I posted after the oral argument in the DC Circuit to say that I thought the argument that prevailed there yesterday needed to be taken seriously, so now I feel compelled to talk about what comes next.
First, I think that there are four Justices who will be waiting on the front steps of the Court for the certiorari petition from the Fourth Circuit (which ruled in favor of the Administration on the same issue yesterday). Thus, the question of whether the DC Circuit will go en banc in Halbig is, to my mind, largely beside the point. In an ordinary case, one would expect the Justices to wait and see if a circuit split could be healed before acting, but this is not an ordinary case. The Justices who lost in 2012 on the individual mandate challenge would love to get another at-bat.
Second, the split yesterday supports my argument from last year that the Affordable Care Act remains unsettled law. The fact is that many statutes are poorly drafted or have errors. What normally happens when that is true? One option is for Congress to fix that problem. That cannot be done because the Republican Party is still overwhelmingly opposed to the Act. Another option is that the courts fix or overlook the drafting issue. That assumes, though, there is a consensus that the statute should be fixed, which is also lacking along partisan lines.
Third, I argue in my new draft article that the Chief Justice's opinion in NFIB is best understood as expressing a norm that it is wrong for the Justices of one party to invalidate the signature law of the other party. Does this convention include crippling the same law with statutory construction? The Chief Justice will have a year to mull that one over.
UPDATE: Typos in the original post are now corrected.
The key thing to remember is that the reason this drafting error couldn't be fixed is because of an extraconstitutional Republican flibuster. The Democrats had a 59 vote Senate majority to fix it.
ReplyDeleteIn other words, the Republicans could not stop the law with a filibuster, could only stop it from being written better, and did so, and now are complaining about the resulting bill when all they had to do was not filibuster and the bill could have been written better.
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ReplyDeleteI don't know what the word "extraconstitutional" adds to it, but second the comment.
ReplyDeleteParticularly found Prof. Adler (see a previous comment on how his brief had a key error) on his Volokh Conspiracy blog lamely unable to come out and admit it. As if this is just some thought experiment interesting legal question.
Or, an unfortunate thing that "Congress" did while fatuously ignoring the reality of the situation, ignoring the logic of applying the law in a sensible way that four out of six judges showed is reasonable as a matter of statutory construction, partially by taking this reality in mind.
At some point, this obstructionism really screws up good government. If you are not big on supporting one side or the other ideologically, as a matter of good government prudence, this should upset you. And of late, one side does it more.
Meanwhile, while this is going on, just to be clear about it, real people are harmed because their health benefits are threatened. See also, the contraception ruling.
I realize this is a legal blog, but the Roberts hypothesis offered sounds pretty prudential to me as well.
"Halbig" not "Habig."
ReplyDelete"At some point, this obstructionism really screws up good government."
ReplyDeleteThere must be a term that expresses, in an equally derogatory fashion, the exact opposite of "obstructionism": The relentless determination to Do Something. Surely doing the wrong thing is just as capable of screwing up good government, as refusing to do the right thing?
There is going to be over the years bad policy passed, given the ebbs and flows of government, but "this" obstructionism is not merely an attempt to stop it but stopped tweaks to apply what is in place in the best way possible.
ReplyDeleteGovernment is imperfect and good governance in my eyes would be to govern with what we have in the best way possible. Doing the wrong thing badly can be worse than just doing the wrong thing.
You know, speaking totally hypothetically, speaking an opinion on any single piece of legislation.
"Doing the wrong thing badly can be worse than just doing the wrong thing."
ReplyDeleteThat's true, but scarcely an argument for blaming the person who didn't want to do the wrong thing at all.
The Democratic party passed the ACA entirely by itself, none of the blame for how screwed up can attach to the Republican party, even if the GOP agreeing to be complicit might have opened a way to pass a slightly less destructive version of the bill.
Obamcare cannot be fixed.
