Genius Halbig Opponents: We Can Prove the Subsidies Existed All Along, with This Argument: First, Assume the Subsidies Existed All Along. And Then . . .
You think I’m kidding, right? Yeah, well, I’m not:
Of the many pro-Obamacare arguments that government lawyers are making to save the law from the Supreme Court, one stands out as particularly tailored to winning the crucial vote of Justice Anthony Kennedy.
The argument is about federalism, long a guiding light for the Reagan-appointed jurist whose vote both sides are working to win in King v. Burwell, a case before the Court that threatens to blow a hole in Obamacare.
“There’s no question that Justice Kennedy regards federalism as a central value in the Constitution,” Michael C. Dorf, a law professor at Cornell University and former clerk for the justice, told TPM in an email. “Accordingly, he typically votes to sustain challenges to very expansive views of federal power.”
Specifically, the law’s defenders say it would violate states’ rights for Obamacare to deny subsidies for residents of some three-dozen states without a clear warning. Nowhere in the law were states told that eligibility for premium tax credits would hinge on them setting up state-run exchanges, as opposed to letting the federal government handle it.
Remember: these are the same people who mock Jonathan Adler as a “Halbig twoofer” — a term of derision designed to suggest Adler’s arguments are so stupid that they are similar to the views of people who think our government was behind 9/11. And yet these people all argue, in a herd, that you can’t “deny” something that was never authorized to begin with, without a “clear warning” that the provision you never authorized, was never authorized.
This “argument” ignores what seems to me to be a very, very simple point: the subsidies were never authorized. It can’t be unconstitutional to “take them away” — because they were never authorized to begin with.
Put another way: the argument attempts to prove that the subsidies really existed all along, by first assuming they were there all along, and then arguing that, if you assume they were there all along, it is illegal to take them away — therefore they must have been there all along.
You see what is happening there, right? They are assuming the very thing they are trying to prove. In dismantling a Scott Lemieux post recently, I made this point briefly and in passing, saying:
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.
This has nothing whatsoever to do with “federalism” — and anyone concerned about federalism will be consoled by the fact that the states can establish their own exchanges any time they like.
Anthony Kennedy will not be fooled. These people are truly desperate. And pathetic. Honestly: these arguments are just pathetic.