Scott Lemieux’s Challenge to Halbig/King Is His Typical Nonsense
Writing for “The Week,” my favorite punching bag Scott Lemieux claims “The Supreme Court challenge against ObamaCare is rapidly falling apart.”
Is it now.
Here is his evidence:
First of all, when read properly, the legislation is pretty clear. The statute’s definition of “an Exchange established by the State” clearly encompasses the exchanges established by the federal government on the state’s behalf.
Subsidies are available only for plans bought on exchanges “established by the state.” “The state” has a definition, and it does not include the federal government. Yet Lemieux concedes, without seeming to realize it, that in states that declined to establish exchanges, the exchanges were not “established by the state.” What were they established by? I refer you to the bolded language in the previous paragraph: they were “established by the federal government.”
Down comes the gavel. That’s the whole case, pal.
But he goes on, detailing the supposed evidence against the notion that Congress intended to write what they actually wrote. Big Piece of Evidence #1: the partisan Democrats who voted for the law now say that, never mind what they wrote, they never meant to block subsidies for federally established exchanges. “The congressional leadership that passed the ACA has rejected the idea.” Seriously, he actually thinks that is significant. I don’t know what to say except: no. No, it isn’t. Self-serving after-the-fact interpretations of a law don’t count for anything, nor should they. You’d have to be a fool to think they do.
It gets better. He actually claims, unaware that he is arguing in a circle, that you have to believe that Congress gave subsidies to the states because it’s unconstitutional to take away those subsidies without notice. No, really. That’s what he says:
Republican members of Congress also assumed the same, even after it was clear that not all states would establish their own exchanges. Numerous Republican state officials have said that they expected subsidies to be made available. (Indeed, the Cannon-Adler interpretation may be unconstitutional, since states have to be given fair notice before a federal benefit is taken away.)
That’s like me saying that, in this dispute between you and me concerning who owns the book sitting on this table, I win because if you say it’s yours, you’re taking it without permission, and it’s illegal to take books from people without permission. Some people call this “begging the question.” I call it rank stupidity.
Moving onward:
And as the government’s brief observes, the conservative dissenters in NFIB v. Sebelius — the landmark Supreme Court case that upheld ObamaCare in 2012 — were also on board with this interpretation.
This is totally false, and his link to his own blog to support this assertion is — pardon me, but there’s really no other way to say this — bullshit. His argument relies on his mushing together two utterly unrelated statements that appear 36 paragraphs apart, and pretending that they are intimately connected. I decimated the argument definitively in this post, and Lemieux should be embarrassed to raise this argument again after the spanking I gave him last time around. But he has already proven he is incapable of shame upon having his rank intellectual dishonesty revealed.
Against this mountain of evidence, Cannon first tried to use Jonathan Gruber, the consultant who in some stray comments found on YouTube seemed to suggest that the subsidies would not be made available on the federally established state exchanges. But given that Gruber himself repudiated these views both before and after the fact, this doesn’t even rise to the level of cherry-picking.
False. We know how to click links, Scott. The link cited for Gruber repudiating these views “both before and after the fact” shows Gruber repudiating the views after, but not before, the fact. Meaning it’s “compelling” evidence of a liberal giving convenient, self-serving, and implausible denials of his repeatedly expressed past statements about how the law works. Wow, I’m overwhelmed!
It just goes on and on like that. Lemieux seems to think that if he simply keeps calling Adler and Cannon “troofers” and joining with the likes of Brian Beutler to mock them, that people won’t notice that he is peddling horseshit.
But we do, Scott. We do.
I don’t really know what “The Week” is, but if they’re giving space to clowns like this guy, the site is obviously not worth the pixels used to form the nonsensical words that appear on it.
I hope the Supreme Court shoves this case right down Lemieux and Beutler’s throats.
