Patterico's Pontifications

11/8/2014

Supreme Court to Hear Halbig- Related Case

Filed under: General — Patterico @ 12:43 pm



Not Halbig, which still has to go to the D.C. Circuit, but the related King case out of the Fourth Circuit. Allahpundit is shocked. I am not.

Regular readers will recall that I confidently predicted the Halbig decision ahead of time, by listening to the oral argument. I said on July 7: “I am now convinced that the judges on the panel will rule 2-1 against Obama,” which is exactly what they did on July 22. Always trust content from Patterico!

I was not at all surprised when the D.C. Circuit took up the case en banc — nor, contrary to the views of conservative partisans, did I think it inappropriate for them to do so. (What will be inappropriate is for them to overturn the decision for political reasons, which I also believe will happen.) This is an important case. True, the legal issue is relatively straightforward once you strip away the nonsense raised by leftists who want to read things into the law that Congress never wrote. But it affects literally millions of people in a significant way. It’s appropriate for the D.C. Circuit to hear it en banc, and it’s appropriate for the Supreme Court to take it up at the earliest opportunity.

I also said on July 7:

Of course, the matter will likely eventually end up in the U.S. Supreme Court, unless they chicken out and refuse to hear it, which seems to me unlikely. I like our chances there better. Kennedy, often a squish, was a solid vote against ObamaCare in the previous major ObamaCare decision. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.

I’m not as convinced about the Supreme Court’s result as I am about the original panel decision, but I stick by my original prediction that the Supreme Court will rule conservatives’ way — which means a reversal of King.

The other thing I said on July 7 was that this case represents “the triumph of textualism.” This is perhaps the most important part of this case: the fact that textualism, and not “intentionalism,” is the proper method for interpreting legal texts. Regular readers know this is a position I have long advocated in a consistent manner in the face of bitter dissent, notably including from some on the right. (Feel free to browse through the links for some forgotten history; anyone interested in this debate should find useful arguments there.) Everybody is on the side of textualism now — and, to read them today, you’d think they always had been. What is that Obama likes to say? “As I have always said . . .” But this site was advocating textualism when advocating textualism wasn’t cool. Today, it’s not just “cool” but mandatory, and Halbig has made that clear. I feel cautiously confident that the Supreme Court will make it even more clear this coming year.

35 Responses to “Supreme Court to Hear Halbig- Related Case”

  1. Congratulations to textualism on its hard-earned victory. May that victory continue.

    Patterico (9c670f)

  2. People tended to get lost in the discussions of the sort linked in the post, but I think that’s too bad. The posts were long, but I think it’s some of the best writing I have done on this site.

    I can say: “As I have always said…” on this issue with a clear conscience.

    Patterico (9c670f)

  3. Kinda sucks to be Mr. Roberts.

    DNF (b18ba5)

  4. Textualism and Intentionalism have some overlap in my mind, as not being a legal technician or scholar.
    The text is what it is, and you can’t assume it really meant something else,
    but as language often has shades of meaning in the moment, and changes of meaning over time,
    you can’t take an 18th century text and assume all of the words are used in identical to the way they are today.

    I think more important than textualism or intentionalism is whether one wishes to make a good-faith attempt at understanding what was said and then going from there,
    or twisting things to make it to say what you want for whatever selfish purpose.

    Though it is harder when there are different languages, different cultures, and thousands of years of time involved,
    as opposed to 200-250 years and the same “basic” language and culture.

    MD in Philly (f9371b)

  5. MD in Philly,

    True, which is why I posed hypotheticals in the post that posited stark examples where Congress intended x but said y, where x and y are totally incompatible. At the time, I was told that judges should rule that the law meant x (what was intended). Today, everyone agrees that judges must say the law means y (what was written). Take the beginning of this post, where I said:

    Jeff Goldstein’s latest post on legal interpretation confirms that in his view, legislative intent always determines the meaning of the language written in a law. Responding to my hypothetical in which a tax law says it applies to people making over $100,000, Goldstein argues that if the legislature intended for it instead to apply to people making over $10,000, then that is what the law means. For the judge to conclude otherwise, Goldstein argues, is “activism” — because he is rewriting the law according to his own intent and not that of the legislature.