ReplyDeleteObamacare's basic design outlawing all health insurance apart from expensive comprehensive government designed insurance and then compelling businesses and citizens to buy it is unworkable and cannot avoid being harmful to the citizenry and their economy.
The Obamacare legislation and much of the subsequent regulations are also filled with contradictory, self-defeating, or economically and politically harmful provisions. This ALWAYS happens when a socialist government attempts to run an industry. If you reverse all of the government imposed harms, you essentially gut Obamacare.
As to this particular economic distortion, the ACA language is very clear and unambiguous. Taxpayer subsidies are expressly limited to “exchange[s] established by the State." No jurist or third party honestly applying basic rules of statutory interpretation can get around those four words.
If Congress keeps the law as it is written, then Americans ordered to by expensive Obamacare insurance under pain of fine are harmed.
http://www.huffingtonpost.com/2014/07/23/obamacare-ruling-health-insurance-cost_n_5611309.html?utm_hp_ref=obamacare
If Congress amends the law as desired by the Obama IRS, then taxpayers are harmed to the same extent.
No matter how you try to repair this government mandate, someone will suffer.
Thus, arguing that Congress can repair this monstrosity is facially ridiculous. It can only kill it completely to stop the myriad harms.
So according to Bart, people paying slightly higher taxes is just as bad as people going without health insurance.
ReplyDeleteThat's true, but scarcely an argument for blaming the person who didn't want to do the wrong thing at all.
ReplyDeleteIt's an argument for blaming the people in the legislature who blocks the majority -- after a filibuster for the main legislation is possible (supplying a minority check) and fails -- from blocking a tweak of the bill to deal with various issues when the bill is going to be passed anyway. No need to vote for it.
The Democratic party passed the ACA entirely by itself
This is false. The most obvious case being the multiple amendments which had Republican involvement and/or votes. These count.
none of the blame for how screwed up can attach to the Republican party
Since you agree that ""Doing the wrong thing badly can be worse than just doing the wrong thing" and Republicans blocked fixes to make it a better law, given the nature of how the process works, this is false too. SOME responsibility is there
even if the GOP agreeing to be complicit might have opened a way to pass a slightly less destructive version of the bill
They blocked a better bill. Own up to it. I'm obviously not in agreement on the 'destructive' thing as such just to be clear, but I'm making a general point here.
The same applies to personal life. If I BLOCK someone from doing something to make their decision less destructive, I can't claim total innocent just because I didn't help them do the action itself. I helped make it worse. I surely can't claim innocence if I actually DID in some way help as the Republicans did here via the amendments.
If the Republicans want to obstruct because they think it is a good thing, OWN UP TO IT. They come off as pathetic hypocrites by claiming they really had no real blame or whatever you want to call it here. They did, be it positive or negative.
The same would apply in some other case if the tide was turned.
Bottom line, this is how government works. Sometimes, the majority will pass bad policy. But, it is not overly helpful to block said policy from being less bad. Even if you don't like something, don't help make it worse.
ReplyDeleteOTOH, if one doesn't like government much at all, being destructive of the overall process might be seen as a good thing. Let's say if one is an anarchic libertarian.
Not that Republicans are libertarians. Their destructive nature here is not for that reason.
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ReplyDeleteThis comment has been removed by the author.
ReplyDeleteDilan: "So according to Bart, people paying slightly higher taxes is just as bad as people going without health insurance."
ReplyDeleteYou have encapsulated the classic progressive and socialist scam, disperse and usually conceal the harm hoping the people you are looting will not notice and concentrate the benefit so you will have properly grateful government dependent voters come election time. The total harm is still the same.
In this case, Obamacare subsidies are paid for by:
1) a medical instrument tax which is silently passed onto employers or individuals who buy health insurance;
2) two generally undisclosed taxes on those who pay for group health insurance
3) a risk sharing pool where insurers with more customers with healthy lifestyles pay insurers with more customers with unhealthy lifestyles out of the premiums paid by those who live responsibly. Most risk pools are outlawed;
4) and, of course, our children and grandchildren saddled with Obamacare debt. Yup, new debt. Obamacare cuts projected borrowing for Medicare by capping Medicare spending, borrows that money for Obamacare instead, and calls it a deficit cut.
