Patterico's Pontifications

6/27/2015

King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies

Filed under: General — Patterico @ 10:32 pm



I’ve not had a chance, due to work constraints, to say much about the King v. Burwell travesty. I’ll just note (if I may toot my own horn for a moment) my warnings five years ago about the dangers of looking to an impossible-to-determine “intent” of a collection of legislators.

In one of those posts, I posited a hypothetical that I think most of you will recognize as eerily prescient: a hypothetical that the legislators who passed ObamaCare intended to legislate a form of coverage that they in fact failed to put in the law:

ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intend to include this concept in the law.)

I noted that if one were foolish enough to apply an “intentionalist” reading of laws, rather than a “textualist” reading, one could simply have judges write protections for children into the law, in accordance with legislative intent. After all, who really thinks Congress wanted to leave children suffering from pre-existing conditions at the mercy of the insurance companies? But this takes the rule of law and throws it right out the window — because it is not fair to require the citizenry to obey secret, unexpressed intentions that they were never told about. Thus, only the text, and the text alone, is the law. That is the only way the rule of law works. As I said in 2010: “How can it be workable to make citizens hostage to legislative intent that cannot be divined from the text of the law by a reasonable audience?”

That hypothetical, decried by some as unrealistic, turned out to be a pretty close parallel to the King v. Burwell case.

I know some readers are convinced that Congress intended to include the words “established by the state” as an expression of federalism. The idea here is that the states were encouraged to establish their own exchanges by a carrot/stick approach. The argument goes that Congress was telling state officials: establish an exchange, and you get the subsidies (the carrot). Refuse to establish an exchange, and your citizenry gets nothing — and you face the wrath of the voters (the stick).

There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucus admitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.

My own personal opinion is that allowing one’s self to be dragged into the muck of a messy debate about intent misses the point. My view is that arguing about legislative intent is a fool’s errand, because as I said way back in 2010, there really is no such thing as legislative intent:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.

To those who argue that Congress really intended to include the words “established by the state” to enforce federalism, my question is: what if it were clear that was not Congress’s intent? What if every CongressCreature, upon voting for SCOTUSCare — whoops, I mean ObamaCare — signed an affidavit saying: “Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”? (Understand that the Constitution gives no legal authority to such affidavits; they would just be a road map to learning the legislators’ intent.) Assume further that the legislation that they actually passed said, just like it does today, that subsidies are available for those who obtain their insurance on exchanges “established by the state.”

Would you really feel any different? Really?

This reminds me of a hypothetical I offered in 2010:

Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.

Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?

My view was that the law would not apply to you, because “$100,000″ means “$100,000.” Legislators can say all day long that they meant to say $10,000 — but if they didn’t include that extra zero in the law that was duly passed and signed, the text simply means what it means.

To me, $100,000 means $100,000 — not $10,000. To me, this is as simple as saying “established by the state” means “established by the state” and not “established by the state or the Secretary of Health and Human Services.” You don’t need to get into the legislators’ heads — and it is foolish and indeed dangerous to even try to do so.

But then, I am not an elite lawyer who went to Harvard or Yale and then went on to serve on the Supreme Court of the United States. And I am certainly not an “intentionalist.” I do not ascribe to statutory language mysterious secret meanings that signify the opposite of the common understanding of the public.

I am a simple man. To me, the law means what it says. Nothing more and nothing less.

Don’t say I didn’t warn you. I did. Again and again.

UPDATE: Thanks to Ed Driscoll at Instapundit for the link! I hope new readers (or old occasional readers) will bookmark the main page and remember to come back.

180 Responses to “King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies”

  1. Sad ding.

    Patterico (3cc0c1)

  2. I know that many are celebrating the recent Supreme Court decisions. I understand why. I also understand previous SCOTUS decisions were met with the same concerns. However, I have a bad feeling about where the gay marriage decision leads. Don’t get me wrong. I am not opposed to gay marriage as a human being. I have no objection about who can marry. I am more concerned about the unintended consequences. In my mind, the Court has established a precedent that creates a basic conflict in the First Amendment that cannot be rectified.

    Ag80 (eb6ffa)

  3. the dangers of looking to an impossible-to-determine “intent” of a collection of legislators.

    While some scrutinize the judicial aspects of this case, I look at its socio-political (or biological) ramifications.

    Therefore, if one good thing can come out of this joke of a ruling, it will be to witness more and more Americans finally beginning to understand and use the word “bisexual” instead of “gay” or “lesbian,” and to no longer believe (as I was once guilty of) that self-described gay males in particular have absolutely no ability or desire to ever initiate a traditional straight socio-sexual relationship.

    Mark (a11af2)

  4. But our over worked under paid legislators can’t be expected to take the time to get the wording correct. Between fund raising, face time on camera, and chasing staff members around the office, there is barely enough time to catch a nap during hearings, let alone proof read anything.

    It’s hard to put feelings into words.

    Gerald A 11/2006 (2c96c6)

  5. We have always been at war with Eurasia.

    nk (dbc370)

  6. I wish Patterico was the attorney general.

    mg (31009b)

  7. You warned us and most of us here listened, but the people who need the warning are the people who don’t care. They like this result, and they don’t care about the rule of law or being governed by 5 judges.

    DRJ (1dff03)

  8. The simplest thing would be to use the
    same rule for interpreting statutes as for
    interpreting contracts. But of course the
    Supreme Court knows what it’s doing, and
    would never twist a private contract like
    they twist statutes and the Constitution,
    unless they liked one of the parties to the
    contract better than the other. The SC is
    lawless and needs institutional change—
    impeachment or, better, five-year terms with
    no reappointment allowed.

    Eric Rasmusen (fa7940)

  9. Somebody from our side go out and find the pictures of Robert’s dead hooker girlfriend already

    papertiger (c2d6da)

  10. I disagree with the analysis, we discussed it in another thread, doni won’t repeat it here. I do not think their ruling had anything to do with intentionalism.

    JD (3b5483)

  11. The entire law is a crap sandwich, slopped together by the 4am-dorm-room-bull-session sophomores, who fully expected that the grownups would fix it in reconciliation. But then Scott Brown was elected, and this crap was all that they had.

    The delusion is that these two messes are the only ones in the thousands of (unread by its passers) pages of the bill. I hope John Roberts understands what he’s undertaken: every year or two or three for the next couple of decades new turd grenades will be discovered and detonated, and page by page, line by line, the justices will write a new law only vaguely related to the law passed by the legislature and signed by the president. This is a complete usurpation of the Constitution and separation of powers.

    There is very little doubt that every reasonable form of the bill with the stupid inconsistencies all ironed out, would have been defeated in the Senate once Scott Brown took office. SCOTUS is not just writing law, it’s imposing a law explicitly REJECTED by the legislature.

    cathyf (98bd98)

  12. SCOTUScare is just too central to collectivist aspirations to allow reason, cause and effect, the rule of law, and other quaint palliatives to impede the glorious march toward utopian perfection.

    ropelight (0e49e3)

  13. Our host lamented:

    I am a simple man. To me, the law means what it says. Nothing more and nothing less.

    Clearly, you are a Neanderthal out of touch with Modern Thinking. It’s time to head to Re-education Camp.

    The coldly realistic Dana (1b79fa)

  14. going forward all laws should be a list of “intentions” … ObamaCare could have been boiled down to:

    “The HHS Secretary will improve the health care system” …

    KaiserDerden (399734)

  15. “I wish Patterico was the attorney general.”

    In California ? You’ve got to be kidding ! Kamala Harris was elected over a law school Dean.

    This is the “Masque of the Red Death” being enacted for real. The dancing will continue until ISIS massacres 50 people next weekend on July 4.

    Mike K (90dfdc)

  16. And I am certainly not an “intentionalist.”

    Would that include original intent? I ask that because even when I was in high school back in the mid 60’s the teachers were pushing the “living document” crap about the Constitution and I didn’t buy it then (as a mush-minded kid). I always thought the object of the Supreme Court was to make sure a law was Constitutional, not to “interpret” the Constitution to make a law justifiable. I also thought the Constitution, being written in plain English, was rather easy to read and identify the meaning thereof. Now the crap lawyers write today is completely up for grabs as to meaning because it’s gobbledygook.

    Rev. Barack Hussein Hoagie (f4eb27)

  17. R.I.P. Chris Squire, bass player for Yes

    Icy (9aba5a)

  18. Would that include original intent?

    That is correct. I believe in looking at “original understanding” and not original intent.

    Patterico (8898a2)

  19. Yeah, and Jeff Goldstein was warning people at Protein Wisdom for far longer.

    Of course, he’s not a Good Man.

    SDN (44e3db)

  20. I disagree with the analysis, we discussed it in another thread, doni won’t repeat it here. I do not think their ruling had anything to do with intentionalism

    I wish you would discuss it further. I addressed arguments like yours in the post specifically and would be interested in the response. Specifically this part:

    To those who argue that Congress really intended to include the words “established by the state” to enforce federalism, my question is: what if it were clear that was not Congress’s intent? What if every CongressCreature, upon voting for SCOTUSCare — whoops, I mean ObamaCare — signed an affidavit saying: “Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”? (Understand that the Constitution gives no legal authority to such affidavits; they would just be a road map to learning the legislators’ intent.) Assume further that the legislation that they actually passed said, just like it does today, that subsidies are available for those who obtain their insurance on exchanges “established by the state.”

    Would you really feel any different? Really?

    I would be interested in your response.

    Patterico (8898a2)

  21. Yeah, and Jeff Goldstein was warning people at Protein Wisdom for far longer.

    If you click the links you will see it was his position I was warning against.

    Patterico (8898a2)

  22. I don’t care what kind of affidavit they signed after the fact. It wouldn’t mean a thing. They chose to not include that language, language that was included in prior versions. And I think it is beyond well established that the subsidies were designed to be carrots and sticks. That they assumed states would go along plays no bearing on it. I just don’t see how intentionalism plays any role in this whatsoever. There was an outcome they wanted, and they ignored intent and text and anything that ran afoul of their desired outcome. It is a loss for the rule of law.

    JD (a17707)

  23. If the SCOTUS believes the intent of the law was to not destroy insurance markets- which they claim will happen in the non-group market if subsidies are eliminated- then what are they going to do when the Cadillac Tax destroys the group market?

    Although it was the expressly stated by the ACA framers that the law will leave the 80% alone that were happy with the government and group plans, we know the writing of the law does the opposite. Just wait people. Don’t forget this moment in time.

    The absurdity of intent is that writers of the law can market their intent as one thing, write another, then decide what the law means after it is passed. If they get caught, the claim one thing. If they don’t get caught, the run the law another way.

