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On the “Stop Hitting Yourself” Theory of Statutory Interpretation


As I recently observed here, the hot theory among apologists for the latest legal who are uncomfortable with the Moops-invaded-Spain theory is that 1)the Republican minority in the Senate stopped Democrats from holding a conference to harmonize the House and Senate versions of health care reform so 2)a Republican Supreme Court should wreck the health insurance exchanges in most states contrary to the purpose of the statute so that 3)a Republican Congress can do nothing about millions of people losing their health insurance because 4)this would lead to a more functional government. You may be surprised that I find this…unpersuasive:

This version of events omits a highly pertinent fact. Dalmia and Douthat conspicuously fail to fully explain the reason that Democrats were unable to harmonize the bill in conference: the Republican minority in the Senate would not allow them to hold another vote. The ACA’s opponents implicitly treat the routine supermajority requirement imposed by congressional Republicans as a natural part of the legislative process rather than a highly unusual and unnecessary historical development. During most periods of history, the majority party would have been able to make final changes to the legislative language as it saw fit.

Dalmia’s claim that “the administration is asking the court to hand it a victory that it couldn’t obtain through the normal legislative process” stands reality on its head. A more accurate summary is that the Republican minority in one house of Congress prevented the majority from voting on a bill that went through a conference between the House and Senate, and now wants to use this as a justification to have its allies on the judicial branch gut the law.

Douthat’s apparent belief that overturning the law would make the system more functional is deeply odd. Rewarding dysfunctional behavior doesn’t strike me as an effective means of disincentivizing it. Far from the modest approach it claims to be, it represents a “stop hitting yourself” logic that doesn’t have a great deal to recommend it as a theory of statutory interpretation.

Alas, I do think that the “let Congress clean up its own mess” is exactly the kind of bullshit minimalism that could appeal to John Roberts.

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