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BREAKING! Spain Still Not Invaded By The Moops

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As I recently noted, Brian Beutler has an excellent piece pointing out that Republican members of Congress universally rejected the contention soon to be considered by the Supreme Court that Congress did not make subsidies available on the federally established exchanges: they assumed that the subsidies would be uniformly available even after it was abundantly clear that multiple states would not establish exchanges. Greg Sargent has followed up with state officials, and YOU’LL NEVER GUESS WHAT HE FOUND:

I can now add more: Several state officials who were directly involved at the highest levels in early deliberations over setting up state exchanges — all of them Republicans or appointees of GOP governors — have told me that at no point in the decision-making process during the key time-frame was the possible loss of subsidies even considered as a factor. None of these officials — who were deeply involved in figuring out what the law meant for their states — read the statute as the challengers do.

Cindi Jones was appointed in August of 2010, after passage of the ACA, by Republican governor Bob McDonnell to head his Virginia Health Reform Initiative panel. A key question it faced was whether the state should set up an exchange or default to the federal one. The question of whether the failure to set up an exchange would sacrifice subsidies was not a consideration throughout the discussions, she says.

“There was no discussion at any meeting that one of the reasons we would want to do a state based exchange was that it would be the only way we would get subsidies,” says Jones, who was held over from a previous Democratic administration and now works for Governor Terry McAuliffe. Referring to 2010 and the spring of 2011, Jones said: “The discussion of whether or not to set up a state-based exchange versus a federal exchange would have been different if one of the issues we had to consider was whether or not our citizens would get subsidies.”

Sargent gets the response of Jonathan Adler, who says it doesn’t matter that nobody read the statute as he now reads it. Michael Cannon has made similar arguments on Twitter, sometimes willfully distorting Nancy Pelosi because he’s a complete hack and doesn’t care who knows it. But it does matter, for two obvious reasons:

  • Climbing Mount Chevron.  For the troofers to win, it is insufficient for them to demonstrate that their nonsensical reading of the statute is plausible.  They have to show that it is unambiguously correct.  The fact that all the relevant parties at the time believed that the subsidies would be available on the federally established state exchanges makes it enormously difficult to show that Congress clearly established otherwise.
  • The Dr. Strangelove Problem.  Remember, Adler and Cannon aren’t “the card says Moops!” troofers, they’re “the Moops invaded Spain” troofers.  Their contention is that Congress established a federal backstop that was designed to fail because it wanted to coerce the states into establishing their own exchanges.  Leaving aside that this makes no sense on its face — if you wanted to do this you wouldn’t set up a federal backstop at all, rather than set up a Potemkin one nobody was even eligible to purchase insurance on — if you’re trying to coerce the states you obviously don’t keep the consequences of states failing to establishing an exchange a secret. The consequences of states not taking the Medicaid expansion before it was re-written by John Roberts were made clear and widely understood.  The fact that nobody thought that a state’s citizens would be ineligible for subsidies if the federal government established their state exchange makes it clear that the Adler/Cannon theory is transparently wrong.

Not that any of this will necessarily matter to a majority of the current Supreme Court, but in a rational universe the King cert petition would have been returned with “why are you wasting our time with this crap?” written over the top of it.

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  • Gwen

    I swear, if the Moops bastards win this, I’m going to burn my (“Inactive Member”) bar card. AND PUT THE WHOLE THING ON YOUTUBE.

    • Gwen

      Only problem: need to figure out how to make plastic burn. Fortunately, I’m surrounded by engineers (one advantage of being a non-practicing member of the bar).

  • Aimai

    Man that Pelosi quote is just like a “get out of jail free card” it can be used to mean whatever the fuck they want it to mean. Do you think they use it when arguign with their wives about dinner?

    • Joe_JP

      “You will like it dear … you think you won’t, but you have to let it be cooked/prepared first before you really know for sure.”

  • Murc

    Remember, Adler and Cannon aren’t “the card says Moops!” troofers, they’re “the Moops invaded Spain” troofers.

    This has always been the part that baffles me.

    I have some inherent sympathy towards “the card says Moops!” troofers, because I take a dim view of legislative intent at the best of times. This is largely because I often see it pushed by people who claim in their next breath that they knew what James Madison really was thinking when he wrote the Federalist Papers, because their heart is pure and they have a transcendent understanding of the Founders, and also because I’m kind of a formalist. So when someone says “well, the legislature may have intended something else, but here’s what they actually wrote down, and it ain’t that” I am at least inclined to hear them out.

    (This should in no way, shape, or form be read to infer I think the Card Troofers are right in this specific instance. They are not.)

