Patterico's Pontifications


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.


Filed under: General — Patterico @ 7:34 pm


Filed under: General — Patterico @ 4:48 pm

UPDATE: As a reminder: he’s phony here too.


News Outlet Will Now Very Strictly Limit Op-Eds And Letters In Opposition To Same-Sex Marriage (ADDED: Ironic That Same News Outlet Publishes Op-Ed Scolding People For Needing Safe Spaces) UPDATE: Editor Apologizes

Filed under: General — Dana @ 6:49 pm

[guest post by Dana]

The writing is on the wall, or rather in an editorial, “The Supremes got it right – It’s no longer ‘gay marriage.’ It’s ‘marriage.’ And we’re better for it“:

On Friday, the United States crossed a similar threshold, continuing a long road to acceptance of same-sex unions.

And this news organization now crosses another threshold.

As a result of Friday’s ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage.

These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic.

We will, however, for a limited time, accept letters and op-Eds on the high court’s decision and its legal merits.

The march of progress is often slow, but it is always steady.

On Friday, the United States took another step toward the ideal of equality envisioned by its founders. And we are all more free as a result.

PennLive reaches 3.3 million readers weekly.


ADDED: Op-ed from PennLive wherein the writer identifies those needing safe spaces from dissenting views:

For myself, when I think of a university, and reflect on my personal experiences, I think of a place to interact and share ideas to become a more educated and cognizant person.

Students can enter these “safe places” to take their minds off of whatever they just saw or heard. These rooms contain items often found in daycare centers, including coloring books, bubbles, play-doh, and videos of puppies.

I may sound inconsiderate, but if you really need to blow bubbles or play with play-doh to handle a different opinion, then my suggestion would be to not attend the event, and furthermore, maybe college isn’t the place for you either.

An educational setting should be a place where people are free to express their viewpoints without fear that someone might need to relapse back to childhood in order to deal with an opinion.

These safe spaces prevent growth. If you are attending a university, then you should expect to encounter different opinions and viewpoints. If not, then in reality it is you who is small-minded.

Even if you do not go to college, there are an estimated 7 billion people in this world, 300 million in the United States alone, it’s safe to say not everyone is going to agree with you, and it’s OK.

In fact, different viewpoints and life experiences is what makes life so interesting. It’s when people try to discount one’s experience and become intolerant to different held beliefs and values that we have trouble.

UPDATE: Editor John Micek, feeling a bit of push back for his decision to censor letters and op-eds in opposition to gay marriage, apologized this morning. After citing his exultation at the decision, and then noting the reaction to his tweets and op-ed regarding the new policy of censorship, Micek tells readers:

What almost immediately followed was an object lesson in the law of unintended consequences. And, sadly, the strongly worded message included in our editorial was lost.

By day’s end, I’d received dozens of emails and several phone calls — not to mention the hundreds of comments appended to the editorial — accusing me (and this news organization) of being “fascists” opposed to both the First Amendment and the right to freedom of expression.

And those were just the polite ones.

And as I rolled it over in my head yesterday, after hearing from professional colleagues and good friends on the right and left who questioned our policy, I reached a number of conclusions:

First: No one at PennLive and The Patriot-News is an opponent of the First Amendment. It’s a right that’s foundational to us as a people. And it’s a right for which many brave and noble men and women have given their lives. And I would never trample on that legacy or dishonor their sacrifice by limiting our readers’ right to express themselves in a civil way.

Second: And I cannot stress this one enough — that’s in a civil way. More than once yesterday I was referred to as “f****t-lover,” among other slurs. And that’s the point that I was trying to make with our statement: We will not publish such slurs any more than we would publish racist, sexist or anti-Semitic speech. There are ways to intelligently discuss an issue. The use of playground insults is not among them. And they are not welcome at PennLive/The Patriot-News.

Third: I fully recognize that there are people of good conscience and of goodwill who will disagree with Friday’s high court ruling. They include philosophers and men and women of the cloth whose objections come from deeply held religious and moral convictions that are protected by the very same First Amendment that allowed me to stick my foot in my mouth on Friday. They are, and always will be, welcome in these pages, along with all others of goodwill, who seek to have an intelligent and reasoned debate on the issues of the day.

These pages, I remind myself finally, belong to the people of Central Pennsylvania. I’m a conduit, I recognize, for them to share their views and to have the arguments that make us better as a people. And all views are — and always will be — welcome.

My mom — and probably yours too — once told me what the road to hell was paved with. Yesterday, I was reminded of the truth of that lesson.

I stand with my gay and lesbian friends who, on Friday, were extended the same protections under the law that the rest of us take for granted.

