Patterico's Pontifications


Brian Beutler’s Criticism of Halbig Judges Missed This One Very Important Detail

Filed under: General — Patterico @ 8:01 am

Brian Beutler of the New Republic had a post yesterday titled The Conservative Judges Who Ruled Against Obamacare Missed This One Very Important Detail. The post selectively quotes the judges in the Halbig majority, omitting the part that destroys the premise of his entire post.

I’ll quote Beutler at length so you can see what his omission was, and how it kills his argument:

We now know that two conservative judges on the D.C. Circuit Court of Appeals have declared it illegal for the government to subsidize Obamacare health plans in states that didn’t set up their own insurance exchanges. In reaching that conclusion, Judge Thomas Griffith, who authored the opinion of the court, sought to rebut each of the Obama administration’s arguments to the contrary—that the law clearly contemplates subsidizing health plans in every state whether or not a state built its own marketplace.

But in one instance he based his counterargument on information that became outdated less than one week ago. And the recent development turns that counterargument on its head.

One of the White House’s most straightforward arguments is that neither Congress nor the administration would have approved a punitive system so at odds with the ACA’s ultimate, stated goal of achieving near-universal insurance coverage. The law seeks to achieve near-universal coverage by mandating the purchase of guaranteed, subsidized (and thus affordable) health plans. Take away the subsidies, and the plans are no longer affordable. If the plans aren’t affordable, they’re no longer compulsory. And if they aren’t compulsory and affordable the coverage expansion goal will be unattainable.

But if you’re going to conclude that the law unambiguously makes those subsidies conditional, you ought to dispel every notion that Congress had other ideas, which is what Griffith set out to do.

I sympathize with the poor clerks who were assigned to Google for evidence that the administration and Congress were content with ignoring the importance of the subsidies to the expansion goal. This Sarah Kliff article from December is what they came up with. It turns out that due to drafting quirks, the ACA neither mandates coverage, nor provides for subsidies, in several U.S. territories. Per Griffith, “the supposedly unthinkable scenario the government and dissent describe—one in which insurers in states with federal Exchanges remain subject to the community rating and guaranteed issue requirements but lack a broad base of healthy customers to stabilize prices and avoid adverse selection—is exactly what the ACA enacts in such federal territories as the Northern Mariana Islands, where the Act imposes guaranteed issue and community rating requirements without an individual mandate. This combination, predictably, has thrown individual insurance markets in the territories into turmoil. But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements.”

If the subsidies aren’t central to the program in Guam, why must they be self-evidently necessary in Nebraska? He didn’t get the memo.

Last week, Kliff wrote an update. “In letters sent July 16, the Obama administration notified territorial regulators that their residents would be largely exempted from health law requirements…perhaps most importantly the requirement that insurers offer coverage to all shoppers.”

In other words, contrary to opinion of the court, the administration believes that absent subsides (and thus absent a broadly applicable mandate) the coverage guarantee has to go as well, leaving the law’s explicit coverage goals well out of reach.

Look again at the way Beutler quoted the Halbig majority. Beutler’s version of the quote purports to end in a period: “But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements.” But actually, there is a comma after the word “requirements” — and what Beutler leaves out is . . . rather significant. Here’s the actual quote:

But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements, recognizing that, “[h]owever meritorious” the reasons for doing so might be, “HHS is not authorized to choose which provisions of the [ACA] might apply to the territories.”

That’s my emphasis. As I pointed out yesterday, HHS initially admitted that it had no authority to exempt territories from guaranteed issue (i.e., forcing insurance companies to cover pre-existing conditions). HHS’s subsequent reversal is best understood as staking out a litigation position ahead of the Halbig decision. The apparent purpose of the policy change was so that lawyers could claim in future court arguments that the law is unworkable unless all its component parts are in effect. (And if folks like Sarah Kliff and Brian Beutler want to trumpet that position in online lefty media, so much the better.) I believe the odd timing of the announcement, just days before Halbig was announced, was due to the Administration’s desire to avoid the appearance that they were simply reacting to the decision.

