High Broderite Halbig Trooferism
By I didn’t know this until Josh Marshall tweeted it while linking to his site’s devastating rebuttal to Halbig trooferism, but Johnathan Turley is one of the troofers. He presents us with a particularly irritating variant, which one might call “High Broderite Schoolmarm trooferism.” He thinks that millions of people (but not him!) should be kicked off their health insurance and the market for non-employer based health insurance be made to collapse to teach Congress a stupid lesson about statutory construction, but the most important is that we should discuss this question civilly and never, ever question the motives of hack Republican judges. Let’s start with the outright dissembling:
While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers.
Turley uses the phrase “key players,” suggesting that there are multiple people involved in the crafting of the legislation who thought that the tax credits would not be available on the federally established exchanges. But he in fact cites exactly one, Jonathan Gruber, and in that cite fails to note that Gruber repudiated this position not merely after the fact but before the fact. And the idea that Gruber’s extemporaneous and ambiguous remarks are sufficient to establish a genuine controversy when his interpretation is rejected by everyone else involved is farcical.
Note also that he joins the Fourth D.C. Circuit in asserting that willfully misreading a statute with devastating consequences to the health and financial security of millions of people represents judicial restraint. I assume that to restate this argument is to refute it. And there’s plenty more where this came from, alas. He is, for obvious reasons, not particularly interested in defending his position, but he is very interested in asserting that those who take his position should be exempt from criticism:
The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.
I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)
The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.
Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.
At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.
The conflict could have involved chicken subsidies, and the result would have been the same.
First of all, the idea that one should read phrases in statutes in splendid isolation from the structure of the law, which Turley treats as the dominant, common-sense position, is in fact a terrible method of statutory construction. In addition, the fact that it’s embraced almost exclusively by contemporary Republicans is not a coincidence; as we can see vividly in this case, the point is to keep government from functioning. In a parliamentary system, the courts playing schoolmarm might have less devastating consequences, because the legislature can more easily correct errors. But in the Madisonian system, it’s imperative for the courts to interpret statutory phrases in the proper context, and also that it not read them to produce absurd results. And the reading that Congress established a federal backstop but intended for it not to work is absurd.
Turley’s High Broderism is inconsistent with the relevant legal standard. Under Chevron, the courts have to defer to a reasonable executive interpretation. If the Fourth Circuit argument is even reasonable, then the IRS rule must be upheld. If Halbig is correct, then the 4th Circuit interpretation is not reasonable. Turley can’t have it both ways. And when a legal theory advancing an interpretation that nobody shared at the time is advanced after the fact as part of a war conducted by people who oppose the ACA in principle, it’s cheap partisan politics.
For another argument in the High Broderite family, see Megan McArdle. Like Turley, she does not explicitly endorse but also does not repudiate the theory that the Moops invaded Spain. Unlike Turley, she tries to cite more than one person in her attempt to sell the idea that this dispute transcends ideological divides. But this addition person is Jon Cohn, who made an inaccurate prediction but was explicitly not making a definitive claim about what was in the statute (“this is not something I’ve looked into that closely.”) So, again, were left with Jonathan Gruber in 2012 vs. everyone else involved in drafting and enacting the statute including Johnathan Gruber 2010 and 2014.
One can understand why Halbig troofers want to throw up a “teach the controversy” fog. But Halbig trooferism is strictly a Republican production. And it’s also a terrible argument on the merits, in both its “the card says “Moops!” and “the Moops invaded Spain” variants, granting that the latter is even less defensible.