But for those of you who were offended by what was intended as a very genuine attempt at fostering a civil discussion, I apologize

Which is all fine and well, but PennLive already had an established policy for commenting on its pages, so why the need to go beyond that and actually censor commentators? Unless, of course, Micek’s original reaction was entirely about Something Else other than civil speech in the comments section. In which case, that would make the apology less than noble. And would reveal a dishonest heart.

UPDATE BY PATTERICO: From Alito’s dissent:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

And newspapers.

That didn’t take long.

Terror Attacks In France And Tunisia

Filed under: General — Dana @ 10:01 am

[guest post by Dana]

A gruesome terror attack at a factory in France:

The severed head had Arabic writing scrawled across it and was found on a fence next to two jihadi banners.

Two other people were hurt in the explosion at the factory near Grenoble , said French President Francois Hollande.

The explosion in France was triggered when two attackers deliberately crashed a car into gas canisters, according to police.

One Islamist had been killed at the premises in Saint-Quentin-Fallavier, southeastern France. The main suspect, named as Yassin Salhi, 35, has been arrested.

Salhi was known to intelligence officials, and may have been radicalized.

President Hollande referred to it as “terrorism”, not “workplace violence”:

“The attack was of a terrorist nature since a body was discovered, decapitated and with inscriptions,”

Further, Interior Minister Cazeneuve, speaking from the scene, described the attack as “barbarous” and a “terrible terrorist crime”.

According to a reporter for the the Daily Telegraph:

“The person arrested was allegedly carrying a flag of the Islamic State and he said he was a member of the IS.”

This attack came shortly before “militants, feared to be from ISIS”, opened fire on sunbathers at a resort in Tunisia popular with Europeans, killing 28 people and injuring 36 others:

Witnesses said the terrorists used a jet ski and a boat to access the beach and hid their machine guns in parasols while dressed in Western clothing.

About the sole surviving gunman:

A Tunisian student, previously unknown to the security services, is the prime suspect in the massacre, Tunisia’s Secretary of State for Security, Rafik Chelly revealed.

Mr Chelly told Tunisia’s Mosaique FM radio station: ‘He is Tunisian, from the Kairouan region [in the centre of Tunisia]. He is a student. He was not known [to the security services].

‘He went to the beach, dressed like someone who is going for a swim and he had a parasol [sun umbrella] inside which he had his weapon. After he arrived at the beach, he used his weapon.’


Gay Marriage Now Legal in 50 States

Filed under: General — Patterico @ 7:43 am

5-4, Kennedy in majority, as expected.

The evisceration of originalism and textualism continues apace. Five justices can rewrite literally anything.


When The Solid Strength Of A Candidate Just Isn’t Enough

Filed under: General — Dana @ 1:09 pm

[guest post by Dana]


We should never underestimate the Democrat/American/human capacity for manufactured enthusiasm, and people persuading themselves that their preferred candidate isn’t merely the best choice among the options, but is the living, breathing embodiment of all good qualities. Hero worship, cult of personality, a refusal to acknowledge any flaws in the Great Leader . . . this habit won’t go away anytime soon, it seems.

Ain’t that the truth.

“From sea to shining sea, she’ll fight for liberty, she’s sexy and she’s strong, we’re gonna vote for Chelsea’s mom . . . ”



You Just Can’t Make This Stuff Up: At White House LGBT Pride Event, President Obama Is Heckled By Illegal Immigrant Trans-Woman Activist For Over Two Minutes Before She Is Finally Escorted Out

Filed under: General — Dana @ 7:35 pm

[guest post by Dana]

It’s crazy town at the White House. Trans-woman and illegal immigrant activist Jennicet Gutierrez heckled and hollered at the president during his LGBT Pride address today for two minutes before the Secret Service showed up to escort her out. Gutierrez is also the founder of immigrant rights group Familia TQLM, which seeks to end all deportations of LGBT detainees.

The president attempted to quiet Gutierrez, but she wouldn’t listen:

“Hey, you’re in my house. … You know what, it’s not respectful, when you get invited to somebody,” before being cut off again.

Gutierrez was finally escorted out by Secret Service agents, and continued yelling as she went out the door.

An obviously annoyed Obama commented:

“You’re not going to get a good response from me by interrupting me.”

“Shame on you, you shouldn’t be doing this,” Obama said before the crowd began chanting his name.

“As a general rule, I am just fine with a few hecklers, but not when I’m up in the house. You know what I mean?” he said, turning to Vice President Joe Biden after the woman was removed from the room. “Because, you know, my attitude is, if you’re eating the hors d’oeuvres … And drinking the booze, I know that’s right. Anyway, where was I?”

