Thursday, August 28, 2014

Overruled: A (Third) Response To Professor Adler

Guest Blogger

Rob Weiner

In the hopes of capping the increasingly tedious (not to mention snarky) contretemps with Professor Jonathan Adler, I think it worth reviewing a few of the instances where his responses to my blog posts on Halbig have ignored, elided, or misconstrued my points.
For example, I observed that a threat, to be a threat, must be communicated and understood.  In this case, the alleged coercive purpose of the language at issue in Halbig was lost on both the legislators who supposedly communicated it and the states that supposedly understood it.  Among the evidence I cited that Section 36B was not perceived as a threat were the initial characterizations of the disputed language by Adler and others as a “glitch” and the consequences, as “perhaps unintended.”  Adler’s response re-imagines the word “glitch.”  If that were all he had said back in the day, it might be a plausible riposte.  But in Volokh on September 9, 2011, Adler recounted the theory of some observers that “Congress meant to provide tax credits for any exchange-purchased insurance, because Congress wanted lower-income individuals to be able to purchase health insurance (and comply with the mandate).”  Adler’s reaction: “This may be true,” but the IRS still could not “revise statutory mistakes.” While arguing that the “ample evidence” of the ACA’s intent to encourage states to establish exchanges precluded any argument based on “scrivener’s error,” Adler conceded that, “it is certainly plausible -- perhaps even likely -- that many in Congress wanted tax credits for the purchase of health insurance to be broadly available.”  “Congress may have wanted to make tax credits more widely available,” Adler also wrote, “but that is not what Congress did.”  It is highly unlikely that Congress’s intent to coerce states was clear in 2010 when the ACA was enacted, but became retroactively cloudy over the next 18 months.

I also pointed out that no legislator offered Professor Adler’s interpretation of the provision in Section 36B during the debates on the bill.  Adler responds that no legislator specifically said tax credits were available in states with federally-facilitated exchanges.  And in fact, they did not specifically say that.  Instead, they repeatedly used the word “all” in describing who, among the “applicable taxpayers” would receive assistance to purchase insurance.  “All” is a fairly inclusive word.  But those statements don’t count, Adler claims, because “PPACA supporters believed all fifty states would create their own exchanges, the legislators assumed that every state would establish its own exchange, as many repeatedly said.”  Are those “many” the same ones who used the word “all”?  And when legislators made statements about the broad availability of tax credits and subsidies, did they say it was because all fifty states would establish exchanges?  Or is there some other way we know what they were thinking, as opposed to what they said?  
On another issue -- in the first post to which I responded, Professor Adler relied extensively on a 1987 opinion by Judge Edwards espousing a very limited compass for en banc review.  I pointed out in my last post that this decision, as well as others cited by the Halbig plaintiffs, predated the amendment of Federal Rule of Appellate Procedure 35 highlighting inter-circuit conflict as an express basis for en banc review, particularly where rehearing the case could eliminate the conflict.  Adler’s reply is that a conflict does not require rehearing en banc.  No one said it did.  The issue is whether the D.C. Circuit should rehear the case, not whether it must.
Rather than addressing his and the Halbig plaintiffs’ reliance on precedents superseded (essentially overruled) by changes in the relevant rule, Professor Adler repeatedly returns to the peripheral question whether the DC Circuit regularly issues orders staying its mandate until the time for rehearing expires. I had not seen, or noticed, those orders previously, nor had other lawyers I asked.  On further research, I find that such orders are not as unusual in the D.C. Circuit as I believed.  But they are not universal, as Professor Adler seems to assume, and the D.C. rule, while unique among the circuits, is not dispositive.  The key point, however, is that this is not the point.  It does not affect at all the conclusion that the Halbig decision was aberrant and that the full Court of Appeals is unlikely to let it linger as a precedent on how to interpret statutes.
So, let’s return to substance.  Ultimately, none of Adler’s assertions, including his pointless quibble over the definition of “definition,” undermine the statutory arguments in my posts or in the judicial opinions rejecting his position.  Adler’s theory requires reading the words, “established by the State” in isolation, and saddling them with an interpretation that vitiates other pertinent provisions of the Act, sabotages the Exchanges that Congress took such pains to create, and denies low income families the subsidies needed to meet the objective proclaimed repeatedly in the statutory text, in the legislative debates, and, indeed, in the very name of the Act -- extending affordable healthcare to all Americans. 
And that, I hope, is my final word on why I believe the D.C. Circuit will grant en banc review and overturn the panel decision adopting Adler’s theory.
  Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at

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