I'll wager you and nearly everyone else here did not know most or any of this.
Progressivism and socialism can only thrive when the people are ignorant about what their government is doing to them.
The real fear of our CO gasbag and his ilk that ACA will lead to a more efficient one-payer system. In fact, I predict that Republicans may lead the way to take credit and perhaps enjoy the benefits that Social Security, Medicare, etc, had provided to Democrats. And another fear of our CO gasbag and his ilk is the changing demographics.
ReplyDeleteBy the Bybee [expletives deleted], is it only a coincidence that America's poverty belt is made up of mostly former slave states that continue to support Republicans?
Shag:
ReplyDeleteHere is a curveball. A nationalized health insurance system would be more efficient than Obamacare.
Obamacare is German Zwangswirtschaft socialism where the government declines to nationalize an industry and instead abuses its police, taxing and spending powers to direct the industry as if it were the legal owner in order to redistribute wealth.
It is far harder to run someone else's business than it is to run your own bureaucracy. The two times the Germans tried this form of socialism during the world wars, they collapsed their economy within 3-4 years. In contrast, the economic inefficiencies of classical socialism and progressivism take decades before they cause system collapse.
Obamacare is by far the worst socialized health insurance system devised by man. Of course, this is not an argument to settle for the next to worst form of socialism.
Would our CO gasbag prefer the so-called free market to provide healthcare that is efficient and works at affordable prices? Presumably our CO gasbag would prefer to add to the existing inequalities as a means of addressing the changing demographics, with good healthcare available only to the wealthy (with or without subsidies provided by the Internal Revenue Code).
ReplyDeleteI never thought I would see the day that the actual posters at Balkinization would outdo the commenters in outrageousness. But Professor Koppelman seems to have achieved this dubious distinction. Meanwhile, I appreciate the fact that Professor Magliocca is attempting to preserve what remains of the tradition of dispassionate legal analysis.
ReplyDeletePutting aside that Prof. M. has when it suited been rather snarky etc. in response to legal matters (I think dismissive snark can be that much more powerful to show how little you think of something as some crude example), I checked the full article of Prof. Koppelman.
ReplyDeleteKoppelman, btw, has repeatedly provided "dispassionate" legal analysis in response to points of view he clearly personally disagrees with. For instance, "natural law" arguments against same sex marriage.
Looking past the Ukraine terrorist dig, the article provides legal kick to back up his sentiments. Putting myself in the mix, I don't see that much professorial effort that often by comments on this blog.
I appreciate Prof. Koppelman's efforts.
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ReplyDeleteShag:
ReplyDeleteThere are three different ways to pay for health care: government insurance, private insurance and individuals purchasing it like any other good or service.
You need catastrophic insurance because the vast majority of people cannot save enough to pay to treat catastrophic health problems.
Insurance for non-catastrophic care creates artificial demand and price inflation. It is no accident that health care as a percentage of the economy took off when we transitioned from catastrophic to comprehensive health insurance.
Private insurers are FAR more efficient at providing the most care for the dollar. Medicare and Medicaid are massively fraud ridden and would go out of business in less than a year in a free market without open or hidden government subsidies.
People ought to pay for everything else out of pocket and use the same cost benefit analysis they apply to other necessities like food and shelter. In such a competitive free market, the price for non-catastrophic health care would collapse.
Here is another curve ball for you.
I believe in a single payer system under the facial meaning of that term.
The government does one thing rather well - collect taxes. I would propose a flat sales tax on all goods and services sold in the United States to finance a voucher to buy private catastrophic health insurance and a payment to fill health savings accounts. A sales tax will catch nearly every free rider in the system and lower the individual health insurance bill.
