Patterico's Pontifications

7/22/2014

White House Response to Halbig Decision: It’s The Intent That Matters

Filed under: General — Dana @ 2:48 pm

[guest post by Dana]

This morning, Patterico posted on the decision in the Halbig case and legislative “intent” versus the plainly clear language of a law:

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.

As expected, the White House begs to disagree:

JOSH EARNEST: What I do anticipate, the Department of Justice will do, is they will ask for a ruling from the full D.C. Circuit. as you know, this was a decision that was issued just by three members of the D.C. Circuit. Two of whom ruled against the federal government and one agreed with the government’s position. Now, it’s important for people also to understand that some of the district courts that have thrown out the case have been decided by judges who use some pretty strong rhetoric in doing so. There’s a judge in this case, at the district level, who said there’s no evidence in the statute itself orn (sic) the legislative history of any intent by Congress to support the claims that are made by the plaintiff. In another case that was making the same legal argument, a judge wrote that the theory propounded by the plaintiffs was, quote, not a viable theory. The last thing that is important, and this is — there’s a lot of high-minded case law that is applied here. There’s also an element of common sense that should be applied as well. You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace. I think that’s a pretty clear intent of the Congressional law. This will work the way through the legal process, and we’re confident in the legal case that the Department of Justice will be making.

FOLLOWUP QUESTION: Obviously, as these cases work through the legal system, there could end up being a practical impact on people who are receiving subsidizes. Can the health care law work effectively and continue to, as you say, be affordable for Americans without the subsidizes being available in all states?

EARNEST: We are confident in the legal position we have.

QUESTION: If that the legal position no longer becomes tenable, can the law work if these subsidies are not widely available?

EARNEST: That is a hypothetical that we will maybe entertain at some point.

Video at the link.

–Dana

43 Responses to “White House Response to Halbig Decision: It’s The Intent That Matters”

  1. If that’s what Congress intended, that’s what Congress could have written.

    They can amend the law.

    If they’re willing to admit to the error.

    htom (412a17)

  2. I smell an upcoming executive order.

    in_awe (7c859a)

  3. You don’t need a fancy legal degree to understand that Congress intended…

    well for sure you don’t need a fancy harvard trash law degree to understand that Congress intended for there to be an employer mandate

    and yet

    happyfeet (8ce051)

  4. Why didn’t they say so? In the first sentence of the act?

    EPWJ (68f58f)

  5. The language of the law is as clear as “If you like your plan, you can keep your plan.”

    DejectedHead (a094a6)

  6. See page 35 of the decision where the core of “what Congress intended” is made clear:

    Senator Nelson would not vote for a federal exchange since he thought that was just a stalking horse for single payer. They needed his (60th) vote. SO they INTENTIONALLY wrote it so that subsidies only went to state exchanges. Now, they want to speak out of the other side of their mouths.

    Kevin M (b357ee)

  7. If that’s what Congress intended, that’s what Congress could have written.

    They can amend the law.

    If they’re willing to admit to the error.

    Well, no, that Congress can’t amend the law, because it no longer exists, and the current Congress doesn’t agree with it. This doesn’t tell us anything at all about what the Congress that passed the law meant. They probably did mean to include the federal exchanges, but they didn’t do so, and now it’s too late for them to fix it. Boo hoo. Unfortunately we’re bound by what they did; until we have the numbers to repeal it, it’s the law. But we’re not bound by what they merely meant to do but forgot to!

    Milhouse (469487)

  8. They also meant to not include the standard severability clause which protects a law/statute in the event a piece of it should fail to pass muster in court.

    Gutless judges refuse to strike the whole thing despite the lack of such a clause.

    Ed from SFV (3400a5)

  9. This will be the thing that makes Obama’s veto worthless.

    Assume this drags on until next year, with the Supreme Court ruling in February that the text controls and there are no subsidies for people on the federal exchange. Assume also that the GOP controls both houses.

    All of a sudden, there is a cry from the heartland: “Do Something!” Millions of lower-middle class voters are getting screwed and don’t care who’s fault it is, they want it fixed.

    So, Congress fixes it, but uses the leverage to fix a lot of other things about the law in a way that the Dems hate. Perhaps they totally replace the flawed Exchange system with a much different reform that relies far more on a free market. And they agree to back date the original subsidies to the 2014-2015 participants, while changing everything for 2016.

    Obama can veto, but it’s Dem voters he’s screwing.

    Kevin M (b357ee)

  10. *whose

    Kevin M (b357ee)

  11. Words! What do they do?

    Eric Lindholm (0acc69)

  12. Andy McCarthy is not buying that it’s a “drafting error”:

    The Left now claims that this was the result of a drafting error. Even if that were true, Obamacare advocates would lose, assuming we are still governed by the rule of law. Only Congress can fix Congress’s drafting errors — judges, much less presidents and executive branch agencies, do not get to do this.

