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Today In ACA Troofer Hackery

[ 43 ] January 28, 2015 |

When you’re trying to sell one of the most risible conspiracy theories in the known universe, one almost remarkably devoid of evidence, you’re going to produce a lot of hackery.  For example, say your theory rests largely on an assertion that Ben Nelson demanded that subsidies be only made available on state exchanges (as opposed to Nelson’s actual belief that there should not be a single federal exchange.)  Well, I happen to have Ben Nelson right here and:

But Nelson, who announced his retirement in 2011, speaks for himself in a brief filed by Democratic congressional leaders and others.

“I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well,” Nelson wrote in a letter to Sen. Bob Casey (D-Pa.) who sought Nelson’s view.

The saucer people Moops got to him too! WE’RE THROUGH THE LOOKING GLASS PEOPLE!

Meanwhile, a reader found this entertaining bit of diversion from Jonathan Adler, responding to the fact that the four Selbelius dissenters rejected his reading of the statute:

Jonathan Adler, an architect of the legal challenge in King, doubted that the administration’s citation of the 2012 dissent would impact the case.

“It’s more of a cute debater’s point than a substantive legal point,” he said in an email. “It tells you something about the strength of their case.”

Why, yes it does, although not in the way he means the phrase. Needless to say, Adler doesn’t think that this kind of evidence is merely a “cute debater’s point.” Section V of the Adler/Cannon brief cites a letter signed by 11 Texas House Democrats advocating for a single national exchange. The obvious problem with citing it as evidence that the Moops invaded Spain is that nothing in the letter says that subsidies wouldn’t be available on federally-established exchanges; indeed, the thrust of the letter is a worry that states will set up inferior exchanges, not that federally-established exchanges would fail. (Inadvertently revealing that the letter itself doesn’t actually support their interpretation, they combine it with the erroneous inferences made by an NPR report about the letter.) And of course, as the government’s brief observes (fn 19), the petitioner’s brief “rel[ies] heavily” on the 2012 but not 2010 or 2014 comments of President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and discredited NFL commissioner Jonathan Gruber, whose comments have also been cited in arguments by Cannon.

So it’s not that Adler and Cannon think that how public officials contemporaneously interpreted the statute is irrelevant. There’s just almost no evidence of legislative intent that supports their fantastical theory. If the Sebelius dissenters agreed with them, they’d certainly find it relevant and not a mere “debating point.”

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  • Aimai

    Really? They include random argle bargle from an NPR interview in the brief? Man, legal standards really have fallen.

    • brugroffil

      Cites to NPR reports and youtube videos of Gruber speaking in 2012 are the height of legal argumentation. Pointing out just how full of shit everyone, including staunch ACA opponents, thinks they are is just a “cute debater’s point.”

  • Joe_JP

    Glad to see my state joined on to the side of sanity:

    BRIEF OF THE COMMONWEALTHS OF VIRGINIA, KENTUCKY, MASSACHUSETTS, AND PENNSYLVANIA, THE STATES OF CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MISSISSIPPI, NEW HAMPSHIRE, NEW MEXICO, NEW YORK, NORTH CAROLINA, NORTH DAKOTA, OREGON, RHODE ISLAND, VERMONT, AND WASHINGTON, AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF AFFIRMANCE

    http://ag.virginia.gov/files/14-114_bsac_Virginia_et_al.pdf

    • The Commonwealths of Virginia and Pennsylvania and the States of Maine, Mississippi, North Carolina, and North Dakota elected to forgo establishing their own Exchange under the ACA with the understanding that relying on a federally-facilitated Exchange would not harm State citizens… Sharing that same understanding, the States of Delaware, Illinois, Iowa, and New Hampshire implemented a federally facilitated Exchange through a partnership model… Petitioners’ construction would also violate basic principles of cooperative federalism by surprising the States with a dramatic hidden consequence of their Exchange election…

      How could even Scalia argue with this? How could anyone in their right mind possibly believe that an offhand remark by a consultant is somehow more significant than the recorded beliefs and intentions of the states which implemented the law?

      • cpinva

        in actuality, the primary reason VA didn’t establish an exchange of its own, was in the hopes that making its citizens use the federal exchange would result in fewer people signing up. this would, in theory, give their GOP/Tea Party colleagues in congress a stronger case for overturning the legislation. it didn’t. however, at no point was it suggested that Virginians wouldn’t be eligible for the subsidies, by being forced to use the federal exchange, that just never came up in any conversation.

  • SP

    I believe “that’s just a cute debater’s point” is lawyer-speak for LALALALALA I CAN’T HEAR YOU.

  • David Hunt

    The sad thing is that there’s at least three men sitting on the Court who will almost certainly vote in favor of Adler’s view even though their supporting reasoning is unlikely to rise beyond, “Broccoli is bad therefore, the Moops invaded Spain.”

    For bonus points their response to the point that, even if the Moops did invade Spain, withholding the subsidies is still unconstitutional because a zillion state officials clearly interpreted the law otherwise will be: “LA LA LA LA LA I CAN’T HEAR YOU!”

    • SP

      Sorry, what did you say? I wasn’t listening.

    • Incontinentia Buttocks

      Don’t forget the Equal Dignity of the Vaguely Constitutional-Sounding Doctrine I Just Pulled Out of My Ass.*

      * Limited to the present circumstances, for the problem of statutory interpretation generally presents many complexities

    • gratuitous

      Yeah, I’m currently persuaded that the Court will reach whatever conclusion* it wants to reach without any heretofore recognized legal standard as its rationale.