    But “the Moops invaded Spain” troofers are just… just insane. I mean, theirs is a position disproved by a cursory glance at the legislative record and by actually walking up to the people involved and asking them what they were doing! It’s possible to argue that they’re lying after the fact, I suppose, but that would require a massive, bipartisan political conspiracy of such breathtaking scope and success as to make Robert Anton Wilson reject it as too implausible.

    • brugroffil

      And still you’d be left asking: why?

    • Mr. Rogers

      My question is if Halbig does go the wrong way, will the MSM point out in any way how insane this is? Or will they congratulate the anti-ACAers for devising such an offbeat and unpredictable strategy that might influence the 2016 horse race?

      • Steve LaBonne

        Is that a rhetorical question? Door #2, of course.

        • Mr. Rogers

          Yeah, I was afraid of that.

      • Snarki, child of Loki

        If the anti-ACAers do this, Obama should absolutely do the TRILLION DOLLAR PLATINUM COIN. Or maybe a few dozen of them, and completely pay off the national debt with pocket change.

    • The Moops invasion was to be announced at the Party Congress on Monday. As you know, the Premier loves surprises.

    • What baffles me about the “Moops invaded Spain” argument is: if the intent of the legislation was to punish states that don’t establish their own exchanges, why is the government going to court to not punish those states?

      I mean, basic thought experiment here: someone ordered Thai for the office. Someone asks me what I want. I see what I think is tofu pad see ew and point at it and say “that tofu pad see ew”. They hand it to me, and it’s chicken pad kee mao. I walk over and put it back and find tofu pad see ew and open it and eat it.

      Adler, I guess, would slap it out of my hands and say “why are you eating that? Clearly you intended to have chicken pad kee mao.”

      • Bruce Leroy

        I like the analogy. Except i think instead of chicken pad kee mao, it should be something entirely inedible that would fail to accomplish the goal of eating in the first place.

  • liberalrob

    …in a rational universe…

    Heh. ‘Nuff said.

  • cs

    That is nice, but almost overkill. I wasn’t following the issue that closely, but I’m sure there was some public discussion of the issue at the time that states were deciding whether or not to set up their own exchanges. If anybody in government thought states were jeopardizing the subsidies to their citizens, someone would have said so in public at some point.

    • McAllen

      Considering the good chance the Supreme Court will (pretend to) buy the Moops argument, I’m not sure anything is overkill.

  • Manny Kant

    Dear Mr. Adler:

    Attached is a cert petition that we received on November 7, 2014. I feel that you should be aware that some asshole is signing your name to stupid cert petitions.

    Very truly yours,

    Supreme Court of the United States

  • Joe_JP

    Happy Birthday Chief Justice Roberts!

    Who are you going to believe here? Facts or Jonathan Adler’s lying words? The only thing left at this point is to wonder if “it’s not a lie if you believe it’s true” works here.

    I think Chevron deference can work either way — he’s a lying asshole or just an asshole who has convinced himself about his own bs. Either way is reasonable at this point.

  • Danny

    Isn’t the Dr. Strangelove Problem even more difficult than Scott is acknowledging here? Because Supreme Court precedent (sorry can’t remember the case at the moment) requires state and local officials to understand the consequences of their actions in relation to federal laws, even if it was congress’s intention to punish the states who didn’t set up exchanges, and even if they kept it a secret for reasons which are as yet completely unexplained, it would still be unconstitutional to do that since the officials tasked with enacting the state exchanges clearly didn’t understand the consequences for not establishing exchanges!

    FWIW, I’m very far from allowing that the card even says Moops, but even if the petitioners are correct and the card says Moops (and the Moops invaded Spain) it’s still unconstitutional for the government to take away the subsidies because they kept that fact a secret. So where, exactly, is the case?

    • brugroffil

      Maybe they find that everyone loses subsidies in that case because Obamacare is inseverably unconstitutional?

      • humanoid.panda

        But then, the Medicaid precedent applies, which is why I think that this is exactly the off-ramp Roberts takes.

        • Danny

          Yeah, that’s another issue. By now these subsidies are “established” so per the ruling on expansion of Medicaid in the ACA, the Feds can’t take them away as that would denigrate the sacred notion of state sovereignty or something.

          This is a prime example of arguing in the alternative:

          Taking away subsidies is unconstitutional per the Medicaid ruling
          ALTERNATIVELY the state officials clearly didn’t understand the statute the way the petitioners are reading it, which makes that reading unconstitutional
          ALTERNATIVELY there’s no evidence that congress intended the subsidies to be lost, and if they did, why did they keep it a secret?
          ALTERNATIVELY The statute is ambiguously written, so the IRS interpretation of the statute to provide the subsidies stands
          ALTERNATIVELY Taken as a whole, the statute clearly intends the subsidies to be available on federal exchanges as the federal government is acting AS THE STATE when setting up such exchanges.