    Rich Weinstein (4e564d)

  24. As a practical matter the insurance isn’t much good anyway. The deductibles are so high (over $3000 for a single individual and over $6000 for a couple) that most people will sill be paying out of pocket when the annual renewal date comes around again.

    ropelight (0e49e3)

  25. Strike my post #3 above.

    All these rulings have become one big dumb blur that they’re ending up as interchangeable to me. The foolish way the Obamacare case was handled, in some ways, is nothing compared with the ruling on discrimination in housing. Or the case in which enough justices forced through the idea that legislation passed several decades ago could be stretched to include the concept of disparate outcomes and not actual, specific, tangible instances of discrimination, de jure or de facto. So ambulance-chasing attorneys from sea to shining sea are smiling and high fiving right now.

    Mark (a11af2)

  26. I don’t care what kind of affidavit they signed after the fact.

    No, but that was not what I posited. I posited an affidavit at the moment of voting and not after the fact. In essence, I am asking you to assume, for the sake of argument, that those words were not included as an expression of an intention to coerce/motivate the states.

    And I think it is beyond well established that the subsidies were designed to be carrots and sticks.

    I’m sure you do, but obviously the Supreme Court disagrees, and frankly, I don’t think that point is as clear as you do, for reasons I detailed in the post.

    There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucus admitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.

    I think it’s pretty plain that the Court bypassed a plain reading interpretation to go with the “spirit” of the law. Here is the concluding substantive paragraph of the opinion:

    Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

    That is all about appealing to Congess’s supposed intent. Meanwhile, a simple, plain language reading is brushed aside:

    [W]e must determine whether a Federal Exchange is “established by the State” for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines “State” to mean “each of the 50 States and the District of Columbia”—a definition that does not include the Federal Government. 42 U. S. C. §18024(d). But when read in context, “with a view to [its] place in the overall statutory scheme,” the meaning of the phrase “established by the State” is not so clear.

    When you put those two quotes together, the plain language is being rejected in favor of a strained, highly improbable interpretation based on Roberts and the four lefties’ claim about “Congress’s plan.” And (to the extent that you want to ascribe a “plan” to a body of variegated people, which I object to for reasons noted in the post), the notion that “Congress’s plan” was “subsidies for more people!!!!” is hardly a flight of fancy, given that everyone who voted for this turkey was a Democrat, and therefore likely to be a redistributionist. And given that the intent of the law could be said to be found in Title I: “Quality, Affordable Health Care for All Americans.”

    I’m just saying, if you fight this battle on grounds of legislative intent, you lose. And it matters because only textualism — Scalia’s originalism, which looks to original understanding — can be a proper basis on which to rest the Rule of Law.

    Patterico (3cc0c1)

  27. At the outset of this case I said that a justice who could rewrite the ACA to make a penalty into a tax, when there were no dire consequences, would have no problem with this much simpler fudge when there were.

    The courts won’t save us from ourselves. Roberts SAID we should not expect that in Sebelius and we should take him at his word. His will be a minimalist court and will only take action when the case is clear.

    So, we need to do this in the legislature. Which means we have to have something to replace the ACA with that works and satisfies the need for reform that allowed the ACA to pass in the first place. And we need a President who will allow it to be replaced.

    We lost the election of 2012 and for everyone who stayed home or voted third party, THIS IS ON YOU.

    Kevin M (25bbee)

  28. Patterico,

    There are limits to textualism. I may disagree where Roberts put them, but “housekeeping” corrections are almost always allowed in normal procedure. When deciding if something is a housekeeping correction, you need to look at the body of the rule/procedure/etc to see if meaning changes or is enhanced.

    Here, there were contradictory sections of law that needed to be reconciled. What Roberts did was probably not the simplest path to reconciliation, but it was the one with least external effect and was not unreasonable.

    I didn’t like it because I hoped that the ruling would force Obama to accept changes to the law, but we all know that it would have simply been counting coup as Boehner et all caved again.

    Kevin M (25bbee)

  29. This whole thing is a fiasco. On the day of the ruling, we received notice of cancellation of our plan. A plan, I might note, that was renewed by executive fiat in order to get TFG through another election. This country has become a joke.
    On a lighter note, I stole Chris Squires’ girlfriend from him in 89. He might have won in that exchange. Great player may he rest in peace.

    Gazzer (be559b)

  30. What Kevin just said.
    To add my tuppence…the text in King was not really as clear as your hypos are. What Roberts had was a statute with Parts A, B, C….Z,ZZ, and the fact that part D did not actually fit in with part X. Courts have a long established principal they are supposed to stick to, which is to assume the legislature intended a consistent scheme, and Roberts stuck to that. He jury rigged (so to speak) a fix to make D fit X.

    I linked to a list of canons of statutory interpretation the other day compiled under Rehnquist from SCOTUS decisions of that era. Several of those canons would support what Roberts did in King

    kishnevi (93670d)

  31. The Law is no longer written. It’s just whatever they say it is….

    Thomas Hazlewood (c57300)

  32. I had no idea Squire had died, Gazzer. I saw Yes numerous times from ’71 thru ’74. He was one helluva bassist. RIP.

    Colonel Haiku (2601c0)

  33. Icy mentioned it upthread, Colonel. In the words of Haley Joel Osment “Icy dead people.”

    Gazzer (be559b)

  34. Let’s take the $100,000/$10,000 example.

    Suppose the law was quite complicated and in one prominent place it says that there would be no tax on any income under $100,000, except for incomes from sources in paragraph I.A.4.g. Which is missing. There is however a paragraph 1.A.6.g which lists several sources of earned income.

    Elsewhere there is a tax table with 4 brackets with lower bounds at at $10K, $50K, $100K and $300K.

    The IRS issues a rule that says that everyone who has earned income over $10K must pay a tax.

    Joe, who made $87K of earned income sues to have his tax refunded as i t was under $100K and did not fall into the specified categories (none) in the missing paragraph.

    I take it that a textualist is supposed to agree with Joe?

    Kevin M (25bbee)

  35. in fond memory…

    http://youtu.be/5eNh8ldETEQ

    Colonel Haiku (2601c0)

  36. and a great post by our host… we all know liberals like Ginsburg, Sotomayor, etc. don’t embarrass easy, but Roberts and Kennedy should hang their heads in shame.

    Colonel Haiku (2601c0)

  37. There are limits to textualism. I may disagree where Roberts put them, but “housekeeping” corrections are almost always allowed in normal procedure. When deciding if something is a housekeeping correction, you need to look at the body of the rule/procedure/etc to see if meaning changes or is enhanced.

    I agree, and so would Scalia — but there are no housekeeping corrections for stuff like this.

    Suppose the law was quite complicated and in one prominent place it says that there would be no tax on any income under $100,000, except for incomes from sources in paragraph I.A.4.g. Which is missing.

    . . . .

    Joe, who made $87K of earned income sues to have his tax refunded as it was under $100K and did not fall into the specified categories (none) in the missing paragraph.

    I take it that a textualist is supposed to agree with Joe?

    I believe Scalia would. I sure would. Joe does not owe a dime.

    Patterico (3cc0c1)

  38. So, you believe not only in Rule of Law, but also in Rule of Bad Edit, and maybe even Rule of Typo?

    Kevin M (25bbee)

  39. Great track Colonel. One out of so many. I have been going through my CD collection for the last few months. Playing everything in the order it is stored, which is alphabetically. Yes came into the rotation today in a strange coinky-dink.

    Gazzer (be559b)

  40. So, you believe not only in Rule of Law, but also in Rule of Bad Edit, and maybe even Rule of Typo?

    Yes, established by the state, because the established by the state words “established by the state” just somehow pop out every so established by the state often. On their own. Established by the state.

    Patterico (3cc0c1)

  41. The following capital letters are not shouting. They are for special emphasis. Bold type or italics do not quite do the trick here, because this is important.

    Kevin M: I believe citizens MUST BE PUT ON NOTICE of their obligations to the central government in a VERY PLAIN MANNER. If you tell me there is no tax on me, except something listed in a passage that does not exist, I don’t owe any tax. You want to change that? Change it. But don’t tell me I am supposed to divine your ^&%*(&^ intent. Tell me what my obligations are, central government, CLEARLY, or pound sand.

    And don’t try to tell me that the subsidies are just an effort to help citizens and not an effort to put obligations on people. You and I both know they have to get paid for, and that means the money comes out of my pocket and yours.

    Patterico (3cc0c1)

  42. And by the way, whatever their original “purpose,” the words “established by the state” are not the “Rule of Bad Edit” or the “Rule of Typo” as dishonest lefties have tried to claim. They were inserted in many places and were clearly not a typo.

    Patterico (3cc0c1)

  43. Here’s the thing: I don’t actually know which way I would have jumped on this case. For political reasons I am disappointed in Roberts, but I just can’t work up the anger here. It was a weak case, based on what arguably was an editing error.

    Sebelius was a much better case which, like Romney, should have won. But it did not.

    And the worst thing about this case was that it allowed the GOP leadership a fig leaf to hide behind when it came to (not) funding Obamacare.

    Kevin M (25bbee)

  44. Editing errors in the world of computers can be more than a misplaced comma. A phrase like “established by the state” might appear several places as the result of a single act of omission. To say that it is clearly not an editing error presumes facts not in evidence (as does saying it is).

    Kevin M (25bbee)

  45. It was a weak case, based on what arguably was an editing error.

    Only arguably. You don’t get to change clear text based on “arguably” it means something different. There are anomalies in the text no matter which way you interpret it, and you can’t pick and choose your anomalies (or your extrinsic evidence of intent) to change clear language.

    Is the Secretary of Health and Human Services a state? No, she isn’t. So when she establishes an exchange, it is not “established by the state.” Beginning, middle, and end of argument.

    Patterico (3cc0c1)

  46. Again, my 45 is based on following textualism.

    If you head down the primrose path of searching for a nonexistent single “intent” of the legislators, then (I repeat myself) any result can be reached. Even if you conduct that search honestly, you have to accept some evidence and discard others, and that amounts to a subjective rewriting of what is, in the end, VERY plain language.

    Patterico (3cc0c1)

  47. 30. …What Roberts had was a statute with Parts A, B, C….Z,ZZ, and the fact that part D did not actually fit in with part X. Courts have a long established principal they are supposed to stick to, which is to assume the legislature intended a consistent scheme, and Roberts stuck to that. He jury rigged (so to speak) a fix to make D fit X…

    kishnevi (93670d) — 6/28/2015 @ 10:36 am

    Everything fit together. The parts just didn’t deliver the right results.

    I’m going to take another crack at this. And likely fail as I’m not a lawyer. Nor do I want to be one. I’d rather be a welder.

    This is not intentionalism nor textualism. That would imply the text and/or the intent of those who wrote this law mattered.

