Patterico's Pontifications

7/29/2014

Liberal WaPo Blogger Inadvertently Strengthens Argument from Halbig Majority

Filed under: General — Patterico @ 6:43 pm

In 1994, Colombian soccer player Andres Escobar was murdered after accidentally scoring a goal for the opposing U.S. team in the World Cup. For some reason, I was reminded of that story after learning that Washington Post blogger Greg Sargent, a big ObamaCare fan, has scored a big goal for conservatives in the Halbig case — by unwittingly advancing the arguments of the Halbig plaintiffs who oppose subsidies on federal exchanges.

Sargent started out really excited by his find, bless his heart. Look at his headline: Senate documents and interviews undercut ‘bombshell’ lawsuit against Obamacare. Isn’t that sweet?

Sargent helpfully traces the origin of the “established by the state” language in the PPACA, explaining that the Senate HELP Committee passed a version of health reform that provided for Affordable Health Benefit Gateways — something like an ObamaCare exchange. Sargent links a memo that explains, among other things: “Until a state becomes either an establishing or participating state, the residents of that state will not be eligible for premium credits.” (Premium credits are tax credits or subsidies. Remember this part, because it becomes important later.) Additionally, under the HELP Committee proposal, when the federal government set up fallback exchanges for states that had not set up their own, plans obtained on those federal exchanges would be eligible for subsidies. This is key: there was an explicit provision wherein subsidies were provided on the federal exchanges.

Later, in 2009, the Senate Finance Committee passed a version of the PPACA. For the first time, the phrase “established by the state” appeared in the law, but in this initial version there were no federal exchanges. In late 2009, the two bills were merged, and according to a staffer:

[W]e layered the HELP Committee language that established a federal fallback on top of the Finance Committee language that included ‘exchange established by the state.’

Here’s the problem that many conservatives have already identified: when the bills were merged, the HELP Committee bill’s explicit provision that subsidies were available on federal exchanges was dropped. Since Sargent’s post was published, several conservatives have convincingly argued that, applying standard rules of statutory construction, the disappearance of the provision allowing federal subsidies signifies that the drafters intended to drop it. The argument has been made by Jeff B. at Ace’s, Leon Wolf at RedState, and elsewhere. Baseball Crank gives you the basic argument in a concise tweet:

If Congress initially put specific language in the bill providing for subsidies on federal exchanges, and later took that language out, it’s assumed to be deliberate. Ouch!

But it gets even worse for Sargent. I’ve not seen anyone make this point yet, but Sargent has actually directly corroborated an argument made by the majority opinion in Halbig. Here is the Halbig opinion, and here is the key passage:

The government and its amici are thus left to urge the court to infer meaning from silence, arguing that “during the debates over the ACA, no one suggested, let alone explicitly stated, that a State’s citizens would lose access to the tax credits if the State failed to establish its own Exchange.”

The historical record, however, belies this claim. The Senate Committee on Health, Education, Labor, and Pensions (HELP) proposed a bill that specifically contemplated penalizing states that refused to participate in establishing “American Health Benefit Gateways,” the equivalent of Exchanges, by denying credits to such states’ residents for four years.

This is not to say that section 36B [the section of PPACA that provides for subsidies] necessarily incorporated this thinking; we agree that inferences from unenacted legislation are too uncertain to be a helpful guide to the intent behind a specific provision.

But the HELP Committee’s bill certainly demonstrates that members of Congress at least considered the notion of using subsidies as an incentive to gain states’ cooperation.

Conservatives discussing Halbig have argued that the “established by the state” language was designed to provide an incentive for states to establish exchanges — by withholding subsidies unless the states established the exchanges. Lefties like Sargent say that theory was cynically concocted after the fact. But the Halbig court said, in essence: no, actually, it is not outlandish to think that Congress might have intended to withhold subsidies as an incentive for states to establish exchanges. After all, the HELP Committee did exactly that, in related legislation. The only thing that keeps this from being a slam dunk argument is, we can’t establish a direct connection between the HELP Committee legislation and the language in the PPACA.

But Greg Sargent just did.

The Halbig majority couldn’t say that the provision for subsidies “necessarily incorporated” the thinking of the HELP Committee. Now, thanks to the work of Greg Sargent, the Halbig plaintiffs can argue exactly that — because now we know that the language of PPACA was taken directly from the HELP Committee proposal.

It’s not every day that a lefty ObamaCare fan hands a huge cudgel to opponents of the law. Thanks, Greg!

Just . . . watch your back, buddy. Andres Escobar, the Colombian soccer player, paid a heavy price for his “own goal.” Sargent faces a crowd that is arguably more ruthless than the Colombian soccer fans: the pro-Obama hard left. Shudder. I’d hate to be in Sargent’s shoes right now.