On Twitter, Beutler has claimed that he omitted that part of the court’s quote because his piece “wasn’t about” the part he left out. But that claim does not hold up to scrutiny. The whole point of Beutler’s piece was to contradict the court when the court said: HHS has taken the position that the law can, in fact, be workable even if parts of the law are not in effect. But that was not the court’s point. The court’s main point was that the law itself did not exempt territories from guaranteed issue even though it did exempt them from the mandate. In other words, the drafters of the law (not HHS) did not require all three legs of the “three-legged stool” (guaranteed issue, mandate, and subsidies) in the territories. And HHS initially agreed, only because it “recognized” that it had to — admitting that the law’s very terms compelled them to require guaranteed issue without the mandate.

The point is: the law’s drafters did not always require all three legs of the stool — contrary to the Adminstration’s arguments in court.

The fact that HHS did a complete 180 days before Halbig and exempted territories from guaranteed issue, even though they previously said they had zero authority to do that, does not undercut the court’s point at all. It just shows that HHS was trying to bring its policies into line with the lawyers’ arguments — even if doing so violated the law, by their own admission.

And if Brian Beutler had provided his readers with the court’s entire quote, his readers would have known that.

(H/t: John Sexton.)

20 Responses to “Brian Beutler’s Criticism of Halbig Judges Missed This One Very Important Detail”

  1. As I wrote to you, Patterico, the real problem here is that we have a generation who thinks that if a cause is “good” (by their standards, it’s okay to bend or break rules—without ever thinking of precedent or future impacts. “Social fashion” and the law are bumptious playmates, with regard to our rights.

    Simon Jester (b81a40)

  2. Why can’t the left just own up to it: it was a poorly written law forced through the Congress under duress and with the idea that the concept of government-run health care would be so popular that Congress would have lots of latitude to amend the law down the road. Instead, they have lurched from one disaster to another.

    This is like having a most feeble and mangy horse yet convincing yourself that you can somehow get him ready for the Kentucky Derby if only those mean other trainers would stop trying to dissuade you.

    JVW (feb406)

  3. Beutler’s like Ezra but without the extra piece of flairt

    narciso (ee1f88)

  4. hey did indeed, it looks like, create an unworkable law for U.S. territories, but it could bve argued that doesn’t mean they intended to create an unworkable law for the country as a

    It seems like originally, the idea was the territories would get subsudized policies. To make the math work better, they eliminated the subsidies there. This creation of an unworkable law could happen because nobody from the territories has a vote in Congress. They also expanded into there some public health programs.

    But this very reason is an argument they didn’t mean to do it for the states. Money saving means that the CBO scoring took account of the fact that the subsidies did not apply in the territories But CBO scoring assumed that the subsidies would apply in all 50 states.

    If the idea was there would not be any states that didn’t have an exchange, what is the purpose of Section 1321 which provides for a federally run state exchange

    Sammy Finkelman (51afd4)

  5. So now it is not a drafting error, but simply sloppy legislative language. These people have no capacity to embarrass themselves with their hackery.

    JD (81a25b)

  6. In related news, Drudge links Breitbart’s article exposing Democrat Senator Walsh’s plagiarism and more: (emphasis added)

    HELENA, Mont. (AP) — Sen. John Walsh of Montana said Wednesday his failure to attribute conclusions and verbatim passages lifted from other scholars’ work in his thesis to earn a master’s degree from the U.S. Army War College was an unintentional mistake caused in part by post-traumatic stress disorder.

    The apparent plagiarism first reported by The New York Times was the second potentially damaging issue raised this year involving the Democrat’s 33-year military career, which has been a cornerstone of his campaign to keep the seat he was appointed to in February when Max Baucus resigned to become U.S. ambassador to China.

    National Democrats said Wednesday they remained “100 percent behind Sen. Walsh” in his campaign against Republican Rep. Steve Daines…

    Walsh’s military record was first questioned in January when records revealed the Army reprimanded him in 2010 for pressuring guardsmen to join a private association for which he was seeking a leadership role.