Government regulation of health insurance would be limited to ensuring the insurers have capital to pay their promises benefits and that they do not commit fraud or theft. All other government coverage mandate would be eliminated.
All government health insurance programs from Medicare to the VA would be eliminated. No more mass fraud and de facto rationing. Everyone enters a single system and the insurers have to take any applicant who can prove residency.
The government can contract out the creation and management of a national exchange to a competent private company. Obamacare has demonstrated that the government is no Expedia.com.
Relieving businesses of providing health insurance would free up several hundred million dollars to go towards growth, raises and hiring.
Because citizens and non-citizens alike will be paying the sales tax, all residents are eligible to enter the system.
If a resident is too lazy stupid to choose a private insurance plan off of the exchanges and set up an HSA, then they will be thrown into a capped Medicaid-style program and placed into a queue for treatment. The disabled will need family or guardian ad litem representation.
"I never thought I would see the day that the actual posters at Balkinization would outdo the commenters in outrageousness."
ReplyDeleteThere's always been a faction on the left which wasn't content with thinking themselves right, but had to think themselves so obviously right that any disagreement had to be insincere or rooted in evil. That sort of thinking has been leaking into academic circles, and has been really obvious where the ACA has been concerned.
Again, I think people would be helped by reading the whole article:
ReplyDeletehttp://www.newrepublic.com/article/118822/halbig-v-burwell-example-moral-dysfunction
As to the "insincere or evil" bit, there is nothing special about "the left" here. There are people on all sides who feel this way.
Some comments, e.g., outside of the left on ... just tossing this out there, guns ... comes to mind. But, I take Brett repeatedly focuses on "the left" because this blog leans that way though Prof M. himself is a self-proclaimed conservative.
http://www.nytimes.com/2009/05/27/opinion/27magliocca.html
I'm unclear what your complaint is here, Joe. By the exact same reasoning that finds Halbig wrong, the fact that I said the left has this problem should be read to indicate that all parties have this problem.
ReplyDeleteWhy are you being mindlessly textualist?
Do we need another reminder that Brett is a 2nd A absolutist AND a self-proclaimed anarcho libertarian?
ReplyDeleteAnd once again Brett plays Humpty-Dumpty by explaining:
" ... the fact that I said the left has this problem should be read to indicate that all parties have this problem."
If this is " ...being mindlessly textualist" can we assume that when Brett refers to the "left" in the future it applies to "all parties"?
MIT economics professor Jonathan Gruber designed the MA health insurance system. Team Obama paid him nearly $400K to help design Obamacare. After the Democrats imposed Obamacare, states and tech organizations would pay him to help design the exchanges.
ReplyDeleteThis week, Gruber joined the chorus on the left to argued that the express command in the ACA legislation that taxpayer subsidies are expressly limited to “exchange[s] established by the State" was instead "unambiguously a typo."
http://youtu.be/Mm0KZGHNS8A
However, back in 2012 when he was advising a tech company about Obamacare, Gruber gave a completely different account:
http://youtu.be/34rttqLh12U
What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.
Never ending dishonesty from start to finish.
Blankshot, Gruber isn't in Congress.
ReplyDeleteBB:
ReplyDeleteCongress did not write and the nearly everyone who voted for it did not read the ACA.
Technocrats like Gruber designed Obamcare and the bill was drafted by White House and Dem leadership aides largely in secret.
Congress did not write and the nearly everyone who voted for it did not read the ACA.
ReplyDelete# posted by Blogger Bart DePalma : 10:25 AM
That is completely irrelevant. Congress's intent is what matters, and Gruber was not in Congress.
BB:
ReplyDeleteCongress' intent (or at least the intent of the technocrats who wrote the bill) is expressed in the language of the statute.
Congressional Democrats simply voted as they were ordered like the old Supreme Soviet "legislature" rubber stamped decrees of the Politboro party leadership.
Such is the state of what remains of our Republic.