P.S. The Fourth Circuit opinion that ruled the opposite of Halbig, holding that subsidies are available on federal exchanges, dismissed the HELP Committee proposal in a footnote (footnote 3), saying that the plaintiffs put too much emphasis on it. Now that we know the HELP Committee proposal was a precursor to the very language at issue, future courts will have a tougher time dismissing the example with an airy wave of the hand.

UPDATE: Thanks very much to Instapundit for the link. New readers, please bookmark the main page and keep coming back!

44 Responses to “Liberal WaPo Blogger Inadvertently Strengthens Argument from Halbig Majority”

  1. Ding.

    Patterico (9c670f)

  2. Ding indeed.

    Katie Scarlett (2a2f6e)

  3. Do you think Greg even realizes what he just did, Patterico? But hey, he and that other guy Jonathan Gruber can go on vacation together and watch each other’s back.

    elissa (b9af8b)

  4. Do you really think this will stop leftist judges from dismissing this with an airy wave of their hands?

    JD (c0a33e)

  5. JD,

    Touché.

    Patterico (3ff87e)

  6. The Solicitor General be Donald B. Verrilli, Jr.

    gary gulrud (46ca75)

  7. Obviously there’s an unwritten penumbra in there. They just need enough liberal judges to see it. Maybe if they squint and turn the giant stack of paper sideways…

    Georg Felis (0fff9e)

  8. Unfortunately I doubt any argument could convince the liberal 4 on the SCOTUS to vote to cofnirm Halbig – preserving Obama’s “monument” would be too important to allow mere law or constitution to get in the way of that transcendent goal.
    So it probably comes down to Roberts, anyway

    Mike Maller (e7650c)

  9. JD: “Do you really think this will stop leftist judges from dismissing this with an airy wave of their hands?”

    Airy waves of their hands are what they do. That is their job description, their very purpose in life, their reason for existing.

    They understand things like: “shall not be infringed” obviously means “of course we can make it a felony.”

    Wudndux (046065)

  10. I never heard. Did you ever settle the legal issues with the guy to 911′d you? What was the outcome of that mess?

    Desdichardo (e68f4b)

  11. I wouldn’t read Sargent on a bet – he’s a leftist propaganda hack if ever there was one.

    But it sounds about his intelligence level to be touting something that proves his own argument wrong. What an idiot.

    Estragon (ada867)

  12. Hey! It’s another “speak-o”! This issue has really made those a common occurrence.

    JohnConner (8617bc)

  13. IANAL, but it seems, then, that regardless of whether Gruber committed a “speak-o” or not, it doesn’t matter. Gruber, whether deliberately or inadvertently, put forth an argument that the 50 states could be coerced into building their own exchanges by the withholding of subsidies to consumers from states who didn’t. And that argument made its way into law.

    I repeat, it’s not important wehther Gruber intended to say this or not. What is not in dispute is that he did say it, and now we know that it was a convincing argument.

    ras (be1e0d)

  14. Liberals are the reason Batman has to wear a mask.

    papertiger (c2d6da)

  15. whorecountries are always always always all about the subsidies

    subsidized student loans are typical and they’re super-fun

    cause of how clearly you can see the relationship between these subsidies and the ever-increasing inflation-outpacing cost of education

    it’ll be the same or even worse with America’s crappy new healthcare system

    but like SarahW said

    America wanted this so hard

    happyfeet (8ce051)

  16. I wonder whether Sargent would let the WaPo unilaterally add a clause to his employment contract, or his landlord to his lease, because they had intended to include it but had forgotten.

    Milhouse (9d71c3)

  17. Had trouble posting comment yesterday, just checking now.

    jakee308 (e090f6)

  18. 16. …but like Sarah W said

    America wanted this so hard

    happyfeet (8ce051) — 7/29/2014 @ 10:28 pm

    I disagree with feets on lots. But he’s right here.

    Steve57 (7f8e80)

  19. “Applying standard rules of statutory construction, the disappearance of the provision allowing federal subsidies signifies that the drafters intended to drop it.” That’s so cute. Here’s the problem: Do you think there’s a chance in hell that our results-determined courts will abide by a standard rule of statutory construction? No, like Sargent—probably exactly like Sargent—they’ll say (at least five justices) that since it was in a nun passed bill of the same general, larger intent, Congress must have meant for subsidies to be available on the federal exchanges but slipped on the keyboard, so we’ll give it to them—standard rules, verbal evidence, prior example, analogous laws be damned.

    David (d8f992)

  20. “An unpassed bill,” of course. Thanks, autocorrect!

    David (d8f992)

  21. Justice Roberts defined the individual mandate and its associated fine as “a fine” to leap one legal hurdle and then re-defined it as a tax to leap the second. Here we have a case where obviously citizens living in states without a state exchange will be ineligible for health care subsidies, but since Roberts wants Obamacare to succeed—as evidenced by his own words:

    First this: “Congress did not intend the [shared responsibility] payment to be treated as a “tax” for purposes of the Anti-Injunction Act.”

