Home / General / BREAKING! Key Claim of ACA Troofers Remains Abject Nonsense

BREAKING! Key Claim of ACA Troofers Remains Abject Nonsense

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One of the favorite claims of ACA troofers — a means of straddling the “card says Moops!” and “the Moops invaded Spain” versions — is an assertion that every member of Congress assumed that every state would set up its own exchange by the deadline.  This argument is, first of all, ludicrously implausible on its face — if you never considered the possibility that a state would fail to set up an exchange, why would you establish a federal backstop that was designed to fail rather than just not establish a federal backstop at all?  The “evidence” for this claim doesn’t even rise to the level of being threadbare — a single bare assertion that was obviously an unfounded assumption (unless you think Robert Pear contemporaneously interviewed every member of Congress and asked whether or not they expected all 50 states to establish a workable exchange by 2014 but didn’t bother to include any quotes after going through all that work.)*      It is also, as we know, demonstrably false — legislators were aware that red states were likely to obstruct the operation of the law.

Additional evidence is superfluous at this point, but it’s worth citing anyway.  Jon Cohn’s January 2010 email interview with a key adviser to Ted Kennedy and the HELP committee makes it additionally clear that Congress was well aware that some states would refuse to set up exchanges, and established the federal backstop in response:

Confronted with arguments that Congress would never have passed a statute that might undermine itself, Cannon and other supporters of the King lawsuit have argued that the exchange provision was supposed to work just like the law’s Medicaid provision. In other words, the exchange tax credits would be like something out of “The Godfather“: an offer that states simply couldn’t refuse. In this telling, Obamacare’s authors supposedly never anticipated that states would turn down the tax credits.

“Congress did try to coerce states with the loss of billions of dollars of federal Medicaid grants,” Cannon and his frequent collaborator, Case Western University law Professor Jonathan Adler, wrote at the website of the journal Health Affairs in 2012. “It stands to reason that the same Congress would do the same thing with regard to tax credits and Exchanges.” Cannon and Adler made a similar argument in a 2013 paper they wrote for the journal Health Matrix: “Having created an enormous incentive for states to establish Exchanges, it likely never occurred to some of the Act’s authors that states would refuse.”

But it did occur to McDonough, from the look of things. In the email copied above, he draws an explicit contrast between Medicaid (which, he thinks, states would never realistically turn down) and the exchanges (which, he concedes, they might).

To Nicholas Bagley, a University of Michigan law professor who worked on two amicus briefs opposing the lawsuit, that contrast is telling. “[McDonough] knew full well Congress couldn’t force the states to participate in Medicaid,” Bagley told me. “What he meant was that the stakes were too high for that to be a realistic option. But the very next thing he says is that opting out of the exchanges was a realistic option. On the plaintiffs’ theory, how could that possibly be? Just as no state could have been expected to opt out of Medicaid, so too no state could have been expected to opt out of the exchanges if billions of dollars were on the line.”

“If the plaintiffs were right,” Bagley went on, “McDonough would’ve said ‘no’ to both questions. The fact that he didn’t is powerful evidence that Congress never meant to threaten the states into establishing exchanges.”

So the email actually further disproves two totems of troofer dogma — that no legislator considered the possibility that states would fail to establish exchanges, and that Congress wanted the backstop to work like the Medicaid expansion (even though it’s blindingly obvious from the text of the statute that it did not.)

In conclusion, if the Supreme Court sides with the troofers Charles is being unfair to Roger Taney here.

*One of the many, many risible elements of bad faith in troofer arguments is their highly selective nihilism about the possibility of making reasonable judgments about what Congress is trying to accomplish.  Congress uses a common technique of cooperative federalism and establishes a federal backstop to protect citizens against a failure by a state government to cooperate with a regulatory program?  We can’t possibly have the slightest idea of what Congress was trying to do!  A reporter makes an assertion, plainly inconsistent with the statutory scheme, that he knows the subjective expectations of each and every member of Congress?  This can clearly be accepted as gospel truth without a hint of skepticism!

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  • dilan

    With apologies to Clausewitz, a lawsuit is politics by other means.

    • LeeEsq

      They call it lawfare for a reason.