    But this was not a drafting error at all. The point was to coerce the states into setting up exchanges, and the Left’s premise in structuring Obamacare as it did was its assessment that Obamacare, and especially its subsidies, would be popular. Obamacare turned out to be unpopular, however, and state governors and legislators did not suffer any political blow-back for refusing to help implement it. There was no ministerial drafting mistake; there was a mistaken assumption that the public would rally behind the policy, creating political pressure on state governments. Because statists think Obamacare is a good idea, they figured everyone would be brought around to that conclusion.

    It’s an interesting and provocative piece worth reading.

    Dana (4dbf62)

  13. What is really funny about this whole “intent” argument is that nobody expected the Senate bill to be the final Act. A number of postures were taken for folks back home that would have been abandoned when the bill was reconciled with the House version. But, oops, Teddy died ans was replaced by a *gasp* Republican and now they only have 59 votes.

    So,if we REALLY wanted to get into “intent” we could say that no one in the Senate “intended” for the bill to pass as it was. Where does that leave us?

    Kevin M (b357ee)

  14. Where does that leave us? With a law that Congress can change. If they want to.

    That empty chair never looked so hard before.

    htom (412a17)

  15. Many, if not most of these people are lawyers, right?
    What lawyer would get away with advising a client to be sloppy in making a contract, that they can revise it later for mistakes in drafting, or point out to others what their real intent was even if it wasn’t clear?

    It is simply lawlessness. People who expect/demand things go their way because they want them to, without any respect for anyone or anything.

    MD in Philly (from a different computer and location) (cb7b6d)

  16. Kevin M’s point at #6 best explains the issue. The legislation’s drafters thought state exchanges were a way to satisfy Nelson’s concerns and still provide the subsidies they knew would be absolutely essential to encourage sign-ups. They never imagined states might refuse to establish exchanges, why the very notion a bureaucratic agency would decline the opportunity to add staff and expand operations runs counter to their deepest seated assumptions about human motivation.

    ropelight (18a76d)

  17. 6, 16. Ima going with this line of thinking.

    The construction does not lead me to think it is intrinsically ambiguous and therein subsidies amounted to an added incentive to the States to provide the exchange, effectively assuring they comply.

    The choice was available to separate subsidies and creator of the exchange in separate sentences if subsidies were to be offered in any case.

    gary gulrud (46ca75)

  18. I wonder if the other side argued using the Cornhusker Kickback. Pretty impressive that the justices know about it and understand it.

    It sounds like they are getting close to the point where they are deciding things they feel they can, like this really unambiguous language. Even Roberts might be able to buy that.

    And the WH just issued another waiver, due to complications of the territories like Puerto Rico not being states. So they kinda admitted that they meant a state is a state.

    Patricia (5fc097)

  19. So they kinda admitted that they meant a state is a state.

    Except when it’s not….

    Dana (4dbf62)

  20. I really don’t understand the problem. The President is a constitutional lawyer. And you do not need a “fancy legal degree” to ascertain intent.

    Hey, wait a second…

    Ag80 (eb6ffa)

  21. There were so many disparate people working on Obamacare, and lying, and cutting deals, and trying to please the lobbyists, and trying to circumvent the rules of the House and Senate, that it’s no wonder the language of the bill was so clumsy and that one hand didn’t know what the other was doing. They (Nancy and Harry and the president) deserve everything that’s happening to them.

    elissa (d14cd1)

  22. The Dems had that “Affordable Healthcare Act” bill baking for years. No one bothered to read it because they never thought they had a chance to pass it. Then luck and history gave them the chance. They took it and now we have an enormous clusterthingy that we really will never be able to undo.
    e
    By the way, has anyone noticed that no one is really paying attention to Obamacare anymore? I mean, except voters.

    Ag80 (eb6ffa)

  23. Pat – You are forgetting the gift that Reid gave us all – the 51 vote threshold for all Senate business. Between that and an assumed GOP majority in each house, a TON could get done.

    I get that some Senate RINO’s could be a bit of a stumbling block, but at a minimum, GOP bills will see the floor where now the don’t.

    Ed from SFV (3400a5)

  24. Courts defer on the margin to popular and powerful Presidents and/or in times of great peril (e.g. WW2). Weak Presidents do not get the same breaks.

