He wouldn’t dream of allowing anyone to lose their health insurance, Scout’s Honor!
Negotiating the various perils of the “card says Moops!” and “Moops invaded Spain” arguments, Ross Douthat ends starts off in the ¯\_(ツ)_/¯ camp. On the way, he throws out a major howler:
1) Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there.
The problem with the “Jonathan Gruber and others” assertion is that if you click the link, you will find that there are in fact no “others.” Not only that, everybody quoted explicitly rejects the fantasy version of the ACA reverse-engineered by Adler and Cannon. So President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minster and embattled mayor of Chicago Jonathan Gruber remains only person in any way associated with the Affordable Care Act who has ever suggested that subsidies would not be universally available, and not only has Gruber repudiated this interpretation of his comments his calculations always assumed that the subsidies would be available on both state and federal exchanges. Given the mountain of evidence to the contrary, citing Gruber (2012) is like throwing a bucket of sand in the Pacific Ocean and calling it a beach, which is presumably why Douthat can’t quite go there even if he can’t quite repudiate the theory either.
He then moves onto the “card says Moops!” theory with problematic results:
At the same time, a serious blunder in legislative drafting is just not the same thing as a Moors/Moops “typo”. It was a legislative accident, to take a famous example, when in the process of reforming its prostitution laws Rhode Island created a loophole legalizing prostitution so long as it happened indoors. But that didn’t license the state police to just enforce the law as if the accident hadn’t happened and the law still banned houses of ill repute; instead, the legislature had to pass a revised version of the law and the governor had to sign it to make prostitution illegal once again.
There are two problems, each of them fatal, that render this analogy null:
- It’s well-settled, and for good reason, that ambiguities in criminal laws be resolved against the state. You don’t read them the same way you read regulatory statutes.
- Unless the Rhode Island provision was embedded in a 900-page legislative scheme that contained many other provisions that don’t make any sense if you read an isolated subclause literally and with no attention to its context, it’s neither here nor there as far as this case is concerned.
And after going round and round reading analyses of King v. Burwell, I still can’t see a good reason why, if this were a lower-stakes piece of legislation and a less polarizing issue, the same principle would not apply. On a plain-meaning-of-words reading of the law, it only seems to authorize federal subsidies for state exchanges, and so the constitutionally-appropriate way to make those subsidies available on the federal exchange is for Congress to correct the accident and authorize that spending in the actual legislative text. Here I agree with Sean Trende, who writes that “if this were some obscure statute — say, the Uranium Mill Tailings Radiation Control Act … the plaintiffs could be reasonably confident of victory.”
The counterfactual can’t be proven either way, but as a commenter here observed yesterday I think this stands reality on its head. I think that if in a politically non-salient case the administration that signed a recently passed bill issued a regulation to resolve what appears to be a minor technical anomaly in the statute, without the objection of a single member of Congress who voted for the bill, there probably wouldn’t be any legal challenge to the regulation at all, and if there was it wouldn’t have gotten past the District Court level. (Indeed, I would love to hear of another example of another statutory interpretation case involving a recently passed law in which there was literally no support for the plaintiff’s reading from any member of Congress who voted for the statute either contemporaneously or after the fact.)
Again, Adler and Cannon didn’t write their fairy tale, and even try to manufacture evidence for it, for no reason. The “card says Moops!” argument is a loser — if there was a “glitch” that created a self-defeating result, the appropriate course of action is to allow the relevant executive agency to resolve the anomaly.
I will have a longer piece about the next subject next week, but quickly:
The textual problem with the law exists in the first place because the Obama White House didn’t want to scale back its policy ambitions after Scott Brown’s shocking victory, and pushed a creative end-around that avoided the necessity of more congressional votes but also precluded some necessary edits.
Well, that’s one way of looking at it. The better way of looking at it is that “the textual problem with the law exists because the Republican minority in the Senate refused to allow another vote on legislation that had the support of a substantial majority.” Allowing the obstructionists to benefit from this by having their allies in the courts destroy a regulatory scheme created by Congress makes the “constitutional decadence” problem worse, not better.
And, finally, we have the inevitable imagining of a Republican Party that doesn’t exist:
In this case, unless he or Kennedy comes up with a clever constitutional move, the court would be deferring to the executive branch and the administrative state while essentially enabling congressional abdication and dysfunction. From my vantage point, that seems like a much worse outcome for our political system than the previous rescue of Obamacare. And that in turn is why, without being particularly happy about it, and while expecting a more politically-expedient ruling, I find myself hoping that the court rules for the plaintiffs — and that Congressional Republicans are then forced, through pressure from the voting public, to do what our system asks of them and actually legislate when legislation is required.
To re-state what should be obvious, if the Supreme Court willfully misreads the law and wrecks the exchanges it won’t force Republicans in Congress to do a damned thing. Their plan for dealing with the uninsured has always been a briefcase full of Styrofoam pellets — why would that change now? It seems worth noting that Ted Cruz’s plan — the most detailed of the Potemkin Republican plans being discussed to reassure the Court — would “solve” the problem of subsidies being denied on the federally established exchanges by ending them for everyone. Oh, and this would be combined with by deregulating the state insurance markets, so in the unlikely event that you could afford insurance it would probably be worthless. Congressional Republicans are not politically suicidal enough to actually enact this plan, but Cruz and his allies will veto anything that isn’t like this plan, and hence the Republican Congress won’t do anything. The idea that reversing King v. Burwell would be a solution to legislative dysfunction is deeply strange.