Balkinization  

Monday, October 05, 2015

Trying to Please Everyone=Pleasing Nobody

Gerard N. Magliocca

The Justices are back in business today, and to mark that occasion I want to comment on an op-ed published the other day by Linda Greenhouse in which she discussed the criticism directed at Chief Justice Roberts by conservatives.  Greenhouse argues that an important reason behind these attacks is that the Chief Justice reflects an old-fashioned conservative view based on judicial restraint, as in his two opinions upholding the Affordable Care Act.  Modern conservatives elites, she says, instead take a much more aggressive tack on what courts should do to advance their policy objectives.  Ergo, they are disappointed with the Chief Justice.

With respect, I think that this explanation is incorrect.  First, judicial restraint was missing when the Chief Justice joined or authored opinions invalidating federal campaign finance regulation and a key portion of the Voting Rights Act. Second, conservative academics do not just want their policy goals implemented--their view of what the Constitution requires or permits is more nuanced than that.

What is their problem with the Chief Justice's health care decisions then?  Well, one factor is that we know that the Chief changed his vote after the initial conference.  This leads to suspicions that he did that because he was unduly sensitive to the criticism that would rain down on him if he ruled against the individual mandate.  A second factor is that his opinion in Sebelius was incredibly convoluted.  If he had upheld the ACA on Commerce Clause or Necessary and Proper Clause grounds, then I think many current critics would have been unhappy but would not have smelled a rat.  His comments on the Commerce Clause and Necessary and Proper Clause were probably intended to soften the blow, but they did the opposite.

   

Comments:

Regarding Gerard's:

"If he [CJ Roberts] had upheld the ACA on Commerce Clause or Necessary and Proper Clause grounds, then I think many current critics would have been unhappy but would not have smelled a rat."

I wonder wethert Randy Barnett's olfactory reaction would have detected a skunk.
 

"do not just want their policy goals implemented--their view of what the Constitution requires or permits is more nuanced than that"

in what sense? Is this a matter of their particular brand of originalism? Alito is not as into that either ("Scalia wonders what Madison thought about video games"). If Roberts struck down PPACA in a way they didn't like, they still wouldn't like him?

"we know that the Chief changed his vote after the initial conference"

Do we know for sure that he was going to definitely vote one way and then changed his mind? Anyway, that wouldn't address the second more recent case.

"incredibly convoluted"

How so as compared to the joint (partial) dissent? Is this a matter of you personally not accepting the tax approach which was offered from the start as an original rationale? I agree the Commerce Clause and Necessary/Proper Clause aspects were "incredibly convoluted" along with the Medicaid portion, but then, his critics LIKE those parts. Again, sounds like they don't like the results and thus finds the reasoning "convoluted."


 

It might be argued that the Commerce Clause were dicta since they were not necessary to the opinion but the tax approach very well limits the reach of congressional power here. The Commerce Clause would provide a more open-ended approach for Congress & nixing that as an option restrains Congress. It very well might have been strategic partially to cushion the blow but also to continue the Roberts Clause long game.

His critics perhaps are greedy and want more with the health insurance law a white whale of theirs that has unbalanced importance since as you say they should be happy with various things he did.
 

The title to this post might suggest to some Speaker Bo(eh)ner and what happened to him. CJ Roberts is an unelected lifer and his peers cannot deprive him of his CJ role. But current conservatives apparently demand lockstep. from these two Johns. Let's see what current conservatives produce for the 2016 presidential campaign.
 

I suspect it had more to do with the deep dislike of Obama more than anything else. 'Obamacare' was his signature law and Roberts was seen as 'saving' (in other words not killing it) it. Gay marriage and campaign finance reform are theoretically important, but 'sticking it to' Obama has been the main plank in the GOP working platform since his election in 08, and Roberts didn't join them in that, which is unforgivable.
 

It's not so much that he saved it, as that he conspicuously went out of his way to save it. "Killing" it wouldn't have taken anything more than simply interpreting the words as meaning what they said.

That's not something any conservative jurist should find difficult. It's what conservatives expect of jurists. Just read the blasted law, and if the words mean something bad, that's the legislature's problem, not your's.

Instead, he went out of his way to adopt a saving interpretation that ran contrary to the simple denotation of the words. He went that extra mile to save it.
 

Brett's response demonstrates (once again) Mr. W's point of sticking it to Obama mantra of conservatives, including our own self-proclaimed anarcho libertarian who is also a 2nd A absolutist.
 

