Patterico's Pontifications

7/22/2014

Halbig: Textualism Wins, Obama Loses

Filed under: General — Patterico @ 7:20 am

The long-awaited Halbig decision is out, and the result is bad for Barack Obama and his oppressive ObamaCare law. The panel has voted 2-1 that Congress did not authorize subsidies for plans bought on exchanges established by the feds:

Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,”we reverse the district court and vacate the IRS’s regulation.

I told you on July 7: “I am now convinced that the judges on the panel will rule 2-1 against Obama.” Always trust content from Patterico.

Here’s what the controversy was about. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available.

Plain meaning. Textualism. Ain’t it great?

For now, temper your enthusiasm. The decision will certainly taken up by the entire D.C. Circuit Court of Appeals en banc, and with all the new Obama-appointed judges there, it doesn’t look good for today’s decision to be upheld. (But you never know.) Then the case will be appealed to the Supreme Court, and who knows what they’ll do?

But for now, it’s a good day. Conservatives actually win one for a change.

The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop. Conservatives, I expect, understand that now.

I am still making my way through the opinion. More updates as I read the decision.

UPDATE: Unsurprisingly, the opinion is written by Judge Griffith, with a dissent from Judge Edwards. Judge Griffith focuses primarily on the plain meaning of the language in the law, examining legislative history only as a backup, to show that the legislative history wouldn’t make any difference. The concurrence by Judge Randolph captures exactly what I have been saying here in recent weeks:

As Judge Griffith’s majority opinion—which I fully join—demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks.

The only way you could get to the interpretation/distortion that Obama advocates is by ignoring the “plain meaning” repeatedly cited by the majority, and by desperately clawing at some “intent” not apparent in the words of the statute.

This is how leftists try to undermine the rule of law. Today, it did not carry the day. We’ll see what happens going forward.

110 Responses to “Halbig: Textualism Wins, Obama Loses”

  1. Hooray for the good guys!

    Patterico (9c670f)

  2. But now what page will you obsessively F5 every week? ;)

    JWB (c1c08f)

  3. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced.

    You can look at the official record of their debates, which are areguably “words that they ultimately produced” that do not happen to reside in the final product.

    Also, when reading words written sufficiently long ago, you have to take into account shifts in language. For instance, the term “well-regulated” in the Second Amendment can only honestly be read in the context of what it meant when the Bill of Rights was written and ratified, not the connotations of “regulated” that have attached since then.

    The Monster (0ab45d)

  4. what a mess

    obamacare is emblematic of how incompetent america is anymore

    it’s like general motors

    and the Iraq fiasco

    fail fail fail

    it’s just so pitiful

    happyfeet (8ce051)

  5. You can look at the official record of their debates, which are areguably “words that they ultimately produced” that do not happen to reside in the final product.

    Except that legislators game the system by placing their individual opinions in committee reports and floor debates. Those individual opinions don’t have the force of law unless they garner the necessary votes.

    Patterico (9c670f)

  6. The administration is expected to appeal to the full 11-member appeals court to reconsider the panel’s decision. In the past year, President Obama has added four new judges to the D.C. circuit court, giving Democratic appointees a majority for the first time since the mid-1980s.

    the la times is pretty forthright about how america’s judges are sleazy partisan whores

    happyfeet (8ce051)

  7. An easy remedy is available to the legislature to change the plain language of the statute. REWRITE IT AND PASS IT.

    That’s what a court is supposed to do – hand it back and let the legislature decide what the legislation should say.

    SarahW (267b14)

  8. Also … how much of an effect do you think the Greek girl’s decision that Obamacare did not apply to the territories have?

    nk (dbc370)

  9. Huffington post – subtitle – ‘Punishing Millions Because Of A Typo’..

    Lots statutes are amended, most tax laws have “technical corrections Acts” within 3-9 months of passage of the original act. 3 years since the original act without a technical corrections for this typo shows it wasnt a typo.

    joe (debac0)

  10. Has anyone seen the rhetorical gymnastics in the dissent yet?

    JD (a2b1b5)

  11. “’I am now convinced that the judges on the panel will rule 2-1 against Obama.’” Always trust content from Patterico.”

    Unfortunately, you cannot always rely on judges just to interpret the law. Too many now are writing it themselves. It will eventually come where Patterico won’t be able to predict an outcome as you indicate with your comment on an en banc review.

    Jim (145e10)

  12. Obama has a pen and will change the wording in section 1311.

    Rich (ddc02c)

  13. Since Obama has packed the DC Circuit with the leftist “judges” the Senate rushed through after using the nuclear option, the en banc review will overturn this. After all, leftists view the courts as a better legislature, so mere textual issues can be amended by the Court.

    Kevin M (b357ee)

  14. “You can look at the official record of their debates, which are areguably ‘words that they ultimately produced’ that do not happen to reside in the final product.”

    But, wasn’t obamacare written behind closed doors without debate? Didn’t they have to pass it so we could find out what was in it?

    Jim (145e10)

  15. Randolph’s concurrance in its entirety is as devastating as it is brief.

    RANDOLPH, Senior Circuit Judge, concurring: A Supreme
    Court tax decision, and a tax decision of this court, flatly reject
    the position the government takes in this case.