Gutierrez later posted her thoughts about the ruckus:


She later added:

‘The White House gets to make the decision whether it keeps us safe,” Gutiérrez said in the Not1MoreDeportation press release. “There is no pride in how LGBTQ and transgender immigrants are treated in this country. If the President wants to celebrate with us, he should release the LGBTQ immigrants locked up in detention centers immediately.”

Joe Biden, who was also on the stage with President Obama, was clearly, and most amusingly, frustrated.

Only in the this White House can a known illegal immigrant activist be welcomed into the White House and allowed to heckle and holler at the the President of the United States for two minutes before finally being escorted out of the room!


White House Continued To Cover Up Extent Of OPM Hack

Filed under: General — Dana @ 1:17 pm

[guest post by Dana]

In a report from today’s Wall St. Journal, we learn that the OPM hack of U.S. data may have impacted upwards of 18 million social security numbers and that the agency misrepresented the breach. This is much different than what obfuscating White House officials originally led us to believe.

Obama administration officials avoided immediately disclosing the severity of the government employee data hack by defining it as two distinct breaches, according to people familiar with the matter, in an incident that underscores the tensions within the government over what officials have described as one of the worst breaches of U.S. data.

Agents with the Federal Bureau of Investigation suspect China was behind the hack of Office of Personnel Management databases, and those hackers accessed not only personnel files but security clearance forms, which contain information that foreign intelligence agencies could use to target espionage operations, according to officials. Chinese officials have said they weren’t involved.

The administration disclosed the breach of personnel files on June 4 but not the security clearance theft. The security theft was disclosed a week later, but investigators probing the theft already knew about it.

OPM Director Katherine Archuleta is investigating the matter:

[S]he believes 4.2 million personnel records of current and former government employees were stolen as part of one breach, but she said the estimates were much less precise on the hack of background check investigations that took place over a number of years.

“It is my understanding that the 18 million [number] refers to a preliminary, unverified and approximate number of unique Social Security numbers in the background investigations data,” she said. “It is a number I am not comfortable with.”

After a heated three-hour hearing earlier this month regarding the hack – when the number being reported was only at 4 million – Rep. Jason Chaffetz (R-Utah) called for Archuleta and her chief information officer to resign given that “OPM was warned repeatedly by the agency’s inspector general to make computer security upgrades, but took too long”. It’s not like anyone will actually be fired over this egregious breach. And in spite of President Obama has making his priorities known, the White House claims he is weighing out his options in response to the hack.

On a side note: Earlier this month, Mona Charen, who writes for National Review, announced that she had received a letter from the OPM informing her that her information had been compromised. She shared her favorite part of the letter with readers

“. . . nothing in this letter should be construed as OPM or the U.S. Government accepting liability for any of the matters covered by this letter or for any other purpose.”

But of course.



The Media Just Can’t Help Themselves

Filed under: General — Dana @ 10:03 am

[guest post by Dana]

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

Promoting a story on Bobby Jindal yesterday, the Washington Post tweeted this:

“There’s not much Indian left in Bobby Jindal.”

The article itself discusses the Americanization of Piyush Bobby Jindal (naming himself after Bobby Brady from the all-white Brady Bunch), his conversion to Christianity, and infers that at a result, his cred as a “conservative of color” is questionable. Because, if “many see him as a man who has spent a lifetime distancing himself from his Indian roots” while chasing the American dream, how can he possibly be viewed as “Indian enough”?

As Allahpundit suggests, the real problem, of course, is: Jindal assimilated. He happily and willfully embraced Americanism and all its glory. It just doesn’t get much worse than this, right?

In yet another bit of race-focus nonsense, a misguided article at The Hill discussed Gov. Nikki Haley’s “shrewdly mapped play” which called for the removal of the Confederate flag, and how that prompted a GOP turnaround on the issue:

And after years of happily whistling political Dixie as part of its mad racial plan for Southern domination, the Republican Party backed away from this in an unprecedentedly humble about face.

It’s packed with tiresome claims which you can read for yourself, but as with most political and cultural issues of the day, there is an obligation to massage and spin so that race takes center-stage:

This was some very smart, very intelligent and very long-term strategic maneuvering on the part of South Carolina’s governor, a move that may have just secured her a new political life and a fresh national stage. She’s still very popular. In terms of image, she’s suddenly transformed herself into Republican Wonder Woman of color, who took a stand against racism even though the GOP hates talking about it.

(h/t JWF)


ADDED: It is certainly no coincidence that the Washington Post published their story questioning Bobby Jindal’s authenticity as a “conservative of color” just one day prior to his announcement that he is a candidate for 2016. As with Jeb Bush, Scott Walker, Marco Rubio, and now Bobby Jindal, the MSM will do all it can to portray the Republican candidates in an unfavorable light.

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