All that's demonstrated here, Shag, is that anything short of proper obeisance to The One is seen by the left as pathological hatred.

Conservatives don't think it's the job of the judiciary to adopt 'saving interpretations". If a law is bad policy, but constitutional, uphold it as written. Crafting good policy is the legislature's job, not the judiciary's. We don't want to hear the judiciary's opinion on that subject, if they want say on policy, let them run for the legislature. If it's good policy, but unconstitutional, strike it down. It's not the judiciary's job to warp the interpretation of the law to make it better than what the legislature wrote, or waive constitutional requirements because they're seen as getting in the way of good policy.

The right doesn't hate Obama because of his color, or anything stupid like that. They hate him because of his *policy*. He'd be despised by the right if he was an albino who could trace his ancestry to the Windsors.
 

Brett uses "we" here which is helpful since repeatedly his choices don't seem "libertarian" as much as conservative libertarian (with some anomalies).

The Right has rejected Obama's policies even when he puts forth things they in the past supported. I don't think this is racial as such -- though there is a segment of the party that is racist, nativist etc. -- but partisan. There are clearly some differences in policy but the breadth this opposition is taken has been discussed even by those who are far from liberal in character.

"Conservatives" might respect rules of constitutional avoidance that were in place since the 1790s that judges should bend over backwards -- even using interpretations that allegedly are unlikely to be what was intended -- before striking down popularly passed legislation. This is what Roberts did in the first case (using his view of the law; others didn't think it so hard). In the second case, Kennedy joined him -- Kennedy is was part of the dissent of the first case, because it was fairly clear the challengers had a weak case.

If rules in place since the 1790s should not be followed, since "no matter where the law might go, let the sky fall," and there is a great debate over how the law actually was unconstitutional, so it is far from clear really, fine. Brett's cries in the SSM cases about "democracy" when striking down does seem a bit lame though when the result is a 5-4 ruling striking down national legislation the people at large has support, even if some aspect of it didn't appeal to some of them as is usually the case with compromise legislation.
 

"The Right has rejected Obama's policies even when he puts forth things they in the past supported."

In part this is because "the right" in a state like Massechusets isn't really expected to represent normal conservatism, and will sometimes embrace things conservatives elsewhere want no part of. In part, it's a capacity to learn from experience. Romneycare didn't work out too well.

And in part it's a refusal to eat a sh*t sandwich just because it's got a cherry on top, and you have a history of liking cherries.
 

Brett's use of the words "hate" and "despised" makes a mockery of his feeble personal efforts to hide the fact that when inaugurated little was known of Obama's policies other than what was said on the campaign trail. But the immediate mantra of conservatives (aka Republican of all stripes) was to limit this half white half black President to a single term. So what was it about Obama that stood our for this immediate hatred by conservatives? Changing demographics was not so much in the forefront in January of 2009. Perhaps if conservatives had adopted a modification of the "one drop rule" to one drop of white blood there might not have been so much hatred. Perhaps the election of Obama was an affront to what was once (but no longer) the party of Lincoln (hint: ending slavery). With advancing demographic changes, this hatred continues to this day. Just what is the objection of conservatives to healthcare for all, including the many poor (but pure) whites? Does the objection harken back to the New Deal's Social Security and other safety nets that conservatives still, rather feebly, battle? Or is it Medicare and Medicaid? All these safety nets protect the many poor (but pure) whites. Or is it the civil rights movement following Brown v. Bd. of Educ. (1954) and the Civil Rights Acts of the mid 1960 under LBJ Great Society?

Conservatives walked in lockstep with Bush/Cheney for 8 years (some abandoning ship like rats with the 2007-8 Great Recession). Obama was elected in 2008 in response to those bad 8 years that continue to plague America and the rest of the World. Perhaps conservatives have a sense of guilt regarding Dumbro. Now they got a chance to elevate Dumberbro. It's all retrograde for conservatives: the future is the post; bring back those good old The Gilded Age days or the Roaring Twenties.

Maybe conservatives should push for Ben Carson to "remedy" Obama's policies in the manner of George H.W. Bush's nomination of Clarence Thomas to SCOTUS. Might this be proof of Brett's "The right doesn't hate Obama because of his color, or anything stupid like that."

By the Bybee [expletives deleted], Brett might do a tad of research before referencing ancestry to the Windsors. And how about Brett's gratuitous reference to "albino"?
 