Congress' intent (or at least the intent of the technocrats who wrote the bill) is expressed in the language of the statute.
ReplyDeleteSparky, grammatical errors do not indicate intent.
http://talkingpointsmemo.com/livewire/jonathan-gruber-explains-obamacare-halbig-video
ReplyDeleteMeanwhile, Brett, the criticism is that taking the law and its drafters as a whole the challenge is not a reasonable interpretation of the provision.
Taking your comments on this blog on the whole as well as their drafter, contra, it is reasonable for the objective observer to think you selectively criticize.
I might have a certain leaning, but I don't put myself out there as some critic of "government" or some sort of "anarchic libertarian" so selective concerns about "text" or "government" etc. come off somewhat differently.
[if you don't really care & are just being cute with your comment, I'm sorry]
Our CO gasbag's:
ReplyDelete"Such is the state of what remains of our Republic."
should be modified if technicality prevails to:
"Such is the state of what remains for healthcare of the red states."
Query: How might voters in red states vote this fall if technicality threatens to deprive them of subsidized health insurance?
Joe:
ReplyDeletehttp://talkingpointsmemo.com/livewire/jonathan-gruber-explains-obamacare-halbig-video
Gruber takeaway quote: "My subsequent statement was just a speak-o—you know, like a typo."
Lies, lies, tell me sweet little lies. I'm a Democrat so I will believe whatever you tell me.
"Query: How might voters in red states vote this fall if technicality threatens to deprive them of subsidized health insurance?"
ReplyDeleteNot much.
Lets do the math.
The vast majority of new Obamacare "signees" are in Blue states.
Only 15% of the new Obamacare "signees" in any state claim to be Republicans.
http://www.commonwealthfund.org/~/media/files/publications/issue-brief/2014/jul/1760_collins_gaining_ground_tracking_survey.pdf
Government dependents disproportionately do not vote. I doubt Obamacare dependents would be any different.
In sharp contrast, nearly all GOP voters have private insurance and are paying higher premiums.
Lies, lies, tell me sweet little lies. I'm a Democrat so I will believe whatever you tell me.
ReplyDelete# posted by Blogger Bart DePalma : 11:43 AM
Dumbfuck, his calculations assumed that everyone would get subsidies.
"That is completely irrelevant. Congress's intent is what matters, and Gruber was not in Congress."
ReplyDeleteBB, Congress didn't HAVE an intent with regards to the ACA, beyond "Something needs to be done, this is something, so it needs to be done." You can't have an intent concerning a clause you're unaware of, and virtually everybody in Congress was unaware of the details of the ACA, because the vote was held before anybody had a chance to read it.
Let me repeat that, because it's such an obscenity in what is nominally a representative democracy: The vote was held before anybody had a chance to read the bill.
That makes a joke of democracy, much as jury trials would be a joke if you forced the jury to vote without permitting them to view the trial first.
The ACA is badly broken, but only as a consequence of our democracy being even more badly broken.
BB, Congress didn't HAVE an intent with regards to the ACA, beyond "Something needs to be done, this is something, so it needs to be done."
ReplyDeleteGood luck selling that pantload!
It's funny seeing all the wingnuts who claim to hate judicial activism now desperately hoping that judicial activism will save the day.
Brett in his latest comment:
ReplyDelete"You can't have an intent concerning a clause you're unaware of, ...."
seems in conflict with his earlier reference to " ..being mindlessly textualist."
BD: Lies, lies, tell me sweet little lies. I'm a Democrat so I will believe whatever you tell me.
ReplyDeletebb: his calculations assumed that everyone would get subsidies.
The calculations all wrongly assumed nearly every state would submit to the blackmail and set up an exchange.
Once again, the best laid plans of mice and socialists.
The calculations all wrongly assumed nearly every state would submit to the blackmail and set up an exchange.
ReplyDelete# posted by Blogger Bart DePalma : 1:28 PM
No, they clearly didn't. He doesn't even make that assumption in the video you posted.
