Patterico's Pontifications

10/2/2014

Federal Judge Rules Similar to Halbig Court, Slaps Down Partisan Judges to Contrary

Filed under: General — Patterico @ 7:34 am



I like a well-reasoned opinion, but I love one that includes a smackdown of lefty hack judges.

The decision comes to us via Gabe Malor at Hot Air, and can be read here (.pdf). Basically, as Gabe explains: “Like the now-vacated decision in Halbig, the judge in Pruitt could not find any statutory authority for IRS to offer tax subsidies to individuals that purchased insurance on the federal exchanges.” The judge also had some pointed words for lefty judges who had taken a contrary position:

Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[a]ppellants’ approach would effectively destroy the statute . . . .” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance. . .” Id.

Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still. . . This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written.

Boom. Bold type is mine, underlining is the judge’s.

Jonathan “speak-o” Gruber makes an appearance in another footnote:

The court permitted plaintiff to supplement the record with statements made by Professor Jonathan 24 Gruber, who was involved in the ACA’s drafting. (#115). It is evidently undisputed that in January, 2012, Prof. Gruber made the statement “if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.” What is disputed is whether Prof. Gruber’s statement was “off the cuff.” The statement evidently has now been disavowed on his part. In any event, the court does not consider this statement as reflecting “legislative intent” (a concept in which the court has little faith anyway) because Prof. Gruber is not a member of Congress and his statement was made after the Act had passed. The court takes the statement for the limited relevance of words of interpretation, not intent. That is to say, the statement cuts against any argument that the plaintiff’s interpretation is absurd on its face, or that plaintiff’s argument that the statutory language might support a reading of “incentivizing” states to set up exchanges is “nonsense, made up out of whole cloth.” Halbig, 758 F.3d at 414 (Edwards, J., dissenting).

I love all the stuff in bold (bold type is mine). Along those lines, the judge also has a few words for those misguided souls (mostly leftists these days) who believe that “intent” is the proper way to interpret statutory language. Long-time readers will recall that I forcefully argued against such a position in 2010 — and encountered a considerable amount of flak for doing so. Today, it seems, I have been vindicated, and a footnote in the judge’s opinion helps explain why my position was right:

Moreover, legislative history may not be used to create ambiguity in the statutory language. See 16 St. Charles Inv. Co. v. C.I.R., 232 F.3d 773, 776 (10 Cir.2000). “Our role in construing statutes was then summarized by Justice Holmes: ‘We do not inquire what the legislature meant; we ask only what the statute means.’” Id. (citations omitted).

Judge Easterbrook has expressed the outer limits of this skepticism: “Legislative intent is a fiction, a back-formation from other and often undisclosed sources. Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it ‘intends’ only that the text be adopted, and statutory texts usually are compromises that match no one’s first preference.” Frank H. Easterbrook, foreword to Reading Law: The Interpretation of Legal Texts, by Antonin Scalia & Bryan A. Garner, xxii (1 ed.2012)(emphasis in original).

Bold type is mine. This sounds very similar to what I said in 2010:

Things get even uglier when you’re talking about legislative intent, because you’re looking at the intent of a body of people who might not even have an intent — other than “I am voting this way to get re-elected.” Most of these clowns haven’t even read the words that their intent is supposedly so critical to interpreting. Some legislators’ intent is going to be at odds with others’. Some will have traded favors or spent political capital negotiating a change to the text — and it is the height of insanity to tell such people that their negotiated TEXTUAL modifications are null and void because a majority of legislators happens to unreasonably read that same text in a way different than most reasonable people would.

And so the point boils down to this: to the intentionalist, the meaning of words written on a page is wholly determined by what the writer intended them to mean. But in the real world, when a judge has to decide how those words are going to be ENFORCED, he is going to start with the text — and he may very well end with the text.

Whatever unwarranted opposition I might have faced in the blogosphere for this position, this is the view that I believe will ultimately carry the day for five Justices. Excellent work by federal District Judge Ronald A. White. It’s not every day that you can say this, so I’m pleased to do so when I can: three cheers for a job well done by the federal judiciary.

32 Responses to “Federal Judge Rules Similar to Halbig Court, Slaps Down Partisan Judges to Contrary”

  1. Ding.

    Patterico (5e9fda)

  2. Not sure when the Supremes accept the next batch, but I expect this one will make it.

    gary gulrud (46ca75)

  3. Correct me if I’m wrong. Wasn’t the purpose of state run exchanges getting the tax credits to compel the states to set up their own exchanges?

