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If I Can Squint I Can See One Cherry In This Cornfield — It Must Be A Cherry Tree!

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Nicholas Bagley is excellent on the egregious cherrypicking by supporters of the latest ad hoc legal challenge to the ACA:

But if you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking. So go ask John McDonough, who was intimately involved in drafting the ACA and is as straight a shooter as there is: “There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.” Or ask Senator Max Baucus’s chief health adviser, Liz Fowler. She says the same thing. Or ask Doug Elmendorf, the current CBO Director: “To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.” Or ask Peter Orszag, then-OMB Director: “[A]s someone who was there, [there is] zero chance this was the intent (as opposed to typo/poor drafting).”

Or ask Jonathan Cohn or Ezra Klein, both of whom followed the deliberations over the ACA closely. Neither heard a whisper about any supposed threat. Or ask Abbe Gluck, a law professor at Yale who details how “a basic understanding of the ACA’s legislative process makes clear that Congress intended for the subsidies to be available on the federal exchanges.” Or ask Aaron, who wonders, if this threat was so clear, why TIE never mentioned it. “Do you think we would have ignored this? We wouldn’t have been concerned?”

Better still, ask the states, which were on the receiving end of the supposed threat. According to a report from the Georgetown University Health Policy Institute, there’s no contemporaneous evidence that the states feared that declining to set up an exchange might lead to a loss of tax credits. How can it be that Congress unambiguously threatened the states with the possible loss of tax credits if the states never understood that threat?

This argument is unanswerable.

Conservatives are fond of quoting Scalia’s quotation of Harold Leventhal, describing the judicial use of legislative history as “as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”  (The problem with this argument isn’t so much that it’s wrong as that it applies to any source of evidence that judges might use to determine the meaning of an ambiguous statutory phrase, originalism and textualism most certainly included.)   Any conservative who 1)opposes the use of legislative history on these grounds and 2)cites Gruber 2012 (but not Gruber 2010 or Gruber 2014!) as definitive evidence for the intent of the ACA should be responded to solely with hails of derisive laughter.

…Also:  “The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive.”

…And, yes, the Halbig argument also requires the assumption that Congress was emulating Alexi de Sadesky.

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  • sibusisodan

    This argument is unanswerable.

    I only wish we were operating in a situation where the answerability of arguments, or otherwise, had an purchase on legal and political outcomes.

    • Davis X. Machina

      But it’s not unignorable…

      • sibusisodan

        Don’t. 4 of 9 will take that as a challenge.

        • Davis X. Machina

          This particular writ of cert is already written, sitting on a hard drive in one of their offices.

    • liberalrob

      Charlie Pierce is right to call it “prion disease.”

  • humanoid.panda

    increasingly morally repulsive.

    I’d say they started at morally repulsive and advance to sociopathic.

    • McAllen

      I’d just like to note that all the conservatives who pissed and moaned about how Obamacare was going to take away people’s insurance are now openly and gleefully doing just that.

  • Aimai

    Christ the commentary underneath the last linked article is stunning in its vile craziness–some libertarian dude quotes Niemoller and rages that Obama is “raising taxes” on his own to fund the ACA in violation of the constitution.

    • Barry Freed

      I love the taxes = martial law WAKE UP SHEEPLE! bit. Wow.

  • howard

    what has always struck me about these hyper-literal type arguments (i always think of ken starr fixating on the word “any”) is that they are rooted in a view of the constitution that presumes that we can divine the original intent of the founders through a hyper-literal interpretation of what they wrote.

    thereby ignoring that the founders told us why they wrote it in the preamble, and it had nothing to do with hyperliteral restrictions and decontextualized definitions and everything to do with “forming a more perfect union, establishing justice, insuring domestic tranquility, promoting the general welfare, providing for the common defense, and securing the blessings of liberty,” which was the original intent. it says so.

    • It’s fundamentalism, pure & simple. If there’s room for interpretation, there’s room for doubt, which is the opposite of faith.

    • UserGoogol

      You can have originalism without original intent. You don’t have to have any opinion whatsoever on what the founding fathers thought it suffices to say “this is what they wrote, so we’re bound by it even if they had absolutely no intention of being interpreted that way.” Such a theory of political power is more than a bit silly, but it has its own internal logic. If the law is supreme, then it’s supreme regardless of what the petty humans who happened to create it think about it.

      Of course, originalists, whether they’re talking about 1789 or 2010, tend to bring intent into the picture all the same, since legal text is rarely actually so ambiguous that the literal meaning of the words is enough to clarify its meaning. And their description of such intentions are often questionable.

      But it’s a bit of a strawman to say it’s about “divining the original intent of the founders through a hyper-literal interpretation of what they wrote.” The point is that a hyper-literal interpretation of what they wrote is itself the law.

      • howard

        yes, to a large degree, and yet no as well.

        possibly i could find a more exact term than hyper-literal, but i was using it to mean “any plausible meaning of any individual word being treated as equally valid” or something along those lines, rather than “the constitution (and/or the law) has to be read whole to be read properly.”

        to clarify two other points: i happen to note that the originalists in all their various forms tend to read the preamble out of the constitution rather than accepting that by their very own terms tells us explicitly what the point of the enterprise is, but i do acknowledge that there are various schools of original thought.

        and i think there are two judges who just ruled who, were they honest, would plead guilty to authenticating the straw man!