I didn't really just have one example in mind there. As a whole, taking everything into consideration (such as the differences between state/national policy), Republicans strongly rejected even policies that they in the past supported when Obama and other Democrats offered it. This is not really shocking on a partisan level though it has been shown -- again not just by "the left" -- that Republicans of late (even as compared to the 1980s) did so more blatantly.
 

Those of us who support the rule of law are angry (not disappointed) with Justice Roberts because he caved to progressive political pressure within and without the legal profession and upheld imposition of a program which was contrary to the Constitution and the text of the enabling statute itself.

In Sibelius, Roberts reportedly initially authored the opinion which later became the main dissent and then offered a self contradictory majority opinion clearly meant to uphold the individual mandate while imposing the least amount of constitutional damage.

The Commerce Clause grants Congress the negative power to regulate interstate commerce. Even under the later progressive rewrites of the Commerce Clause, Congress could only pass laws related to economic activity. The Commerce Clause nowhere grants Congress the power to compel people to engage in the government's preferred economic activity as does the individual mandate. Thankfully, Roberts did not further write the Commerce Clause to permit this.

Instead, Roberts offered the self-contradictory holding that the individual mandate was a fine for the purposes of standing, but a constitutional tax for the purposes of congressional power.

Then, as sop to federalists, Roberts added another constitutionally questionable holding that states could opt out of the Medicaid expansion.

Bad opinion for the rule of law.

Burwell was even worse.

The Obamacare enabling statute expressly limited government subsidies paying people to buy the new government designed health insurance to "exchanges established by the states." The IRS illegally rewrote the law and provided subsidies to the federal exchange. Cases this clear are generally dispensed with in district court and never reach the Supreme Court on appeal. However, because Obamacare would likely fail without the subsidies, the courts below started rubber stamping the IRS rewrite and Roberts joined them.

Burwell has further eviscerated the separation of powers and provides precedent that the bureaucracy can rewrite express statutory provisions in order to make a government program work better. I know that Roberts argued that it was the Court and not the bureaucracy rewriting the law to avoid expanding Enron, but the only way such a case gets to the Court is if the bureaucracy first rewrites the law.

Why exactly would anyone who believes in the rule of law be happy with Roberts after these decisions?
 

Mista Whiskas said...I suspect it had more to do with the deep dislike of Obama more than anything else. 'Obamacare' was his signature law and Roberts was seen as 'saving' (in other words not killing it) it.

Conservatives, libertarians and moderates oppose Obamacare because they hate the half black guy in the White House, but supported Hillarycare because they liked the white bubba in the White House.

Oh, wait...
 

Brett's response to Joe:

"In part this is because 'the right' [healthcare] in a state like Massechusets isn't really expected to represent normal conservatism, .... "

skirts the role of the GOP think-tank Heritage Foundation (speaking of "normal conservatism")and its individual mandate plan in the 1980s that was the foundation for Romneycare in MA. A fact-checker might ask Brett for proof of his claim that that Romneycare " ... did not work out well." Romneycare had its bugs but it did have success eventually. Just ask 2012 GOP nominee the Mittster. But with Brett, there's no need to fact-check on another of his "sh*t sandwich" just because it's topped with his pretty visage.
 

Who'd have seen that coming, Mit Romney thinking his signature program was a great idea. That was one of the misgivings conservatives had about Romney.

As I said, abandoning the core ideas of Obamacare was indicative of the fact that the GOP is, sometimes at least, capable of learning from mistakes. Not that everybody on the right made that mistake in the first place, to have to learn from it.

http://www.forbes.com/sites#/sites/theapothecary/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/

Suffice to say, the Heritage Foundation is hardly co-extensive with conservatism.
 

Perhaps Brett would be interested in this from the Cato Institute:

http://www.cato.org/blog/results-libertarianism-vs-conservatism-post-debate-survey

"Results from the Libertarianism vs. Conservatism Post-Debate Survey" 8/5/15, Cato being Libertarianism vs. Heritage being conservatism.

If Brett remains a self-proclaimed anarcho libertarian, I can understand his disagreement with the highly conservative Heritage Foundation. Apparently Heritage failed to leave a (De)Mint on Brett's pillow. Or maybe Brett is no longer an anarcho libertarian morphing into a true red conservative from a former slave state.
 