    As Judge Griffith’s majority opinion—which I fully
    join—demonstrates, an Exchange established by the federal
    government cannot possibly be “an Exchange established by the
    State.” To hold otherwise would be to engage in distortion, not
    interpretation. Only further legislation could accomplish the
    expansion the government seeks.

    In the meantime, Justice Brandeis’ opinion for the Supreme
    Court in Iselin v. United States is controlling: “What the
    government asks is not a construction of a statute, but, in effect,
    an enlargement of it by the court, so that what was omitted,
    presumably by inadvertence, may be included within its scope.
    To supply omissions transcends the judicial function.” 270 U.S.
    245, 251 (1926). We held the same in National Railroad
    Passenger Corp. v. United States, 431 F.3d 374, 378 (D.C. Cir.
    2005), citing not only Iselin but also Lamie v. United States
    Trustee, 540 U.S. 526, 538 (2004), which reaffirmed Iselin’s
    “longstanding” interpretative principle.

    Kevin M (b357ee)

  16. Hooray! I think it helped having liberals like Turley turning against the monarchy. Perhaps the appeals courts will grow some spine as well.

    And LAT terms it “a wording glitch”!! The comments are hilarious.

    Patricia (5fc097)

  17. The last paragraph puts paid to the entire notion of correcting the law as requested, although Chief Roberts doesn’t seem to agree with it.

    Kevin M (b357ee)

  18. This from NRO is something to consider for all those who don’t trust Chief Justice Roberts when it comes to Halbig:

    …The IRS issued a regulation expanding the pool of enrollees who qualify for the subsidies. Opponents of the law, such as the Cato Institute’s Michael Cannon and Jonathan Adler, argue that the IRS does not have the authority to make that change. (Halbig v. Burwell, one of the lawsuits making this argument, is currently pending before the D.C. Circuit Court; the loser will likely appeal the decision to the Supreme Court.)

    Cannon believes Roberts is unlikely to go through the legal gymnastics used when he upheld the individual mandate as an exercise of Congress’s taxing power, even though it was written into law as an unconstitutional penalty.
    “That was a question of congressional power under the Constitution, and this is a question of IRS power under the ACA and Supreme Court precedents,” Cannon says. “The IRS has absolutely zero independent power to tax and borrow and spend. It can only do that which is delegated to it by Congress.”

    http://www.nationalreview.com/corner/382550/obamas-law-professor-i-wouldnt-bet-obamacare-surviving-next-legal-challenge-joel

    elissa (50b92e)

  19. And LAT terms it “a wording glitch”!! The comments are hilarious.

    Presidential spokestool claimed some bs “clear intent”. “Clear intent” must mean that which isn’t clearly stated in the legislation. This is in Sammy’s wheelhouse. Release the Finkbomb!!!

    Hadoop (f7d5ba)

  20. Greetings:

    Alternatively, “All States are equal. One State is all equal. One State to rule them all.”

    11B40 (844d04)

  21. I got your “clear intent” right here.

    Kevin M (b357ee)

  22. an Exchange established by the federal government cannot possibly be “an Exchange established by the State.”

    Also, an exchange established under section 1321 is not an exchange established under section 1311.

    You can look at the official record of their debates, which are areguably “words that they ultimately produced” that do not happen to reside in the final product.

    30 years ago or so, I remember reading in a law textbook that it is specifically forbidden to look to legislative debates to interpret a law, because anything said in debate reflects only the speaker’s view, not that of the majority who ended up voting for it. And no, neither the draftsman’s interpretation nor that of the sponsor are in any way privileged; they didn’t pass it, the majority did.

    For that matter, even if it could be established that every member who voted for it understood it a particular way, that can’t matter either, because the public was not on notice of their intention. All the public was given was the law as written, to interpret as an ordinary reader would understand the text. Suppose Congress were to pass a law regulating the sale of pigs, and it could be established that every single member who voted for it thought guinea pigs were pigs; would that mean that the law now covered them, and you could convict someone who sold a guinea pig contrary to its provisions?! Of course not. How was the defendant to know that Congress was so full of ignoramuses?

    In any event, in this case nothing said in debate can possibly reflect even that speaker’s interpretation of the bill, since none of the debaters had ever seen it when they spoke. It’s impossible to have an interpretation of a text one has never read.

    Except that legislators game the system by placing their individual opinions in committee reports and floor debates. Those individual opinions don’t have the force of law unless they garner the necessary votes.

    They don’t have to be gaming the system. They may honestly think the bill means something, and be astonished to learn that the majority of their colleagues didn’t read it the same way. It remains the case that their idiosyncratic interpretation, however honestly held, can’t be given the force of law.

    Milhouse (469487)

  23. The last paragraph puts paid to the entire notion of correcting the law as requested, although Chief Roberts doesn’t seem to agree with it.