I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this
bb:
ReplyDeleteGo link to whatever calculations you think Gruber made.
Very likely you are simply regurgitating what some Democrat media told you.
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ReplyDeleteI have a better idea, until you can demonstrate that the calculations prove your point you can go fuck yourself.
ReplyDeleteThe bill was gone over for over a year, including the specific provision in question, whenever exactly that was drafted. Various people have spelled this out here and elsewhere. "Someone" read it before it was voted on.
ReplyDeleteBrett continues to use extreme language for dramatic effect, only slightly ironic since other times he is upset when text is by his lights stretched and applied loosely.
To repeat for emphasis, if we are concerned about bad "government," instead of just selective attacks, a special nod should be applied to the Republicans whose actions inhibited the intended conference clean-up of this law. They want to get the benefit of such obstructionism when it suits, deny it when it suits.
I'm sure Democrats in some case did something like this though not sure at this scale. "Broken Branch" is a work by two conservative leaning sorts that argues convincingly that these days, Republicans in the federal government are worse at governing. Brett, not liking government much, might not care. But, again, Republicans are not anarchic libertarians.
But, moving past ahistorical Brett tendencies, big picture the bill followed various normal processes. Legislation is drafted by staff and committees. 535 representatives (or whatever number was there), for good or ill, neither now or one hundred years ago, went over with a fine tooth comb complex legislation themselves.
Likewise, often, legislation was edited late in the bill process. This happened now, in 1789 and in British parliamentary law making before Ben Franklin was in diapers. At times, this leads to slip-ups, though looking at the law as a whole, sane government acceptance of tweaks etc. helps the process along some.
Like the misunderstanding of the Pelosi line, hopefully "We the People" can as best we can push thru the fog and understand such things.
http://www.jackischechner.com/thats-what-she-said/
Meanwhile, ACA provides various benefits for the American public, including health care that saves lives, imperfect as it might be, imperfect as all legislation in a human world tends to be. But, even if one is against something, it's useful to understand what is going on.*
Anyway, I just supplied the TPM link for information. What one person says might be informative, but ultimately Chevron deference provides discretion to the executive unless it's fairly crystal clear there isn't any.
I realize some feel it's that clear that the challengers have it right, but in this case, that appears to me (and others more knowledgeable) wrong. Again, thanks to various legal scholars on this blog for the analysis provided.
---
* The 15A, e.g., was a compromise.
Joe:
ReplyDeleteThe Democrat House enacted their bill in the summer of 2009, not a single Democrat who promoted it at the planned town hall meetings across the country knew what was in the damned thing. Not one. Tea Party folks were quoting sections of the bill to them and they were completely ambushed.
At that point, the Democrats did not publicly post another bill until three days before the Christmas Eve vote on the massively revised and expanded Senate version. The White House and the leadership did not even provide copies to their own caucus who voted this monstrosity into law.
The Democrat Senate did NOT go through the normal committee process. Normally, bills are reported out of the various committees and posted online at Thomas.gov. The Democrats refused to make their work public as hundreds of thousands of pissed off voters were marching on the capital.
Indeed, the House bill was so toxic that the Democrat Senate violated the origination clause by emptying out a completely unrelated veterans housing bill and dumping in the Senate language creating new spending and taxes. Yet another law suit coming down the pike.
NO OTHER major program has been imposed in this manner during the history of the Republic..
BTW, the GOP had no responsibility to fix the hundreds of Democrat errors and bad ideas in the bill. The Tea Party had already read the riot act to the GOP and they wisely withheld all support. This was a 100% Democrat production.
Joe, you don't want to read the first draft, you want to read the final draft. And that, they were not permitted to read. Surely you're aware of that? "We have to pass the bill to learn what's in it." and all that?
ReplyDeleteJoe, you don't want to read the first draft, you want to read the final draft. And that, they were not permitted to read. Surely you're aware of that? "We have to pass the bill to learn what's in it." and all that?