Brett, here's something a on Romneycare:

http://www.bloomberg.com/news/articles/2012-03-26/romneycar

"Romneycare's 98% Success Rate Defies Gripes on Obama Law," 3/26/12, Bloomberg Summit.
 

The ultra-conservative Heritage Foundation consistent with most conservatives walks its conservative views/ideas backwards when it fits its political purposes. A recent example of this is Speaker-to-be-or-not-to-be Kevin McCarthy, who supposedly is no dummy as he was moving his own lips.
 

Shag/Brett:

The Heritage fellow suggesting an individual mandate requiring people to purchase health insurance off the free market, Stuart Butler, is market oriented progressive who has since moved on to the Brookings Institute.

http://www.brookings.edu/experts/butlers

Obamacare only adopted the coercive "mandate" portion of the Butler proposal and threw out the free market, requiring Americans to buy expensive, government designed health insurance.


 

Bart

Of course they hated (and still hate) Hillary pretty vehemently too. But at least they didn't think she was a secret Muslim. But yes, of course their perceived policy and ideological positions, have a lot to do with that.
 

"Why exactly would anyone who believes in the rule of law be happy with Roberts after these decisions?"

Because the rule of law was followed. Bureaucracies are always coming up with interpretations of written laws when carrying them out. When affected people think their interpretation is incompatible with the law we have a courts system to decide the case. In this instance the case went through that process and at its terminus six of the nine properly appointed justices simply didn't find your view of the bureaucracy's interpretation convincing. This is hardly the stuff of a repeal of the rule of law, instead it's a case of you not liking the result of the rule of law in this instance.
 

"That's not something any conservative jurist should find difficult."

Judicial restraint used to be high on the list of those who called themselves conservatives...
 

No, Mr. Wiskas, the rule of lawyers was followed. I don't expect you to admit there's any difference, of course.
 

Our dynamic dyslexic duo Brat and Bert play Humpty-Dumpty loose with the meaning of "the rule of law" - what they choose to be "the rule of law."
 

Those interested in Stuart Butler might check out:

http://blogs.wsj.com/washwire/2014/07/25/conservative-thinke

from the WSJ 7/25/14 "Conservative Thinker Stuart Butler Leaves Heritage for Brooklings" for a different picture than that drawn with crayons by our own MRO (Macro 'Rhoidless One).
 

For those interested, they can listen to Roberts and Scalia summarize their opinions in King v. Burwell (along with the others from the 2014 term) over at Oyez.com. The opinion announcements audio is now available, SCOTUS not yet providing it at its own website.
 

Also, check out Stuart Butler's Brookings blog post:

http://www.brookings.edu/blogs/health360/posts/2015/06/26-king-v-burwell-two-roads-for-republicans-butler

dated 6/25/15 "King v. Burwell: Two roads for Republicans."

ACA is not perfect. I have stated on several occasions that at some point Republicans will move to replace ACA with a single payer system so they, with Democrats, can share in providing healthcare to all, including the many poor (but pure) whites who could not financially handle Republican free market concepts on healthcare. Yes, Republicans at some point will realize that Obamacare will no longer serve as a pejorative. Even our dynamic dyslexic duo Brat and Bert must realize that we cannot return to their respective good old days of America The Gilded Age or the Roaring Twenties. Demographics is destiny.
 

Mista Whiskas said...Of course they hated (and still hate) Hillary pretty vehemently too. But at least they didn't think she was a secret Muslim. But yes, of course their perceived policy and ideological positions, have a lot to do with that.

Why is everything the politics of personal destruction with you progressives?

This is not personal and it is not partisan, it is a matter of policy.

We are not only taking Obama and Clinton for their policies, we are taking folks like Justice Roberts to task for betraying their announced principles to defend this policy.
 

BD: "Why exactly would anyone who believes in the rule of law be happy with Roberts after these decisions?"

MR. W: Because the rule of law was followed.


I almost spit out my drink. Are you really going to attempt to make this argument?

Bureaucracies are always coming up with interpretations of written laws when carrying them out.

Changing "exchanges established by the state" to "exchanges established by the state and federal government" is not interpretation, it is the bureaucracy writing law in direct violation of Article I of the Constitution. This is not even a close legal question.

In this instance the case went through that process and at its terminus six of the nine properly appointed justices simply didn't find your view of the bureaucracy's interpretation convincing. This is hardly the stuff of a repeal of the rule of law, instead it's a case of you not liking the result of the rule of law in this instance.