Patterico (9c670f) — 2/3/2015 @ 10:14 pmDazzling. Does this doofus have any idea that state exchanges and federal exchanges are established under entirely different sections of the PPACA? State exchanges are established under Section 1311 of PPACA and federal exchanges are established under the fallback provision of Section 1321.
Subsidies are only available on exchanges established under Section 1311 of the law. Which by definition does not include Section 1321.
Maybe I’m not reading the law “properly.” Maybe the only way to read the law properly is to have one’s head firmly stuck inside one’s backside. Or, more likely, one’s favorite preezy’s backside.
Steve57 (8d38a0) — 2/3/2015 @ 10:41 pmThis is just prep for how the SC will rule.
The SC is not going to get in the way of how Congress wants to run,
don’t forget that these Justices have ruled that if Congress says that a
revenue bill started in the House, than it started in the House regardless if such a bill actually exists (this has nothing to do with the Ocare bill).
So , if Congress says “we meant this not that” , the SC will go along.
seeRpea (9a7f2e) — 2/3/2015 @ 10:46 pmThe SC is not going to protect Congress from its own bad legislation.
OMG,
seeRpea (9a7f2e) — 2/3/2015 @ 11:03 pmi just saw the car dash camera video of the Taiwan plane clipping a highway as it crashed into a river. How did the car driver not crash?!
seeRpea, the SCOTUS also notices election results. Also, helpfully, there’s no way to read a bill that says subsidies will be available on exchanges established under Section 1311 as including exchanges established under Section 1321. It is clear. Thee would have been a way to “properly read” the law as including federal exchanges being included under state exchanges. And that way would have been to “properly write” the law to a) establish those exchanges in the same section of the law or b) refer to both sections of the law when authorizing subsidies. But it doesn’t. It only refers to one section of the law when authorizing subsidies. The section that establishes state, not federal, exchanges.
There’s also unambiguous legislative history that shows the subsidies were only available to 1311 exchanges as a carrot and stick to compel states to establish their own exchanges. The PPACA was written to use smoke and mirrors to make it appear it reduced health care costs. When in fact those costs weren’t going down. They were just being shifted from the feds to the states. So there’s a perfectly rational explanation for not providing those subsidies to people who had to enroll in federal exchanges established under 1321 of the law. The feds didn’t want to establish any exchanges, because that meant they’d be footing the bill.
In a way, you’re right. The SCOTUS isn’t going to protect Congress from its own bad legislation. Or the Obama administration.
Steve57 (8d38a0) — 2/3/2015 @ 11:10 pmfrom Obola’s POV, the federal exchanges ARE state exchanges…
after all, “L’État, c’est moi”.
😎
redc1c4 (4db2c8) — 2/3/2015 @ 11:15 pm#5: i wouldn’t even *begin* to venture how the current SCOTUS will rule, after they held that Obolacare was a tax…
we’re far gone into bizarro-land these days, and may never find our way out.
redc1c4 (4db2c8) — 2/3/2015 @ 11:17 pmTrue, red. But it will be a stretch, even for Chief Justice Roberts, to say that Congress “clearly meant” Sections 1311 and 1321 whenever it only refers to Section 1311. Which would be the only way to claim that “when properly read” state exchanges include federal exchanges.
The only way that can possibly happen is if five justices are willing to publicly state they’re willing to trash their reputations and their dignity and don’t care that they can never be taken seriously again just to become blatant whores for this administration.
Which given the state of this Obamanation is a definite possibility.
Steve57 (8d38a0) — 2/3/2015 @ 11:28 pmIt would be like five justices writing an opinion that “four plus four equals eleventy because STFU. We have lifetime appointments.”
Steve57 (8d38a0) — 2/3/2015 @ 11:31 pm“The Week” is a centristish wannabe TIME which also publishes stuff by David Frum.
Kevin M (25bbee) — 2/3/2015 @ 11:38 pmIt would be like five justices writing an opinion that “four plus four equals eleventy because STFU. We have lifetime appointments.”