    Then this: “Because ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U.S. 658, 657, the question is “fairly possible” to interpret the mandate as imposing [a tax on those who do not buy insurance].’”

    It’s not a tax because we need standing to resolve the case. It’s a tax because we (The Supreme Court) must resort to whatever Escheresque construction of labyrinthine logic necessary to “save” an otherwise unconstitutional law.

    Now then, with the above facts in evidence, do you really believe Roberts can’t add defacto words or “intent” to Obamacare to make it do whatever the authors intended, whether they did in fact intend whatever it was they actually intended? (Which is whatever they claim it meant, today, not what they actually meant when they actually wrote it.)

    Jack (ff1ca8)

  22. yes, but didn’t congress remove the word ‘tax’ before the final version of the ACA was passed?

    this thought frightens me.

    jd (21aa57)

  23. “First this: “Congress did not intend the [shared responsibility] payment to be treated as a “tax” for purposes of the Anti-Injunction Act.””

    Jack – Maybe Roberts believes he is on safe ground here because the ACA describes the payment as a penalty rather as a tax as he goes on to say in the following sentence, so he is merely reciting the plain language of the statute, not rewriting or redefining anything.

    daleyrocks (bf33e9)

  24. Using Sargent’s logic, doesn’t that mean the “public option” is alive and well? After all, it was in one of the original drafts.

    SaveFarris (26a48d)

  25. According to John Fund, the construction of the law matches other the construction of other laws that condition Federal subsidies on State behavior. So this is nothing new at all.

    And this specific condition is mentioned in the law no less than 7 times. Further, it was added, in part, to buy Ben Nelson’s vote. Ben Nelson is a former state insurance commissioner who was rightly worried the Fed would have too much power over a Federal Exchange so wanted the States to have their own exchanges.

    Any true and objective study of the ACA and it’s origins HAS TO result in the Halbig Decision.

    JustTheFactsMa'am (a18ddc)

  26. Sooooo…has Greg Sargent entered the witness protection program yet?

    He’d better; otherwise his final blog will be from inside a car trunk out in the weeds.

    MarkJ (42fe5b)

  27. Apparently it was insufficient to pass the bill to find out what’s in the bill.

    Freedomsbell (73142e)

  28. I can’t tell anymore. is the argument that Congress really truly intended to set up dysfunctional federal exchange system in the final version of the ACA, or that it doesn’t matter whether they did or not because that’s what the law says?

    Would this parallel the argument that it did not matter whether or not 3,000 elderly Floridians really wanted to vote Buchanan in as President, because that’s what their ballot says?

    As a side note, Kevin Drum is offering $10 to anyone who can find someone who pushed this theory among the conservative punditry before March 2010. That must be money in the bank for you guys, right?

    http://www.motherjones.com/kevin-drum/2014/07/my-ten-dollar-offer-halbig-truthers

    Another party (8e12a4)

  29. how does winning Kevin Drum’s little bet change anything?

    Congress either needs to clarify their shoddy law with a new law

    or they need to wait and see what the berobed whores of justice say

    it’s not terribly complex really to where we need side wagers and such

    happyfeet (8ce051)

  30. #30 – In other words Congress needs to pass laws of complete clarity or all power lies in the courts to decide whether to enforce literal or reasonable interpretations of whatever Congress writes. This latter view would tend to push a fair amount of constitutional power into the hands of “unelected justices”, but perhaps that’s your intent.

    As for the revelations noted by our host above, I guess there are two possibilities 1) in the course of merging two bills, both of which provided for tax credits for all exchanges set up by either bill Congress suddenly changed its mind and decided to do something not contemplated by either bill, i.e. limit credits only to state exchanges, but also decided not to tip anybody off to this change of policy which went unnoticed for a couple of years or 2) those drafting the merged bills screwed up, through inattention or the problems with writing by committee.

    #2 seems more likely. I am not clear why the host thinks #1 is more likely.

    Of course there are theories of legal interpretation which state that courts are stuck with screwed up laws and powerless to enforce according to anything other than a literal interpretation of the language. This would make great issues of policy ride on the ability of legislators not to make written mistakes, but then again if you are not actually interested in whether government works or not, that wouldn’t be a flaw.

    Another party (8e12a4)

  31. 28. Freedomsbell (73142e) — 7/30/2014 @ 9:35 am

    Apparently it was insufficient to pass the bill to find out what’s n the bill.

    That’s right. Almost nobody caught this.

    Well, Jonathan Gruber maybe caught it, or somebody told him, after a year or and a half, but he went back on the reservation pretty soon.