This is the argument offered for rubber stamp judiciaries in Nazi Germany and Soviet Russia.
 

Our own MRO's question to Mr. W:

"Why is everything the politics of personal destruction with you progressives?"

suggests our own MRO has not been watching the 2016 GOP Clown Limo debates and follow-up intra-mural back-biting as such candidates spew their venom with their goals of personal destruction.

By the Bybee [expletives deleted], a reminder that one of our own MRO's Clown favorites, Scott Walker, has his scalp hanging on GOP Composite Clown Donald Trump's political gun-belt. Will Rubio or Cruz, his other two Clown favorites soon line up for a haircut?

And on the assumption that our own MRO has actually done some research on his "This is the argument offered for rubber stamp judiciaries in Nazi Germany and Soviet Russia." response to Mr. W, he can inform us of 6-3 rubber stamp judicial decisions in those venues. Or is he swallowing too much of that stuff he's drinking (Walker Red) and pulling this out of his derriere?
 

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Shag:

Allow me to put Burwell in a form where even a tax attorney would understand it.

The law of Congress currently imposes a nominal personal income tax rate of 39.6% for earnings above $413,200.

Does the IRS have the power to "interpret" the tax law to impose a tax rate of 39.6% on all earnings, reasoning that Congress intended the tax law to pay the government's bills and we have a $500 billion deficit under the current rates?

If the Supreme Court upheld such an interpretation by a 6-3 margin, would it be enforcing the law or rubber stamping the IRS rewrite of the tax law?
 

Our own MRO (Macro 'Rhoidless One) apparently hasn't recovered from his Walker Red or perhaps is engulfed with second-hand fumes from his DUI clientele with his efforts at a tax hypo. I don't expect a DUI legal specialist to understand the interplay of various tax provisions in the IRC and regulations promulgated thereunder. I don't like to deal in hypos, including the matter of our own MRO's legal competency (assuming that's a hypo). Apparently he hasn't taken my gratuitous advice to upgrade his practice to collections for which he has the personality.

Note how our own MRO has ignored a challenge of his claims regarding Nazi Germany and the Soviet Union. Maybe he should take a breathalyzer test.
 

Shag:

I will take that as a concession of my point.

Do you really dispute that the Nazi and Soviet courts rubber stamped government decrees? Do you have an example of a Nazi or Soviet court which ever enforced the law against a government decree?

 

I don't dispute rubber stamping by Nazi Germany and Soviet courts, rather my challenge related to 6-3 court decisions as rubber stamping. Can you cite to such? It was you who compared a SCOTUS 6-3 decision to rubber stamping in Nazi Germany and the Soviet Union.
 

Shag:

Mr. W offered the argument that a 6-3 decision of the Supreme Court is itself evidence that the majority was upholding the rule of law. I noted that the same argument could be offered for Nazi and Soviet courts rubber stamping their government's decrees.

The rule of law is applying the law as it is written. Judicial review upholding a government decree rewriting the law is not applying the rule of law, but rather rubber stamping a decree in violation of that law.
 

Our own MRO (Macro 'Rhoidless One) tries to walk back his earlier claim with this:

"I noted that the same argument could be offered for Nazi and Soviet courts rubber stamping their government's decrees."

from his earlier:

"This is the argument offered for rubber stamp judiciaries in Nazi Germany and Soviet Russia."

In his hyperbolic manner our own MRO was arguing that the 6-3 decision in SCOTUS' King v. Burwell was rubber stamping the Executive Branch in the manner of Nazi Germany and Soviet Russia. Can one imagine a Nazi Germany or Soviet court coming down 6-3, and if it did, it would be rubber stamping? Our own MRO has failed to cite such happening. It's pure hyperbole on the part of our own MRO who seems back in his Tyranny-Soreass mode. Could one compare our own MRO's efforts to accuse SCOTUS of rubber stamping with the propaganda methods of Joseph Goebbels? Nah, our own MRO is just a troll.


:
 

Blankshot, if a Nazi or Soviet court decision was ever 6-3, all of those who opposed Hitler or Stalin would soon be dead.
 

Shag:

OK, you win. I made an imperfect analogy.

I concede that the three person dissent in Burwell did not rubber stamp the IRS rewrite of Obamacare and likely would have been sent to a camp in Nazi Germany or Soviet Russia.
 

Blankshot, you misspelled "absurd".
 

Bart, you're marrying hyperbole and question begging.

