D.C. Circuit guts ObamaCare

[JollyRoger]

Actually not. The intent seems to have been to restrict this to the state exchanges. The miss was expecting 51 exchanges.

J

And that is why the statute provides for the possibility of the feds stepping in where state exchanges were not set up?

 

[onejayhawk]

And that is why the statute provides for the possibility of the feds stepping in where state exchanges were not set up?

It doesn't. Hence the ruling.

J

 

[JollyRoger]

Have you not read the statute? It most certainly provides for the Federal government to set up exchanges.

 

[BvBPL]

Plain reading should trump intent in statutory interpretation.

Context, young grasshopper.

Looking to intent first is an unworkable means to perform statutory interpretation. While the intent here may be readily understood, most issues of statutory interpretation deal with laws for whom the legislative intent is not so immediately understood. Either the law is so old that there is no working memory of what the specific intent for a specific section is or there is little if any discussion of the legislative intent. Instead, the courts should rely primarily upon what every law has: text. Statutes only require interpretation when the statute, the plain reading of the text, is unclear.

When the plain text has some aspect of ambiguity then statutory interpretation canons, such as legislative intent, come into play. To place legislative intent above plain meaning is to assume that statutes are inherently ambiguous such that they must be viewed through the lens of legislative intent, that the legislature is somehow incapable of drafting a clear statute. That’s not a workable premise for a judiciary interpreting laws passed by republican legislatures.

Laws regulate the behavior of the citizenry, which means that the citizenry must be able to comprehend the law. That comprehension must start, and should end, with the review of the statute itself. People should not be obliged to review the daily records of legislative bodies to figure out how courts will interpret the law in question.

Placing intent upon a pedestal diminishes the other canons of statutory interpretation. If intent was the core of interpretation than the rule of lenity would be meaningless, as would expression unius est exclusion alterius. These and other canons encourage legislatures to pass laws that are clear in themselves, rather than relying upon some form of extrinsic evidence.

There’s also the difficult question of who’s intent. Is the intent of the bill’s author or its sponsor that’s important, or is it the intent of the executive who signs the law? What about the intent of a legislator who voted for the bill as part of a quid pro quo so that another party will support his bill or the intent of a party who introduces a hostile amendment? In many cases, the clearest intent will be that of the party that shouts the loudest, but determining laws based upon volume is not the rule of law.

 

[onejayhawk]

Have you not read the statute? It most certainly provides for the Federal government to set up exchanges.

Yes it does. Your point?

J

 

[illram]

When the plain text has some aspect of ambiguity then statutory interpretation canons, such as legislative intent, come into play.

Which is the problem here. The law has two possible meanings over which the parties to the various lawsuits disagree. If you view one subsection of the law in isolation you can come to one conclusion. If you view the law as a whole, and understand how all the subsections of the law are supposed to work together, you come to another different conclusion.

And in a CFC off topic thread when someone says "the law was clearly intended to only do x" while basically everything says the law was intended to actually do y and z, the canons of Off Topic Internet Jurisprudence dictate that upstanding learned gentlemen are free to point out this discrepancy.

 

[warpus]

The law has two possible meanings over which the parties to the various lawsuits disagree.

When the law was being drafted, wasn't it possible to make the intent of the law clear? Don't we know what the people who passed this law intended for it to do?

Or was it just written and put together very badly or something?

 

[JollyRoger]

When the law was being drafted, wasn't it possible to make the intent of the law clear? Don't we know what the people who passed this law intended for it to do?

Or was it just written and put together very badly or something?

Most statutes contain ambiguity despite the best intentions of the legislature. The Supreme Court is pretty good about twisting this ambiguity to render an obviously wrong conclusion at least once per term. Scalia refuses to look at legislative history even when it screams the obvious, common sense result to him. He usually brings up this refusal several times per terms in the form of a concurrence or dissent. Usually breaks in a new justice with such a concurrence to an opinion written by such a justice during their first term.