  • I shouldn’t be surprised, but a remarkable # of Volokh commenters are all “this one phrase is clear to me, end of story,” no matter how many times you explain that it is completely settled that any phrase in a complex statutory scheme has to be read in terms of that entire scheme.

    Same prob I had teaching English. People will accept, sometimes, that math or science require specialized knowledge, but “everyone” can read, so no expertise required!

    • sibusisodan

      This really is familiar to me as a theological concept.

      “This sentence in the bible undoubtedly and definitively says X, therefore we should X”.

      “But if you interpret it that way, doesn’t that give you a problem with here, and here, which strongly imply not-X, or at least X-agnosticism? It would be better to interpret this as one coherent text as far as we can.”

      “I’m going to fail to understand your question. Feel free to sigh now.”

    • sharculese

      Some dude stumbled onto Ed Kilgore’s blog to make that argument.

      When people pointed out how specious that was he cited Ledbetter for the proposition that the Court found that statute to be unambiguous, therefore this one must be, too.

    • efgoldman

      IANAL, but it seems to me there have been a lot of “completely settled” legal/constitutional concepts that the Five Savonarolas and their lower-court acolytes have unsettled?
      Corporate personhood?
      Plain language of the 15th amendment?
      Money = speech?

      • Don’t forget “necessary and proper.” Marshall got it wrong in McCulloch; he didn’t have John Riberts there to explain the Constitution to him.

        • Hogan

          +a bunch

        • Joe_JP

          According to current day conservatives, he got various things wrong. His take on the 11A, e.g.

          • Scott Lemieux

            Thinking of the conservatives’ modern “sovereign immunity” jurisprudence in the context of this case could give me a stroke.

  • efgoldman

    I’m still confused.
    What district elected Gruber to Congress?
    What state elected him to the Senate?
    If any court considers what one consultant said once, they deserve the mockery they get. Which doesn’t seem to matter much to the Five Savonarolas, Judge Rogers Brown Mother Teresa of the DC circuit, or a whole raft of others with (R) after their names.

    • To be fair, we’re citing Cohn for “guys who wrote ACA say no such intent.” It may not be legally relevant, but to lay folk it’s something to think about.

      The silliness as Lemieux says is treating the Gruber video as AHA YOU LYING LIBERALS!!!

      • efgoldman

        I know you’re an attorney (and this is an open question for you, and rea, and the other litigators here:)
        How the HELL do you prepare an argument or a brief to argue long-settled concepts, when you know you’re going to find a freak like Rogers Brown or Alito staring down from the bench?
        How do you keep yourself out of contempt?

        • Usually such ideology isn’t my problem. At my less exalted level, the problem is more about judges who are so plaintiff-oriented or -antipathetic that one’s argument is wasted (or superfluous).

          Pure questions of law are at least reviewed from scratch, or de novo as we say to show we are experts. The real screw is when the appellate court has to defer to the trial judge’s discretion. I’ve got one case before a downright idiot right now, and the plaintiffs are having a field day. (They have their own problem judges, of course.)

          And don’t even get me started on the criminal side of the law.

        • Fearless Navigator of the New LGM Comment System

          I got hometowned once upon a time. It wasn’t subtle. It was actually in federal court, if you can believe it. The black letter law said I should win. I cited it all. The court didn’t want to hear it. It told me to go fuck myself. We lost. We appealed. We won.

          I called that court twice a week, every week, for about six weeks, to make sure they got the mandate. I wanted to make damn sure that the judge knew he had fucked up. After the last call, the clerk called. She said the judge wanted me to know that he knew I was pissed off, he was sorry, and could I please stop calling. I ended up winning on an SJ motion six months later. I think the judge just wanted to be rid of me.

    • UserGoogol

      I suppose it’s historical evidence of how people of the year 2012 interpreted the text of the law, which then can be used to allow us to discern the original meaning of the text. Of course, focusing on this particular utterance is not a particularly representative depiction of the broader linguistic norms of the early 2010s, (you might even say it’s cherry picking) but you don’t have to ascribe legislative power to Gruber for his statements to have some weight.

      • Aimai

        No weight at all once you ask yourself what is the relationship if this One utterance to the actual data collection and number crunching that he was doing at the time which did not include any scenario like the federal exchanges not offering the subsidies. A dingle utterance is not and can not be proof of anything when viewed in context.

  • Joe_JP

    The “moral repulsive” article is promoted at Balkanization and a comment there was full of disdain at such a crude tone. The duty of supporters, of course, is to accept how reasonable all these people are, even if they are dead wrong and their actions hurt lots of people in the process. We should have a polite discussion, even if, to be blunt, the other sides’ argument is crap. This is true even though people on the other side repeatedly don’t show such respect.

  • Rob Patterson

    The libertarian position is that Halbig will “free” 57 million people from the burden of affordable health insurance. Yay libertarianism.

  • Of course, some of the “like evidence” is “just about everything else Gruber said or did.”

    I mean, this is picking one bit of skin off one cherry.

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