    From what I can glean from Jonathan Adler’s writing, purposivism is something different. If you can argue that the purpose of a law is to do something good, neither the intent nor the text matters. All that matters is, does the law result in something good?

    If not, Chief Justice Roberts will rewrite it until it does.

    Steve57 (ec1eac)

  48. Finally, I doubt very seriously that most lawmakers HAD any “intent” regarding this language. Had you taken them each individually, and asked them why the language said subsidies are available on exchanges “established by the state,” I think almost all of them would have given you a blank, deer-in-the-headlights look.

    We’re supposed to divine the intent of those bozos? Really?

    Patterico (3cc0c1)

  49. Here’s the real question, though: this seems like a disagreement over process, rather than outcome. Is the process argument so strong and meaningful that it does not matter that millions of people would have to cough up thousands of dollars apiece? Many of them having been screwed several times already?

    In the cold light of day, Obama still owns all of Obamacare, the opposition of the GOP is undiluted, and we haven’t pissed off millions of early retired and self-employed people who are currently on our side.

    I can live with this.

    Kevin M (25bbee)

  50. Also — and I have raised this many times and have yet to see anyone address it — I bet those same bozo lawmakers never thought for a moment that they would be leaving many poor people without subsidies OR Medicaid.

    So let’s just have the IRS rewrite the language that says they don’t get subsidies and make it say they do!

    Patterico (3cc0c1)

  51. Arguing that it was housekeeping, and editing error, or a typo is worse than arguing that this is some intentionalism ruling.

    JD (3b5483)

  52. Kevin – assuming this is a process question, don’t you think how you get there matters?

    JD (3b5483)

  53. “Established by the state” COULD mean as little as a phone call from the governor of the state to the Secretary of HHS saying “Hi. Please hook up our residents to healthcare.com.” Could even be done by a text.

    Which is roughly what would happen if everyone wasn’t dead set on a crisis that would accomplish nothing and be blamed on the GOP by a public that still thinks Clinton was impeached for misuse of a cigar.

    Kevin M (25bbee)

  54. I bet those same bozo lawmakers never thought for a moment

    Can we just leave it at that?

    Steve57 (ec1eac)

  55. In the instance, I view it as a meaningless process question. Why walk though a minefield you can walk around? Is it precedential? Less so than Sebelius which was an utter travesty of wishthink. So, to me the process argument isn’t very effective as the outcome will be more or less the same, except fewer own-goals.

    Kevin M (25bbee)

  56. By the way, does anyone believe that there is a governor of any state who would work to keep federal money out of the hands of his voters?

    Kevin M (25bbee)

  57. The country I thought I was serving does not exist.

    What a waste of 20 years.

    Barack Obama did not fundamentally transform America.

    A fundamentally transformed America elected Barack Obama.

    Steve57 (ec1eac)

  58. By the way, does anyone believe that there is a governor of any state who would work to keep federal money out of the hands of his voters?

    What do you mean, “work” to? Do I think governors would refuse to establish exchanges? Yes, some would. Would some refuse to expand Medicaid? Yes, many have.

    Patterico (3cc0c1)

  59. People claim the GOP is worthless, but observe:

    * No Republican voted for ObamaCare.

    * Many Republican governors refused to cooperate with ObamaCare (Medicaid expansion or establishing exchanges).

    * Only GOP-appointed Justices voted the correct way on this case.

    Yes, the GOP caves far too often and disappoints far too often. But the GOP is the only party that has fought this stuff in any way.

    Patterico (3cc0c1)

  60. Steve57, me too! I’m at the point I’m pissed at myself for volunteering for Nam. Seems I killed a lot of commies for nothing. The really bad commies were here all along!

    Rev. Barack Hussein Hoagie (f4eb27)

  61. Do you think that governors would refuse to authorize heathcare.com to serve their residents? Medicaid is a different matter as accepting it now imposes some conditions in the future that make it a bad deal. The other would merely prevent their residents from getting federal money — the policy rules apply either way.

    Kevin M (25bbee)

  62. Agree with #27 which in part wrote:

    “We lost the election of 2012 and for everyone who stayed home or voted third party, THIS IS ON YOU.”

    Not just 2012 but 2008 and 1992 and on an on. Elections have consequences and we can’t expect John Roberts to single-handedly saved our collective bacon.

    America, we did it to ourselves.

    Mark Johnson (a64489)

  63. Finally, I doubt very seriously that most lawmakers HAD any “intent” regarding this language.

    I’d say they had a general intent to pass whatever it was that the leaders had produced. Therefore by extension they intended whatever was in it.

    Milhouse (a04cc3)

  64. What you mean “we” MFer!

    ropelight (aebbb1)

  65. There is another matter here, which the media will not report on (probably because they don’t see it, given their biases). The 4 Democrat-appointed justices vote as a bloc on all these cases. They really don’t need to read the case material or show up for oral arguments. You could win serious money betting on how they would vote in political cases, if anyone was stupid enough to take the other side.

    It is only the GOP-appointed justices who show an open mind. While some are more likely to break than others, they all do at some point.

    Kevin M (25bbee)

  66. Arguing that it was housekeeping, and editing error, or a typo is worse than arguing that this is some intentionalism ruling.

    I have tried to explain and give reasons (evidence, argument) for why I characterize the ruling that way. I’m not saying you have to agree, but at least give me this: I have made a lot of points about why this is an intentionalist ruling — point that have not been refuted that I can see.

    Here is the key point. Look at the rabble of ignorant leftists that passed this dog. Is it really crystal clear that this agglomeration of redistributionist knuckleheads were looking to limit a federal giveaway? More fundamentally, is it truly crystal clear that these geniuses were even aware of this provision, and had a particular intent concerning that provision?

    Come on, JD. You and I both know most of these morons had no idea those words were even in there. That’s why a ruling looking to the “purpose” (which to me sounds a lot like “intent”) of the law and of this phrase, to the exclusion of the words’ plain meaning, is so foolish and dangerous.

    Patterico (3cc0c1)

  67. a justice who could rewrite the ACA to make a penalty into a tax,

    But he didn’t. He went looking for a mandate, all ready to strike it down, and couldn’t find one. Instead he found that Congress had passed an unpopular tax, and covered its posterior by calling it a mandate. Was he really supposed to go along with that pretense?!

    Milhouse (a04cc3)

  68. So, you believe not only in Rule of Law, but also in Rule of Bad Edit, and maybe even Rule of Typo?

    I can remember an instance or two where a bill was passed with notes left in the margin during markup that were supposed to have been erased. There was a scramble to pass an edited version of the bill with those notes omitted.

    Those days are gone forever, it seems.

    Mike K (90dfdc)

  69. I’d say they had a general intent to pass whatever it was that the leaders had produced. Therefore by extension they intended whatever was in it.

    But if some of the leaders had one view of what “established by the state” meant, and (for the sake of argument) others had a different one (like “let’s make a Nebraska senator happy” or “let’s include language that lets us argue to the public that this isn’t a federal takeover”), then whose intent gets attributed to the mob of buffoons who didn’t give the provision a single thought?

    No. This is incoherent. Only the text provides a coherent basis for the Rule of Law.

    Patterico (3cc0c1)

  70. Patterico,

    Take #66 a little further. Do you think this leftist rabble would have let this limitation remain if it had been pointed out to them?

    Kevin M (25bbee)

  71. Mike–

    I remember one that had a lady’s phone number in the margin.

    Kevin M (25bbee)

  72. Take #66 a little further. Do you think this leftist rabble would have let this limitation remain if it had been pointed out to them?

    Tough to say. Depends on why it was inserted there, whether it was critical to garnering someone’s vote, and whether they felt it was necessary to portray the law as something other than a federal takeover. I think it’s easy to forget how worried Democrats were about passage of the law, and about portraying the law as not being a federal takeover of health care.

    I can’t say it’s crystal clear to me that every legislator who voted for the law knew about that provision and intended it to limit subsidies to state-established exchanges. Indeed, I find that conclusion absurd. However, I also certainly cannot assume that the inclusion of the language was not seen as politically necessary for some reason, by some lawmakers. I believe that, to the extent that its inclusion was deliberate and its potential effect was understood by some lawmakers (and Gruber’s comments do bolster that conclusion), those lawmakers rationalized the effect of the phrase as unimportant, because of a bad assumption that states would (almost) all establish exchanges. I think the record is indeed clear that many, many lawmakers held that bad assumption.

    Similarly, they assumed all states would expand Medicaid, so there would be no “gap” of poor people whose needs were unaddressed by Medicaid or subsidies.

    They made a lot of bad assumptions. That is not a basis to rewrite plain language.

    Patterico (3cc0c1)

  73. I just think some lawmakers probably believed one thing, some believed something else — and the rest (which is the overwhelming majority of them) believed “I should vote for this even though I have absolutely no idea what’s in it.”

    Yeah, let’s search for the “intent” of that crowd!

    Patterico (3cc0c1)

  74. I think we should push for the House and Senate to adopt rules requiring any member who votes in favor of any measure to affirm that s/he has read it in full, and to the best of her/his ability believes that s/he understands it. “Aye” votes not accompanied by such an affirmation shall not be counted.

    Milhouse (a04cc3)

  75. 60. Steve57, me too! I’m at the point I’m pissed at myself for volunteering for Nam. Seems I killed a lot of commies for nothing. The really bad commies were here all along!

    Rev. Barack Hussein Hoagie (f4eb27) — 6/28/2015 @ 12:08 pm

    I never killed any commies. I never did anything remotely worth remembering.

    My brush with greatness happened shortly after I was recalled post 9/11.

    If you recall, there’s a Muslim insurgency in the Philippines. And back in the early 2000s they needed an O-3/O-4 who had a certain amount of time in the fleet who had curriculum development experience, et cetera et cetera, so the nav put out the call. And like a fool I answered. Completely disregarding the fact that NAVY means Never Again Volunteer Yourself.

    My thinking being, not only did I meet the requirements, but the third world was less likely to kill me than a complete rookie.

    The Navy didn’t know quite what to do with me. Normally people run and hide.

    My offer wasn’t accepted. It was never tendered up the chain. The Navy doesn’t recall reservists to send them other places. That would mean the receiving command didn’t need the reservist in the first place. Or something.

    Steve57 (ec1eac)

  76. My brush with greatness.

    Steve57 (ec1eac)

  77. so the nav put out the call

    To advise the Filipino Navy and Marines.

    Which a sh**heel like me could have done.

    Steve57 (ec1eac)

  78. In any event, I agree that the Court made changes that strains the term “housekeeping”, but not in any new way for this Court. I have been a bit of a Devil’s Advocate here.

    What I don’t agree with is that it would have been a good thing had they ruled the other way. There is a lot of downside and little upside to this can of worms.

    Obama has succeeded in destroying the old insurance system. We need to accept that and move on.