    Me, I say the opposite. If the legislature writes that the tax law applies to people making over $100,000, then it applies to people making over $100,000. I don’t care if you line up every member of Congress to swear on a four-foot high stack of King James Bibles that they really meant it to apply to people making over $10,000. Tough. You didn’t say that. “Activism” is not applying the written word, it is applying unexpressed “intent” over the clear written word.

    You can see how this directly applies to Halbig. And you can see how dangerous the intentionalism framework for legal analysis is. Now that it is being seized on by the leftists to uphold ObamaCare, everyone can see that. Back in 2010, though, I took a lot of flak for maintaining this position.

    Patterico (9c670f)

  6. Egrets! 🙂

    daleyrocks (bf33e9)

  7. daley,

    Yup.

    I always found that argument odd anyway. As I recall, words and sentences written by an egret are supposed to be ignored as contentless marks with no intent behind them. But in real life, if some egret started writing sentences in the sand, normal people would say: holy crap, this egret is trying to talk to us!

    Patterico (9c670f)

  8. MD has a point, but probably not so much with a law written in 2010.

    A different but related question: What deference should be given to non-textual precedent where the precedent is the basis for stuff that followed. Slaughterhouse or Wickard come to mind. As much as one might want either overturned, the collateral damage would be impressive.

    Kevin M (d91a9f)

  9. Wickard is an abomination that should be overruled at the first opportunity.

    Not so sure about Slaughterhouse.

    Patterico (9c670f)

  10. Heh! I don’t think the Slaughterhouse Cases went far enough. Right now, seeing what all those old numbies have done with the Fourteenth Amendment, I would hold that its enabling clause meant “Only Congress may enforce …”, and that it was not self-enforcing. It’s not too late. Congress can strip the Federal courts of all jurisdiction over the Fourteenth. They could be allowed jurisdiction to construe Congressional intent in federal statutes passed pursuant to its enabling clause.

    nk (dbc370)

  11. Patterico,

    I agree with your example of $100,000 and $10,000. I believe that we should read a law as it was written AND most importantly use the meaning of the words when they were written. The gay 90s had nothing to do with homosexuality, though gay is now taken to mean homosexual. Gentleman was a title, now it means a man with good manners. Language changes.

    I don’t see how the 8th amendment against cruel and unusual punishment means that the death penalty is unconstitutional or that hanging is unconstitutional when they had laws that hanged people that weren’t repealed far long after it was enacted. I see no clear reason why the 14th amendment’s “equal protection of the laws” requires same sex marriages when they had anti sodomy laws on the books for over 200 years.

    I don’t have a problem with textualism, but do have a problem with the judiciary’s “mutilazation” of a word’s clear meaning.

    I also don’t understand why some people try to interpret the constitution outside the context of the Declaration of Independence when the constitution clearly answers the complaints in Declaration of Independence. When interpreting the constitution you have to take into account, the history of the time and what words meant at the time it was written.

    Tanny O'Haley (c674c7)

  12. “I always found that argument odd anyway.”

    Patterico – I don’t even remember what the hell it was. I just remember being here for the long, drawn out arguments and suddenly egret footprints in the sand appeared.

    I have been an egret whisperer ever since.

    daleyrocks (bf33e9)

  13. I concur that textualism should be the correct way judges should view the laws (particularly since since those of us governed by those laws only have the text to draw on), but wouldn’t the courts then need philologists on staff to help them understand what was written?

    Roy in Nipomo (8c3b61)

  14. Has anyone tried to fight a traffic ticket by saying that “sure the posted speed limit was 25, but they really meant to post 45.” Even if you had some decent proof, the judge would probably say you still had to obey the posted sign.

