Saturday, July 26, 2014

Intent theory

Here's Shikha Dalmia in USA Today with "Obamacare court defense crumbles."
In other words, Congress did mean to use the subsidies to overcome state resistance and pressure them to set up their own exchanges. That is precisely what the plaintiffs in Halbig asserted. Of course, Obamacare's supporters didn't anticipate that the backlash against the law would be so intense that 34 states would actually decline the subsidies, almost as an act of civil disobedience.
On Friday morning, an embarrassed Gruber insisted to The New Republic's Jonathan Cohn, "I honestly don't remember why I said that… I was speaking off-the-cuff. It was just a mistake."
IIRC from the Halbig arguments, the defendants were unable to produce a single contemporaneous piece of evidence from the original drafting of Obamacare that, sure, subsidies would be available on the Federal exchange.  To the contrary, as Jonathan Gruber explained at the time, they were meant to be a cudgel to force states into setting up their own exchanges.  Now the Administration wants to pretend differently.

Extra - From Althouse.

15 comments:

May I speak-o? said...

This whole sorry spectacle has been the funniest public episode since Obama railed against employers that pay women less than men, just like his White House does.

What an entertainingly grubby entity that Gruber has shown himself to be - totally lacking in integrity. A perfect example of corruption.

The best display may have been that MSNBC dweeb who demanded that someone show him where a legislator (as opposed to Gruber, the chief architect) acknowledged the ACA would omit subsidies in states using the federal exchange. While such evidence will undoubtedly be forthcoming, it is wholly unnecessary, and in fact the burden is on the dweeb to find legislators who were contradicting the plain language of "the law of the land."

Liberals don't want us to be a nation ruled by laws, they want us to be ruled by whatever the latest whim of their elites is. Who can blame them - that's human nature. The tragedy is if they're allowed to get away with it.

Do you have an ear for tragedy, John Roberts?

Time to bring out the phone and the pen said...

And now the acknowledgement by a legislator has surfaced. Happy, dweeb?

"During congressional debate, the bill’s lead author, Senate Finance Committee chairman Max Baucus (D-MT), explained that the bill conditions tax credits on the establishment of a state-run Exchange."

The continuing lesson in this unending series of boondogles associated with Obamacare is that, if you're going to ram through an unpopular law on a party-line vote, using subterfuge, allowing no participation by the other party, you're going to end up with a steaming pile of crap.

Clear eyes, can't lose said...

Obama ran for president touting "hope." And no one has taken that message to heart more than the GOP on undoing Obamacare.

Forget the Cornhusker Kickback, forget the throat-cramming, forget the polls, forget the various "overturnings" by half the judges, forget the Commerce Clause, forget Don Verrilli's "disastrous" Supreme Court presentation, forget the pre-ruling SCOTUS prediction, forget the 2012 election, forget the botched website, forget the insta-bad enrollment numbers, forget the fifty repeal votes, forget the Boehner lawsuit and John Roberts' treachery and the tingly impeachment spasms... this, THIS, is the one true prelude to victory.

Eric said...

Wow, look at all the comments!

Well, there's always 2016, and whomever is the Republican President after Hillary is trounced.

Now that Obama has firmly and repeatedly established the "executive discretion" to ignore whole sections of the law, the new man in charge can dismantle Obamacare by Presidential fiat. Thanks, Barack!

http://thefederalist.com/2014/02/10/obamacare-is-just-another-word-for-laws-we-ignore-together/

Prelude to victory-o said...

[Clear eyes, can't lose] Translation:

"I don't want to wade in on the actual point of the post and the comments so far (i.e., whether the law plainly cuts out the federal exchanges from tax credits), because even I know I'll make myself look ridiculous. So let me just snipe in my usual irrelevant tiresome way about those mean Republicans so I can at least distract myself from the painful reality."

Won't you keep donating to the fight to stop Obamacare? said...

Well, there's always 2016, and whomever is the Republican President after Hillary is trounced.

http://www.youtube.com/watch?v=SKm5xQyD2vE



Now that Obama has firmly and repeatedly established the "executive discretion" to ignore whole sections of the law

http://commons.wikimedia.org/wiki/File:20020109_Yoo_Delahunty_Geneva_Convention_memo.pdf



So let me just snipe in my usual irrelevant tiresome way about those mean Republicans so I can at least distract myself from the painful reality.

June 28, 2012 and November 6, 2012 were painful (for some). This is a comparative flea bite.

So you're saying that the last six years of previous "major blows" and "imminent victories" were just kidding around, but THIS time the end of Obamacare is unstoppable? And the only thing you need to make it come true is for John Roberts to overrule himself? What were you saying about reality?