    What do you mean by that? Roberts surely agrees with it as much as anybody. I keep coming across people who think Roberts changed the ACA. He didn’t. All he did was to recognise that what Congress had in fact passed was a tax, no matter what they called it. And he cited a long-established precedent in which the Court had done the exact same thing in reverse, ruling that Congress couldn’t get away with an unconstitutional penalty by calling it a tax. The principle is that things are what they are, not what Congress chooses to call them. Does anyone here disagree with that?

    In this case, Congress didn’t do anything unconstitutional, or lie about what it was doing, it merely omitted to do something that was entirely within its power. Roberts is unlikely to pretend that they did do it.

    Milhouse (469487)

  24. Lots statutes are amended, most tax laws have “technical corrections Acts” within 3-9 months of passage of the original act. 3 years since the original act without a technical corrections for this typo shows it wasnt a typo.

    Not really. It may well have been a typo, and had the numbers been there to pass a correction act it might well have been corrected. But the numbers were barely there to pass it the first time, and with Scott Brown’s election it was no longer possible to amend it. Big deal. The point is that a corrections act is needed to correct the errors in a law; they can’t just be corrected sua sponte by the courts.

    Milhouse (469487)

  25. I find it perplexing that the dissenting judge can re-interpret plain language the way he has. A company using Standard Operating Procedures would never be allowed to interpret their procedures that way. Just like with the IRS file keeping standards, it is “Rules for thee and not for me” when it comes to government.

    DejectedHead (a094a6)

  26. This just in: It appears another court has taken the opposite position
    http://pdfserver.amlaw.com/nlj/king_usca4_20140722.pdf

    “For reasons
    explained below, we find that the applicable statutory language
    is ambiguous and subject to multiple interpretations. Applying
    deference to the IRS’s determination, however, we uphold the
    rule as a permissible exercise of the agency’s discretion.”

    As I alluded in our Twitter conversation, I think laws should be treated like adhesion contracts: When laws are ambiguous, it is the people bound by them who should have the discretion to interpret the law rather than for the government agency charged with enforcing the law. If the Congress doesn’t like it, they, like the party that writes an adhesion contract, have the power to write the law so that it is unambiguous.

    The Monster (0ab45d)

  27. I keep coming across people who think Roberts changed the ACA. He didn’t. All he did was to recognise that what Congress had in fact passed was a tax, no matter what they called it.

    That is hilarious. Do you even see what you wrote? They called it a penalty. They could not assess a penalty. So he changed it to a tax, which is so FUNDAMENTAL a change as to make a mockery of your entire position. You are beclowning yourself.

    Kevin M (b357ee)

  28. You can look at the official record of their debates

    You mean like where a Senator gets up and says that if its a federal exchange he won’t vote for it?

    Kevin M (b357ee)

  29. I got your “clear intent” right here.

    He said it with a straight face!

    Hadoop (f7d5ba)

  30. “They called it a penalty. They could not assess a penalty. So he changed it to a tax”

    Kevin M – I agree with Milhouse. Roberts essentially said this thing called a penalty is substantively equivalent to a tax, functionally and legally. There was no rewriting.

    daleyrocks (bf33e9)

  31. (a) I think this is almost certainly not what Congress intended.

    (b) but the law isn’t ambiguous, and courts should only try to divine intent when there’s an ambiguity.

    (c ) so while i think this is an absurd result, i think it’s also clearly the correct *legal* result.

    aphrael (98d2d0)

  32. I also have a $25 bet with a lawyer friend that the supreme court will uphold this.

    aphrael (98d2d0)

  33. They called it a penalty.

    I thought they couldn’t call it a tax because only bills originating in the HoR could be used for raising revenue.

    Hadoop (f7d5ba)

  34. The 4th District just said it’s OK.

    It also has discussion on why the Administration may go for en band for DC Circuit.

    We have conflict.

    John P. Squibob (4affc3)

  35. #28: More to the point, from the opinion (footnote 11, pp 35-36)

    [S]ection 36B is the product of legislative compromise to
    secure the support of Nebraska Senator Ben Nelson, the crucial
    sixtieth vote needed to avoid a filibuster. Nelson opposed House
    plans for a national, federally-run exchange, fearing that it would
    set the United States down a path to a single-payer system.

    See Carrie Budoff Brown, Nelson: National Exchange a Dealbreaker, POLITICO (Jan. 25, 2010),
    http://www.politico.com/livepulse/0110/Nelson_National_exchange_a_dealbreaker.html.

    Kevin M (b357ee)

  36. I also have a $25 bet with a lawyer friend that the supreme court will uphold this.

    Uphold the administration’s interpretation of the law or uphold the DC Circuit opinion?

    Kevin M (b357ee)

  37. daley,

    Down that road are many problems. “Oh, we didn’t TAKE your house for the bypass, that was a ‘tax.’”

    Kevin M (b357ee)

  38. “I thought they couldn’t call it a tax because only bills originating in the HoR could be used for raising revenue.”

    Hadoop – I believe the bill which was ultimately used was one that had previously passed the House which Harry Reid stripped out the contents of and inserted the ACA and sent back to the House for passage. That is how they attempted to finesse that situation.