    Kevin M (d91a9f)

  15. BTW, I’m only a layman, but I agree with you on Wickard. I also am not happy with Reynolds v. Sims, though I can see that rather than it being repealed, an attempt would be made to extend it to the Federal gov’t.

    Roy in Nipomo (8c3b61)

  16. I think I agree with all that has been said, I wasn’t trying to be difficult, just making an observation.
    As in the $100,000 and $10,000 example, if they really meant one and not the other, have everyone just vote to correct it. If they don’t want to vote to just correct it, then it would seem they didn’t mean what some said that they meant.

    Hence the problem with ObamaCare, they can’t get 60 votes to agree on something, I presume. (And in a few months they won’t be able to get even 51!!!!!)

    Not being a lawyer or lawyerly, I know very few Supreme Court rulings by name, but I believe that Wickard is the one that says a person can’t grow wheat for their own use if the govt. says they can’t. That kind of law is not consistent with freedom of any kind. Freedom to do what the government allows one to do out of their whimsical generosity is not freedom.

    MD in Philly (f9371b)

  17. Congress is stuck with the law that it wrote. Pelosi should have taken the time to read it.

    When the text is this clear, HHS is required to enforce the law as written. HHS cannot write rules which are contrary to the text.

    And the Supreme Court has the obligation to rein in HHS.

    That is what the Constitution requires.

    slp (347e33)

  18. Pelosi should have taken the time to read it.
    slp, you’ve got that right. I guess she gets to listen to her own advice about needing to pass it to find out what is in it.

    I’d like to see the video of someone telling her that.

    MD in Philly (f9371b)

  19. Pelosi should have taken the time to read it.

    Now that it’s passed, I doubt she’s read it.

    Tanny O'Haley (c674c7)

  20. i doubt she can read at all…

    redc1c4 (4db2c8)

  21. kinda hard to say “the law really means “X”, even though it reads “Y”, without essentially negating every law on the books.

    but, then again, lieberals aren’t famous for sense or logic.

    redc1c4 (4db2c8)

  22. Adding no value with this comment, but FWIW: I concur with Brother Patterico.

    Beldar (fa637a)

  23. No, you haven’t always been a consistent supporter of textuslism. Just this week you wrote a post saying that the meaning of the 14th amendment should be read in light of what was intended at the time rather that what it actually says. That’s not consistent support for textuslism, it’s support for whatever interpretive method will support the result you want, which is the opposite of a principled approach.

    Arctic_Attorney (8f6cf2)

  24. Arctic Attorney sez:

    No, you haven’t always been a consistent supporter of textuslism. Just this week you wrote a post saying that the meaning of the 14th amendment should be read in light of what was intended at the time rather that what it actually says.

    Correct. Intended by whom? By those who adopted it — not those who wrote it. Here is the exact sentence with which I expressed agreement:

    Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.

    I believe in “original understanding” and not “original intent.” The ratification process for the 14th amendment, like all constitutional amendments, required a broad-based original understanding of the ratifiers, which was essentially the public at large, or at least a sizable cross-section of them.

    My argument was completely consistent, and your quibble is a:

    Fail.

    Patterico (9c670f)

  25. Beldar’s comment added far more value than Arctic_Attorney’s did.

    Changes in latitude, changes in attitude quality.

    Patterico (9c670f)

  26. 11. …Gentleman was a title, now it means a man with good manners. Language changes…

    Tanny O’Haley (c674c7) — 11/8/2014 @ 3:09 pm

    Well, a gentleman may once have been a man with a title, and it may have morphed into a man with good manners, but now apparently it’s a guy who likes to spend money on strippers.

    Google “gentlemen’s clubs.”

    I’m not nitpicking, I’m reinforcing your point.

    Steve57 (c1c90e)

  27. In this particular case, there is no real argument about congressional intent. The restriction of the subsidies to state-run exchanges is confirmed repeatedly, and the definitions of both a ‘state’ (means a state or DC but not a territory) and a state exchange are very detailed.

    Testimony and public discussion mentioned the restriction as key to enticing states to set up exchanges lest their citizens have to use the federal exchange and miss out on the subsidies. Hard to be more explicit than that.