It wouldn’t be the first time.
Kevin M (25bbee) — 2/3/2015 @ 11:39 pmIs there a single legislator to be cited who stated at the time the ACA was passed that they intended to deny subsidies to the federal exchanges? Not even the amicus briefs now being filed, which include some from Republican congressmen, contain one who says, yes, that was our intention, to deny subsidies.
http://balkin.blogspot.fr/2015/02/the-amicus-briefs-supporting.html
Your argument thus devolves to the claim that the ACA should be interpreted contrary to what Congress intended. Fair enough, but if the argument is purely textual, than an interpretation that looks past a single line in a large bill would be good, and also to determine what was meant by “such” when it stated federal government could operate “such” state exchange.
Northener (162df5) — 2/3/2015 @ 11:49 pmNorthener – What’s curious to me is that even though we are dealing with two different sections of the ACA, 1311 and 1321, and your sources cite people with claims of contemporaneous understandings of what those sections meant, none of those understandings ever seem to be based on contemporaneous written evidence which seems very odd.
daleyrocks (bf33e9) — 2/3/2015 @ 11:59 pmNortherner, start reading on page 17.
http://www.cato.org/sites/cato.org/files/documents/halbig_-_adler_cannon_amicus_2.pdf
Steve57 (8d38a0) — 2/4/2015 @ 12:14 amThat would be section III “The Legislative History of the PPACA Supports the Plain Meaning of the Statutory Text.”
Steve57 (8d38a0) — 2/4/2015 @ 12:16 amI don’t know who feeds you this kind of stuff, but you should stop listening to them.
Steve57 (8d38a0) — 2/4/2015 @ 12:23 amSteve,
Thanks for the cite to p. 17 I just took a look and see that the authors rely primarily on two sources for their view of legislative intent at the time to deny subsidies to federal exchanges – a Professor Jost and the 11 House Democrats letter, from Texas.
Starting with the latter, this is the relevant portion of that letter:
Parts I have not quoted (to reduce length) speak to the Texas Democrats frustration with state operation of existing federal health programs. Taken as a whole, the letter shows that the Democrats were worried that if the state operated an exchange, it would do so badly, and not properly regulate it. There is also general concern about state exchanges being too small. Notable by its absence is a strong indication that one of the problems that would be suffered by federal back ups would be a complete lack of subsidies. The phrase cited by the brief “Texans would be no better off” does not really do that. In context it speaks to what would happen if Texas operated its own exchanges, not what would happen if they did not. Differential treatment of subsidies is not mentioned at all.
Moreover, the fact that the letter, as early as Jan. 2010, referenced anticipated state obstruction of the exchanges it tends to make the argument that “everyone expected” all the states would participate less compelling.
As for Jost – his point as quoted in the brief was only that the the state exchanges should be run by federal requirements or lose their subsidies. There was no reference to the idea that federal back up exchanges would not have subsidies.
And finally, again, noticable by absence is a single legislator from the time who states that federal back up exchanges would lose subsidies. In fact Charles Grassley, recently asked about this (and Grassley of course voted against the ACA) is reported to have said the idea was ridiculous:
http://thinkprogress.org/justice/2015/02/02/3618050/gop-senator-chuck-grassley-reportedly-called-supreme-court-case-attacking-obamacare-ridiculous/
I realize that the above quote is from a liberal website, and from someone who interviewed Grassley and not direct, but it hasn’t been denied as of yet.
Steve if you or anyone could point to any legislator in 2010 or 2009, state or federal, who stated that federal exchanges, backing up state ones, would be denied subsidies I’d be curious as I have to see it.
Northener (162df5) — 2/4/2015 @ 1:38 amThe problem is most of this country loves horseshit
mg (31009b) — 2/4/2015 @ 2:29 amIn which Max Baucus states tax credits are conditioned on states establishing their own exchanges.
http://object.cato.org/sites/cato.org/files/articles/cannon-adler-health-matrix-23.pdf
As Sen. Ensign noted, it’s outside the jurisdiction of Congress to force states to change their laws. Which was Prof. Jost’s point as well (as noted in the Adler/Cannon Amicus brief).