    Gerald A 11/2006 (2c96c6)

  4. On the contrary, the court is upholding the Act as written.

    That’s a satisfying correction. They haggled this very point out. To then go back on that corrupts the whole process.

    Great post, btw.

    Dustin (801032)

  5. My In-Laws have recently taken the position that I oppose Obamacare because I am rich (which is true, for certain definitions of rich). As if there were no other reason to oppose a badly written, sloppily edited, opportunistically enforced piece of legislation that (so far as I can tell) nobody read in its entirety before voting “aye”.

    The point isn’t that reforming healthcare is a bad idea, or that government involvement in healthcare is a bad idea, or that healthcare is a bad idea. Those issues can be argued later. The point is that we are paying our legislators, President, and their staffs large amounts of money to pass laws that make some kind of sense, and which can actually be implemented. These people are supposed to be professionals; that is, in fact, their entire excuse for trying to micromanage our lives. Yet this (according to them) vital piece of legislation wouldn’t pass muster as the work of a slightly developmentally challenged middle school student.

    C. S. P. Schofield (848299)

  6. Upholding the act as written – that’s tremendous.

    Amphipolis (0eeefe)

  7. The judge also had some pointed words for lefty judges who had taken a contrary position:

    He took a post-grad course in Scalia-101!

    askeptic (efcf22)

  8. Judge White brings the the heat!

    daleyrocks (bf33e9)

  9. The problem as I see it is that this will either have virtually no effect, or effects that are detrimental to Republicans. If the SC upholds this position, then Congress will be in a politically untenable position unless they amend the ACA to allow subsidies in all states. Otherwise millions in primarily “red” states, will be billed for thousands of dollars that they can’t pay and there will be unpleasant political reactions as a result.

    The only way to defeat Obamacare is politically. Once Roberts went the way he did, judicial options became insufficient.

    Mark Johnson (77a382)

  10. It’s a sad day when upholding a law as written is worthy of three cheers. Have we become a third world country?

    ThOR (130453)

  11. subsidies could be disallowed going forward and the IRS instructed not to pursue collections against people who received Obama’s illegal subsidies

    this is not hard, and it’s the way the law is supposed to work anyways

    the key thing is people who got illegal subsidies shouldn’t be forced to pay them back

    they’re victims of typical American incompetence

    happyfeet (a785d5)

  12. Happyfeet, no.

    Those who took the money (which they never saw because it went to insurance companies) for illegal subsidies are thieves, and your soft-on-crime approach is an affront to the rule of law. The law as written is pretty clear and although the law is stupid, it is what congress passed. Enforce the law as written and maybe citizens will realize there is a need to elect congresscritters who actually read and think about the effects of what they are doing before they pass laws.

    max (4fdf98)

  13. i disagree I think they were just following the instructions of their personal obamacare navigators and it’s not their fault failmerica stuck subsidies up their butt

    happyfeet (a785d5)

  14. Well then, make the BarryCare Navigators pay back the illegal subsidies –
    ALONG WITH THE INSURANCE COMPANIES,
    for taking government funds under false pretenses.

    askeptic (efcf22)

  15. every penny the insurance companies would pay back for illegal subsidies would come back to them in the form of risk corridor payments

    happyfeet (a785d5)

  16. sweet mother of insufferable retardation

    given a million dollars, here’s how California chooses to spend it

    Could that beloved farmer at your farmers market possibly be lying to you, passing off supermarket produce as locally grown?

    California’s state officials seem to think so. Last week, Gov. Jerry Brown signed a new law that will raise $1 million to deploy a small army of inspectors to farmers markets around the state.

    happyfeet (a785d5)

  17. speaking of subsidies

    given a million dollars, here’s how California chooses to spend it

    Could that beloved farmer at your farmers market possibly be lying to you, passing off supermarket produce as locally grown?

    California’s state officials seem to think so. Last week, Gov. Jerry Brown signed a new law that will raise $1 million to deploy a small army of inspectors to farmers markets around the state.

    happyfeet (a785d5)

  18. “every penny the insurance companies would pay back for illegal subsidies would come back to them in the form of risk corridor payments”

    WUT?