  • Incontinentia Buttocks

    Unfortunately, we’ve all heard this tune before:

    “The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.'”

  • Cheerful

    I think in the last week or so I have detected a slight grudging retreat from the idea the Moops really invaded Spain and a barricade behind the stronger argument that the copywriters of Trivial Pursuit incorporated are the ultimate determiners of historical reality and to question that is to question democracy.

    At Patterico, there’s a cite to the Federalist #78 for the concept that judges should not allow recent views alter their interpretation of the Constitution as written, implying I suppose that we should ignore all those Congresspeople who now say they had no intent to deny subsidies to federal exchanges. Patterico stands on the written word.
    http://patterico.com/2015/02/05/halbig-king-and-federalist-no-78/

    And Catron was so insistent on this point that he put the “law as written” in italics repeatedly.

    I think it will only be a dwindling few who cling to their alternative history. I doubt Scalia/Alito will spend much time with it and instead focus on the you’re stuck with what is written theory of statutory interpretation.

    And of course that type of theorizing takes a lot of power out of Congress and throws it into the lap of the Court. No longer will any of the speeches and debates and committee reports be of any significance other than their persuasive effect inside Congress – instead it will be up to Court, years later, to decide what a few lines of text must really mean.

    • Snarki, child of Loki

      Not to forget that the Troofers have to conduct examination of the fonts and kerning, the like of which has never been done in such detail and with such care, to reach their conclusions.

      As in “state” vs. “State”. As in “The ACA didn’t use the official “long-S” characters Therefore UnConſtitutional!” PLUS those Dhimmicrats used a laser-printer instead of a hand-operated press … Does the Conſtitution say anything about laser-printers? No! Therefore Moops win.

      If the Supreme Five Hax fall for the Moops line, the Surgeon General should simply declare them brain-dead, and Obambi then order the CDC BioTerror SWAT team to remove their rotting husks before the Zombie menace can spread.

    • Murc

      Patterico stands on the written word.

      No, he doesn’t.

      Patterico stands on one brief instance of the written word and ignores all the other instances within the law itself that contradict his preferred reading.

      I doubt Scalia/Alito will spend much time with it and instead focus on the you’re stuck with what is written theory of statutory interpretation.

      This is a theory of statutory interpretation I am broadly in favor of. Generally speaking, I don’t give a damn what the legislature thought they were doing, I care what they actually wrote down. (Excellent example of this: the 14th Amendment.) I don’t think considering what their stated goals were and I especially don’t think considering what bullshit Alexander Hamilton shat onto a page 200 years ago is usually relevant.

      However, there has to be a legitimate, workable way of resolving genuine typos, mistakes, and fuckups within laws-as-written. Hey, it turns out there is! It’s called “not deliberately reaching an absurd result.” We’ve been doing that for a long time and it seems like it works.

      • Cheerful

        I think we are in violent agreement (I was simply quoting Patterico’s own characterization of his argument) but I wonder as regards theories of interpretation if more scope to legislative intent is appropriate for statutory as opposed to constitutional interpretation. (I realize I am treading well worn ground here, so forgive if this comes off as naive).

        My concern, illustrated by this case, is that “not coming to an absurd result” doesn’t do enough to rein in the power of judges. The two appellate court judges who used their version of the theory below and decided it wasn’t absurd to deny subsidies to federal exchanges had a fairly narrow view of absurdity – but to get a more reasonable view would seem to me to require some thought as to legislative intent.

        • dilan

          You really can’t say any notion of legislative intent is irrelevant. Sometimes language makes no sense when divorced from its purpose, e.g., HLA Hart’s famous “no vehicles in the park”.

          The problem with the Halbig plaintiffs isn’t that they are making purpose arguments, but that they are making bad ones.

      • Scott Lemieux

        No, he doesn’t.

        Patterico stands on one brief instance of the written word and ignores all the other instances within the law itself that contradict his preferred reading.

        Right. I have a longer piece coming up on this, but their was a reason that Adler/Cannon and their marks had a felt need to develop this troofer history: the card doesn’t in fact say “Moops.”