ReplyDeleteSo, now we're assured that it would be insane to interpret the law to mean what one of the chief authors of it said it meant a couple years ago.
ReplyDeleteIn fact, HE says it would be insane, that his repeated statements on the subject were just "speakos", verbal typos.
I think, "That interpretation is insane/evil" is just the new STFU.
If the profanity continues in the comments, I'm going to close my future posts to comments.
ReplyDeleteThe final draft was "permitted" to be read. I provided a link that refutes the Pelosi dig.*
ReplyDeleteI also provided a link regarding Gruber. And, it isn't even that it is "insane" -- it is that it is at best a reasonable application of a provision that can be applied in different ways. In such a case, executive discretion lies.
More here:
http://www.lawyersgunsmoneyblog.com/2014/07/can-squint-see-one-cherry-cornfield-must-cherry-tree
* When it comes to digs, there is much more equal abuse than regarding blockages in the legislature. Still, this is a pretty lame one.
My apology, make that, "Calling an interpretation absurd/insane is the new "shut up, he said"".
ReplyDeleteIt's meant to end debate without argument. It's just particularly absurd coming from somebody who used to assert the case he's now saying is insane.
Joe, you've demonstrated that the Pelosi quote is "ambiguous", (I assume it isn't just liberals who can claim things are "ambiguous", right?)
I missed the part where everybody was given sufficient time to read the final draft of the bill before the vote. Where did you document that?
Of course, if you were referring to BartBuster, I'd only point out that your closing the comments is exactly what he wants. He's nothing more than a heckler hoping to exercise a veto.
ReplyDeleteGerard:
ReplyDeleteI apologize for bb. He is my own personal cyber stalker who has been following me around for over a decade now.
Joe said...
ReplyDeletehttp://talkingpointsmemo.com/livewire/jonathan-gruber-explains-obamacare-halbig-video
After Jonathan Gruber claimed that his remarks on the first 2012 video above were simply a mistake, the audio below of Jonathan Gruber's prepared remarks on January 10, 2012 at the Jewish Community Center of San Francisco was posted on Youtube:
http://youtu.be/LbMmWhfZyEI
Liar.
Here is a link to Mike Dorf's "Verdict" column:
ReplyDeletehttp://verdict.justia.com/2014/07/28/federal-appeals-courts-divide-obamacare-subsidies-textualism
A direct link is available at the Dorf on Law blog, together with Dorf's additional commentary on the brouhaha with state exchanges under Obamacare.
In the "Verdict" column Dorf addresses textualism. While Dorf criticizes the DC Circuit majority panel (2-1) for its form of textualism, perhaps Brett had a better description of the majority in his earlier comment on this thread (in another context) in responding to criticism of him:
"Why are you being mindlessly textualist?"
A (inadvertent?) gem out of the mouth of a 2nd A absolutiest AND self proclaimed anarcho libertarian.
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ReplyDeleteMore on Gruber:
ReplyDeletehttp://talkingpointsmemo.com/dc/jonathan-gruber-obamacare-halbig-tapes-other-evidence
There is also a comment in an article GM flagged on a different blog:
"legal texts frequently obtain meanings that their drafters either did not intend, or that they even affirmatively opposed"
[Jack Balkin cited]
http://www.texaslrev.com/wp-content/uploads/Driver-92-4.pdf
I guess that truth has various implications in this context.
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ReplyDeleteShag:
ReplyDeleteAs to the Dorf post, Obamacare subsidies cannot honestly be granted to federal exchanges under either textualism or "purposivism."
The law quite unambiguously limits subsidies to “exchange[s] established by the State."
Under textualism, which is simply applying the law as it is written, subsidies cannot go to exchanges established by the federal government. This is not even a close question.
"Purposivism" is the court unconstitutionality granting itself or a bureaucracy the power to rewrite the law to correct what they see as legislative mistakes. This approach facially violates Article I, which grants all legislative power to the Congress.