    The insurance companies charge consumers a net price and collect the subsidies from the government.

    daleyrocks (bf33e9)

  19. oh. I defer to your judgment on that Mr. daley.

    happyfeet (a785d5)

  20. anyone stupid enough to shop at those “farmer’s markets” is a fool who deserves to get fleeced.

    unless you live in or real near a farming area, of course all that stuff is coming from regular supply chains. the real problem is that #Failifornia is chock full of clueless, uneducated fools.

    redc1c4 (abd49e)

  21. they’ve cleaned up the NoHo one a LOT but it’s still just a shadow of the Studio City one and the people aren’t nowhere near as pretty

    i only like farmer’s markets to get funky ethnic lunch sometimes

    but I get really put off when I see the booth where they show you how you can use your food stamps at the market

    that’s gayer than putin’s “putin on the ritz” themed birfday party

    happyfeet (a785d5)

  22. From the 2010 post:

    If he is looking at a contract where the seller is a scam artist, he won’t really care what the seller subjectively intended to sell.

    On the contrary, he will pay attention to intent or what the buyer must reasonably have thought he wa sgetting, because one form of scam is to put something different or some special charges orcaveats in the written contract.

    A lot of small print is regarded as invalid under some state laws. It takes extreme unreasonableness to get to that point, though.

    http://law.freeadvice.com/general_practice/contract_law/contracts_small.htm

    You’ve seen the small print on the back of a sales receipt with the list of rules for refunds. In fact, many of these small print contracts will actually state that by purchasing that item, you are agreeing to the store’s terms of sale. Many courts have been allowing these so called “contracts of adhesion” or “take it or leave it” to be binding.

    Typically, courts will uphold provisions such as terms of sale, arbitration clauses, and terms of refund or cancellation of sale. These provisions are considered reasonable and more instructional in nature than actually binding. For instance, sales receipts may state that the store will not return an item without a receipt. This is a retailer’s right and something that they did not even have to tell you. Instead, they chose to place it on the back of the receipt, in small print, to encourage you to keep your receipt in case the purchase is defective.

    The court will consider whether the small print was manifestly unfair or unreasonable when determining whether it was valid. For instance, if a car dealer places small print in a contract stating that you waive your right for a claim under the Lemon Laws, this would be considered manifestly unfair, as it is removing a protection placed in the law for consumers. In addition, contracts that violate a law or that are against public policy are also considered invalid. For example, if your optometrist’s contract states some added charges that will be sent to your insurance company that are not valid, this is a violation of law known as insurance fraud, and it will not be considered valid. As a general rule, if a contract contains any fishy provisions, whether in small print or regular print, it is best to consult with an attorney to avoid future problems with that vendor.

    Sammy Finkelman (d22d64)

  23. http://en.wikipedia.org/wiki/Fine_print

    US Federal Trade Commission (FTC) regulations state that, for an advertised offer to be lawful, the terms of the offer must be clear and conspicuous, not relegated to fine print.[5] ..

    …. Some examples of how consumers are deceived are as follows:

    A credit card, advertised with a 0% rate in large print, will offer this only for an introductory period of a few months. After that, the rate will be something like 19.95%, and may increase even more due to universal default.[8]

    A cell phone contract may require the subscriber to pay various fees that are originally unnoticed. The subscriber is bound to the contract for a specified period of time, and must pay a large amount to be freed. Additionally, the contract will automatically renew if not cancelled within a certain time frame upon its expiration, thereby further lengthening these terms.

    A trip, frequently a cruise, will advertise in large print that the price is something attractive, such as $399 for seven days. In smaller print below, the words “per person, double occupancy” (often abbreviated) will be present.[citation needed] This alone will double the advertised offer, since even the solo traveler would be required to rent the room for the price of two. The words “as low as” may also be hidden, for this low price applies only to the least attractive of offers.

    Other fees that will be mandatory for all or most, such as taxes, transportation to the cruise terminal, and activities on and off the ship, will be extra.[citation needed]

    A car dealership may advertise a car for sale at far below its market value in large print. Above the “final price” in the largest numbers of all, the real price will be listed at the top in small print. Below that will be several deductions, many of which most customers cannot possibly obtain, such as military membership, or a trade-in. Many of these offers also apply only to a particular model number, and exclude the remainder of the dealer’s inventory.[citation needed]

    Auto repair shops frequently advertise either with coupons or large signs outside their businesses for common maintenance and repair services, such as oil changes, tune-ups, and tires. These ads fail to mention factors that may raise that price, such as fees and add-ons for various services, mechanics telling customers more costly repairs are necessary or else the vehicle may be further damaged, or the price being for each individual part (such as a wheel), where the vehicle has several of that part all needing the service, and thereby multiplying the cost by that number. Many ads will also state in fine print “most cars,” but in reality, most cars, including that of the customer seeking the service, will be excluded.[citation needed]

    Warranties: The warranties for many products, such as automobiles, are offered or sold with the promise that they will cover a large number of scenarios, should they occur, and often routine maintenance. But they are accompanied by fine print to exclude virtually all repairs that will likely be needed. The coverage for some routine maintenance may also be a lure in which the service center will intentionally damage the vehicle, unknown to its owner, thereby forcing the owner to return for additional costly repairs in the future.[citation needed]

    Insurance policies: Particularly health and life insurance will exclude a good deal of scenarios in which one would normally file a claim. For example, life insurance will not normally cover suicides, and homeowners’ insurance will not normally cover arson.