But as Chairman Baucus tells Ensign, taxes are within the Senate Finance Committee’s jurisdiction. And they can condition tax credits on state participation in setting up an exchange.
And of course only policies that meet the federal coverage requirements could be offered, or else no credits.
Steve57 (8d38a0) — 2/4/2015 @ 2:42 amimputing anything but whimsy and caprice to the Roberts whore court is
quixotic
extremely quixotic
happyfeet (831175) — 2/4/2015 @ 3:40 amI think the remarks by Baucus are more ambiguous than you imply and state only that the committee has jurisidiction because it involves taxes, and the “conditions” involved are relevant to states setting up exchanges that meet federal requirements – there is again no specific reference to the conditions being failure to set up at all, leading to a complete deprivation of credits.
I note that Cannon himself has admitted that these Baucus remarks, while consistent with his view of things, are also consistent with the opposing side:
http://www.forbes.com/sites/michaelcannon/2014/08/22/the-halbig-cases-changing-my-mind-on-the-baucus-ensign-colloquy/
Thus, again, we are left without any legislator from the time plainly stating there will be no subsidies on federal exchanges.
Now, as I think you noted above, there is also no legislators (that I know of) from the time stating that subsidies definitely are available on federal exchanges, though that is the memory of all who have commented since.
So you could argue I suppose that I am equally at a loss. My response is that it then resolves to a burden of proof. Given the more general goals understood among Democrats to get as close to comprehensive coverage as possible it would be peculiar to set up a system with the possibility of allowing large numbers not to be covered. Also peculiar to set up a federal default exchange system designed to fail. And peculiar to threaten states with loss of subsidies but fail to mention the threat in the ensuing years as states decided whether to set up their exchanges. You might argue that a fear of Senate state sovereignty concerns would trump everything, but as regard legislative intent anyway I think the burden is on those claiming that Congress would do these peculiar things is to point out where they said so, clearly.
You could also argue legislative history and intent are irrelevant, it’s the text that rules. I agree that’s a reasonable argument though I disagree with what a reasonable textual interpretation reveals.
And unfortunately, I have to run. Thanks for pointing out those interesting arguments and cites.
Northener (162df5) — 2/4/2015 @ 3:48 amThe federal exchanges, as set up by HHS, will be upheld. Or “not struck down” which is both different and the same thing. 6-3. Maybe 7-2. On a basis nobody can even guess at right now. All this stuff, from both sides, about Congressional intent is just foreplay to prepare you for “The Supreme Court ruled the way it did because it was the right thing to do”.
nk (dbc370) — 2/4/2015 @ 4:41 amWhy are you banging on Mario Lemieux? He’s a hockey treasure.
Just kidding.
Sven (63de94) — 2/4/2015 @ 5:17 amThis country loves horse manure.
mg (31009b) — 2/4/2015 @ 6:53 amSteve57 (8d38a0) — 2/3/2015 @ 10:41 pm
This point has been missed, or was missed earlier, by a lot of the people writing about this.
I think this is even stronger than the point that an exchange established by he federal government is not an exchange established by a state.
Sammy Finkelman (e806a6) — 2/4/2015 @ 6:53 amNow the question is: If the plaintiffs in Halbig are correct, how could Congress have written such an absurd bill? The bill is defective under the Halbig interpretation. It makes no sense.
This question is even made stronger by the fact that Congress did have a chance to correct drafting mistakes, or make other changes in the PPACA, and they did it in the budget reconciliation bill in 2010 (where you didn’t need 60 votes in the Senate) where they, for instance, got rid of the “Cornhusker kickback.”