You've decided there was a 'rewrite of the law' involved in Burwell when that was the question being debated. You have a view, namely that one sentence in a large document should have been read in a very literal and narrow sense. Other reasonable people thought that was daft, other provisions and legislative history and intent suggested otherwise to them. Thankfully, since unlike your parade of horribles, we want to follow the rule of law we have a process set up to decide these kinds of things. It's a process that is laid out before hand, consistent with our Constitution and democratic principles (this is the essence of the rule of law). This wasn't a rigged game, as noted justices were certainly free and independent and could have decided for your view, indeed, three did. But six did not, including two that were nominated by your party and one that had recently voted against the ACA (on another issue). Face it: the result you thought best just wasn't persuasive. That you hyperbolically equate that with an abrogation of the rule of law makes one suspect of how much you value what the rule of law, as opposed to your idea of a proper political result, actually is all about.
 

"Why is everything the politics of personal destruction with you progressives?

This is not personal and it is not partisan, it is a matter of policy."

This is laugh out loud funny. The 'secret muslim' and birther stuff is not personal, huh?
 

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Mr. W: You have a view, namely that one sentence in a large document should have been read in a very literal and narrow sense.

You have just offered a rather good definition of the rule of law.

Other reasonable people thought that was daft, other provisions and legislative history and intent suggested otherwise to them.

And another good definition of the rule of men.


 

It's sad if you can see the difference between one approach at interpretation of a document and another only as lawlessness and lawfulness. Certainly in your legal career/education you've come across cases, especially in contracts and wills in my experience, in which both approaches have been taken in our common law tradition.
 

America is a nation of laws, not of men (and now, God bless them, women!). But it is men and women who make decisions as to the rule of law applications. The rule of law is not always clear and is not self-administered. As our host Jack Balkin (and others) has stated, the Constitution provides frameworks to a great extent for determining what most likely was not envisioned or anticipated by the Framers/Ratifiers. Changes take place that have to be addressed with the Constitution we have. I abhor Heller (5-4) but I can live - hopefully not die - with its results. The history of SCOTUS demonstrates the problems of interpreting/construing the Constitution. Consider the present great divide between originalism and non-originalism. That's life as lived by us as we are governed at the federal and state and municipal levels by men and women, mere mortals. Progress, two steps forward, one step back.

Today is liberal lunch day (some progressives, thank you) And when I hoist my glass of port, I honor the Constitution, with trust that our representative form of governance will lead to a more perfect union. We shall overcome the GOP Bo(eh)n(er)-heads! As what's-his-name use to say, "CHEERS"!
 

Mista Whiskas said...It's sad if you can see the difference between one approach at interpretation of a document and another only as lawlessness and lawfulness.

Words have meanings.

By definition, if you follow the law, you are lawful; and if you do not follow the law, you are lawless.

I provided Shag with the following hypothetical above:

The law of Congress currently imposes a nominal personal income tax rate of 39.6% for earnings above $413,200.

Does the IRS have the power to "interpret" the tax law to impose a tax rate of 39.6% on all earnings, reasoning that Congress intended the tax law to pay the government's bills and we have a $500 billion deficit under the current rates?

If the Supreme Court upheld such an interpretation by a 6-3 margin, would it be enforcing the law or rubber stamping a IRS rewrite of the tax law?


Shag punted because I applied the Burwell-style bureaucratic rewrite of a law of Congress in a way that is politically unpalatable to progressives.

Do you have the integrity to honestly answer the hypothetical?

 

Words have meanings.

# posted by Blogger Bart DePalma : 10:36 AM


Says the asshat who used the "definition" for dictator from the Roman empire to try to support some idiotic accusation against Obama.
 

Bart,

You're begging the question again, assuming the issue in Burwell was something like what you're talking about. There were other parts of the law which, taken into account with its structure and purpose, suggested a narrow and literal reading was not correct. This happens all the time in the law, as in my examples about contracts and will provisions. It doesn't indicate lawlessness. There's sometimes more than one reasonable interpretation as to how to read provisions of statutes. This is why we have a process in place to decide between them. When that process is followed the rule of law is too, it doesn't become not so because your favored interpretation didn't carry the day.
 

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Mr. W:

I am well aware of the IRS arguments.

The provision at issue was crystal clear and did not conflict with any other provision of the statute. Under normal statutory interpretation, the analysis should end there and the court is required to enforce the law as written. Cases are rarely easier and this one never should have gone on appeal.