    Rebates: Many products are advertised with a price printed in large numbers. However, a higher price is printed above in much smaller numbers, and the large-print price is only given after a rebate. Initially, the customer must first pay the high price. In order for the rebate to be redeemed, the customer must then follow a set of instructions. In some cases, meeting all the requirements necessary in order to obtain the rebate may be difficult, and as a result, many rebates are denied.[9]

    Sammy Finkelman (d22d64)

  24. Pruitt v. Burwell is a District Court decision, and so doesn’t change anything for teh supreme Court. It will depend on what the appelate court rules. If there is a conflcit the Supreme Court virtually has to take it. If not, they could let it stand, since this is a technical issue of statutory interpretation.

    A victory would create asituation that both Democrats and republicans would agree would have to change. It gives republicans some bargaining power, but blame for not coming to an agreement can be moved around. It’s more complicated since it gets into budgetary scoring issues.

    Obamacare will anyway be in big trouble when people are charged for overpaymennts, even if teh charges are only for the premiums.

    Sammy Finkelman (d22d64)

  25. Hot Air says a fourth case is pending in Indiana. So that’s 4 Court of Appeals decisions that have to be the same for the Supreme Court to have the option of not taking this up.

    They actually of course could let contradictory decisions stand (they do that in tax casds, I think) but this affects too many people.

    Sammy Finkelman (d22d64)

  26. I swear there is no amount of irrelevant minutia too small for Sammah to latch onto.

    JD (312266)

  27. I swear there is no amount of irrelevant minutia too small for Sammah to latch onto.

    He might take that as a challenge.

    Kevin M (b357ee)

  28. max #12 – ” The law as written is pretty clear and although the law is stupid, it is what congress passed.” – more specifically, it is what the Democrat-controlled House and Democrat-controlled Senate passed in final form without a single Republican vote … to say “it is what congress passed” is to give the Democrats some cover behind which that can and will try to hide …

    “Enforce the law as written and maybe citizens will realize there is a need to elect congresscritters who actually read and think about the effects of what they are doing before they pass laws.” – again, more specifically, “maybe citizens will realise that there is a need to UNelect the Democrat/Progressive congresscritters who voted to pass this law known as Obamacare.” …

    Alastor (e7cb73)

  29. the legislature is a collective body that does not have a mind

    LOL, a more exact, precise, appropriate description of how and why many things become The Law has rarely been evoked by The Judiciary.

    IGotBupkis, "Si tacuisses, philosophus mansisses." (225d0d)

  30. I swear there is no amount of irrelevant minutia too small for Sammah to latch onto.

    He could have the most successful blog on the internet if he wanted to. Or write 90% of the content of talk radio.

    nk (dbc370)

  31. “Legislative intent” is now custom manufactured and, like the legislation itself, is almost entirely the product of staffers, not legislators themselves. Sometimes it doesn’t work, as with the very extensive legislative history (committee & subcommittee reports) and “findings” used by Dem staffers in 1994 to buttress the federal Violence Against Women Act. In United States v. Morrison, a bare majority of the SCOTUS nevertheless struck it down as exceeding Congress’ powers to regulate interstate commerce. But quite often these documents become just more back-door politics practiced by unaccountable and nameless Beltway citizens-for-life.

    Beldar (fa637a)

  32. 27-Alstor: You are being too kind by far to many of the Republican congresscritters who only differ from the Democrats in that they could see no electoral advantage in voting for Obamacare.

    13-Happyfeet: what does fault have to do with anything? The taxpayers received the benefit of the illegal subsidies so they have some responsibility for the crime. The navigators and exchange workers are all federal employees who can be entirely at fault but still have no responsibility for their actions. As the only responsible party to the illegal subsidies, the taxpayers have to take the full burden of defrauding the government. If you want to change that you have to change the way the US government works.

    max (4fdf98)


Powered by WordPress.

Page loaded in: 0.6286 secs.