    The penalty versus tax situation was more pure optics. Democrats did not want to be seen as raising taxes broadly on individuals so preferred to call any assessments on individuals penalties instead of taxes. Pure political theater instead of substance.

    daleyrocks (bf33e9)

  39. Kevin, my bet is that the SCOTUS will uphold the core holding of today’s decision in Halbig, that subsidies are only available on state exchanges and not the federal exchange.

    aphrael (98d2d0)

  40. (The bet is voided if the supreme court denies cert, or on a variety of other conditions which might make the existence of the bet between two lawyers per se unethical).

    aphrael (98d2d0)

  41. Penalty versus tax is NOT pure optics. To access the taxing power they have to declare it as a tax, not only so the public knows they are being taxed, but also to prevent any dispute over illegal takings, penalties, impoundments, fees or other power grabs from being called a tax later to get past the Constitution.

    Can you name other taxes that were not called taxes in the enabling legislation?

    Kevin M (b357ee)

  42. I keep coming across people who think Roberts changed the ACA. He didn’t. All he did was to recognise that what Congress had in fact passed was a tax, no matter what they called it.

    That is hilarious. Do you even see what you wrote? They called it a penalty. They could not assess a penalty. So he changed it to a tax, which is so FUNDAMENTAL a change as to make a mockery of your entire position. You are beclowning yourself.

    No, you are the one beclowning yourself. WHO THE #*!! CARES what they called it? Yes, they called it a penalty. Guess what, they lied. Should the courts go along with their lie? Is that really what you want? That the courts are bound to accept Congress’s lies? The Supreme Court in the 1930s said no, a spade remains a spade even if Congress calls it the Queen of Romania, and Roberts quite properly followed that precedent. The only alternative is to reject that precedent, and say that court should have let Congress get away with imposing a thoroughly unconstitutional penalty, merely by calling it a tax. If so, then it can also pass a bill of attainder by calling it a navigable waterway, and it can censor newspapers by calling them the organised militia.

    Milhouse (469487)

  43. “Down that road are many problems. “Oh, we didn’t TAKE your house for the bypass, that was a ‘tax.’””

    Kevin M – Reading Roberts decision, that’s not the way I felt. He rightfully disqualified the ACA under commerce clause grounds. Precedent requiring the court to look for ways not to disqualify an entire act of Congress, cited in his opinion, works both ways, sometimes to the benefit of our side and sometimes to the detriment.

    daleyrocks (bf33e9)

  44. I thought they couldn’t call it a tax because only bills originating in the HoR could be used for raising revenue.

    No, that wasn’t a problem, because they used a bill originating in the House. There was no constitutional reason they couldn’t call it a tax; if there were then recognising that it was one would mean overturning it. The reason they couldn’t call it a tax was purely political: if they called it a tax it would never pass. There were enough D members who didn’t want to be known in their states or districts as tax raisers. So they pretended it was a penalty. But Roberts’s decision saw through that pretense, and said if it waddles like a tax and quacks like a tax, it’s a tax, no matter what Congress calls it.

    Milhouse (469487)

  45. Milhouse,

    Can you name other taxes that were not called taxes in the enabling legislation?

    Kevin M (b357ee)

  46. daley,

    Down that road are many problems. “Oh, we didn’t TAKE your house for the bypass, that was a ‘tax.’”

    That’s exactly the point, you fool. YOU are the one saying Congress can do that, and the courts must go along with it. Roberts wisely rejected that position, for precisely that reason.

    Milhouse (469487)

  47. To access the taxing power they have to declare it as a tax,

    Bulldust. You just pulled that out of your behind. Next you’ll say that to declare war Congress must say “we declare war”. There are no magical words that Congress must use to exercise any of its powers. A tax, or anything else, is recognised by its nature, not by what Congress chooses to call it.

    not only so the public knows they are being taxed, but also to prevent any dispute over illegal takings, penalties, impoundments, fees or other power grabs from being called a tax later to get past the Constitution.

    Again, you beclown yourself. You are the one saying that Congress can do this; as Roberts pointed out, in the 1930s Congress tried exactly that, and the Court said that it couldn’t.

    Can you name other taxes that were not called taxes in the enabling legislation?

    Irrelevant. Even if this were the first time Congress had lied (and it isn’t), that doesn’t make it any less a lie.

    Milhouse (469487)

  48. Anyone who thinks this ruling isn’t just a blip on the scale is fooling themselves. This, like Prop 8, will be ignored by our “betters” who will do what they must to consolidate power. They do not care about the rule of law or what the “definition of is is.”

    It’s already been overturned by the Obama corrupted Court of Appeals and will be overturned completely by a full hearing by the leftist District Court of DC. The game is rigged.

    NJRob (5da6c8)

  49. If the purpose of a “tax” is to compel a behavior, and the “tax” is “not assessed” if the behavior conforms to the desires of the government, then it is a penalty. Congress told the truth; Roberts lied. Or would you consider “Have car insurance or pay a $500.00 tax every time a policeman stops you without it” a tax?

    nk (dbc370)

  50. Kevin M – I think a big part of the problem is that many people can’t read Roberts’ ACA opinion without their ideological blinders on. They were expecting a negative decision and got it on the commerce clause but were completely surprised and angry with the rest of the decision and can’t read it in a neutral manner. A lot of people commenting probably have not even taken the time to read the decision and just concluded that Roberts betrayed the cause.

    daleyrocks (bf33e9)

  51. The whole point of Roberts’s ACA decision was to take judicial notice that Congress is full of liars, and the courts have to look at what things really are, not at what Congress calls them. Just as it can’t save an unconstitutional penalty by calling it a tax, it can pass an unpopular tax by calling it a penalty.