 

[El_Machinae]

Actually, that language outlaws gay marriage in Texas.

Huh, I remember that thread!

 

[onejayhawk]

When the law was being drafted, wasn't it possible to make the intent of the law clear? Don't we know what the people who passed this law intended for it to do?

Or was it just written and put together very badly or something?

In that debate there was not even time to read the final draft, much less get specific about language. There was a deadline for debate. It was written in patchwork, poorly pasted together, without any attempt at internal consistency. If there is a worse pistache in the US Code I am not aware of it.

Self contradiction could be handled. This is a case where the intent is clear, but inconvenient.

J

 

[DinoDoc]

In that debate there was not even time to read the final draft, much less get specific about language. There was a deadline for debate.

The deadline was a desire to get it done before Scott Brown could get sworn in.

 

[onejayhawk]

The deadline was a desire to get it done before Scott Brown could get sworn in.

There were a lot of reasons. Public opinion was trending against the bill. There were repeated attempts to break the omnibus bill into several parts. The ability to override filibusters was slipping away. Nothing else was getting done.

Which is the problem here. The law has two possible meanings over which the parties to the various lawsuits disagree. If you view one subsection of the law in isolation you can come to one conclusion. If you view the law as a whole, and understand how all the subsections of the law are supposed to work together, you come to another different conclusion.

And in a CFC off topic thread when someone says "the law was clearly intended to only do x" while basically everything says the law was intended to actually do y and z, the canons of Off Topic Internet Jurisprudence dictate that upstanding learned gentlemen are free to point out this discrepancy.

No. The meaning is clear and what debate existed indicates the clear meaning is correct. Even taking the entire law as a whole, the meaning is unchanged.

The dispute arises because something unanticipated occurred. So there is an attempt to evade both the meaning and intent of the lawmakers.

J

 

[BvBPL]

Which is the problem here. The law has two possible meanings over which the parties to the various lawsuits disagree. If you view one subsection of the law in isolation you can come to one conclusion. If you view the law as a whole, and understand how all the subsections of the law are supposed to work together, you come to another different conclusion.

That's not the problem. The problem is that the ACA is a crappy law and the Democrats are a crappy party for being unable to pass real healthcare reform when they controlled Congress. They sat around with their thumbs so far up their posteriors that they were playing tetherball with their uvulas that when Kennedy died they had to rush to put a half-baked law into action.

If you don't want laws with two possible meanings then pass better laws.

 

[Farm Boy]

If laws are passed with only one meaning that you don't like, hire better lawyers.

 

[bhsup]

If laws are passed with only one meaning that you don't like, hire better lawyers.

Better Call Saul Sonia!

 

[Timsup2nothin]

So I finally got around to looking at this thread. Read the opening post. Haven't the time to plow through seven pages so if this is repetitious I apologize, but I have to ask the OP...

How in the heck do you inflate a circuit court overturning an IRS interpretation of an administrative rule into 'guts Obamacare'?

This ruling, if it holds, means that because the ACA specifically mentions state created exchanges as qualifying for the tax credit and did not mention the federally created exchange the IRS can't give the credit to people who use the federally created exchange. Bottom line...too bad for them, and too bad for the states with republican governors who refused to allow their citizens the benefits of creating an exchange. Hopefully those people will demand that their governors crawl into the 21st century and create a state exchange.

This will no doubt irritate a few people. It makes something close to no difference whatsoever in the big picture of the ACA. It is certainly not the 'magic bullet' that is going to make the ACA just disappear that so many members of the Republican party leadership are pretending exists.

Here's a news flash for them and everyone who listens to them...the genie doesn't fit back in the bottle. No matter how many times the republican run house wastes time passing a bill that says 'Obamacare must be repealed...well...somehow...er...uh...' it isn't going to just disappear. It has replaced the previously existing health care payment system in America, which we have all known for decades didn't really work. Even if it did work, that system isn't just sitting in a warehouse somewhere with a switch that can turn it back on. Repealing Obamacare involves creating a replacement, which is a task all the big brain republicans in congress and their idiot brethren republican governors put together couldn't do in a century.