    Kevin M (b357ee)

  25. Dana – I am in the no drafting error camp. That is just the excuse du jour to rationalize lawlessness.

    JD (61a2fb)

  26. == I am in the no drafting error camp. ==
    Agree if you’re talking about the Federal Exchange subsidies in Halbig. It’s hard for me to look at the entire “process” of passage and see anything but massive pre-assured catastrophic fail due to the way it was done. Lawlessness (the administration and top majority leaders), incompetence (the sheeple Democrat congress) and blind willfully uninformed ideologue-y zealotry (99% of the national media) went hand in hand to birth ACA and hide its faults. Huge swaths of it were never scrutinized for consistency or analyzed for workability. The whole damn Obamacare nightmare is one big reeking drafting error in that context.

    elissa (d14cd1)

  27. Pat – You are forgetting the gift that Reid gave us all – the 51 vote threshold for all Senate business.

    Um, no. Or at least, not yet. Officially, at least, the filibuster continues for all business except non-Supreme-Court confirmations. Of course the precedent has been set, and if Reid hasn’t completely abolished the filibuster by the time he loses control of the senate, the incoming GOP majority can do so (if it likes).

    Milhouse (469487)

  28. There were so many disparate people working on Obamacare, and lying, and cutting deals, and trying to please the lobbyists

    I think this was a big part of it. This is what 2300 page bills look like. Almost all of it was drafted by 25 year old lawyers who know nothing about health care and what works.

    Mike K (b5c01a)

  29. The road to hell is paved with good intentions.

    AZ Bob (34bb80)

  30. I think this was a big part of it. This is what 2300 page bills look like. Almost all of it was drafted by 25 year old lawyers who know nothing about health care and what works.

    And that’s why there should be a House and Senate rule, if not a constitutional amendment, requiring each member, before voting “aye” on any bill, to certify under oath that he has read it and thinks he understands it. Or at least that someone on his staff has read it and explained it to him. (Such a certification should not be required before voting “no”; one doesn’t have to know everything that’s in a bill to know that one opposes it.)

    Milhouse (469487)

  31. elissa @ 22 & 27,

    All of this. In a nutshell.

    Dana (4dbf62)

  32. Milhouse (469487) — 7/23/2014 @ 7:34 am

    I agree,
    but apparently to believe such a thing makes one a right-wing extremist.
    This is what people went after Specter about.
    As I’ve said before, I thought the Tea Party was about 2 things initially,
    1) don’t keep spending money we don’t have
    2) read what you are going to vote on

    Of course, the second requires that the bill be in some form that is able to be read for a period of time, allowing many people to read it,

    MD in Philly (from a different computer and location) (cb7b6d)

  33. the problem is, MD, Tea Party figures soon discover the reason why bills are not read, money is spent, is part of the left’s ideological framework, we ultimately discover, he’s not a good man,
    and he may be over his head, however, his goal is not benign,

    narciso (ee1f88)

  34. I would rather have a word or page limit. I’d also insist on a formal strike/replace rule that mandated that nothing shorter than a paragraph or enumerated item could be struck or replaced, and that all context had to be apparent from the bill’s text. Only complete and unmodified code sections could be referenced.

    Kevin M (b357ee)

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    shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She placed the shell to her ear and screamed.

    There was a hermit crab inside and it pinched her
    ear. She never wants to go back! LoL I know this is totally off topic but I had to tell
    someone!

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  36. Of course, the second requires that the bill be in some form that is able to be read for a period of time, allowing many people to read it,

    The zipster said the bill would be online for 5 days and debated on C-SPAN. We know what was shovel-ready—his word.

    Hadoop (f7d5ba)

  37. Cloture of 60 is no longer required for any bill to receive a vote on the floor. Harry Reid saw to it.

    Yes, a given filibuster can delay the vote, but as we all know, eventually, a Senator will lose the floor due to biological realities. Then, the Majority Leader may call a question/vote.

    Now, the GOP could stupidly choose to re-instate cloture, or some other Minority protections when the next Congress convenes. But, if they let things stand/carryover, 51 votes = passage. On anything – except a treaty or impeachment.

    Ed from SFV (3400a5)

  38. Cloture of 60 is no longer required for any bill to receive a vote on the floor. Harry Reid saw to it.

    No, as far as I know he did it only for non-Supreme-Court nominations, not for legislation or Supreme Court nominations. But now it’s only a matter of time before it disappears altogether.

    Milhouse (469487)

  39. Ten Senators, or maybe fewer, could do a Mr. Smith year-round filibuster in shifts, yielding the floor only to each other, and tying up any 51 of the rest the whole time with a motion to compel a quorum. But that’s not how Senators should behave.

    nk (dbc370)

  40. But that’s not how Senators should behave.

    You’re right, nk, that’s not how senators should behave. But in time of great national peril, with a dick head like Harry Reid in charge and at the beck and call of the “great” leader Obama perhaps it’s time for senators to do what they shouldn’t. Perhaps it’s time for all of us to do what we shouldn’t. Civil disobedience is better than civil war. Or is it?

    Hoagie (4dfb34)


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