Recently, when I waded into the comments at Scott Lemieux’s place, he confronted me with proof* that the four conservative dissenters in the original ObamaCare case actually stated that subsidies were available on the federally-established exchanges. What did I think of that, he wanted to know? I responded that, obviously, they had not focused on the issue — but now, they will, and I am confident they will reach the right answer.
Lemieux seized on my comment and made it into an entire post. This is the state of conservative jurisprudence!!!! he declared, that Patterico concedes that a) the conservative justices already got it wrong, b) they are now hoist by their own petard, c) they are going to reverse themselves anyway, and d) Patterico and his ilk don’t even care!
Pretty damning, huh? Except . . .
Astute readers may have noticed the asterisk next to the word “proof” above. You see where this is going, right?
*Proof may not be actual proof.
That’s right. I f*cked up, I trusted Scott Lemieux.
Let me explain how I got snookered, and how I learned the actual truth — because the lefties love this argument, and you are going to hear it again and again.
Here is how Lemieux characterized the dissent:
Do you know who else disputes Petterico’s risible theory? [Who’s Petterico? — P] Justices Scalia, Kennedy, Thomas, and Alito: “By contrast, because Congress thought that some States might decline federal funding for the operation of a ‘health benefit exchange,’ Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” As even the Sebelius dissenters understood, “[d]ifficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”
Wow. It sure looks like the dissenters have already said that subsidies are available on the federal exchanges.
I saw that language, and I had even read through his link to his source: a POLITICO piece by Abbe Gluck (cached link here; no links for bullies!). And I had seen a recent Jon Adler piece that seemed to respond to Gluck, and did not seem to take issue with her claim.
Here’s what I did not do, to my shame: I did not question Lemieux’s premise. I did not go back and read the joint dissent.
Today, I did. Twice. And it turns out that the juxtaposition of the quotes above seems to prove a point that it actually does not.
Read the quote again. The juxtaposition is actually quite cleverly done. First, Lemieux (taking his cue from Prof. Gluck) quotes the dissenters talking about the existence of a federal backstop: the provision for the establishment of federal exchanges if states do not set up a state exchange:
[I]f a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.
Then, having just read about Congress’s provision for a federal exchange, we dive straight into this quote:
Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations.
Obviously, “the exchange” is a reference to “the federal exchange” — or that’s what Lemieux wants you to think, since he puts this quote right after one about federal exchanges. This impression seems to be confirmed by the next sentence, which is about federal subsidies: “Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges…”
The implication is clear: there exist federal subsidies for plans bought on those federal exchanges.
I admit, it seemed troubling that the conservatives had said this.
So today, I finally sat down to read the dissent to see how all this fit together. And it turns out that those quotes Lemieux smooshes together are actually quite separated — they are in different sections and have nothing whatever to do with each other.
First I saw the language about the existence of a federal backstop. Although Lemieux had argued that this was all an integral part of their “severability” discussion, the language about the federal backstop appears in a section about the Medicaid expansion, in section IV.E.2. The second part of Lemieux’s quote above appears in the section on severability, in part V.C.1.c. In between the two quotes are parts IV.F, as well as parts V.A, V.B, and parts V.C.1.a and V.C.1.b. I count at least 36 paragraphs in between the two quotes.
OK, so they’re separate, and indeed part of different discussions. So what?
Well, here’s the thing. When, in the second part of the quote, the dissenters talk about “federal subsidies” — they aren’t necessarily talking about subsidies on federal exchanges. This is so even though Lemieux’s juxtaposition makes it sound that way.
Think about it: all ObamaCare subsidies, including those offered on state-established exchanges, are “federal subsidies.” They are subsidies offered by the federal government, using the mechanism of the federal tax credit, against federal taxes. Calling them “federal” does not mean that they are subsidies available on federal exchanges. They are just federal subsidies, because, they are.
Now, I will grant Lemieux and his brethren this: the dissent does argue that subsidies are integral to the scheme. Perhaps Lemieux & Co. will be surprised by this concession — but they shouldn’t be, and their surprise indicates why they don’t really understand our position. Lemieux & Co. argue, and the dissenters agree, that the law essentially set up a “three-legged stool” of (1) “guaranteed issue” (where insurance companies must issue coverage to those with pre-existing conditions); (2) the mandate; and (3) subsidies. The government maintains that the basic idea of the law called for all three legs of the stool. Now, the Halbig court noted that Congress did not always mandate that all three legs of the stool be present; for example, in the territories, they omitted the mandate! But the joint dissent does accept the premise that, in general, Congress intends for all three legs of the stool to be present.
So why doesn’t that answer the question? Because there are two alternate explanations that are perfectly consistent with this:
(1) There is plenty of evidence (which Lemieux hackishly dismisses with unconvincing arguments) that the President and Congress and everyone else assumed that all the states would set up their own exchanges, and that the federal backstop would not be used. If the states all did this, every citizen eligible for a subsidy would get one. The problem is, the lawmakers made a bad assumption about what the states would do. That’s possibility number one.
Then we have:
(2) Even though many and perhaps even most of the people who voted for the law may have assumed that they wrote in language providing for subsidies for plans bought on federally established exchanges, they . . . just never put it in there.
I think either of these explanations is both perfectly plausible, and consistent with a ruling that the subsidies are not available.
Lemieux & Co. seem to think the second argument means the plaintiffs lose. They think this is the “Moops” argument: like the famous Seinfeld episode in which the bubble boy tells George that he loses the trivia game because the card says the “Moops” invaded Spain in the 8th century, this is a clear “typo” and OBAMA WINS NO TAKEBACKS!!!!!1!!
Not so fast, Sparky! The analogy does not hold. Because “Moors” vs. “Moops” is a factual question, and there is only one right answer. But in a question of statutory interpretation, we are talking about the “intent” of a group of very different people, many of whom may have been thinking different things.
And if even one of the Senators didn’t mean exactly what Lemieux & Co. think they have to have meant, then there weren’t 60 votes for this interpretation of the law.
Again, as I have explained here many times, it is a fool’s errand to try to discern an “intent” from a text that is the collective product of a legislative body. If you go through the collective beliefs of the Senators who voted for the law on this issue, at the moment they voted, it might look something like this:
* People who believed subsidies were available on federally established exchanges: 17
* People who believed subsidies were not available on federally established exchanges, like it says in the law: 3
* People who don’t even know what a federal exchange even is, but who sure hope this vote doesn’t hurt their chances of re-election: 35
* People wondering what they are going to have for lunch: 5
There’s really just no way to know. And that’s why you go with the text. Because that’s the only fair way to reach a ruling as to what the law means: what would a reasonable observer take it to mean?
So, Scott Lemieux, I withdraw my response to your question, because I now realize that your premise was misleading. Given the incredible sophistry you were displaying in that thread, I am frankly shocked that I wasn’t more suspicious of your presentation. But I was.
I hope this post keeps others from being even temporarily fooled the way I was.