The ACA was built on a blueprint that was kicking around for almost four decades before it got adjusted enough to be (mostly) workable. Anyone who thinks they can pop something out overnight that isn't going to blow up in all our faces is a complete imbecile. So we all better hope no one actually comes up with a way to 'gut Obamacare'.

 

[JollyRoger]

Obamacare will be gutted when single payer is passed.

 

[Timsup2nothin]

Obamacare will be gutted when single payer is passed.

I'd say that is the most likely scenario. Or vice versa. If someone actually does find the magic bullet that undoes Obamacare the only way out of the crisis that would follow is single payer.

 

[illram]

No. The meaning is clear and what debate existed indicates the clear meaning is correct. Even taking the entire law as a whole, the meaning is unchanged.

The dispute arises because something unanticipated occurred. So there is an attempt to evade both the meaning and intent of the lawmakers.

J

I do not know how you can conclude that, when (A) There are two court cases that clearly disagree over what the law means; (B) no one in Congress has said they intended to limit subsidies and mandates to state exchanges only, and debate on the bill along with the structure and language of the bill indicate otherwise; and (C) your understanding of the bill renders a significant portion of it meaningless.

This is not an unintended consequence, this is political sabotage based on an (arguably) incorrect reading of the law.

 

[DinoDoc]

Why the DC Circuit’s interpretation of the ACA in Halbig v. Burwell is far from “absurd” [updated with a response to Abbe Gluck]

In its recent controversial decision in Halbig v. Burwell, the US Court of appeals for the DC Circuit ruled that people purchasing health insurance under the Affordable Care Act are only eligible for federal tax credits if they do so through an exchange established by a state. Although the plain text of the ACA indicates that tax credits are only available to those who purchase insurance in an “[e]xchange established by the State,” many critics claim that the court should have refused to enforce this language because it creates an “absurd” result because it undermines the ACA’s goal of expanding access to health insurance.

There is indeed Supreme Court precedent stating that courts can sometimes refuse to enforce the plain meaning of a statute where doing so creates an absurd result. But, as Judge Griffith’s D.C. Circuit opinion emphasizes (quoting an earlier DC Circuit ruling), it is limited to cases where enforcement of the text would “render[ the] statute nonsensical or superfluous or . . . create an outcome so contrary to perceived social values that Congress could not have intended it.” In this case, however, the result is far from nonsensical. Indeed, the DC Circuit’s interpretation of the ACA reflects the sort of “cooperative federalism” approach that left of center academics and policy experts often praise in other contexts.

Under the DC Circuit ruling, a state’s residents can only get ACA tax credits for purchasing health insurance if their state decides to establish and operate an insurance exchange. This creates a strong incentive for state governments to create such exchanges, thereby participating in the administration of Obamacare. If they do as the federal government wants, their residents get millions of dollars in tax credits, and their insurance companies and health care providers get lots of new business. By contrast, states would have far less incentive to create their own exchanges if they can rely on the federal government to do all the administrative heavy lifting without imperiling their residents’ eligibility for federal tax credits.

Such “cooperative federalism” arrangements under which the federal government gives states incentives to administer or enforce federal programs are very common, including in the field of health care. Many conservatives and libertarians (myself included) view them with suspicion. By contrast, left of center federalism experts often praise them on a variety of grounds: they enable the federal government to make use of state officials’ local knowledge; they provide incentives for states to promote important national policy objectives; they avoid unnecessary duplication of federal and state bureaucracies; and they enable greater sensitivity to local diversity (particularly important in the health care field, where there are many complicated variations in local conditions and relevant state regulations). State-led implementation of federal programs might also enable them to operate with greater sensitivity to the needs of politically influential local constituencies, thereby building a broader base of political support for the program. Considerations like these led Peter Harkness of Governing magazine to to suggest, back in 2012, that the ACA’s reliance on state-based exchanges could make the law a cooperative federalism “model for healthy state-federal relations.”

