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Public Disagreement Is Not Intimidation

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godfather-horse-scene-40308“This blog post made me look ridiculous!  And a Chief Justice of the United States cannot afford to be made to look ridiculous!”

Not that I can blame Halbig defenders from wanting to create diversions from the argument on the merits, but really:

Little did I know that within hours of the D.C. Circuit’s decision, Ezra Klein voxsplained how the Chief Justice would not rule in Halbig’s favor because horrible things would happen. Or did Ezra voxtimidate the Chief Justice Justice not to rule in Halbig’s favor because horrible things would happen…

There is a blurred line between voxsplaining and voxtimidating, that pundits walked delicately in the runup to NFIB v. Sebelius. Now, it is a well-worn path. And there is one key difference. We know the Chief blinked in 2012. Why should we think he will act any differently in 2015. Whether the full court press on the Chief  worked in 2012, it is certainly worth a shot again.

McArdle has tried a similar technique of preemption (“This is the Washington equivalent of the old lady in the movies who puffs out her bosom, settles her pince-nez higher up on her nose, and huffs, ‘You wouldn’t DARE!'”)   And we saw similar arguments in the run up to Sebelius.

But this is all silly, and is also irritating because it implies bad faith on the part of people making both predictive and normative arguments that do not conform to the preferences of the 25% of federal judges who have so far bought the most recent ad hoc challenge to the ACA.  As it happens, I disagree with Ezra about the likelihood that the Supreme Court will uphold Halbig (or, more likely, reverses the D.C. Circuit once it hears the case en banc and laughs the argument out of court.)  I think Trende and Yglesias have a much more accurate read on the chances that the Court would destroy the private exchanges in a majority of states.  Nonetheless, I see no reason to believe that Ezra isn’t arguing what he really thinks, and his expressing his views on the matter does not constitute “intimidation” or “Voxtimidation” or even “Kleintimidation.”   Fatally absent from such arguments are identifications of what precise form of leverage pundits have over Supreme Court decision-making.  (There’s the additional problem that the theory fails to explain the vast majority of Roberts’s jurisprudence.)

I suppose another implication here is that some critics of Hilbig have been a bit shrill.  (I certainly plead guilty.)  But this isn’t “intimidation”; it’s “people who strongly disagree for obvious reasons.”  The consequences of Halbig, as the majority conceded, would be serious and dire if it is upheld.  The IRS, which is by law owed deference over reasonable judgments, has interpreted the law as making the subsidies available on federally-established state exchanges.  The majority had a high burden of proof to overcome, and yet Halbig‘s reading of the statute is nonsensical on its face.

And, again, there’s the striking absence of people involved in the legislation who agree with the court’s ruling.  The fact that no supporters of the law were persuaded by the commerce clause arguments against the ACA doesn’t mean much in itself; supporters of the ACA didn’t write or ratify the relevant constitutional provision, and it was theoretically possible that they were construing it too broadly.  But Halbig is a statutory interpretation case — the text in question was written and enacted exclusively by supporters of the law. It was by people who wanted it to work, not by the people inventing one legal argument after another to try to make it fail.  If the statute unambiguously denied subsidies to people obtaining insurance on the federally-established exchanges — and this is the standard Chevron requires — don’t you think this reading would have, at a minimum, a substantial constituency among those involved in drafting and ratifying the ACA?  But, once, again, here is an exhaustive list of this highly relevant group who have ever expressed anything that could be construed as agreeing with the Halbig reading:

  • Jonathan Gruber in two YouTube clips from 2010 2012.

Here is everyone in that category who disagrees:

  • Jonathan Gruber in his contemporaneous data calculations
  • Jonathan Gruber in 2014
  • Everyone else

Given this context, it is not exactly surprising that the assertion that the ACA unambiguously established a federal fallback that was designed to fail has met with strong resistance.  This intense disagreement is not strategic; it’s genuine, and it’s not some kind of bad form to express it.  If supporters of this lawsuit think that they can attempt to deny health insurance to millions of people with a remarkably feeble argument and have it treated as a clever legal puzzle, they’re going to be very disappointed.

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