One theory is that Congress intended to force states to establish exchanges, but miscalculated. But, in spite of Gruber’s later “explanation,” that’s simply not true.
Nor is it that they anticipated maybe a few states might not establish exchanges and that therefore the people living there might not be eligible for subsidies. The Congressional Budget Office as quite clearly told to assume every person in the 50 stats plus the District of Columbia would get them.
This is what I think it is:
They wanted to game the CBO budget scoring, and keep the net cost of the bill undr $1 trillion.
To this end, they reduced administrative costs.
That was probably the big reason actually for having state exchanges. The federa government would offload administrative costs nto the states.
If there had been any possibility that the federal government would have to operate an exchange, administrative costs for 6 or 7 years would have had to be included in the budget estimates, and that probably was/is a significant sum of money.
So they assumed, for budgetary purposes, that every state would establish an exchange! They did NOTHING to actually attempt to force a state to do so.
They knew that not every state would get cracking, so they provided for the Secretary of HHS to get the ball rolling, and establish an exchange. (The language does not appear to anticipate healthcare.goov, but rather a separate exchange that might be taken over by a state.)
That was not enough to get the CBO to raise the cost of the bill in 2010.
They did not correct the bill and make it into a rational system in 2010 because that would have meant changing the budget estimates.
They intended to correct it in the next Congress, because all the fiscal estimates would have changed by then, and they could then add administrative expenses for operating without anybody really noticing or caring.
They knew it would take some time in the 112th Congress to change the law, so they took care of things though the middle of 2011 or maybe even 2012.
But they lost control of the House of Represenatives in the 2010 election, and couldn’t do a thing to change the law!
Then, they had a big problem.
Sammy Finkelman (e806a6) — 2/4/2015 @ 7:14 amCheck out what Senator Nelson was saying at the time and ‘Cornhusker Kickback’
seeRpea (9a7f2e) — 2/4/2015 @ 7:29 amAnd, yet, I am confident that at least four Justices of the Supreme Court of the United States will use these or similar rhetorical tricks to attempt to justify a ruling consistent with Lemieux’ preferences. And indeed, my fear is that those four will also persuade Mr. Justice Kennedy to join them. (I don’t think they’ll get Mr. Chief Justice Roberts this time.)
Beldar (fa637a) — 2/4/2015 @ 8:46 amYes. I agree that the Obama administration might be able to convince our supra-legislature to provide the votes they couldn’t get once Scott Brown was elected. So they can change the language in the bill. But that would be the absurd result.
There are antecedent bills that condition individual tax credits on state compliance. In fact, the “Affordable Health Care Choices Act” (S. 1679) actually allows the HHS Secretary to revoke individual tax credits if a state falls out of compliance.
https://www.opencongress.org/bill/s1679-111/text
This bill didn’t pass into law. But there’s nothing unusual about Congress conditioning tax credits on state compliance with federal requirements. And if the state doesn’t comply, then tax credits aren’t available to individuals in their states through the feds. They’ve done it before. And the language in the PPACA is basically boilerplate. You may not get a Senator saying explicitly enough for Northener that they put that exact same language in the PPACA for exact same purpose that they said they put the same language in those preceeding bills. But so what? We know why they put that language into those proceeding bills.
To compel exactly the state compliance that they wanted before.
Steve57 (8d38a0) — 2/4/2015 @ 9:24 amIf anyone wants to check my work, that’s from “SEC. 3104. ALLOWING STATE FLEXIBILITY.”
Steve57 (8d38a0) — 2/4/2015 @ 9:27 am“To compel exactly the state compliance that they wanted before.”
Steve57 – That is the pattern of this administration, compel compliance or face adverse consequences. You found it elsewhere even within the ACA where it was ruled unconstitutional, expand Medicaid or face withholding of future funding.