    Walsh was adjutant general at the time and wanted to become vice chairman of the National Guard Association of the United States. In the reprimand, Army Vice Chief of Staff Peter Chiarelli said he questioned Walsh’s ability to lead.

    ropelight (2ad9da)

  7. Near-universal coverage? I can’t believe they have the b@ll$ to write this tripe. “Supposedly”, there were 40…no 30…no, whatever million who needed to get insured in order to reach the “near-universal” coverage. So far, 7-8 million have signed up! That’s not counting the several million who lost coverage, which probably accounts for the majority of that 7-8 million figure. They keep postponing the employer mandate, so who knows what the final numbers will be. They could’ve just dealt with those who didn’t have insurance for various reasons. No, they had to create an entirely new bureaucracy to enforce their utopian dreams on our nation.

    It was a stupid idea created by stupid people who have no business expertise or knowledge about how the consequences will play out for the average American.

    Hadoop (f7d5ba)

  8. So now it is not a drafting error, but simply sloppy legislative language. These people have no capacity to embarrass themselves with their hackery.

    They don’t care, JD. I honestly believe that most of these lawmakers just enjoy getting inebriated at the local DC watering holes while trying to have sex with interns.

    Hadoop (f7d5ba)

  9. Hadoop – their relationship with reality, and honesty, is strained. At best.

    JD (81a25b)

  10. That’s where the drinking comes in, JD.

    Hadoop (f7d5ba)

  11. O/T – How a solar storm two years ago nearly caused a catastrophe on Earth

    Good thing that big yellow thing in the sky has nothing to do with our climate and we can predit events 50-100 years in the future, but can’t model the past, because 97% and SHUT UP they said!

    daleyrocks (bf33e9)

  12. Brian Beutler, whose career as a “journalist” has passed through Mother Jones, Salon, and The New Republic ceased being readable or worth attempting to read several years ago.
    He was mugged/shot/very seriously injured in D.C. awhile back. Fortunately, help arrived quickly and he recovered. But as his Salon essay at the height of the Trayvon Martin hysteria and subsequent NPR interview shows, he is a lib through and through.

    elissa (d14cd1)

  13. elissa – When you look up the definition of the word “hack” in the dictionary, Beutler’s picture is among the many worthless libs who appear as examples.

    daleyrocks (bf33e9)

  14. Brian Beutler is just taking Obama’s lead that a period means a comma in a quote. “If you like your plan, you can keep you plan period [= (comma)] as long as they don’t change the terms of your coverage at all.”

    Dejectedhead (a094a6)

  15. As if liberals care about facts.

    As a thought experiment, imagine an example drawn from athletics where the Obama team is playing the conservative team. Ardent Obama supporters and enablers include the refs/umpires, the press, a hand selected crowd, etc.

    Elastic game periods
    Flexible rule enforcement
    New rules conjured up mid-game which are applied against the opponent
    Refusing to acknowledge the rules apply to them and ignoring any whistles directed at them
    Non-stop hate speech raining down on the opponent

    Amazingly, the American people who would never allow this behavior in sports accepts it without comment in something much more important.

    in_awe (7c859a)

  16. I’m wondering: How many people so far have died as a result of Obamacare? People who had insurance that covered their needs, but lost it and their ongoing care, and then died. People whose ACA insurance or network seemed adequate, but some new problem came up and needed care wasn’t available on the plan, and they died.

    Bet you the numbers are in the thousands. Four or five million Americans die every year, and some of these deaths could have been prevented through better care. I just wonder that the body count is so far.

    Kevin M (b357ee)

  17. Pregnant woman forced to wait over 30 minutes to cross street to hospital because it was on Obama’s motorcade route.

    Kevin M (b357ee)

  18. And if Brian Beutler had provided his readers with the court’s entire quote, his readers would have known that.

    This is the only part of the post I disagree with. I think that even if he’d provided the full quote, his readers would still not have understood its significance, for the same reason that he didn’t; they’re so committed to the view that 0bama is right and these “conservative” judges are hacks, that they wouldn’t notice the quote marks, and would imagine that this was the judge’s own dicta, rather than HHS’s considered legal position (until a few days ago).

    Milhouse (c63fe5)

  19. Hey Sammy,

    now that everyone has shown you’re lying, do you care to recant?

    another link to the architect

    NJRob (5da6c8)

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