        It’s also laughably disingenuous for Patterico to pretend that the troofer history doesn’t matter. He was blowing up my Twitter mentions last week with usenet flamewar-style “I kicked yer butt real good” taunts on this particular issue. It’s hard for him to walk away now that his assertions have been proven epically wrong.

        Generally speaking, I don’t give a damn what the legislature thought they were doing, I care what they actually wrote down.

        As dilan says below, this is a little strong. I don’t think you can do either law or history without making reasonable judgments about legislatures were trying to accomplish in many cases. Evidence about legislative intent can also be useful in resolving ambiguities and anomalies in statutory texts.

        • Denverite

          My take is a little different. I think Adler and Cannon manufactured an intent argument to avoid the absurdity canon, whether explicitly or implicitly. I think that they thought that they simply couldn’t carry Kennedy or Roberts if everyone agreed that the purpose of the law was inconsistent with a hyperliteral interpretation of “established by a State.” They had to at least nominally muddy up the issue so that Kennedy and Roberts could convince themselves that they weren’t interpreting the statute inconsistently with the well-understood and undisputed intent of the legislature that passed it.

          • Scott Lemieux

            Yes, I think that’s right. As someone noted below, Adler started off saying it was a “glitch” before inventing his ridiculous alternative history. And this wasn’t an accident — Adler and Cannon knew damned well that “the card says Moops!” isn’t a winning argument.

            • JP Stormcrow

              Yep. From a Dec. 2013 Cleveland.com piece (“If Obamacare is overturned, a Case Western law professor gets the credit“)

              Jonathan Adler, 44, says he didn’t even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship.

            • Pseudonym

              He who controls the past controls the future.

        • Murc

          As dilan says below, this is a little strong. I don’t think you can do either law or history without making reasonable judgments about legislatures were trying to accomplish in many cases. Evidence about legislative intent can also be useful in resolving ambiguities and anomalies in statutory texts.

          It was a little strong, wasn’t it?

          I do, of course, agree with everything in your quoted text. But I regard legislative intent, especially with regard to the Constitution, with deeply narrowed eyes, because most of the people I’ve seen pimping it aren’t trying to honestly resolve ambiguities; they’re trying to, say, deny enormous numbers of people due process because the people who passed the 14th Amendment would certainly not have wanted it used to help those people, or to undermine the entire modern regulatory and welfare state.

          It’s a lot more defensible when it comes to plain old laws; laws are big complex things (and have to be) and you often will in fact end up in situation where the card really truly does say “Moops,” and you gotta have a sensible way to deal with that. It’s just that in general, I am strongly in favor of deference to the text.

          Thankfully, this is a case where the text is on my side!

    • Thrax

      They’re giving away the whole game if they retreat. The reason for the Moops argument in the first place was the belated realization that a mere unintended “glitch,” as Adler described it, is the sort of thing an agency can resolve when interpreting the statute. If they concede that the no-subsidies-for-you result was unintended, then we’re on to Chevron step two, and no one thinks they can win at that point.

      I haven’t seen any sort of retreat in the actual filings, but then again the reply brief hasn’t been filed.

      • Cheerful

        my sense of retreat was based purely on glancing at the thrust of arguments on two right wing sites – where they seem to want to stand on their literal interpretation of a single phrase theory of statutory interpretation. That kind of thing is a feather in the wind, but I assume Adler/Cannon will still try to make pro forma arguments towards legislative intent.

        I will enjoy watching oral arguments even as I worry about the final result. I can’t imagine the moderate four will be particularly kind.

      • Scott Lemieux

        Not only was their no retreat in the Adler/Cannon brief, they tried to manufacture evidence of legislative intent by lying about the Doggett letter. And let us not forget that Cannon is “100% certain” that every last member of Congress who voted for the ACA intended to deny subsides to federally established exchanges.

  • sibusisodan

    “Congress did try to coerce states with the loss of billions of dollars of federal Medicaid grants […] It stands to reason that the same Congress would do the same thing with regard to tax credits and Exchanges.”

    We’re down to the level of slightly tipsy bar-room argument. It’s just common sense, isn’t it?

    [someone ought to check the struts on that paragraph. I’m not sure the bolded section was ever meant to carry that much weight.]