It’s a suckers game for Northerner to rely on quotes from people after the fact when the impact of the plain language of the bill was pointed out and states began opting out of creating their own exchanges, saying hey, of course that’s not what we really meant. The obvious response is then that you should not have drafted it that way.
daleyrocks (bf33e9) — 2/4/2015 @ 9:40 am26. Steve57 (8d38a0) — 2/4/2015 @ 9:24 am
They didn’t need 60 votes in the Senate to correct this. They could have corrected this in the bdget reconciliation bill, because it dealt with monetary matters. They didn’t want to correct it – just then. Because that would caused the Congressional Budget Office to change its budget estimates. The way they had, almost all administrative costs were offloaded onto the states, and they could strongly underestimate what was left. There was no cost assigned to HHS actually operating finished exchanges.
They intended to amend the bill only in the next Congress. And they knew the way they had the bill wouldn’t work.
Now changing the law would take time in 2011 and 2012. So they provided an out that would carry them through most of 2012, but not further. The Secretary of HHS could get started on writing an exchange for a state. The cost of that could be folded into the set up costs in the CBO estimate. Actually running a state exchange would have bene too much for the CBO to assign a cost of zero to that.
That’s what makes most sense to me.
When was that bill proposed, and why was it dropped?
It may have been dropped precisely because that way it would be too easy for some people not to get the tax credits.
In he end they assed a bill where:
1) The CBO made the assumption that every person in the 50 states plus DC would get the tax credits
2) An assumption therefore was made every state would establish an exchange
3) Nothing was done to actually attempt to force each state to do so.
4) A substitute exchange could be written by HHS (which took you through 2012 maybe)
5) But no provision was made for HHS to operate any exchange.
Sammy Finkelman (e806a6) — 2/4/2015 @ 9:54 amI agree wholeheartedly. I also think it’s a sucker’s game for Northener to look for quotes from specific Senators contemporaneously with the passage of the PPACA on the issue of tax credits. Let me explain why.
The Obama administration is making the absurd argument when it posits that limiting tax credits only to policies purchased on state exchanges would produce an “absurd result.” Of course they intended tax credits to be available on the federal exchanges.
That’s absurd because the Senate has done exactly that before. Limit tax credits to individuals who purchased coverage (in the case of S.1679 above) in establishing and participating states. Tax credits would not have been available to individuals via the feds if the states weren’t in full compliance with federal regulations.
That’s just one example. I could cite others such as the “America’s Healthy Future Act of 2009” (S. 1796) (which passed out of committee while Baucus was chairman) that used similar statutory language for the same purpose. Provide individual tax credits only to individuals in states that complied with federal regulatory requirements. If the states the individuals lived in weren’t in compliance, they could get whatever coverage the bill was contemplating via the feds. But they couldn’t get the tax credits via the feds. Which was intended to create a popular backlash and force the states to comply.
It is such a common tactic why should anyone have commented on it at the time? Do people debate the rising of the sun as if it’s a surprise? The language wasn’t a subject of debate with the PPACA because the debate over that language and its purpose had taken place and was settled several bills prior.
Steve57 (8d38a0) — 2/4/2015 @ 10:02 amI wasn’t being argumentative. I understand fully what you’re saying.
Of course it’s the memory of all who have commented since. And you’d have to be a sucker to rely on the convenient memories of these opportunists given the plain language of the bill.
But given the routine nature of language, and the routine nature of the purpose of that language, why should anyone expect anything in the way of comment at the time?
There was so much more to talk about.
Steve57 (8d38a0) — 2/4/2015 @ 10:20 am“Which was intended to create a popular backlash and force the states to comply.”
Steve57 – Exactly, which was why with respect to the PPACA Gruber was on video boasting that they expected all states to set up exchanges to avoid that popular backlash.
Oooops.
daleyrocks (bf33e9) — 2/4/2015 @ 10:20 am“Lemieux should be embarrassed to raise this argument.” As was said of destructive rock bands, he don’t embarrass easy.
GKH (1943bf) — 2/4/2015 @ 2:50 pm