    • CaptainBringdown

      They don’t need a case, they have a cause.

    • catclub

      even if it was congress’s intention to punish the states who didn’t set up exchanges

      Quibble: Punishes citizens of states that do not set up exchanges. Is that a punishment or a boon to those states?

    • Scott Lemieux

      Yes, if anyone actually cared about federalism the denial of subsidies to citizens on federally established exchanges would be unconstitutional under the Halbig reading.

      • Danny

        You’re right, that’s my mistake. I really need to stop thinking conservatives actually give a shit about their most cherished political construct.

    • Snarki, child of Loki

      “…even if they kept it a secret for reasons which are as yet completely unexplained…”

      Damn, time for Obama to invoke the State Secrets Privilege and get the whole thing kicked out of court.

      Either that, or the court goes “th’ fuck you say?” and kills off the SSP. Either is good.

  • LeeEsq

    Can somebody please explain the reference to the Moops for me? Its gone over my head since Halbig started.

    • catclub

      answer on trivia question on Seinfeld had as answer to: Who invaded Spain in middle ages?

      The Moops.

    • dr. fancypants
    • Hogan

      From the ever-unreliable Jonathan Chait.

      • sparks

        Too much Chait may cause indigestion.

      • Scott Lemieux
        • Hogan

          Yes, the Maloy piece is dated a week earlier than Chait’s.

          • jabuchman

            My blog is still struggling to graduate past the friends-and-family stage, but I think I can stake an earlier claim. Maloy and Chait did do much more with the analogy than I did, to be sure.

      • Danny

        Right? As soon as I’m going “Man, I really like the way this Chait character thinks” he writes something like today’s essay on Political Correctness run amok that belongs back in the nineties, or something about the school reform movement.

        • Or the NCAA, or Israel, or why he was wrong for the right reasons about the Iraq War, or he tries debating Ta-Nehisi Coates…

          • Danny

            Also all good points. His “LEAVE THE NCAA (particularly Michigan) ALONE” posts are particularly insufferable.

        • timb

          He’s wrong on school unions

          • Danny

            His wife apparently works in the “School Reform Movement” in some capacity. He usually points this out in his posts on it, though he seems a bit derisive about the idea that a person he lives with and presumably cares deeply for could in some way sway his opinion on it.

      • timb

        So, Chait was wrong in his article on PC. I don’t follow journalists or pundits because of their Christ-like ability to be infallible. Chait is a horse on ACA issues and his “moops” argument is not only funny, it’s spot on.

        Also, too, his book on the right wing chicanery around Arthur Laffer and voodoo economics is wonderful

        • Danny

          You’re right, and Chait is still in my blogroll. I loved his recent post on how repealing Obamacare is obviously immoral, I’m just saying that whenever I open up his writer page on NYM and see that he’s writing about political correctness, or the NCAA, or the school reform movement I know the argument is going to be poor, and his righteous indignation, usually so delicious, will be infuriating.

          But on the topic of Good Chait Stuff, have you read his long take on Ayn Rand? Perfection.

    • ScarsdaleVibe

      A New York Jew who doesn’t get a Seinfeld reference. Wow.

  • Alex.S

    Michael Cannon in 2014 — Obamacare isn’t needed because emergency rooms. People without health insurance would just have crippling debt, but whatevs. Also, Congress should totally repeal Obamacare.

    Michael Cannon in 2015 — Obama needs to tell Americans that they should get jobs if they want REAL health insurance. Also, the Supreme Court will totally repeal Obamacare.

    Weird how he didn’t mention how unconstitutional it was a year ago.

  • DrDick

    This, of course, fails to recognize the time honored “that was then, but this is now” exemption for conservatives.

  • burnspbesq

    Lemieux says:

    in a rational universe the King cert petition would have been returned with “why are you wasting our time with this crap?” written over the top of it.

    No. In a rational universe, there would still be a Supreme Court case, but the procedural posture would be very different. The Supremes would be asked whether the Fourth Circuit erred when it affirmed the District Court’s granting of the Government’s Rule 12(b)(6) motion and the imposition of Rule 11 sanctions on plaintiffs’ counsel.

  • Joe_JP

    Meanwhile, the Administration quotes the joint dissent (Scalia, Kennedy, Thomas, Alito) against the troofers. Adler snarks they are just being “cute” by showing just how wrong he is in this fashion.

    http://talkingpointsmemo.com/dc/obama-doj-supreme-court-brief-king-burwell

    • SP

      Adler: “It’s more of a cute debater’s point than a substantive legal point. It tells you something about the strength of their case.” Yes, it tells you that their case is so strong that if there were any consistency among the conservative justices they would have laughed his ass out of court.

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