Neither the Court nor the bureaucracy has the power to rewrite laws of Congress to make a government program work better. However, that is precisely what the Burwell majority did. Like most socialist programs where a legislature or bureaucracy attempts to direct an industry, Obamacare is filled with internal contradictions and unintended consequences distorting the industry. The Burwell majority decided to rewrite the statute in a vain attempt to keep Obamacare from failing due to one of those internal contradictions - the concurrent attempt to blackmail the state into establishing their own exchanges and to pay people to buy the new government designed health insurance. The majority opinion does not even attempt to disguise what they were doing.
 

Back from lunch that closed with a glorious glass of port. Assuming I punted, which I deny, it went out of bounds at our own MRO's 1-foot line and he ended up with a touch back. His inapt (actually ludicrous) hypo demonstrates not only his ignorance of the IRC but also of how Administrative Law works. I'm aware that our own MRO thinks Administrative Law is unconstitutional, but this view is from a fossil who believes The Gilded Age were America's best days. To go further with the football analogy, it seems our own MRO has been playing without a helmet. Note our own MRO's references to "socialist programs," "blackmail." Now our own MRO reverts to his Chicken Little "The Sky Is Falling!" rants.
 

Bart, if you're going to simply keep repeating yourself then I will too: you're begging the question.

I think I've used this analogy before (not sure where I picked it up to be honest), but it seems appropriate to use it here again. Let's say we've got the will of a testator with two adult children, Taylor and Tyler, who everyone agrees was very interested in his estate providing the foundation for a 'bookmobile' literacy program wherein books are taken in a vehicle to disadvantaged neighborhoods for kids to enjoy. The will has pages of specific details about how this or that item in the estate is to be put towards such a program, at the end it says in a sentence that all items not listed should go to the Salvation Army. The will says at one point: "Taylor is to start a bookmobile program and so she should get my van for use in the program." No other mention of the van. But later in the will it says "If Taylor doesn't start a bookmobile program then Tyler shall start such a program." Taylor refuses to start a bookmobile program. Now, the executor is faced with a question: who gets the van? Reasonably the Salvation Army could argue: we get it, Taylor didn't start the program so she can't get it, the only item it now falls into is 'items not listed.' But isn't it also reasonable if Tyler says he should get the van because 1. the bookmobile program, which was clearly the main focus of the will, can't run without the vehicle, it's necessary to give effect to the rest of the will overall and 2. when the will said that if Taylor didn't start the program Tyler shall start 'such' a program it makes the program Tyler would start equivalent (a dictionary definition for 'such') to the one Taylor might start and therefore the item intended for use in the program goes there.

Now I've given you an apt analogy (and look, I did it without any Nazis! there's lesson there if you're willing to take it). Would the executor be 'lawless' if he decided Tyler gets the van? Would a later judge who did so be 'lawless?' That's silly.


 

Mr. W:

One of the basic maxims of statutory construction is expressio unius est exclusio alterius or the listing of one thing excludes alternatives. When Congress expressly stated that subsidies were limited to "exchanges established by the state," that necessarily excluded all other exchanges.

Your hypo is not analogous to Burwell because it placed a condition precedent on conveyance of an item in the will. Congress placed no condition precedent on payment of subsidies to the the state exchanges.

A more analogous hypo involving a will would go something like this:

Joe had two children, Taylor and Tyler.

Joe died and his will stated: "I bequeath my Chevy van to Taylor."

Can a court rewrite the will to award the van jointly to Taylor and Tyler because Tyler testified that his father always wanted the boys to share everything?

If you gave any answer except for a categorical "no" in probate law class, the professor would justly embarrass you in front of your classmates.

Once again, this question is not even close.
 

Perhaps our own MRO [you know whom] is not aware that "expressio unius est exclusio alterius" can be a loos canon (of interpretation) especially in a lengthy statute such as ACA. Canons of interpretation/construction of statutes are guides and often there are conflicting canons. As in "The Charge of the Light Brigade" the crossfires can be dangerous.
 

Bart,

The condition precedent in Burwell analogous to the language in my hypo saying the van is to be used in the bookmobile program is implied (to put it mildly) by the entire purpose and structure of the act and the disputed provision's place in it: the provision about subsidies was certainly there to be part of the overall design of the act and the language was, on it's face, that the subsidies applied 'if' or when the person participated in a state exchange. Your analogy also handwaves off the 'such' language.