    Kevin M (25bbee)

  79. Obama has succeeded in destroying the old insurance system. We need to accept that and move on.

    Why?

    Patterico (3cc0c1)

  80. Obama and the Democrats weren’t worried about me losing my insurance while I was taking chemotherapy, and there were many other people who were similarly impacted. Changing it back shouldn’t be any harder on them than it was on me.

    DRJ (1dff03)

  81. Accept that it is destroyed, not his design. The old system had problems that needed to be uprooted — and that need gave Obama his foothold. Chief among these were the “preexisting condition exclusion.”

    Perhaps those who spent no time in the individual marketplace where only very healthy people could get coverage don’t understand, as they were insulated from this entirely (as they are insulated from Obamacare)

    Suppose your workplace would not insure you if you had asthma, or high blood pressure, or a congenital heart defect, or even an enlarged prostate, even though these ailments were quite treatable. Cancer survivor? Good for you, but look elsewhere for insurance.

    Or, if you got sick and then the company changed insurance vendors everyone had to reapply and you got left out. This happened ALL THE TIME in the individual policy market. The system may have been better off if everyone was covered, but every insurance company wanted to avoid covering those people themselves. A form of the Prisoner’s Dilemma.

    And this is why the old system had to die, and did. Sadly it got replaced by worse.

    Kevin M (25bbee)

  82. “Them” refers to people who might have their insurance change if ObamaCare goes away.

    DRJ (1dff03)

  83. Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”?

    That definitely was the intent, because the CBO scored it that way, and there was no doubt about that.

    What they wanted to prevent, first of all, according to a New York Times report, was any middleman or broker making a profit on the marketing of the insurance policies.

    So taht would have been the reason for limiting the policies where some people could get a tax subsidy to those operated by a state (or the federal; government or a non-profit)

    Now there is another thing. They wanted to lay off the adnministrative expenses onto the states. the reason for that was probably to lower the CBO score for the bill and keep it unser $1 trillion.

    There was no serious effort to actually force states to establish exchanges. How to get states to establish exchanges was a problem assumed out of existence!

    Now there was another provision put into the bill by Senate Harry Reid’s office. This allowed the Secretary of HHS to establish exchanges. But this has not bene interpreted correctly. There is nothing in the language of the bill that supports the creation of healthcare.gov.

    The Secretary of HHS was supposed to create turnkey operfations and the exchanges he created were supposed to located in the state

    Not one massive web site with servers located in or near Washington, DC. But each exchange for erach stgate physically located in that state.

    Now what really probably going on is that Harry Reid was creating a train wreck – but a train wreck taht would not become apparent until 2013. The intention probably was to amend the bill in the next Congress. But by the the CBO score woiuldn’t matter.

    This could have been corrected in reconciliation in 2010 by adding a small spoenmding cut or tax increase but Harry Reid didn’t want to. His whole approach in Conmgress was to get as much spending as possible that didn’t need to be “paid for.”

    By the way, did you miss my post that fit your specification a week or two ago?

    I think the people who brought the lawsuit lost out because they did not successfully explain the intent of the bill drafters. The way it looked to Chief Justice ZRpoberts there was no way of understanding the bill except as an oversight. It was imposisuble ANYBPDY wanted things to work the way the bill was written. But in reality, nobody except Harry Reid and some close to him understood the exact terms of the bill, and he intended to change it by the end of 2012.

    If Roberts had seen this as deliberate gamesmanship, and not a careless mistake, he might not have ruled the way he did.

    Sammy Finkelman (0bfa8b)

  84. DRJ,

    If the old system came back, what makes you think you could get any insurance at all, short of a $2000/month bare bones policy?

    Kevin M (25bbee)

  85. The changes you mention are going to stay, Kevin M. We don’t have to keep ObamaCare to have those features.

    And the second NY prison inmate has been captured.

    DRJ (1dff03)

  86. Kevin M,

    The old system you described had many problems because of government intervention.

    So, as always happens, we are told that we have to fix the system (broken by government intervention) with . . . . you guessed it: still more government intervention.

    These kinds of problems do not crop up in areas left to the free market.

    Patterico (3cc0c1)

  87. Kevin M,

    I’ve had experience with insuring people with chronic illness under the most restrictive situations. There are options. They weren’t easy or great options, but there were ways to get coverage. But there is agreement that some of the ObamaCare provisions are worthwhile, which is why the GOP includes them in any plans to replace ObamaCare.

    DRJ (1dff03)

  88. These kinds of problems do not crop up in areas left to the free market.

    This is only true if you assert there was no free market in insurance since Medicare. Prior to Obamacare, not a single private insurer would insure a cancer survivor of their own free will.

    Kevin M (25bbee)

  89. This is only true if you assert there was no free market in insurance since Medicare.

    I do. Since before that, actually, when the government changed the rules on taxing employer-provided plans, which created the tying of insurance to one’s job.

    Patterico (3cc0c1)

  90. Obamacare is not set in stone DRJ. Of course it has its imperfections, like any massive legislation will. I think that it will be improved over time, if there is enough political will to do so.

    Tillman (a95660)

  91. Yes, Kevin, however, just like liability insurance for poor drivers the government could have mandated a high risk pool for existing conditions. Unfortunately, insurance by its very nature will not buy a claim. You can’t die or crash your car or have your house burn down then go buy insurance. Same with health. But since health is a human condition we need to set up a pool for people who elsewise would be uninsurable. Perhaps like they do with auto insurance the companies attach a few bucks extra premium on standard policies to cover the costs. So it’s not a Free Market solution in the pure sense but it can do the trick.

    Rev. Barack Hussein Hoagie (f4eb27)

  92. The old system wasn’t bad, it was better than what I have now. Before SCOTUScare I had affordable health insurance that worked for me. Now, I have systemic administrative problems that keep me from seeing doctors that previously treated chronic conditions on a regular schedule for years. As an example: before SCOTUScare I saw an oncologist every 3 months, now it’s been 16 months and counting. Now I pay more and receive less, quite a bit less.

    ropelight (aebbb1)

  93. Yes, Tillman, that is very true. It is not set in stone or even quicksand. It is whatever Obama, the IRS, and the Supreme Court want it to be … until they want it to be something different.

    It will only be set in stone when a Republican is elected President. Then it will be encased in granite.

    DRJ (1dff03)

  94. DRJ–

    Yes. Obamacare is a nightmare. I have experienced it firsthand and agree. There are a few things — the things that enabled Obama — that needed changing and will remain. There rest of it — the exchanges, the IRS connection and the leftard mandated coverage (in CA this includes sex changes and all abortion “services”) — needs to go.

    And oddly, getting coverage under Obamacare has just as many gotchas as the old system in some ways. In my town, there are 6 Obamacare providers. Of them one is an “A”, one is a “C” and there are 4 “F”s where the hospitals and doctors covered are bad to terrible. We chose the “A” after about a week of investigation after my wife’s policy was cancelled. Good thing as she was diagnosed with throat cancer six months later. You really don’t want to treat that at East Pacoima Community Hospital.

    Kevin M (25bbee)

  95. Patterico, suppose a junior prosecutor came you to claiming he had one piece of evidence that was so persuasive he did not need to present any thing beyond that. I think you would be less than impressed, and patiently explain why he had to present a full case that presented that evidence in context. And in context that piece of evidence was not nearly as convincing as your junior claimed.

    Right now, you are like that junior, and your piece of evidence looks great in isolation, but in the context of the ACA was not nearly as meaningful as you are trying to make it. Roberts looked for intent in what the statute said, and went from there. He picked the rules of statutory interpretation that got him the result he wanted but those rules have been in place long before any of us came around. IOW, much as you hate it, the Rule of Law continues. The problem is that humans have to implement the Rule of Law.

    kishnevi (93670d)

  96. 89.Obamacare is not set in stone DRJ.

    Tell that to a freeking democrat, Tillman. With them every liberal law is settled law just like AGW, evolution and the big bang theory is settled science. Didn’t we just have a post about a leftist paper refusing to print pro traditional marriage editorials? To them it was settled law.

    Rev. Barack Hussein Hoagie (f4eb27)

  97. Hoagie, they do have high-risk pools. They are almost always bare-bones plans with VERY high premiums, which are outside a middle-class budget, and especially outside the budget of a sick person.

    It’s a PR sop to people’s compassion.

    Kevin M (25bbee)

  98. This is the “Masque of the Red Death” being enacted for real. The dancing will continue until ISIS massacres 50 people next weekend on July 4.

    Your comment makes me think of the question of exactly how bad do things have to become in a society — economically and culturally — before people cry “uncle” and start changing their political direction? The answer: Fairly bad, very damn bad.

    Since people in the US who are the most staunch defenders of this nation tend to be of the right — and a larger percentage of the left tends to be just the opposite of that (eg, Michelle Obama “first time in my life I’ve been proud of my country”) — and presumably are fully aware of the way this nation is going down into a liberal sinkhole, I wonder how that is affecting their patriotism and pride?

    Personally, when July 4th rolls around, I’ll cringe a bit and feel a sense of loss, and have a better understanding of what sensible, conservative Mexicans, Venezuelans, Argentinians or Frenchmen must go through when dealing with concepts of patriotism and pride towards their respective broken-down homelands.

    Mark (a11af2)

  99. I bet it’s tough to get life insurance with cancer. That’s why people don’t wait to get it. In a free market of health insurance, catastrophic coverage would be more widely available and people would be motivated to get it, in time.

    Or do we need ObamaCare for life insurance, to force companies to sell life insurance to terminally ill people at low prices?

    Patterico (3cc0c1)

  100. Rev. – I am a “freeking” democrat.

    Tillman (a95660)

  101. This website explains some of the options that were available before ObamaCare, including the last resort high risk pools operated in every State. They weren’t ideal and some of the changes are better, but for years Republicans have wanted changes to improve problems. Democrats didn’t want improvements. They wanted government control.

    DRJ (1dff03)

  102. I’ve not heard of a high risk pool under Obamacare, Kevin but if they are there so be it. However, the way you describe them it does not sound well thought out or well executed. I do understand a high risk pool will have higher premiums and deductibles. It has to, it’s high risk. But it should be subsidized by standard policy premiums so as to make it affordable.

    Rev. Barack Hussein Hoagie (f4eb27)

  103. My condolences, Tillman.

    Rev. Barack Hussein Hoagie (f4eb27)

  104. IOW, much as you hate it, the Rule of Law continues.

    I hope you’re not one of those type of people, similar to the Beltway pundits or cocktail-circuit crowd, who’ve previously frowned upon delving into the ideological biases of a, for example, nominee to the Supreme Court, particular if that person tilted left.