However, even under purposivism, subsidies cannot go to exchanges established by the federal government. Congress's purpose in limiting subsidies to state exchanges was to encourage states to undergo the expense of building these exchanges instead of passing the bill off to the Feds.
What we have instead are judges deferring to an outlaw bureaucracy rewriting the ACA by decree in yet another effort to make a very badly designed law work.
Prof. Dorf is the only person at Verdict that actually reads ALOUD his columns. That is, there is an audio option. Useful device.
ReplyDeleteDorf on Law, a link provided at Shag's link (multiple blogs link to Dorf on Law using an old link), has more on that case while recent posts covered the Hobby Lobby decision.
For those interested, its three main contributors are vegan. This comes up from time to time.
This, by our CO gasbag:
ReplyDelete"This is not even a close question."
is belied by the fact that the panel of the DC Circuit majority (2-1) and the unanimous VA circuit panel adds up to 4-2 approval of the question. Perhaps the anticipated en banc appeal of the former may increase favorability.
I appreciate that our CO gasbag most likely did his usual limited "Googling" to come up with his versions of textualism and purposivism to fill up space without research of the Court's decisions. Despite the veganism of Dorf on Law contributors, the legal views expressed are quite meaty as compared to our CO gasbag's munching on the brittle bones of the like of Wikipedia generalities.
Shag:
ReplyDeleteDid you even read for content the Dorf post and my response posted above?
Yes, I read Dorf's post, his "Verdict" column and then read our CO gasbag's comment here on them. Our CO gasbag's belying claim (to repeat: "This is not even a close question.") suggests his pants are on fire.
ReplyDeleteSCOTUSBlog et. al. noted an important gun rights ruling out of the D.C. courts. Perhaps, we can move on and deal with that!
ReplyDeleteSeems time to change gears, even if it was cover another time honored topic.
Joe:
ReplyDeleteThe DC ruling applied the 9th and 7th Cir rulings in public carry. Not much new ground broken.
The more interesting questions will be what type of restrictions can government place on public carry.
It is important at least symbolically, including as a D.C. law that is up close and personal for the justices. It also is being noted as the "nation’s last total ban on carrying a gun in public," a broad sounding provision ala the one struck down in Heller. Anyway, it's in flux.
ReplyDeletehttp://www.scotusblog.com/2014/07/district-court-strikes-down-last-ban-on-carrying-a-gun-in-public/
Nick Kristof's NYTimes column today (7/31/14) compares regulation of motor vehicles reducing deaths by that means to compare with non-regulation of guns. Cars don't kill people, people do. But regulation has brought down motor vehicle deaths significantly despite the increasing number of such vehicles today. Guns don't kill people, people do. But without reasonable regulation, people will use guns to kill more and more people absolutely.
ReplyDeleteThere are two basic problems with your position, Shag.
ReplyDelete1. The actual accident rate for firearms is extremely low, to the point where, from a strict cost-benefit standpoint, guns would not be considered an appropriate subject for additional regulation. We'd be going after mop buckets, showers, bathtubs, outlawing the deadly swimming pool, instead.
Also, the most direct way of reducing the actual accident rate with firearms, universal firearms safety training, is adamantly opposed by the people complaining about the accidents.
2. The deliberate firearms deaths, suicides and homicides, are not particularly amenable to regulation, being deliberate acts by intelligent, goal driven people. Criminals have already demonstrated their capacity to obtain things which are essentially completely illegal, no reason at all exists to think they'd find guns harder. And suicides will always have a wide range of choices about how to kill themselves, taking one away won't keep them alive.
Gun control keeps being pursued because it isn't a means to an end, it is the end itself. So it's advocates don't particularly care that it won't work, or that there are better ways of achieving their purported ends.
So how does Brett intend to use his arsenal?
ReplyDelete
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حلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك
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طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
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