    Milhouse (469487)

  52. nk – What is the difference between a tax and a penalty?

    daleyrocks (bf33e9)

  53. A penalty compels a behavior. A tax raises revenue for the operations of government. Is Obamacare making money for the government?

    nk (dbc370)

  54. “Or would you consider “Have car insurance or pay a $500.00 tax every time a policeman stops you without it” a tax?”

    nk – I would consider have car insurance or be unable to a purchase renewal sticker for your license plate, before the above kicks in, as it works in our state. Then your car works as a cop magnet.

    daleyrocks (bf33e9)

  55. Verrili started off honest. He said we have the power to enforce this under the Commerce Clause and we’ll penalize your uninsured ass if you don’t do like we say. Then he saw which way the wind was blowing on the Commerce Clause and switched tacks to the other power. (Actually, he dropped sail and Roberts towed him to port, but I don’t want to be too idealogically blinded.)

    nk (dbc370)

  56. If the purpose of a “tax” is to compel a behavior, and the “tax” is “not assessed” if the behavior conforms to the desires of the government, then it is a penalty. Congress told the truth; Roberts lied. Or would you consider “Have car insurance or pay a $500.00 tax every time a policeman stops you without it” a tax?

    If it’s assessed every time a policeman stops you, then of course it’s a penalty, and it would be one even if Congress said it wasn’t. If it’s a tax, then once I’ve paid it I should be exempt until the next time it falls due. I should be able to show my receipt and drive on. Now turn that around: suppose that is exactly how it’s implemented, and once I’ve paid my “penalty” I’m legally free to drive my uninsured car for the rest of the year. Suppose further that it’s perfectly lawful for me to send a check in at the beginning of the year, and say I have no intention of insuring my car, here’s your money and please send me my uninsured-car permit, and I can do this year after year, making no effort to hide what I’m doing, and yet I’m not considered a scofflaw, but in full compliance with the law. Suppose the government openly budgeted for the revenue from the millions of people it expected to pay up rather than insure their cars. And suppose the fee was not collected by the traffic courts or the DMV, or issued by policemen, but was assessed and collected by the state tax office as a surcharge on your state income tax. Wouldn’t you agree that it was a tax?

    Milhouse (469487)

  57. “A penalty compels a behavior. A tax raises revenue for the operations of government.”

    nk – Both raise money. The money raised by both can diminish if people change their behavior.

    daleyrocks (bf33e9)

  58. nk – I don’t think Donald Verrilli has persuaded many people with his various arguments in front of the Supreme Court, but feel free to cling to that fantasy.

    daleyrocks (bf33e9)

  59. Aphrael – how would you divine the intent of the legislators given the “we have to pass the bill to find out what is in it” process it underwent? How does intent matter given how clear intent has been subverted since, ie abortion funding?

    JD (f2d028)

  60. PS: I forgot to mention another criterion cited both by the 1930s court and by Roberts: a tax has to be low enough to be affordable. In the 1930s case, the court noted that the alleged “tax” 1) was so high that nobody could reasonably pay it, and the government expected that it would raise no revenue because everyone would comply with its wishes rather than pay; 2) it was to be collected by the enforcing agency, not by the treasury.

    Milhouse (469487)

  61. Uh-uh. What are you taxing? Is it having a head (that’s the “poll” in poll tax BTW). Is it having an uninsured head? What makes an insured head more taxworthy than an uninsured head? Is there a rational distinction other than “the government wants you to cooperate in Obamacare”?

    nk (dbc370)

  62. nk – I don’t think Donald Verrilli has persuaded many people with his various arguments in front of the Supreme Court, but feel free to cling to that fantasy.

    Feel free to respond to my comments without reading them:
    (Actually, he dropped sail and Roberts towed him to port, but I don’t want to be too idealogically blinded.)

    nk (dbc370)

  63. With a direct conflict today from decisions by the DC Circuit, and the 4th Circuit, will either Circuit deny en banc hearing to force conflict resolution to SCOTUS?

    askeptic (efcf22)

  64. A penalty compels a behavior. A tax raises revenue for the operations of government. Is Obamacare making money for the government?

    The “penalty” was certainly intended to do so. This fact featured prominently in the decision. It isn’t in fact making any money, because they’ve waived it. If they ever stop waiving it, we will see how much money it makes (not nearly as much as the government expected, because there’s no enforcement clause).

    Milhouse (469487)

  65. This thread is supposed to be about Halbig so I suggest we switch back.

    daleyrocks (bf33e9)

  66. “Feel free to respond to my comments without reading them:”

    nk – I will. Roberts didn’t tow Verrilli anywhere. He bombarded and sank him.

    daleyrocks (bf33e9)

  67. Uh-uh. What are you taxing? Is it having a head (that’s the “poll” in poll tax BTW). Is it having an uninsured head? What makes an insured head more taxworthy than an uninsured head? Is there a rational distinction other than “the government wants you to cooperate in Obamacare”?