    Some people at the IRS caught it, but the chief IRS counsel said no.

    Sammy Finkelman (eb1481)

  32. 29. Another party (8e12a4) — 7/30/2014 @ 2:40 pm

    I can’t tell anymore. is the argument that Congress really truly intended to set up dysfunctional federal exchange system in the final version of the ACA, or that it doesn’t matter whether they did or not because that’s what the law says?

    I think it is, at least some members of Congress wanted to, and if even one wanted it, then you go by the plain meaning of the bill.

    Would this parallel the argument that it did not matter whether or not 3,000 elderly Floridians really wanted to vote Buchanan in as President, because that’s what their ballot says?

    It could be a lot like that.

    As a side note, Kevin Drum is offering $10 to anyone who can find someone who pushed this theory among the conservative punditry before March 2010.

    March, 2010 is when the bill passed. You should ask for somewhat later.

    The bill actually did get revised in reconcilation, and it could have bene fixed, but the problem wasn’t caught. Text was added saying that the amount of subsidy had to be communicated both in the federal and the state exchanges. But text was not added saying that they applied to the Section 1321 exchanges.

    Sammy Finkelman (eb1481)

  33. “I am not clear why the host thinks #1 is more likely.”

    Another Party – It pretty much conforms to how the Administration has acted when other flaws have been pointed out in Obamacare. They have either ignored them or tried brazen administrative fixes bypassing Congress. For example, when Republicans pointed out in the summer of 2010 that contrary to Obama’s promises millions of Americans would in fact lose their existing health insurance policies because they were not compliant with the requirements of Obamacare, Democrats ignored the issue instead of attempting to fix it, resulting in “holy smokes we better do something” grandfathering scramble by Obama last fall.

    daleyrocks (bf33e9)

  34. “I am not clear why the host thinks #1 is more likely.”

    Another Party – Forgetting about the version control aspect of your comment, the Administration used the same hammer tactic with states on Medicaid in an attempt to force them to expand eligibility for their residents by threatening to cut of all Medicaid funding that they did with the exchange subsidies, but the Roberts Court found that coercion unconstitutional.

    daleyrocks (bf33e9)

  35. Why is it so impossible to think that they wanted to force these exchanges on the states? The same bill had a poison-pill Medicaid change that was just as bad. Had the SC not tossed the “double or nothing” Medicaid provision, a lot of poor people in a lot of states might have gone without access to medicare care. Ant it WAS Congress’s intention to put that gun to the state’s heads. Why is it so impossible to think they miscalculated here, too?

    Kevin M (b357ee)

  36. daley, crossposted.

    Kevin M (b357ee)

  37. you giving me a headache

    none of this is my fault you know

    happyfeet (8ce051)

  38. Try some chockit

    daleyrocks (bf33e9)

  39. Anotherparty — “Of course there are theories of legal interpretation which state that courts are stuck with screwed up laws and powerless to enforce according to anything other than a literal interpretation of the language. This would make great issues of policy ride on the ability of legislators not to make written mistakes, but then again if you are not actually interested in whether government works or not, that wouldn’t be a flaw.”

    I see it differently. As one who IS actually interested in whether government works or not, I would prefer not to see Congress passing 2,000 page bills that none of the Members has read. I would prefer that there be a reasonable waiting period, say 3 days, between the time a bill is prepared in its final version for voting and the time it is voted upon. I would prefer that said bills be posted for public review for a reasonable period of time, at least 2 days, so that legislators and their staffs can get feedback from their constituents. Those simple measures would alleviate many so-called mistakes (this was not one of them). I would hope you (or any sane person) would agree that these are not unreasonable reforms, and they would, indeed, make government work better.

    jimb82 (6c8d29)

  40. jimb82, what would work even better is a sliding scale.

    Say, require a 24 hour waiting periods for every 50 pages in a bill.

    Your bill is 7 pages? There’s a waiting period of 24 hours between final drafting in committee and voting on the floor of the full chamber.

    Your bill is 2007 pages? There’s a waiting period of 41 days.

    It doesn’t put a firm cap on bill length (which probably wouldn’t pass Constitutional muster), but it would incentivize smaller, more focused bills that don’t try to hide shenanigans through largess.

    SaveFarris (26a48d)

  41. Another party is the newest version of Northerner, whose vapid mendoucheous prose varies very little from topic to topic.

    JD (3845bd)

  42. 40. 41.

    I like the idea of a maximum length for bills, but there needs to a caveat.

    You don’t want bills that say “change the word X in Public Law Y to Z” So the formula needs to be adjusted. Also you could allow amendments to lengthen it up to a point.

    I don’t see how the business of waiting period could work.

    Sammy Finkelman (f5dc11)

  43. “we have to pass the bill so that you can find out what is in it”

    JLC (dc6000)


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