It is not clear whether members of Congress specifically intended that exclusive reliance on state-run exchanges would promote cooperative federalism. But in order for the text of a statute to avoid absurdity, the non-absurd rationale for it doesn’t necessarily have to be found in the legislative history. And, certainly, promotion of federal-state cooperation on health care was often cited as a virtue of the Act by supporters.

Today, few liberals would say that any of the supposed benefits of federal-state cooperation are worth the potential cost of having many states where Obamacare tax credits are unavailable. But back in 2010, most ACA supporters expected that the law would be much more popular and more effective than has actually turned out to be the case. They thus expected that most states would set up their own exchanges. States that initially refused would eventually fall into line, as the ACA became even more popular and their citizens, insurers, and health care providers all suffered financial losses due to the states’ recalcitrance.

Such expectations were far from completely unreasonable. But, so far at least, things have not gone the way ACA supporters hoped. Only 14 states have fully established exchanges. Due to the law’s numerous flaws and continuing unpopularity, the ACA’s scheme of cooperative federalism has turned into a prime example of what Jessica Bulman-Pozen and Heather Gerken call “uncooperative federalism”: when state governments are given a major role in a federal program they oppose, they can sometimes undermine it by refusing to play ball.

This state of affairs is not what ACA supporters wanted. But that doesn’t change the reality that the cooperative federalism approach reflected in the text of the statute and the DC Circuit opinion is neither nonsensical nor absurd. Indeed, if things had gone according to plan, many of those who today decry Halbig would be hailing the ACA’s reliance on state-run exchanges as a shining example of cooperative federalism in action.

I recognize, of course, that the “absurdity” issue is not the only legal argument against the result in Halbig. But the absurdity claim is often put forward by critics of the decision, and has become an important part of the debate over the ruling.

UPDATE: Josh Blackman has a good post on claims that the Halbig case is based on “frivolous” arguments here.

UPDATE #2: Abbe Gluck responds to this post here. She argues that this part of the ACA cannot be a cooperative federalism scheme of the sort I describe because “nlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback: Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you.” Even if this is true, it is in no way inconsistent with my point. The fact that the feds will “step in and do it for you” if the states refuse to act does not mean that the statute can’t also include powerful incentives for states to do it for themselves. If they force the federal government to do the exchanges for them, they pay a price in the form of lost tax credits. Abbe also emphasizes the lack of an explicit statement in the statute indicating that residents of the state will lose subsidies if it fails to set up an exchange. But such an explicit statement is only required by the courts in cases where there is a conditional spending program that gives money to the states themselves. In this case, the funds are channeled to private parties.

Abbe notes that “no one thought the states wouldn’t want to run the exchanges themselves.” This point, too, does not undermine my argument even if it is true. A statute can protect against an unlikely eventuality (or, in this case, one believed to be so). Moreover, whether or not the text of a statute qualifies as “absurd” depends on whether there is a non-absurd justification for it, not on whether members of Congress happened to think of that rationale in advance. Finally, if it is indeed the case that no one thought that states would refuse to set up exchanges themselves, that’s an additional reason why limiting tax credits to exchanges set up by states is not absurd. It simply reflects ACA supporters’ unduly optimistic expectations about how states would react to the law. A law based on plausible but mistaken expectations may well be flawed. But it is not absurd.

UPDATE #3: As co-blogger Jonathan Adler reminds me, there are many cooperative federalism statutes that combine a federal fallback with penalties for states that fail to act on their own. The Clean Air Act, which Abbe suggests the ACA is analogous to, is one of them. Under it, the federal government will indeed step in if states fail to act. But those who do so lose much of their federal highway funding.

http://www.washingtonpost.com/news/...e-aca-in-halbig-v-burwell-is-far-from-absurd/