The state's don't have to create an exchange, but if they did their citizens would be eligible for subsidies on them. Likewise, Taylor doesn't have to create a bookmobile program, but if she does she's entitled to have the van to use in it. And, critically, if the state does not create the exchange or Taylor does not create the program, then the feds/Taylor will create 'such' exchange/program. I'm afraid my analogy stands, yours is inapt, leaving out critical parts.

As to 'the listing of one thing excludes alternatives' you're once again begging the question, because the entire question is whether the federal exchange is an alternative or not or if 'such' exchange is the same thing here. In that respect, note that a definition of the word 'such' is 'of the same class, type, or sort.'

http://www.merriam-webster.com/dictionary/such


 

This comment has been removed by the author.
 

Mr. W:

I now see what you were attempting to analogize with your hypo.

The difference with Obamacare and your hypo is that your van exists and must be devised to someone. In contrast, the Obamacare subsidies only exist if the state creates an exchange. The subsidy does not default to the federal exchange like devised property might default to an alternative beneficiary.
 

Two words for our own MRO: Noscitur sociis.
 

Shag:

There is no cannon of statutory interpretation in conflict with expressio unius est exclusio alterius.
 

Shag:

Did your spell checker attempt to change the Latin above into English words?
 

Bart, I don't see that distinction; after all, if the subsidies are created that's federal dollars that go to them, if they are not those federal dollars will go elsewhere. Either way, Tyler's argument is not based on the idea that the van has to go somewhere anymore than the federal government's is based on the idea that the subsidy money has to go somewhere, they're both based on the idea the item (van/subsidy) is critical to the program, which is what the will/bill seems to be about, working.
 

Remember that in my analogy the van does not default to the character that's supposed to be the feds (Tyler), it goes into the general estate to another party (the Salvation Army). Tyler's argument isn't 'if the van doesn't go to me it goes to the Salvation Army, and that's bad' rather it's 'the van is certainly supposed to go to help the bookmobile program which dad foresaw Taylor doing, but if not Taylor, me, and since I'm doing it now it should go to me to operate the program.'

Again, I can see someone saying 'no, we have to stick to giving this to Taylor, that's the strict reading of the text of the will.' But I can also see someone siding with Tyler here. Neither way is so unreasonable as to be lawless. This isn't a case of a will simply and only saying 'Taylor gets my van' and Tyler arguing he should get it because he really, really needs it, which is how you keep trying to characterize it. If there wasn't the such language, if it weren't placed smack dab into an overall document which is clearly meant to operate a bigger program overall, and if the thing weren't so critical to the successful operation of the program, then you might be on to something. But that's not the cast.
 

Did our own MRO's spell checker check the "cannon" he relies upon? (Query: Why did our own MRO delete his earlier comment? Just asking.) As to my counter-canon, Google displays an English translation that is fitting. My canon's bigger than your "Cannon."
 

Mista Whiskas said...Bart, I don't see that distinction; after all, if the subsidies are created that's federal dollars that go to them, if they are not those federal dollars will go elsewhere.

Entitlements do not work that way. There is no spending unless a qualified person makes a demand for the benefit.
 

Shag:

I deleted the prior post when I noticed my spell checker had changed three of the latin words in the canon to similarly spelled English words.
 

Perhaps someone put a spell on our own MRO's spell checker. Is it still under warranty? That may account for our own MRO's bad history as well.
 

Larry Solum posts, at his Legal Theory Blog, on Kevin M. Stack's "Purposivism in the Executive Branch: How Agencies Interpret Statutes" with his "Highly Recommended." The abstract is interesting on the topic of King v. Burwell. Unfortunately, for me, the article is over 60 pages in length and my eyesight issues would be a problem to read. I don't know if it addressed the IRS in particular or specifically regarding King.
 

This comment has been removed by the author.
 

Purposivism is the bureaucracy rewriting the laws of Congress at will based upon the bureaucracy's view of what Congress intended, which will of course perfectly match the intent of the bureaucracy.

Yet none dare call this dictatorship.

That would be crazy hyperbole.
 

I highly recommend (a la Larry Solum) our own MRC (Macro 'Rhoidless one) for his "crazy hyperbole." Download him while he's hyperbolic.
 

Yet none dare call this dictatorship.

# posted by Blogger Bart DePalma : 7:19 PM


Blankshot, none dare call it a dictatorship because the claim that a democratically elected government is a dictatorship is batshit crazy.
 

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