clearly, the Medicaid expansion was constructed to maximize the GOP’s ability to fuck over the poor in their states.”

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