    Whether your assessment is correct or not, no one should ever underestimate the way that innate ideological emotions can make a person — if it helps soothes those emotions — claim the moon is made of Swiss cheese or the South Pole is tropical and balmy. And make such a claim with a perfectly straight face.

    Mark (a11af2)

  105. My preferred plans is this:

    General:
    1. All policies are sold directly to individuals or families.
    2. All employer subsidies, if any, are taxable.
    3. There is a refundable tax credit set to offset the tax on some target policy.
    4. If there is no policy, the tax credit is put into an HSA, which can be debited by service providers.

    Policies:
    1. All policies are national and can be sold in any state.
    2. All policies in any state must have the same price schedule.
    3. Policy premiums are based only on age, behavior and state of residence.
    4. There are some minimum policy requirements, based on gender, age and such, in order to qualify for the direct tax credit.

    Eligibility:
    1. Anyone can get coverage at the set rate, for the next two years.
    2. After 2 years, there is a buy-in period of 2 or 3 years where you pay some premium.
    3. Anyone who has had coverage for 3 out of the last 5 years can bypass the buy-in.

    This puts everyone in the same pool and makes the statistics manageable for all concerned. It leaves the insurance in private hands and keeps the government out (of this part of) the system as much as possible, There is no mandate for coverage, but a disincentive to abuse high-cost services to the uninsured.

    Kevin M (25bbee)

  106. Kevin M,

    My experience has been similar. When you have a serious illness, it’s upsetting to lose your insurance because the government cancelled it. It seems so avoidable, especially when we were promised we could keep our doctors and policies. Like ropelight, my oncologist has not been as aggressive with some tests as he was before ObamaCare. It also costs more to get the same level if care.

    DRJ (1dff03)

  107. Whether or not they knew what they were voting on is a completely separate issue from what you are arguing. I don’t mind if you dismiss what we know out of hand, but don’t expect me to accept your description of the ruling just because. I have said in no uncertain terms that despite your best efforts to convince me this is a blow to intentionalism, all I have been convinced of is that you and I have completely differing views on what intentionalism is. I see nothing in the ruling to support your contention. I see them legislating, ignoring unambiguous language, and ignoring the rules of statutory interpretation. I am done.

    JD (3b5483)

  108. I bet it’s tough to get life insurance with cancer. That’s why people don’t wait to get it. In a free market of health insurance, catastrophic coverage would be more widely available and people would be motivated to get it, in time.

    As usual for someone who has no experience in the private market, you just don’t get it.

    There are many ways for the previously insured to lose coverage after getting sick. Perhaps your insurer leaves the state. Or your company goes out of business (sorry, no COBRA). Or you get fired for missing too many work days (again, no COBRA). Or you get through the treatment but your insurance lapses since you can’t work for a while and rent comes first.

    Not everyone has the protections one might find in a big corporation or government employment.

    My beef is not in refusing coverage to people who have never had insurance until they get sick, but with the many many ways the insurance industry has employed to shed itself of costly former customers. Again, see the Prisoner’s Dilemma for why the free market encourages this kind of cherry-picking in a way that never happens to members of a fixed pool.

    Kevin M (25bbee)

  109. He said life insurance, Kevin, not health insurance.

    DRJ (1dff03)

  110. Or do we need ObamaCare for life insurance, to force companies to sell life insurance to terminally ill people at low prices?

    No, but if life insurance companies were creative in cancelling existing life insurance policies for the terminally ill, government would need to step in. (Yes, I know the libertarian response, but I’ve grown to disbelieve it — it requires people to have more information than the signal-to-noise ratio allows)

    Kevin M (25bbee)

  111. He also said health insurance. Maybe you were responding to that. But I think his point is that insurance is about thinking ahead. Yes, bad things can happen that intervene, but money helps.

    DRJ (1dff03)

  112. He said life insurance, Kevin, not health insurance.

    So he did. My bad. Did I win the other argument?

    Kevin M (25bbee)

  113. All policies in any state must have the same price schedule.

    um, All policies in any state [by a given insurer] must have the same price schedule.

    Kevin M (25bbee)

  114. Whether or not they knew what they were voting on is a completely separate issue from what you are arguing. I don’t mind if you dismiss what we know out of hand, but don’t expect me to accept your description of the ruling just because. I have said in no uncertain terms that despite your best efforts to convince me this is a blow to intentionalism, all I have been convinced of is that you and I have completely differing views on what intentionalism is. I see nothing in the ruling to support your contention. I see them legislating, ignoring unambiguous language, and ignoring the rules of statutory interpretation. I am done.

    That’s what I see them doing, too. I do not dismiss what we know (Gruber) at all — I posted about him endlessly, and see that argument as very strong. I just contend that it has limitations as noted in the post.

    I see it as critical whether or not they knew what they were voting on, and I confess that I don’t understand how that can be irrelevant to an intentionalist. However, I won’t press you further on the issue, as I sense that the discussion is irritating you.

    Patterico (8898a2)

  115. No, but if life insurance companies were creative in cancelling existing life insurance policies for the terminally ill, government would need to step in. (Yes, I know the libertarian response, but I’ve grown to disbelieve it — it requires people to have more information than the signal-to-noise ratio allows)

    We certainly need the government to enforce contracts. Arguably there is also a role for government to be involved in regulating certain important contractual provisions to prevent fraud — as in a giant tome that purports to cover you but has buried loopholes that eviscerate the purpose of the contract. I am not saying government has no role, but we would all be a lot better off if that involvement were far less limited.

    What argument do you suppose yourself to have won? I have limited time to comment, am doing so from a phone, and will be out of pocket soon.

    Patterico (8898a2)

  116. DRJ and Kevin, your experiences showcase the difference between large group and individual policies. My experience is almost the direct opposite of your cases. My coverage is roughly the same. Deductibles and premiums got reshuffled but I pay roughly the same now as I did three years ago. The key is that my insurance is through the group plan of a very large corporation which has employees in all 50 states plus Puerto Rico.

    But nothing everything is paradisical, of course. I have no say in what I pay or what is covered. That is decided by the company beancounters. Which is why my prescription insurance is through a company I have come to hate (Express Scripts). And all part time employees were forced into the exchanges and off the company plan a year before the ACA would have…the company chose to do it as early as possible.

    And with a preexisting condition such as I have, I would on my own be caught in the trap Kevin described. Keeping my insurance was for a good many years the main reason I stayed with my employer.

    kishnevi (294553)

  117. Patterico,

    That “won” comment was tongue in cheek.

    Kevin M (25bbee)

  118. kishnevi–

    My preferred insurance regime (see #104) would put everyone into the same “group” situation, or at least everyone who chose the same insurer and policy. Everyone would choose the policy that made sense for them and have the same protections that one now has with a corporate group policy. And be able to change jobs and take your policy, or get a different one if conditions change.

    Kevin M (25bbee)

  119. That #104 is basically the plan McCain offered in 2008 with a few changes.

    Kevin M (25bbee)

  120. 60. Steve57, me too! I’m at the point I’m pissed at myself for volunteering for Nam. Seems I killed a lot of commies for nothing. The really bad commies were here all along!
    Rev. Barack Hussein Hoagie (f4eb27) — 6/28/2015 @ 12:08 pm

    It goes without saying. Which if it is an excuse is my excuse.

    Thank you, hoagie. I hope I haven’t let you down.

    Steve57 (ec1eac)

  121. Every right thinking person should be grateful that we did not succeed in imposing our form of government Nancy Pelosis, Ted Kennedys, Hillary Clintons, Barack Obmamas, ad nauseum on the Vietnamese.

    nk (dbc370)

  122. I forget what ship it was. Some Sunday lo these many years ago I disturbed some Sailors just back from Vietnam.

    An Asheville class gunboat.

    Boy, did those guys hate me.

    And I freakin’ deserved every ounce of it.

    For disturbing their Sunday.

    Steve57 (ec1eac)

  123. They should have thrown a shoe at me.

    Steve57 (ec1eac)

  124. For f***ing with their sleep.

    Steve57 (ec1eac)

  125. You’re right, kishnevi, that you haven’t seen the changes because you have employer instead of individual health insurance. You’re not there yet — perhaps not for a couple of years — but you will “enjoy” ObamaCare unless the next President can stop it.

    DRJ (1dff03)

  126. Only because they keep “waiving” large an significant portions of the law that are politically noxious.

    JD (3b5483)

  127. The strategy was divide and conquer. Dump the crap on a small group and then lie to everyone else as you creep the line forward. It turned out to be so terrible that they delayed now for 3 years the point when more people get the fish slapped across the face and are told it isn’t a fish.

    Kevin M (25bbee)

  128. Meanwhile the providers are dragged deeper into the system.

    Kevin M (25bbee)

  129. This is not a failure of intentionalism. Intentionalism would demand that the court cannot rule on a law that has inconsistent and incoherent text, and send the thing back to the legislature for a rewrite. It is their responsibility to clearly convey their intent in the text, the court is bound by the text as it is written.

    If the court was look to the intent of the authors of the text, it’s clear the intent was to draft a purposefully murky blizzard of bullshit for political reasons, that is, it otherwise would not have passed.

    The court shouldn’t have taken the bait.

    LBascom (464dab)

  130. I’m going to insert the following rather off-topic text because it’s about a story that’s so totally surprising, so totally unexpected. Yea, sort of like being surprised to see ice in the South Pole. Actually, come to think of it, it’s not off-topic vis-a-vie the nonsensical rulings on ACA (etc), since the place below and the majority members of the US Supreme Court share one trait in common: The stupidity and irresponsibility of liberalism.

    nytimes.com, June 28, 2015: Puerto Rico’s governor, saying he needs to pull the island out of a “death spiral,” has concluded that the commonwealth cannot pay its roughly $72 billion in debts, an admission that will probably have wide-reaching financial repercussions.

    The governor, Alejandro García Padilla, and senior members of his staff said in an interview last week that they would probably seek significant concessions from as many as all of the island’s creditors, which could include deferring some debt payments for as long as five years or extending the timetable for repayment.

    “The debt is not payable,” Mr. García Padilla said. “There is no other option. I would love to have an easier option. This is not politics, this is math.”

    It is a startling admission from the governor of an island of 3.6 million people, which has piled on more municipal bond debt per capita than any American state. A broad restructuring by Puerto Rico sets the stage for an unprecedented test of the United States municipal bond market, which cities and states rely on to pay for their most basic needs, like road construction and public hospitals.

    That market has already been shaken by municipal bankruptcies in Detroit; Stockton, Calif.; and elsewhere, which undercut assumptions that local governments in the United States would always pay back their debt. Puerto Rico’s bonds have a face value roughly eight times that of Detroit’s bonds. Its call for debt relief on such a vast scale could raise borrowing costs for other local governments as investors become more wary of lending.

