The Halbig Argument Is Terrible, Results-Driven Hackwork. Just Ask Its Supporters!

In the midst of her palpable excitement over the possibility that an asinine legal argument may be used to deny tens of millions of people health care, Megan McArdle inadvertently demonstrates another reason why the argument of the Halbig majority is asinine:

On the other hand, that outcome is hardly inevitable. Law professor Jonathan Adler pointed out in a conference call yesterday that Ohio would have to amend its constitution to allow the government to establish a state exchange, and barriers in some other states are high as well. State exchanges cost millions to build and to run. States can still apply for federal money to build exchanges, Adler said, but the annual operating costs have to come out of either user fees or tax revenue. In lower population states, or poor states, that might be enough to keep legislators on the sidelines. So might the fear of primary challenges, even if the administration comes up with some easy administrative workarounds to lower the cost. [My emphasis]

This is a point I discussed with Seder yesterday. One reason that the ACA empowered the federal government to set up state exchanges was because they anticipated opposition from Republican statehouses. (So much for the other terrible conservative argument-like rhetorical gesture floating around, “Congress wasn’t worried because it expected the states to go along!”) But another was that for low-population states — including those with public officials supportive of law — the administrative costs made it more logical for the federal government to establish the exchanges. So McArdle wants us to believe that Congress expected to federal government to establish state exchanges for multiple reasons…but wanted them not to work? That’s an absurd reading of the law. And statutory construction that leads to absurd results is inept.

It’s also important to keep in mind the burden of proof here. The Fourth Circuit unanimous opinion (as opposed to the Davis concurrence) was overly timorous, but it does do a good job on this point. Under Chevron, if a statute is ambiguous the courts have to defer to administrative judgments of statutory meaning as long as the reading is reasonable. And, at a minimum, the IRS reading is reasonable; administrative agencies are not required to use bad parodies of “textualism” to read statutes. The fact that nobody responsible for the statute thinks that the Halbig interpretation is correct should also be dispositive on this point. If a construction is plainly wrong, the contrary construction really should have at least some support from the architects of the statute. And if you don’t believe me, ask the authors of the neoconfederate joint opinion in Sebelius, who also assumed that subsidies would be available on the federally-established state exchanges, because this is utterly obvious.

While we’re here, consider this:

A lot depends on the 2016 election, of course: Do voters turn out for Hillary Clinton, to protest the loss of their subsidies, or do they turn out for the Republican, to protest this unpopular, unworkable clunker of a law?

Let’s leave aside the fact that while the ACA remains unpopular, voters like the Republican alternative (i.e. get rid of the ACA either tout court or piecemeal, and after that nothing) even less and hence if healthcare is a salient issue in the 2016 elections this is excellent news for Democrats. First of all, this “unworkable clunker” has led to millions of people getting health insurance, a figure that would be substantially higher had the statute not been ineptly re-written by John Roberts to enable Republican statehouses to reject the Medicaid expansion. Which brings us to the remarkable chutzpah on display here: conservatives inventing ad hoc legal arguments of varying degree of absurdity to prevent the law from working as intended then complaining that the law is “unworkable.” Republicans are thugs with wrecking balls asserting that building construction is unworkable.

As Cohn says, “these lawsuits are simply one more attempt to cripple Obamacare and yank insurance away from millions of people, no matter what it takes.” Just so, and if Adler tries to pretend his arguments about the Rule of Law (TM) his supporters feel no need to conceal the real agenda.

Seconds of pleasure

Updated

As a tail end boomer (graduated high school 1978) I submit I would have gone 16 for 16 on this quiz if it had covered the pop music ephemera of the 1970s instead of the 1980s. OTOH if it had covered the 1990s I probably would have gotten about four right, while for the aughts I might well have gone aught for 16 (unless it included that Gnarles Barkley song, I definitely would have gotten that one). As it is I batted 13 for 16.

Relatedly, I recognize exactly one of the ten “least obscure hit songs” since 1900, but 9.5 of the ten least obscure when adjusted for time (I’m not exactly sure what In the Mood is, which is sad given that my office is steps from the Glen Miller Ballroom).

Updated: There’s now a 70s version and YES I batted .1000. (Although I ended up having to play hangman on one, which I wouldn’t have gotten otherwise).

As for the 1990s, I did that one as well and . . . let’s just say that in retrospect I would have been thrilled to reach the Mendoza Line.

SEK’s New Internet Film School column: How the politics of Snowpiercer don’t matter if you’re an idiot anyway

Here you go. Sample:

Much praise has been showered upon the unsubtle English-language debut of South Korean director Bong Joon-ho, Snowpiercer, but the most interesting came from an unexpected source, conservative columnist Michael Potemra, who wrote that “the film succeeds aesthetically and as pure entertainment” despite the fact that “it’s a pretty heavy-handed Marxist allegory.” Convincing your ideological opponent that your “heavy-handed” slagging of their belief system is an exceptional work of art is quite the feat. Imagine convincing the grandchild of someone who survived a concentration camp that Leni Riefenstahl brilliantly captured the pain of the German people when she had Hitler lay a wreath on the Great War memorial in Triumph Of The Will. Not going to happen.