    • Cheerful

      Well if I drive to Tacoma on Thursday and if the next Thursday you see me get into the exact same car and drive down the exact same driveway then it does stand to reason I’ll end up in Tacoma again. Don’t even bother to check – just go stand on that Tacoma street corner and wait for me to come by.

  • “Highly selective nihilism” gets my vote for phrase of the week.

  • DrDick

    Further proof that wingnuts and reality cannot coexist int the same universe.

  • Joe_JP

    The discussion furthers the argument that there is a state coercion argument (ala the Medicaid ruling) that will provide an out for one or two justices here. See, e.g., Balloon Juice and how many sociopaths will be present when the ruling is handed down in June.

  • Ken

    I have a vague memory that there were a couple of states – including Vermont, I think – that wanted a federal exchange, because they didn’t have the resources and/or the population pool to set up their own exchange.

    Which reminds me – unless the court sociopaths get really creative with re-writing, won’t such states still have the option of spending $50 on domain-name registration to set up their own exchange that points to healthcare.gov?

  • gratuitous

    I know I sound like a broken record on this, but the analysis of what the Court might or might do keeps coming back to quaint old concepts like the Constitution, stare decisis, and legislative intent based on the entirety of the Act and the debates in Congress.

    I think that’s wrong-headed.

    The Court will reach its decision to strike down the Affordable Care Act in its entirety based – like Bush v. Gore before it – on the result the majority wants to reach. The facts and the law can just go to hell. In Bush, I was surprised to hear that paper ballots enjoyed a right to equal protection under the law that the citizens who cast those ballots didn’t have. I believe the Court will discover a new right heretofore unenumerated and unsuspected in the penumbra of the Constitution that declares a typo or an anomaly in complex legislation to carry more weight than the rest of the law.

    Ignore the fact that practically every piece of legislation has its textual problems, and complex litigation like the Affordable Care Act is virtually guaranteed to have them. Multiple authors working on various sections and versions in separate rooms means that someone, somewhere along the line, is not going to get the word that one of the terms of art in the legislation has been changed. Despite the best efforts of an army of writers, readers and reviewers, errors are going to survive.

    In the olden days, we used to fix that at the administrative level, as the proceduralists drew up administrative rules for carrying out the legislation. Also, legislative bodies have routinely cleaned up problematical language when that language surfaced. So-called “housekeeping” bills to standardize the language have always been part of the legislative calendar. Until recently, when one party decided that its job in government was to monkey-wrench things so as to defeat their own purpose in being elected (that is, to govern – you know, make laws and stuff like that). We don’t do that no more, and the Supreme Court will, I believe, seize the opportunity to blow up the ACA.

    • Hogan

      The Court will reach its decision to strike down the Affordable Care Act in its entirety based – like Bush v. Gore before it – on the result the majority wants to reach.

      They had a chance in NFIB v. Sebelius, which actually did raise constitutional issues. Why didn’t they do it then?

      • Snarki, child of Loki

        Scalia had not soaked himself in sufficent Kool-Aid at that point.

        • Scott Lemieux

          Uh, Scalia voted to hold the whole act unconstitutional.

          • NonyNony

            Yeah – any explanation of how this case is going to differ from Sebelius has to hinge on why Roberts would switch his vote.

            On the one hand, I think he might because he’s gotten a bit older and has soaked in more wingnut idiocy. The older a conservative gets, the more stupid things they seem to be willing to do. (I’m certainly not a SCOTUS scholar, but my understanding was that as he aged Rehnquist got loopier and loopier as well – is that right?)

            On the other hand – it was pointed out to me that there isn’t a single business interest on the side of the troofers, and quite a few lined up against it. Roberts has been consistently pro-business, so if he decides that the pro-business argument here is to tell the troofers to pound sand, then he might just do it. (I strongly suspect that that was his actual calculus in Sebelius – he doesn’t give a rat’s ass about his legacy, but voiding the Medicare expansion entirely would have been bad for business).

            I dunno – it feels impossible to guess where Roberts is going to fall on this one. And his is pretty much the only vote that is going to matter.

            • JP Stormcrow

              that as he aged Rehnquist got loopier and loopier as well – is that right?

              Or returned to his voter suppression bully roots.