    Still, Mr. García Padilla said that his government could not continue to borrow money to address budget deficits while asking its residents, already struggling with high rates of poverty and crime, to shoulder most of the burden through tax increases and pension cuts.

    ^ I often use “Detroit” as the poster child of everything that’s wrong with liberal/Democrat politics, governance and politicians. But I really need to extend that to Puerto Rico.

    Mark (a11af2)

  131. Intentionalism would demand that the court cannot rule on a law that has inconsistent and incoherent text, and send the thing back to the legislature for a rewrite. It is their responsibility to clearly convey their intent in the text, the court is bound by the text as it is written.

    As I said to elissa, the notion that the Court is supposed to “send the thing back to the legislature for a rewrite” is incoherent. What is that supposed to look like in the real world? The Court can indeed decline to take a case, which here would have left the IRS’s rewrite as the law. But once they take the case, they have to decide what the language means.

    As for this: “It is their responsibility to clearly convey their intent in the text, the court is bound by the text as it is written.” I couldn’t agree more. That is precisely what I have been saying at this site for literally years. Too bad I was fought so hard on that exact point.

    Patterico (3cc0c1)

  132. LBascom I think I understand what you are trying to say even if our host comes across as sort of confused about the concept and methods of forcing the U.S. congress to do its work. I agree with you that the Dem majority in congress wanted to pass something-anything and obviously didn’t care if it was a hot mess of contradictions incorporating many barely moving parts that don’t fit together. This was a wealth re- distribution and federal job making ploy from day one that had nothing to do with healthcare. They wanted the executive branch’s political bureaucracy and the liberal courts to have at it so they didn’t have to explain all that to the clueless congress critters and the public.

    Reasonable people can argue whether the high court was required to take Burwell after having already waded into the muck once before. I wish they had not agreed to hear it because many of us think that the public might have forced congress’ hand on this and other ACA problems and kept the anti-O-care furor going. But once they did decide to hear it, if they were an honorable court they were bound to rule in favor of the text as written as Patterico always says. Therefore there’d be no subsidies except for state exchanges. Period. That’s what the law itself said regardless of what the IRS bureaucrats decided. If the justices had ruled as they should have, based on the clear text (textualism), it would have mortally wounded its economics but would not have been the kiss of death for Obamacare. That’s because if there was the political will to save it then congress would have had to start re-writing fixes and replacing huge sections of the law. That’s another one of the real world ways a responsible court would and could have “sent it back to congress”. After the Sebelius case, though, why anyone thought or trusted that the justices would actually act on the language of the text is beyond me.

    Now we have not only the high court legislating (badly), but with Burwell we also have what is widely seen as an official imprimatur of Obamacare/Scotuscare that almost guarantees it is here to stay in some godawful form. I think we’ll see many more intentionally incomplete shell bills passed that ostensibly will have to be ironed out by other branches of government. That’s how the rule of law died and how congress became irrelevant.

    elissa (dcd9c2)

  133. DRJ (1dff03) — 6/28/2015 @ 3:48 pm

    If I understand the Cadillac tax threshold correctly and remember the figures for my plan correctly (there is much virtue in an if, as Touchstone said), my plan won’t be affected. I think my employer had already tailored our health plan to avoid it.

    Besides which, there is, for family reasons, currently a 50/50 change that by 2018 I will have a completely different job and living with whatever version of Romneycare the General Court of Massachusetts has come up with by them.

    kishnevi (870883)

  134. Rising health care plans are expected to subject more health care plans to the Cadillac tax, perhaps all employer plans.

    DRJ (1dff03)

  135. Health care costs, not plans.

    DRJ (1dff03)

  136. Hmmm, I forgot about my prescriptions…my Pentasa obstensibly costs about $1000 a month retail. Depends on how that cost is actually figured. At full retail, I would be in Cadillac tax territory no matter what plan I am on.

    If prescriptions are not factored in, then I come in well under the $10000 threshold.

    kishnevi (870883)

  137. I’m not wishing this on you, kishnevi. I want Cruz to be President so this will go away. I’ve already seen my old policy get killed by ObamaCare and am paying the new, higher rates, so I could easily say ‘welcome to the club’ and not care about others. But I don’t want that to happen to anyone else.

    There are reasons Obama has delayed the employer provisions, and one reason is because it’s going to disrupt the employer market as much or more than it did the individual market.

    DRJ (1dff03)

  138. Kevin M. – I fundamentally disagree with you conclusion @105 that:

    It leaves the insurance in private hands and keeps the government out (of this part of) the system as much as possible,

    Your preferred plan creates an assumption that there is a fundamental right for Americans to health insurance, which, after all is merely a financing vehicle to pay for unanticipated (and in many cases anticipated) health care costs. Your solution imposes that right on private businesses through force of government and takes away incentives for insurers to compete:

    2. All policies in any state must have the same price schedule.
    3. Policy premiums are based only on age, behavior and state of residence.

    As has been pointed out by other commenters, there were solutions to high preexisting conditions denials in many states before SCOTUScare, as there are for other areas of insurance such a workers’ compensation and personal auto. HIPAA also provided protections against cancellation of insurance once a policyholder became seriously ill.

    You may have disliked the alternatives in place, but your solution is essentially a government driven mandate to remove flexibility from the private sector. If that is your goal, fine, but don’t hide it.

    I agree that all policies should be on an equal footing from a tax deductibility standard, though, but disagree with the anti-free market other provisions of your solution.

    daleyrocks (bf33e9)

  139. there are for other areas of insurance such a workers’ compensation and personal auto

    Which are tightly regulated and often originally created by statute.

    The real problem is this:
    Because of technological advances over the last few decades, the price of health care has increased tremendously. When I was a kid, you went for an X Ray and payed $25. Now you go for a Catscan or an MRI and can easily find yourself being billed $2500. That machine is not cheap.

    Which means that getting adequate health care is not a cheap thing now, and health insurance is the only way most people can afford it.

    So you either figure out a way to scale back costs so that people don’t need insurance to pay for it, or get everyone covered by health insurance.

    kishnevi (870883)

  140. “Which are tightly regulated and often originally created by statute.”

    kishnevi – Personal insurance in particular and many other lines of insurance are already tightly regulated. SCOTUScare added a federal layer of oversight (actual or threatened) above existing state regulatory frameworks. So I don’t understand your point. Are you supporting a fundamental right to health insurance at the further expense of the free market and merely stating the obvious about health care costs?

    daleyrocks (bf33e9)

  141. kishnevi and Kevin M. – I boil your arguments down to essentially somebody is going to have to take pipe and it might as well be the evil insurance companies.

    daleyrocks (bf33e9)

  142. Are you supporting a fundamental right to health insurance at the further expense of the free market and merely stating the obvious about health care costs?

    Let me put it this way. Dana is comfortable with the proposition that if people can’t afford health care, it is okay to let them “die on the streets”. I look in the Bible and see a very definite NO to that idea.

    I don’t think that private charity can handle it, so I am comfortable with government doing it.

    Does modern health care need to cost so much? Perhaps not. If you have ideas, set them forth.
    Is health insurance the only way to pay for health insurance? Perhaps not. If you have ideas, set them forth.

    Is there a non governmental way to pay the health care costs of people who can’t afford it that will work? If you have ideas, set them forth.

    Which is not exactly saying there should be a fundamental right to health insurance. But not as government free as you want it to be.

    And I don’t think a solution needs to involve sticking it to the (morally neutral) insurance companies as opposed to everyone else.

    kishnevi (870883)

  143. kishnevi (93670d) — 6/28/2015 @ 10:36 am

    Courts have a long established principal they are supposed to stick to, which is to assume the legislature intended a consistent scheme,

    That is precisely wqhat did NOT happen in this case, but the plaintiffs argued that it did, saying Congress wanted to force states to establish exchanges, which was not true.

    The Senate Majority leader wrote adeliberately defective bill, but hid it, with the intention of 1) gaming the CBO score in that administrative costs to the federal government would be set at a flat $1 billion. No actual attempt was made to try to force states to establish exchanges.

    The CBO was told to assume:

    1) People anywhere in the country would be eligible for tax credits.

    2) All exchanges would be operated by the states at no cost to the federal government.

    Because it would obvious that not every state would get going immediately, provision was made to let the Secretary of HHS establish an exchange. This was not healthcare.gov. They were to be turnkey operations. They were to be located in the respective state(s).

    Harry Reid knew there would be some problems, come 2013, but he intended to deal with that in the next Congress, when some other members of Congress realized it.

    You had Congress authorizing the creation of exchanges by the Secretary of HHS

    Sammy Finkelman (643dcd)

  144. kishnevi,

    There are other options than what you outline. For instance, for literally decades, 25% or more of the people in my area have been immigrants who have no money or health insurance, but they have not gone without health care. County hospitals provided emergency care through clinics and ERs, all at taxpayer expense. Local charities also helped.

    I think the system worked but I’d bet money that activists hated it because it imposed a stigma on people for needing “free” care. Ironically, they still want and use that same care in my area, even with ObamaCare. They don’t want to bother with insurance and subsidies and tax returns and paperwork. Should we close down the clinics and refuse access to ERs for routine care? I think there is an argument that we should.

    DRJ (1dff03)

  145. Correction: Hospitals and clinics provide routine and emergency care, not just emergency care.

    DRJ (1dff03)

  146. “Let me put it this way. Dana is comfortable with the proposition that if people can’t afford health care, it is okay to let them “die on the streets”. I look in the Bible and see a very definite NO to that idea.”

    kishnevi – I’m sorry, but my comments are not related to what Dana believes, they are in response to what you have said. If you disagree with my characterization of your comments, please spell out those disagreements rather than move the goalposts.

    You are arguing for cost shifting to insurance companies in the private sector and restricting their ability to contract with whomever they choose. That’s your opinion and you are welcome to it. I see insurance companies merely as middlemen between consumers and providers of health care and am in favor of competition. Is there a reason to rape them by government fiat? I don’t think so.

    The question of the cost of health care is a more complex question and not the subject of this post or my comments.

    daleyrocks (bf33e9)

  147. “There are other options than what you outline. For instance, for literally decades, 25% or more of the people in my area have been immigrants who have no money or health insurance, but they have not gone without health care. County hospitals provided emergency care through clinics and ERs, all at taxpayer expense. Local charities also helped.”

    DRJ – Correct. In fact is there not a Supreme Court opinion requiring hospitals which receive federal funding to take all comers?

    I am trying to make a distinction between health insurance and health care. They are not synonymous, but perhaps that is beyond the comprehension of some commenters.

    daleyrocks (bf33e9)

  148. I think it is becoming a little clearer to me.

    Harry Reid did not quite create a train wreck. There was a legislative scheme, but it is not the one that was implemented,

    When they created healthcare.gov, they departed from the law.