      *That conclusion being that the Affordable Care Act has morphed into something unconstitutional, because of the Court’s tortured reasoning in the previous case that made citizens’ rights contingent on what patch of American soil they happened to be standing on at the moment those citizens decided to exercise their rights under the Act. That is, “You’re in Massachusetts? Covered! You’re in Alabama? Not covered!”

  • Crebit

    I would love to hear some insight from law professors how you and your colleagues handle the tension between research and advocacy. Plenty of economists and business school profs (my domain) will take on consulting gigs, and some of those involve advocacy. But the top journals in econ and business almost uniformly require published papers to make only positive claims rather than normative ones (what is, not what should be). So even though someone may advocate a position as a side gig, this doesn’t tend to show up too strongly in published research. Feel free to cast disparaging remarks on our blinkered worldview, flawed publication processes, motivated reasoning, questionable research practices, etc. Yes, we are worse than I wish we were. But many law articles quite explicitly advocate positions for what the law should be, rather than just making positive claims of what is, so I have to believe the problem in legal scholarship is more severe.

    The ‘Moops invaded Spain’ argument is the immediate cause of my wonder. The argument is so ludicrous that I have trouble seeing how someone can think of themselves as ‘an academic’ while making it. Lawyers are paid to advocate this way when acting professionally, but it just seems hard for someone like Adler to partition his academic and professional life enough that he can perform both jobs effectively.

    Are there institutional pressures that mitigate my concern? Or is this another aspect of the ‘law school scam’?

    • Kurzleg

      It’s another case of the grifter laying groundwork for the grift.

  • brugroffil

    I noticed Adler etc. trying to cite that letter a couple of months ago. Not taking it at face value, I read the letter myself and was very confused as to why he thought it supported his claims at all. He never bothered to respond in the comments section over at Volokh.

    • Barry_D

      Do you have a link to that Volokh post?

      • brugroffil

        Not on hand, and he’s had a lot of Moops posts.

        • Kurzleg

          I hope he gets over them. I hear there’s not a vaccine, so…

          • sanity clause

            I came in late. Can someone link to where the ‘Moops’ stuff is explained? Because it’s like they’re talking in code.

  • Quicksand

    Can we get the name of this blog changed to “Lawyers, Guns & Moops?”

    • Kurzleg

      Seconded! Or, SECONDED!!! Or, both!

      • Gwen

        YES.

    • Warren Terra

      No. If the name is to be changed in some fashion similar to this, I insist the new name be Lawyers, Guns, & Monkey

      (note I also inserted a serial comma there, because I am not a savage)

    • It’s always been “, & Moops”. The “& Money” is just a typo.

  • dmsilev

    I’m also sort of impressed by the way Adler continues to maintain that this is all about ethics in game journalism the purity of the principle of rule of law. Rather than admit what everyone knows, that his only driving principle in this case is Obamacare Delanda Est.

    • Joe_JP

      you are so cute!

      – Prof. Adler

  • kped

    Maybe I’m daft, but can’t the reading of “The State” be seen as referencing the United States federal government as well? People call nations “States” all the time, and that was the reading I got from it.

    Which is to say, this lawsuit should fail on so many levels, that it will be close is a travesty.

    • My understanding is that the capital in ‘State’ indicates that it’s a term defined in the text of the law, and that US law would never refer to the federal government in that way. The real killer is “such Exchange”, which explicitly identifies the exchanges run by the federal government with the ones established by states.

    • liberalrob

      I hope Mr. Chief Justice Roberts is aware that anything other than a slam-dunk spike of this case is going make the SC look incredibly silly. I hope cert was granted solely in order to clarify the language under judicial review and put an end to this silliness.

      • postmodulator

        Yeah. I’ve been hoping the Easter bunny is real too. Maybe things’ll work out for the best.

      • Incontinentia Buttocks

        What evidence do you have that any Kennedy, Roberts, Alito, Scalia, or Thomas cares if the Court looks incredibly silly? And in a way, why should they?

        • NonyNony

          Roberts could have completely gutted the ACA before, but he chose to go the death of a thousand cuts route instead. I don’t know why he would do this and the only rationale that makes any sense to me is that, unlike his three conservative colleagues, he’s still a bit afraid to look like a complete idiot in public.

  • Kurzleg

    “LOOKING GLASS PEOPLE”: Are they the same as regular people or what? Or is this a euphemism for microbiologists?

    • liberalrob

      Witness the power of the lowly comma:

      WE’RE THROUGH THE LOOKING GLASS, PEOPLE!

      Literally going through the Looking Glass People sounds like at least assault, if not manslaughter (or murder).

      • malindrome

        My favorite example of comma power remains:

        “This book is dedicated to my parents, Ayn Rand and Jesus Christ.”

        • sanity clause

          That’s beautiful. Where’s it from? Google wasn’t my friend with this one.

    • Incontinentia Buttocks

      Maybe they’re like the bedsitter people who sit back and regret another day’s useless energy spent?

  • searcher

    Does anyone else find it hilarious that Republicans are suing the IRS for not taxing people enough?

    • Incontinentia Buttocks

      Waste, fraud, and abuse! It’s how we’re going to close that budget deficit that Republicans care so very much about (at least when they don’t hold the White House).

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  • burnspbesq

    In a rational world, the opinion would be per curiam, and would read as follows:

    “Affirmed, for the reasons stated by Judge Davis in his concurring opinion on the Fourth Circuit.”

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