    It doesn’t matter why Congress thinks so. Congress doesn’t have to make sense with its decisions on what to tax. The tax on cigarettes is a tax, not a penalty, even though the intent is to make smoking less attractive. Same here; the purpose of the tax is to make buying insurance more attractive, but if insurance is worth so little to you that the difference between its cost and the value you’d get from it is greater than the tax, then it’s perfectly lawful to go ahead and pay the tax. Nobody is compelled to buy insurance, either formally as a matter of law, or practically becuase the “tax” is so high as to be punitive. That is a key point in the decision. If Congress were to raise the tax to where it would be punitive, it would cease to be a tax and become a mandate, and therefore unconstitutional.

    Milhouse (469487)

  68. A penalty compels a behavior

    Exactly. And the ACA does not compel any behavior.

    Milhouse (469487)

  69. This is the case Patterico has been waiting to talk about for weeks and yet a few of you are trying to immediately derail the discussion even though you know no one will change their minds.

    This case was decided correctly by the 3 judge panel and will be immediately invalidated by the rest of the corrupt courts including the Supreme Court by Justice Roberts.

    njrob (8aa12e)

  70. Exactly. And the ACA does not compel any behavior.

    So, why all the fuss? Wingnuts have better nothing to do than to spend money on lawyers to make the first African-American President look bad.

    nk (dbc370)

  71. *nothing better*

    nk (dbc370)

  72. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available.

    It is amazing how much people – even the judges – are influenced by the lawyers. I would think the more important point is that the federal exchange is eatablished under section 1321.

    I’m still trying to understand what happened to and with the terroritorial exchanges.

    Sammy Finkelman (d22d64)

  73. This is the case Patterico has been waiting to talk about for weeks and yet a few of you are trying to immediately derail the discussion even though you know no one will change their minds.

    This case was decided correctly by the 3 judge panel and will be immediately invalidated by the rest of the corrupt courts including the Supreme Court by Justice Roberts.

    Who’s derailing the discussion? If you don’t think Roberts is relevant, why did you just bring him up yourself?

    Milhouse (469487)

  74. There’s another section of law which explicitly says territorial exchanges are to be treated as state exchanges for all purposes.

    aphrael (98d2d0)

  75. Aphrael – as we saw yesterday, HHS no longer thinks ObamaCare is applicable to the territories.

    JD (f2d028)

  76. JD, I missed that story. I’m just going off of this quote from _Halbig_:

    > In a nearby section, the ACA provides that a U.S. territory that “elects . . . to establish an
    Exchange . . . shall be treated as a State.”242 U.S.C. § 18043(a)(1).

    aphrael (98d2d0)

  77. In a nearby section, the ACA provides that a U.S. territory that “elects . . . to establish an Exchange . . . shall be treated as a State.”242 U.S.C. § 18043(a)(1)

    But they forgot to say that (or delibereatly left that out) when the federal exchange was mentioned?

    What section?

    Sammy Finkelman (d22d64)

  78. http://www.reuters.com/article/2014/07/22/us-usa-court-obamacare-idUSKBN0FR1JI20140722

    Hours later, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Virginia ruled unanimously to uphold the same provision in the case of King v. Burwell, saying the wording of the law was too ambiguous to restrict the availability of federal funds.

    http://www.motherjones.com/kevin-drum/2014/07/what-happens-if-obama-loses-halbig-case

    The earliest we’ll get a Supreme Court ruling on this is mid-2015, and mid-2016 is more likely. At a guess, maybe 12 million people will have exchange coverage by 2015 and about 20 million by 2016. Let’s split the difference and call it 15 million. About 80 percent of them qualify for subsidies, which brings the number to about 12 million. Roughly half of them are in states that would be affected by Halbig.

    So that means about 6 million people who are currently getting subsidies would suddenly have them yanked away. It’s even possible they’d have to pay back any tax credits they’d received previously.

    So what’s the political reaction? The key point here is that people respond much more strongly to losing things than they do to not getting them in the first place.

    Sammy Finkelman (d22d64)

  79. This is clearly the correct decision, but is one that has no place in our current society. It requires words to have meaning and people to be held to them rather than doing what feels right. It will be undone shortly.

    njrob (8aa12e)

  80. Wall Street Journal editorial, Monday, July 21, 2014, page A12, bottom of page:

    Territories Free of ObamaCare

    As I read this, it seems like what happened here was that $14.5 billion in (estimated) subsidies for the territorial exchanges was dumped in order when the bill was passed in order to make the budget math work.

    Several health care programs were extended to it, and in 2012, HHS granted a request to apply most of the Obamacare regulations to the territory (the most important being no discrimination according to pre-existing conditions and very limited discrimination in pricing according to who is getting the policy)

    Insurance rates soared and in the Marianna Islands it is not possible to buy any individual health insurance policy at all.