    The Secretary of HHS was supposed to wroiteb turnkey operations, which could be taken over by a state. In the event a state did not want to take it over, it could be turned over to a non-profit group. They would probably (but not definitely) have to be paid to operate it by the federal government, and that probably would require an appropriation, but not until Fiscal 2014.

    This was sufficiently vague and uncertain so as to get the CBO to score operating expenses for the exchanges after 2014…

    …as $0.

    https://sites.google.com/site/healthreformnavigator/ppaca-sec-1321

    SEC. 1321,

    c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS
    (1) IN GENERAL.—If—

    (A) a State is not an electing State under subsection (b); or

    (B) the Secretary determines, on or before January 1, 2013, that an electing State—

    (i) will not have any required Exchange operational by January 1, 2014…

    …II)

    the Secretary shall (directly or through agreement with a not for profit entity) establish and operate such Exchange within the State

    Any exchanges set up by the secretary of HHS were supposed to be:

    within the State. Not outside of it, in Washington, D.C. The language could not be more clear.

    Within the state dioes mean FOR the state.

    Furthermore, if a state did not take it over, the federal government could contract with a non-profit to operate it for the state. It could also operate it itself, but maybe they could get a charity to do it for them.

    Sammy Finkelman (643dcd)

  149. You are arguing for cost shifting to insurance companies in the private sector and restricting their ability to contract with whomever they choose. That’s your opinion and you are welcome to it. I see insurance companies merely as middlemen between consumers and providers of health care and am in favor of competition. Is there a reason to rape them by government fiat? I don’t think so.

    The question of the cost of health care is a more complex question and not the subject of this post or my comments.

    Health insurance is a way to pay for health care. If the cost of health care is not handled through insurance, someone else pays. Who do you want the cost shifted to?

    If you say the individual consumer, I would answer that most individuals can’t afford more than the most basic health care.

    Depend on private charity? I do not think private charity has the resources.

    Force the health care providers to bear the burden? Why should they on their own? Not to mention the degradation of service to everyone else that might result.

    I think the most efficient system is a mix of public subsidies and private insurance. Basic health care is already paid for by the consumer even with insurance: if you only need minimum health care like an annual physical and no more, you often do not meet the deductible anyway.

    But my preference is purely pragmatic. If you think one of the other options is not merely feasible but more efficient, lay it out.

    Of course the cost of health care matters. Bring it down significantly and individuals can afford it. But free market competition does not work very well. When someone has a heart attack, the paramedics choose the facility…

    kishnevi (91d5c6)

  150. DRJ@143
    We have a similar situation here. Maybe Texas handles it better, but I do not think it worked very well. The main public hospital in Miami teetered on bankruptcy, and is about the last place you want to be as a patient. When I fractured my pelvis, I ended up there. Spent about 36 hours in the ER waiting for a bed to open up, with a raving lunatic in the next bed for part of the time. Cops had shot him in the knee because tasing did not work, and the only way to keep him quiet was heavy sedation. When I had a room, my roommate turned out to be an farm worker from Honduras who spoke only Spanish and(cough cough) seemed to have no green card. Guess who paid for his hospital stay?
    And from what I have heard, it has not improved in the eight or so years since then.

    kishnevi (91d5c6)

  151. Of course the cost of health care matters. Bring it down significantly and individuals can afford it. But free market competition does not work very well.

    Huh. And here I was, under the impression that we hadn’t tried it.

    Patterico (3cc0c1)

  152. I think the most efficient system is a mix of public subsidies and private insurance.

    Nothing says “efficiency” like “public subsidies.”

    Patterico (3cc0c1)

  153. “Health insurance is a way to pay for health care. If the cost of health care is not handled through insurance, someone else pays. Who do you want the cost shifted to?”

    kishnevi – All you are doing is restating the obvious. My preference is to lower the cost of health care. Excessive regulation drives it up, whether at the provider level or at the level of insurance companies. Solutions requiring private businesses to accept unprofitable business by government fiat just smacks of fascism and it surprises me that commenters here support such solutions.

    daleyrocks (bf33e9)

  154. On the Intentionalism vs Textualism debate – where would the 2nd Amendment fall?

    Text is pretty specific and starts out with “A well regulated militia…” And we’re not even getting into individuals owning arms for anything but the purpose of serving in a militia. Which is well regulated. The intent is there, but the text, well, that’s pretty specific.

    As far as intent goes – it’s no mystery. SCOTUS can call up the legislators if need be, but it’s pretty obvious what the intent was. I think Patterico’s argument has to do with misinterpreting intent. And 9 judges should be able to figure that out. If they put their minds to it. (interpreting text is like a simple computation, you have to understand the meaning behind the words).

    It was once said “Effective listeners remember that “words have no meaning – people have meaning.” You might disagree with this, but if you do, if you understand it, then you know literal meanings might not get you the understanding you need. I think when it comes to the law, this is exactly what a SCOTUS is for. And it appears to be the intent of the frames.

    Dale Launer (47833c)

  155. The worst part of the opinion was not the “established by the state” issue. It was the part where Roberts decided it was the PURPOSE of Congress to “improve” markets.

    It’s a major point of political disagreement as to how one goes about “improving” markets, or what features even constitutes “improvement” in the first place. This dispute has been written directly into SC law for the last 150 years — the debate over the New Deal, and before that, the rise of the Lochner Era, all concerned the way markets work, what sort of legislation improves them, and how a market’s rules change society.

    Roberts blithely hand-waved all of that away, and simply assumed that whatever controls and restrictions Congress put on markets was an improvement. Why not pass a statute that says, “Go into the world and do good,” then “interpret the purpose” of such vague nonsense as whatever they want? After all, the purpose was to improve things, right?

    George Gaskell (86639e)

  156. Dale Launer,

    I believe words should be interpreted according to the common and fair understanding of those words at the time they were passed (or ratified, in the case of a Constitutional amendment). Declarations of “legislative intent” cannot be binding on the interpreters, but can be relevant only insofar as they shed any light on how the words were fairly understood at the time.

    As far as the Second Amendment goes, Eugene Volokh’s testimony on the issue, given before the Heller case was decided, is worth reading for a straightforward explanation as to how the explanatory clause (re the well-regulated militia) does not limit the operative clause (“shall not be infringed”). The testimony is not as long as it initially seems; most of its length is an appendix. You can read the testimony (points 1-4) in a minute or two, if you’re really interested in why the Second Amendment protects an individual right.

    When will we see a production of a “My Cousin Vinny” sequel on the stage?

    Patterico (3cc0c1)

  157. At the risk of beating a dead horse:

    I have yet to encounter a single person who can explain to me what on God’s Green Earth is meant by “send the law back to Congress to fix.”

    The Congress that passed ObamaCare does not exist any more. (Thank God.)

    The Court is given language and must read it either to ALLOW subsidies for people buying insurance on federally established exchanges, or to DENY those subsidies.

    The Court could have refused to hear the case. That would have left lower court decisions in place allowing those subsidies. No help there for the rule of law.

    The Court could say: we’re leaving this for Congress to fix. O-kay . . . and when Congress takes no further action, do people on federally established exchanges get the subsidies, or not?

    If you say “no” that’s because you are going with the text over unexpressed intent. Period.

    It is emphatically the role of the Court to say what the law means — just as it is emphatically the role of a Congress and President that can agree to any “fix” or “change” to pass that, should they so desire, and should they be able to accomplish that. But if no change can be made, THE COURT STILL MUST DECIDE WHAT TO DO IN THE MEANTIME.

    And if you just say “send it back to Congress to fix” without explaining what in the hell that means . . . it just looks like you’re implying that the Court should go with the text over the intent, but you don’t have the guts to come out and SAY so.

    . . . for whatever reason.

    If there is an alternative explanation of what is meant by that seemingly incoherent phrase, please, someone, lay it on me.

    Patterico (3cc0c1)

  158. IF I said “Send it back to Congress to fix”,
    I would mean interpret it as clearly as the wording allows, no intentionality reasoning for the court to “make it work” (like Roberts did before when he made the argument for them that it is a tax so it will fly).
    If interpreting it as the text best allows means an irreconcilable mess in carrying it out, so be it, “Let Congress fix it” (whether or not it is the same people or not, it is the same part of government with the same responsibilities).

    MD (Back) in Philly (f9371b)

  159. And if you just say “send it back to Congress to fix” without explaining what in the hell that means . . . it just looks like you’re implying that the Court should go with the text over the intent,

    Yup, that’s what “send it back to Congress to fix” means for me. If it’s a typo, Congress should correct it not the Court. This is a statute which was already upheld in Obamacare I on the Constitutional question. The “Earth-shaking consequences” from striking down the federal subsidies would have been 100% in Congress’s power to avoid the day after the decision was rendered by amending the statute. The Court did Congress’s job.

    nk (dbc370)

  160. Yup, that’s what “send it back to Congress to fix” means for me. If it’s a typo, Congress should correct it not the Court.

    If that is shorthand for “the text controls over intent” I am all good with it.

    Somehow I don’t think that is what the “intentionalists” are saying.

    If it is, I’m all for it. But then, why all the arguments in 2010 when that is what I was saying all along?

    Patterico (13d1b8)

  161. I didn’t argue with you (not much, anyway), not sure nk did either.
    My meaning of “original intent” is to understand the text as it was used at the time of the law, what could be seen of the intent of the law by other documents of the time, how it was interpreted at the time, etc.
    So I’m a textualist, but a textualist wanting the text read in the context of the people who wrote it.
    Like, if marriage is between a man and a woman as used in the English language at time “X”, then laws about marriage from time “X” are not changed if 5% of the population want to change the definition of marriage.

    MD (Back) in Philly (f9371b)

  162. I’ve been a “fair meaning” of the word guy for a pretty long time I think. Not what the speaker thought it meant, not what he intended it to mean, but what people hearing it fairly understand it to mean.

    nk (dbc370)

  163. The Supreme Court used a lot more words to say something similar in the violent felony decision. http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf You can’t punish somebody for violating a law nobody understands.

    nk (dbc370)

  164. except Gruber gave the tutorial, it’s time to bring Graham Chapman and the halibut,

    narciso (ee1f88)

  165. It ain’t the Court’s job to fix Congress’ errors, even though I do not believe it to be an error.

    JD (3b5483)

  166. It ain’t the Court’s job to fix Congress’ errors, even though I do not believe it to be an error.

    I agree. It’s their job to interpret what is written, according to what it says.

    Patterico (13d1b8)

  167. Ed Whelan, like Johnathan Adler, also is characterizing King v. Burwell as a purposivist decision. The court having rejected both intentionalism and textualism.