But that is precisely what a student of film should be able to do—divorce content from form, and remove both from the historical context, in order to understand how a piece works. Which is not to say that Potemra is a student of film, because despite his praise for the “aesthetic” of Snowpiercer, he also claims that “the train is an excellent set, a realized world that manages, amazingly, to avoid claustrophobia.” Potemra seemingly prefers to remember the more well-lit second half of the film to the painfully claustrophobic opening scenes. The latter half of the film, after all, concerns the tortured choices the capitalist elite must make in order for humanity to survive—a theme much more to the liking of someone who writes for the National Review…

UPDATE: If only I’d known that Jonah would publish his review the same day I did mine!

Plus-size model Robyn Lawley exemplifies body diversity in the world of high fashion

[edit: original photo replaced with one of Lawley; I inadvertently used one of another "plus-sized" model]

Wins praise for appearing in un-retouched bikini photo.

Last night we stumbled upon (OK we’ve actually already watched two three five episodes) one of those trashy reality real estate flip shows [ed.: link], featuring a husband and wife team, and it struck me that the wife’s size zero appearance is completely normalized on television in particular, and in the media in general. In other words, in these contexts a woman who is roughly in the 2nd percentile of BMI occupies what sociologists call an “unmarked category.”

By way of comparison, the 98th percentile of BMI — the statistical obverse — would be represented by an average-height woman weighing around 250 pounds.

They Criticize What They Can’t Understand

To the extent that there’s an argument against reading the ACA to include subsidies on the federal exchanges, it has to be that while Congress intended the subsidies to be available on both, reading the literal language of an isolated provision it says that the subsidies are only available on state exchanges, so tough luck.  This is, to be clear, a terrible argument, but it’s the best one available.  To my amazement, as I first saw on Twitter yesterday, some conservatives are arguing that Congress actually intended for the federal exchanges not to include subsidies.  For example, Ramesh Ponnuru:

Supporters of Obamacare have been lamenting that the law shouldn’t be crippled by a mere “drafting error.” But it’s not at all clear that restricting tax credits to state-established exchanges was a drafting error. If Obamacare had proven more popular, or resistance to it weaker, then most states would have established exchanges. And if the law were put in place as written — with the restriction on tax credits — then the few holdouts would be under pressure to establish exchanges to get credits for their residents. Other health-care legislation before Congress at the same time as Obamacare had the same restriction.

It’s wrong, then, to say that Congress obviously didn’t intend to include this restriction.

This argument is…amazing.  It may be true that many members of Congress were too optimistic about states creating their own exchanges.  But we also know that Congress anticipated that some states would not create their own exchanges…because the statute gave the federal government the power to create exchanges when states wouldn’t.  Ponnuru’s reading of the statute can’t explain why they bothered to do this at all.  The actually existing Congress assumed that some states would not participate but wanted the exchanges available in all 50 states.  So Ponnuru’s explanation is plainly wrong, and we’re left with an implicit assumption that Congress established the power to have the federal government to create exchanges but wanted them not to work, which is absurd.

In addition, we know that Congress anticipated significant state resistance because of the way it structured the Medicaid expansion.  If Congress thought that all but a few states would establish exchanges with little direct incentive to do so, then surely the huge gobs of federal money that comes with accepting the Medicaid expansion would be more than enough for states to buy in.  But Congress didn’t think that, and until the statute was ineptly re-written by John Roberts all existing Medicaid money was contingent on accepting the expansion.  Ponnuru’s explanation cannot account for this either.

But there’s a more fundamental problem with the arguments made by the majority of the D.C. Circuit panel and the Republicans cheering them on.  The ACA was not written by Republicans — it was written by public officials who wanted to substantially increase access to medical care.  The central function of the subsidies wasn’t to create incentives for state governments; it was to ensure that the non-affluent uninsured who didn’t qualify for Medicaid could purchase insurance on the exchanges.  To not provide subsidies on the federal exchanges would defeat the very purpose for which they were constructed.  If you understand the ACA from the standpoint of those who passed it, this couldn’t be more obvious.  Conservatives trying to evaluate the goals of the ACA are like elephants trying to play a toy piano.

And, needless to say, this is why as a first approximation zero supporters of the ACA either inside or outside Congress are persuaded by this latest ad hoc attack on the law.  In addition to the other ways in which it’s silly it’s premised on not comprehending what the ACA was trying to accomplish.