    In 2013 HHS said it had no legal authority to exclude the territories from the law and its consumer protections. There is explicit language that applies the mandate and explicit lanaguage that excludes the territories from subsidies.

    How did anybody miss this till now?

    Anyway they decided last Friday taht these five territories did not fit the definition of a satte for the mandates after all.

    Sammy Finkelman (d22d64)

  81. Can you name other taxes that were not called taxes in the enabling legislation?

    Irrelevant. Even if this were the first time Congress had lied (and it isn’t), that doesn’t make it any less a lie.

    Actually, it isn’t, if only due to the origination clause. Not only does that clause require the bill to start in the House but the clear implication is that the Founders considered tax bills a class unto themselves and wanted the House, at least, to know when it was voting on a tax bill.

    The, um, “clear intent” of the Founders was that hiding taxes under other names was beyond the Constitutional pale.

    Kevin M (b357ee)

  82. It’s a suckass day, actually.

    The 4th Circuit upheld the IRS rule, and the en banc DC Court will uphold the IRS rule also, now that that court has been packed with libs by Harry Reid (and the 4th circuit is similarly packed, should that court take the case en banc). And without a circuit split, it’s highly unlikely that the Supreme Court will take the case. However, there are still two more cases pending in other circuit courts challenging this IRS rule, so there’s still some chance for a more durable rejection of the rule and thus a hearing by the Supreme Court.

    Brian (6fba28)

  83. Off-topic, but if the GOP had nuked the filibuster in 2005 those courts would be MUCH different today.

    Kevin M (b357ee)

  84. Kevin M,

    Your comment is very much on topic, because it goes to root cause of the likely demise of this challenge to Obamacare, at least in the DC Circuit. And for that we have to thank guys like McCain & the rest of the Gang of 8, who enjoyed looking in the mirror & prattling about honor instead of results.

    Brian (6fba28)

  85. Meghan’s coward daddy has honor kinda like how fascist lapdog Eric Holder has integrity I think

    happyfeet (8ce051)

  86. And when the GOP next uses a 51-vote margin to approve judge after judge, the quality newspapers will be apoplectic about the loss of the filibuster, which they will again call the bulwark of the Republic.

    Kevin M (b357ee)

  87. I tend to contribute at the end of a thread, at which point no one cares any more and/or my contribution isn’t sufficient to re-spark interest, but in any case I was curious to find the 2 other cases challenging the IRS everyone-gets-a-subsidy rule besides the DC & 4th Circuit cases decided today.

    I found them, in a post by Michael F. Cannon on 12/31/13:

    “A Reference Guide To The ‘Halbig’ Cases: Can The IRS Issue ACA Subsidies Through Federal Exchanges?”

    The other 2 cases are:

    1) Pruitt v. Burwell, which is pending in an Oklahoma federal district court, in the 10th Circuit – which I believe Harry Reid has not managed to pack – and,

    2) State of Indiana v. IRS, pending in a federal district court in Indiana (makes sense), in the 7th Circuit, which I believe is pretty evenly divided between libs & conservatives (but I have a feeling that if Posner gets on the panel, he’ll vote pro-IRS, to show how pragmatic he is, and additionally to distinguish himself from those he regards as retrograde conservatives. The guy’s a narcissist.)

    This, it looks (to me) like if the DC opinion goes south en banc, the best chance for a anti-IRS opinion (and thus for a circuit split & a hearing by the Supreme Court) will be by the 10th Circuit. And if that happens, the DC panel deserves some credit, because it was the first, and thus made it not-so-kooky to hold in this manner. The analogy that comes to my mind is the pro-individual rights view of the 2nd Amendment, in the which the DC and Supreme Court decisions in Heller were preceded by similar opinions by Judge Kozinski (in dissent) and by the 5th Circuit (in a case called Emerson). Like most people, judges tend to be herd animals, and they don’t want to be regarded as nuts by their peers.

    Brian (6fba28)

  88. Brian,

    I expect that it will go to the Supreme Court even without a circuit split. All they need are 4 interested justices and the SC has not yet been packed, either.

    Kevin M (b357ee)

  89. The D.C. court’s majority opinion is in line with the argument made by Oklahoma Attorney General Scott Pruitt in a suit now in federal district court in Muskogee.

    Pruitt said the D.C. decision gave him ‘great confidence’ that he will prevail in his case.”

    Pruitt fever – catch it!

    Brian (6fba28)

  90. Kevin M.,

    I hope so. I’m worried about Roberts though, who has proved to be kind of a puss. So I hope the anti-Obamacare forces can rack up at least 1 clear circuit court win on this issue before the Supreme Court hears it, if it does. (But Obamacare was held to be unconstitutional by the 11th circuit, and that didn’t help much.)

    Brian (6fba28)

  91. Brian,

    at this point we just don’t know. There are only 3 judges left on the Court that you can depend on to follow the Constitution first rather than their own personal biases: Scalia, Thomas and Alito. After that it’s a crapshoot.

    NJRob (5da6c8)

  92. Actually, it isn’t, if only due to the origination clause. Not only does that clause require the bill to start in the House but the clear implication is that the Founders considered tax bills a class unto themselves and wanted the House, at least, to know when it was voting on a tax bill.