    Estragon (ada867)

  28. On the subject of John Roberts, I find the criticism mostly baffling.

    When nominated, first as Associate Justice and then for Chief Justice, several things were discussed about Roberts. Prominent among those attributes were said to be his deference to legislative and executive authority and tendency to work hard to find ways for the courts to stay out of political questions.

    This deference was considered a feature, not a bug, back when we controlled both the White House, and the Congress.

    Now, remember that in 2009 and 2010, one of the main Republican arguments against PPACA was that the mandate constituted a tax and was therefore a huge tax increase. Obama and Democrats claimed it was not a tax – until it was passed and the case went to court, of course.

    Roberts signed on to the constitutionality based on the fact the mandate is, in fact, a tax. In other words, he confirmed the Republican argument! For this, he became Judas in the minds of those who care nothing about the law, but only that the result come to our pleasure.

    Roberts ruled precisely as he was advertised to judge back when we were all cheering his selection. We knew what we were getting, and celebrated it.

    Then he performs as expected, confirms our own argument, but is defamed for doing what we knew he would do all along?

    Someone should slap both your faces, you hypocritical buffoons.

    Estragon (ada867)

  29. Estragon, guess what I’m holding in my and and I’ll give you a bite. Did you read Scalia’s dissent?

    nk (dbc370)

  30. *hand* and

    nk (dbc370)

  31. I’m just gonna have to trust Rico on this.

    DNF (b18ba5)

  32. Tanny O’Haley (c674c7) — 11/8/2014 @ 3:09 pm I don’t have a problem with textualism, but do have a problem with the judiciary’s “mutilazation” of a word’s clear meaning.

    I hope so. I wonder how many people would take textualism to its logical conclusion.

    As I have pointed out, Congress has no power over immigration, only naturalization. It no more has power over immigration than it has the right to write a commerrcial code because it has power over bankruptcy.

    It is the states that have power over immigration, and there’s an artivle in the original constitution that makes that clear. A mistake about that seems to have been at least as far back as the 1880s. I don’t think the “Know-Nothing” party in the 1850s proposed any federal laws, but only state ones. This would be worth checking out. If this is correct, this is teh best proof.

    Congress can regulate foreign commerce, and by virtue of that had power to prevent the importation of slaves, and there are possible national defense considerations, but I see nothing that gives Congress any internal enforcement authority, especially on economic grounds – the right to say who can have a job and who cannot, or to deport people who are already here. That’s a state power, outside of national security reasons maybe.

    I also don’t understand why some people try to interpret the constitution outside the context of the Declaration of Independence when the constitution clearly answers the complaints in Declaration of Independence.

    This is also to the point. All men are created equal and endowed by their Creator with certan unalienable rights, among which is the pursuit of happiness, and one of the chief complaints about George III was that he was restricting immigration. (they had different economic theories then)

    Sammy Finkelman (89ef89)

  33. I feel uncomfortable rubber-necking crack ups, not so much ’cause of shrews shrieking & striking or any danger to me & mine but it’s chickenbarack.

    You got this.

    DNF (b18ba5)

  34. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.

    I think it was Chief Justice Roberts who said it was not the job of the Supreme Court to protect the people from the consequences of their political decisions.

    I think he knos the result would be to create an untenable law and a re-write, or extensive rethinking, would be forced. If there was still gridlock in Washington, well it’s not the job of the Supreme Court to revent that. The law can obviously be changed to something that makes sense.
    He wouldn’t have a reason to oppose that.

    The only issue would be what is, or should be, the general rule when you encounter laws like this. Less important laws, in fact may stay the way they are more than this one.

    Sammy Finkelman (89ef89)

  35. I accept that we all have to play the cards we were dealt.

    I fully trust the God of.galactic star factories, the God of Brownian motion, the God of His own conception to sort all the imponderables out.

    I detest frauds who misrepresent themselves and the facts and tendentious arguments woven of lies.

    DNF (b18ba5)


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