    …That said, I offer some observations on the Court’s ruling:

    1. The Chief Justice’s majority opinion strikes me as a very aggressive exercise of purposivism, of rewriting a legal text to comport with its supposed purpose. That quality is suggested by the Chief’s series of strained and seemingly makeshift arguments. But the Chief makes his broad purposivism explicit in this bracing statement in his conclusion (emphasis added):

    Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

    2. By contrast, Scalia’s textualism, while it allows consideration of purpose, won’t let purpose confer on text a meaning the text can’t bear…

    Read more at: http://www.nationalreview.com/bench-memos/420487/some-observations-king-v-burwell-ed-whelan

    I’m not nitpicking. I’ve been looking into it in the past few days and we are talking about three separate theories of statutory interpretation. Intentionalism is bad enough, but at least the court would be deferring to the fact that all legislative power is invested in Congress. So the court would have to at least pay lip service to Congress’ intent as the author of the bill.

    But purposivism takes legislative intent out of the picture. Now it’s the executive branch’s intent, and the court’s own policy preferences, that control statutory interpretation.

    It doesn’t matter what bill Congress put into words. And it doesn’t matter what bill Congress intended to write. What matters is what happens when the law is implemented, and if the court doesn’t like the results. Potential results, in this case, as the court simply will not allow events to play it.

    Essentially the court assumes there are no longer three functioning branches of government. And that federalism is too risky a thing in which to place any faith.

    Steve57 (4c9797)

  168. They didn’t stop at interpreting. They attempted to “fix”

    JD (3b5483)

  169. I didn’t argue with you (not much, anyway), not sure nk did either.

    I’m talking about all the back and forth in the posts from 2010 that I linked in this post.

    All I know is that the views expressed by Justice Scalia in his King dissent represent exactly what I have been saying for years. And this view of how to interpret law, which the intentionalists say is so dangerous to democracy (look at the posts from 2010 to see what I mean), should have won the day. Had Scalia managed to get four other Justices to subscribe to this incredibly “dangerous” view of language, he could have prevented the Court rewriting the law to conform to the supposed “purpose” or “intent” (or whatever you want to call it) of Congress.

    Dangerous!

    Patterico (3cc0c1)

  170. That whole constitutional republic ship done sailed

    all we have is the caprice of whimsical berobed ivy league trash anymore

    happyfeet (59dea8)

  171. 169. …Had Scalia managed to get four other Justices to subscribe to this incredibly “dangerous” view of language, he could have prevented the Court rewriting the law to conform to the supposed “purpose” or “intent” (or whatever you want to call it) of Congress.

    Dangerous!

    Patterico (3cc0c1) — 7/1/2015 @ 7:23 am

    You simply can not confuse intentionalism and purposivism. They’re not the same thing.

    I don’t agree with this professor’s conclusions, but at least he explains how the three theories differ.

    mylaw2.usc.edu/users/amarmor/documents/Textualismincontext.pdf

    I agree with Professor Manning that three main theories of statutory interpretation
    compete for dominance in U.S. federal courts: textualism, intentionalism and purposivism.1 And I agree with him that it is difficult to get a sense of what textualism is all about without paying attention to the ways in which it forms a critique of the other two doctrines and aims to replace them….

    …According to intentionalism, when judges face an interpretative question about statutory law,
    they should, first and foremost, strive to ascertain the actual intention of the legislature that bears on the issue at hand, and, if they manage to find out what that intention was, they must defer to it and decide the case accordingly.

    …The second main doctrine of statutory interpretation that textualists object to is purposivism. This is not really one doctrine but a whole family of views – some made very influential by the Hart and Sacks legal process view, others by Ronald Dworkin – arguing that the task of statutory interpretation should be seen as continuous with the legislative task of making the law in the
    first place or, at least, coherent with it.6 Roughly, the idea is this: When faced with an interpretative question about a statute, judges should ask themselves what the relevant purpose of the law is and how that general purpose can best be achieved by resolving the particular interpretative question one way or the other. And how do we know what the relevant purpose of the law is? Not by trying to figure out the actual intentions of the legislators, but by asking what a reasonable legislature would have reasonably wanted to achieve by enacting the piece of legislation that it did. In other words, all forms of purposivism are committed to the stipulation of some idealized conditions under which we conceive of the legislature and the purposes of its enactment. We derive the putative purposes of the law from the facts concerning the circumstances that brought about the legislation, or the mischief it aimed to fix, and, crucially, from some normative assumptions about what a reasonable or morally idealized legislature would have wanted to achieve under those conditions.

    …All purposivists emphasize, however, that in attributing a purpose to a piece of legislation, it is not the actual purposes of the legislators that judges should try to discover, but the purposes or intentions of an idealized, partly normatively constructed legislature.

    This is why purposivism is worse than intentionaliasm. Roberts and the rest of the majority simply agreed with the IRS/Obama administration that since a legislative scheme that Congress has used for 70 or 90 years, one that normally works, didn’t work this time then it was proper to continue the legislative process in court.

    As Scalia described purposivism (in the paper at the link):

    …Second, textualists seem to be very dubious about the possibility of objectivity concerning the idealized legislative purposes. To quote Scalia again: “[Y]our best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person em>should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.”7

    The textualists of course are correct. Purposivism is just a blatant invitation to judges to substitute their own policy preferences for the legislatures.

    Steve57 (4c9797)

  172. me I despair

    happyfeet (59dea8)

  173. Given the Court’s willingness to legislate, Congress is basically left with a rather simple job: Identify the budget item (e.g., Provide for the National Defense); Specify the fiscal year expenditure: (e. g. $40B.)

    This need not take more than a few weeks. And there’s little reason for maintaining their extensive staffs and support organizations (e.g., CBO.) We will need a lot more judges as they will need to review the Executive Branch’s implementation of the stipulated purpose.

    This might seem rather cumbersome, but it has the advantage that someone will read the messy details and attempt to relate that to the intended purpose hopefully before the money’s spent. Given that Pelosi ramrodded ObolaCare thru with philosophy that we had to pass the law to see what’s in it, this is a logical evolution in our living constitution.

    The Supremes could also manage Congress’s agenda and parliamentary procedures dispensing with the ridiculous spectacle of orange tinted majority party leaders prostrating themselves before the titular head of the executive branch in order to earn mileage coupons for a ride on Air Force One.

    bobathome (f50725)

  174. On the Intentionalism vs Textualism debate – where would the 2nd Amendment fall?

    Text is pretty specific and starts out with “A well regulated militia…” And we’re not even getting into individuals owning arms for anything but the purpose of serving in a militia. Which is well regulated. The intent is there, but the text, well, that’s pretty specific.

    The text is very specific, and it says the exact opposite of what you seem to think. It says “the right of the people to keep and bear arms shall not be infringed”. It doesn’t say what kind of arms, or what people are bearing them for. It shall not be infringed for any reason, regardless of the states’ stated purpose in adding this amendment.

    Milhouse (a04cc3)

  175. I have yet to encounter a single person who can explain to me what on God’s Green Earth is meant by “send the law back to Congress to fix.”

    I think it’s pretty obvious. If they’d found that although the law as written seems unworkable it still means exactly what it says, then Congress would have to fix it one way or another.

    Milhouse (a04cc3)

  176. Here’s a thought: the Supreme Court’s decision in Miller v US seems to have been purposivist. The first clause in the 2nd amendment tells us what the amendment’s purpose is; the second clause tells us what it does to achieve this purpose. The court said, well, the purpose seems to be to have a population that has weapons and knows how to use them, so that when and if there is need to call up the militia to defend a free state there will be people to call on. Therefore, by “arms”, the states meant only those arms that are useful in a militia, that a militia commander might want his recruits to bring and know how to use. Since the lower court had not established whether sawn-off shotguns have such a use, it sent the case back to make that determination; if the lower court were to find that sawn-off shotguns do have a legitimate military use, then it should acquit Miller, and if not it should convict him. Had the lower court ever actually held that hearing, it would undoubtedly have found for Miller, but since by this time Miller was dead there was no hearing.

    That is purposivism, as I understand it.

    Milhouse (a04cc3)

  177. Re: people dying in the streets. If private charity can’t prevent this, then what makes it the government’s job to do so? Where in the Bible does it give anyone the right to force other people to save third people’s lives? Further, since both private charity and government get their money from the same place — people — why wouldn’t private charity be able to do whatever government can? The difference is only that government decides for itself what must be done, and points a gun at everyone who disagrees, while charities must persuade people that they’re right.

    Milhouse (a04cc3)

  178. Patterico, we can’t go back to the old system because it no longer exists. 0bamacare destroyed it. Those policies that people had are no longer available. And since government coercion created this problem, more government coercion is needed to solve it, because without that no insurance company is going to want to insure semeone who was healthy when they first got insured, but is sick now. So to set up the initial conditions for a free market, the government must at a minimum require that pre-existing conditions be waived for anyone who had insurance in 2010 and lost it.

    Milhouse (a04cc3)

  179. 176. …Therefore, by “arms”, the states meant only those arms that are useful in a militia, that a militia commander might want his recruits to bring and know how to use.

    That is purposivism, as I understand it.

    Milhouse (a04cc3) — 7/1/2015 @ 12:05 pm

    Frankly, I’d say it’st textualist, because the plain meaning of the text makes clear both the framers intent and purpose.

    I’d say “arms,” though covers more than just those useful to a recruit responding to a call-up. For instance:

    http://thecmp.org/cmp_sales/rifle_sales/22-target-surplus/

    The Civilian Marksmanship Program is most well known for selling MILSURP battle rifles, and is actually chartered by the government to do so. But as you can glean from the above the CMP also sells MILSURP target rifles (and occasionally pistols). You wouldn’t want to take your .22 rimfire into battle. But clearly these types of competition rifles have proven valuable for training recruits. And that’s one of the rationales for the military maintaining marksmanship units that use weapons totally unsuitable for a firefight. Because the competition itself proves valuable to the combatant, even if the rifle itself is only useful in competition.

    We could make it clearer by using the same formulation for a different purpose.

    A well informed electorate being essential to the preservation of self-government, the right of the people to keep and read books shall not be infringed

    No one would argue that the right of the people to keep and read books would extend only to books directly related to government or voting.

    Steve57 (4c9797)

  180. Frankly, I’d say it’st textualist, because the plain meaning of the text makes clear both the framers intent and purpose.

    Yes, but it allows the stated purpose to override the plain meaning of the operative clause.

    We could make it clearer by using the same formulation for a different purpose.

    A well informed electorate being essential to the preservation of self-government, the right of the people to keep and read books shall not be infringed

    No one would argue that the right of the people to keep and read books would extend only to books directly related to government or voting.

    But they might well say that it doesn’t extend to books that don’t inform people, such as those making provably false scientific statements (e.g. anti-vaxx, anti-fracking, anti-nuclear, etc.), trashy dime novels, or pr0n.

    Milhouse (a04cc3)


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