            • Pseudonym

              I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

              —Rehnquist as a law clerk in 1952

    • Scott Lemieux

      the analysis of what the Court might or might do

      This has nothing to do with this post.

      I believe the Court will discover a new right heretofore unenumerated and unsuspected in the penumbra of the Constitution

      If they invoke the Constitution, the plaintiffs will lose. I still think this is unlikely, but after Sebelius it would be silly to pretend to be certain.

    • louislouis

      Isn’t it more likely than rather than wading into the merits of the argument, the Court instead decides to spout some drivel about the sanctity of the legislative process, not legislating from the bench, etc. and then sends it back to Congress to fix? Then Congress can sit on their hands indefinitely. Of course, there’s the possibility of some blowback for Republicans, but I’m sure it’ll end up with a lot of both-sides-do-it finger-wagging to the tune of, yes the Republicans are being mean but Obama shouldn’t have screwed up the execution.

  • SteveHinSLC

    I know I should be immune to this stuff by now, but it sickens me that this case is going on and actually has a chance of succeeding and causing so much damage to so many people.

    Argh.

  • Joe_JP

    Just to toss it in there, John Oliver flagged that via a provision of PPACA (sic) there is a website where you can look up doctors and see what they’ve been accepting from pharmaceutical companies.

    http://www.salon.com/2015/02/09/john_oliver_destroys_big_pharmas_outrageous_spending_to_influence_doctors/

    Just one of those many parts of the law that people appreciate & deserves more attention. (His report was the first time I heard of it.)

    http://www.medicine.virginia.edu/research/offices/research/home/sunshine.html

  • politicalfootball

    I want to ask Adler, just to see what he’d say: If Congress set this up so that no sane state would turn it down, why are some states so eager to turn it down?

    • Hogan

      It’s Congress’s fault for underestimating how much Republican governors hate their citizens.

    • Joe_JP

      A lower court judge that bought this argument in effect said it isn’t Adler’s fault that Congress was stupid. Which is fine — government does stupid things — but there is a level of stupid. And, they just wasn’t that stupid HERE.

      • Pseudonym

        Conversely, however, it is apparently Congress’s fault that Adler is stupid.

        • Joe_JP

          “stupid” might not be the adjective I’d choose

          • Pseudonym

            What do you call someone unable to use context to aid their reading comprehension? Surely you aren’t suggesting mendacity! How uncivil.

  • burnspbesq

    All of this may turn out to be academic.

    It turns out that there is a potential case-killing standing problem.

    http://balkin.blogspot.com/2015/02/standing-in-king-v-burwell.html

    In the context of this discussion, does this mean that there were never any Moops to begin with?

    • Rob in CT

      I’ll laugh my ass off if the Troofer response is basically “that’s a technicality!”

    • Denverite

      One thing that’s important to point out when evaluating any Article III standing objection is that standing only needs to exist at the time a lawsuit is filed. (Neal Katyal got this wrong in one of the WSJ articles, oddly enough.) If the injury goes away after filing, it doesn’t affect standing.

      Now, a court can dispose of the lawsuit in that scenario on mootness grounds, but that’s a prudential doctrine, and courts have some latitude in how they apply it. (This is how abortion cases make it up to SCOTUS even though by the time they do the woman in question will have either had the baby or aborted.)

      • Joe_JP

        This is how abortion cases make it up to SCOTUS even though by the time they do the woman in question will have either had the baby or aborted.)

        Well, there are various ways they get up there — there is the idea of repetition being likely. A lot of the cases are by providers. But, that is a telling example regarding prudential standing. The saving at issue here up to now is really trivial. There appears to be one person at least who still has standing. The articles does suggest one or more do not. One as I recall had coverage as a vet, e.g.

  • burnspbesq

    With all due respect, i think you’re dead wrong about the standing question. See, e.g., Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam) (“We are obliged to examine standing sua sponte when standing has erroneously been assumed below” (Citation omitted).).

    • Denverite

      ???

      Examining standing at the appellate level sua sponte is not the same thing as requiring there to be an Article III injury throughout the life of a lawsuit (as opposed to just when it’s filed).

      There’s a good post-Adarand decision (it might even be the next Adarand one) discussing standing vs. mootness in this context.

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