    Again, bull. You are simply pulling this from your backside. There is nothing in the constitution to indicate that the House must know what a bill’s final form will be before passing it.

    Further, it makes no difference what the founders considered or wanted, any more than it makes a difference what the Pelosi/Reid congress considered or wanted; all that matters is what they did. The origination clause is satisfied so long as the bill has an “HR” in front of it.

    Milhouse (469487)

  93. And when the GOP next uses a 51-vote margin to approve judge after judge, the quality newspapers will be apoplectic about the loss of the filibuster, which they will again call the bulwark of the Republic.

    They can call it the Queen of Romania if they like, but how can something whose very name shows its illegitimate origins be the bulwark of the republic? If it was part of the original design for the senate, then why didn’t it exist for the first few decades of the senate’s history, why was it not openly introduced and voted on instead of emerging as an unintended loophole in the senate rules, and why, when the loophole was first discovered, was it called an act of piracy?

    Milhouse (469487)

  94. Again, bull. You are simply pulling this from your backside. There is nothing in the constitution to indicate that the House must know what a bill’s final form will be before passing it.

    Actually, they are really supposed to know the final form before passing it. That’s kind of what “passing it” means.

    Kevin M (b357ee)

  95. Again, bull. You are simply pulling this from your backside. There is nothing in the constitution to indicate that the House must know what a bill’s final form will be before passing it.

    Actually, they are really supposed to know the final form before passing it. That’s kind of what “passing it” means.

    You’re getting even more ridiculous as you go on. No, they absolutely are not supposed to know the bill’s final form before passing it. When they pass it they have no idea what the senate will do to it, nor what changes a conference committee will recommend, nor what they will themselves decide to do with it when it comes back to them. And there is nothing in the constitution that makes a revenue bill any different in this regard. The requirement is very simple: if a bill didn’t originate in the House, it may not raise revenue; if it did, then it may. That’s all. It doesn’t have to have raised revenue when it originated. This bill did originate in the House, therefore it is allowed to raise revenue.

    Milhouse (469487)

  96. Because you say so.

    Patterico (9c670f)

  97. Because the constitution says so. Kevin is making stuff up that isn’t in the constitution, and claiming that it shoudl be read in just because he imagines that (some of) the people who voted for it may have intended or imagined that it was there. You know, just like the position the DC court rejected in Halbig.

    Milhouse (469487)

  98. Of course Kevin’s latest claim, that the House is supposed to know a bill’s final form before passing it, is explicitly rejected by the constitution, and is too ridiculous for words.

    Milhouse (469487)

  99. And of course the courts have firmly established that if a bill passes with an HR in front of it, that is Congress asserting that it originated in the House, and the courts have no right to question that, any more than they may question whether a bill actually passed.

    Milhouse (469487)

  100. The courts have decided that. What is your point? You are saying the courts never make a bad decision contrary to the Constitution? How does the Kelo decision read to you?

    NJRob (5da6c8)

  101. Where in the constitution does it say anything different?

    Milhouse (469487)

  102. Do you imagine the courts have the power to question whether a bill really passed as well?

    Milhouse (469487)

  103. Yes, they do. If “duly enacted law” is not fundamental due process, nothing is.

    “Imagine” is the correct word for what you are doing today.

    nk (dbc370)

  104. But, wait, there’s more. If you call right now you get

    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; ….

    That “in pursuance thereof” has been the province of the Courts since Marbury v. Madison.

    nk (dbc370)

  105. The courts are bound to accept Congress’s representation that it has passed a law. They have no right to question it, any more than Congress can question whether a court really made a decision that it claims to have made. This is fundamental.

    Milhouse (469487)

  106. The SC did not address any origination clause issues with respect to the ACA in the case for which Roberts wrote the opinion. The is a case percolating through the lower courts with Pacific Legal Foundation as a plaintiff which aims to do that as well as test how narrow the Roberts decision is, what is dicta and what should be regarded as precedent.

    daleyrocks (bf33e9)

  107. The SC did not address any origination clause issues with respect to the ACA in the case for which Roberts wrote the opinion.

    No. But the issue is already settled law. If a bill has HR in front of its name, the courts consider themselves bound to accept that it originated in the House.

    Milhouse (469487)

  108. Never mind that in this case we know for a fact that it did originate in the House, and nobody disputes it. Kevin claims that its original form had to raise reventue, but there’s nothing in the text of the constitution to support such a claim. Make up your mind, are you a textualist, or not?

    Milhouse (469487)

  109. Where do you come up with this stuff? How do they know it’s Congress’s representation, and not something some litigant typed up and pasted to his brief?

    nk (dbc370)

  110. “No. But the issue is already settled law. If a bill has HR in front of its name, the courts consider themselves bound to accept that it originated in the House.”

    Milhouse – I am unaware of a precedent in which the entire contents of a House Bill were stripped out by the Senate and returned to the House for passage. That is precisely what Pacific Legal Foundation is challenging. You are discussing custom rather than settled law. There is a difference.

    daleyrocks (bf33e9)


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