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 aporter.com