Flea bite-o said...

So you're saying that the last six years of previous "major blows" and "imminent victories" were just kidding around, but THIS time the end of Obamacare is unstoppable? And the only thing you need to make it come true is for John Roberts to overrule himself? What were you saying about reality?

I'm saying I want you to opine on the topic at hand, instead of doing a furious tap dance. Does the ACA or does it not prohibit tax credits for consumers using the federal exchange instead of a state one? This is a test of your honesty and your critical thinking abilities.

It's a tap! said...

My view is the same as Scotusblog:

"Courts are required to uphold rules that reasonably resolve ambiguities in the statutes... The key point is that the challengers can win only if the ACA is clear; if not, then the administration gets to interpret it. Personally, I think that the better reading of the literal text of the law is probably that Congress limited the tax subsidies to purchases on state exchanges. But I don’t think you can fairly say that the statute’s meaning is obvious. Instead, like a lot of massive laws that include lots of compromises, it is a bit of a mess. And its context suggests the administration is actually right... Even the challengers admit that another provision of the ACA expressly refers to state-created exchanges but has to also mean the federal exchange...

On the whole, it also seems unlikely that Congress would have intended the statute to be limited just to state-created exchanges. The challengers make the plausible argument that Congress may have wanted to provide the subsidies as a carrot to encourage states to create exchanges. But there isn’t much evidence in the statute’s history to support that theory.

In any event, that carrot would work more like a nuclear bomb. It would mean that if the state refused, not only would none of its residents would receive the tax credit that is so critical to the operation of law, but that many healthy people who are critical to the functioning of the insurance marketplace would not be covered and also that none of their employers would be required to provide insurance. It is basically unheard of for Congress to turn the functioning of major national laws over to the political decisions of the states.

In the Supreme Court, those arguments are likely to carry the day in favor of a decision upholding the rule."



Does that pass your "test," professor? Do you demand the same critical thinking from this week's excitable Republican analysts with their several years of imploded "the death of Obamacare" predictions? Do you expect the same honesty from Congressmen whose basic legislative responsibilities have always included creating addenda to clarify this kind of inexact language?

It's a tap! said...

Also:
Unlike so many of this week's expert pundits, the author of the above Scotusblog column correctly called the Supreme Court's ACA ruling ahead of time in 2012.

Give them the razzle-dazzle said...

As I expected, a cop-out. Not only do you quote someone else instead of honestly expressing your own conclusion, you pick a quote that was made before it was known that both the chief architect of the law and the Senator who was its lead author had made it clear the law restricts tax credits to state exchanges. They're both doctrinaire liberals - isn't that enough to give you permission to forthrightly state that the Halbig decision was correct?

..."the death of Obamacare" predictions..."

For some reason, that is a topic you are utterly obsessed with. I haven't figured that one out yet.

Anyway, keep those feet moving. No matter what happens, keep those feet moving.

5-4, cha cha cha said...

As I expected, a cop-out.

To those who need to think that the world is bisected between a lawless "Lightbringer" and stout men of good character, sure.

Not only do you quote someone else instead of honestly expressing your own conclusion

To those who believe that they just became a self-taught deconstructionist legal expert this week because they have a few websites bookmarked, sure.

For some reason, that is a topic you are utterly obsessed with. I haven't figured that one out yet.

To those who think that having been persistently incorrect should in no way devalue a favored pundit's newest prediction, sure.



The conservatives on one court ruled no, the liberals on a second court ruled yes. For those of us who remember the Drudge Report's flashing red signal in 2011-2012 whenever a state judge declared Obamacare "unconstitutional," while burying the competing rulings affirming it, this is old hat. Especially since we're headed down the same path, and that clause is certain to be sorted out in the end by that redistributive Bolshevik, John Roberts.

Anyway, keep those feet moving. No matter what happens, keep those feet moving.

My moves are no match for Republicans who've spent years hopping from each "conclusive" ACA death knell to the next. Maybe, at long last, this flea bite is the one to the law's jugular. But I don't think so, and neither do some observers who, unlike you, were right about the law in 2012.

As for you, you bold truthseeker, what do you think about the law's opponents conceding that separate provisions in the ACA unequivocally equate state-run exchanges with federal ones? More importantly, what do you think Johnny Roberts will think about it?

Chicag-o said...

It's not about a "death knell", it's not about "unconstitutionality", it's not about "deconstructionists", except in your fevered imagination. But if you prefer to build a forest to avoid seeing a tree, it's your painful choice.

As for you, you bold truthseeker, what do you think about the law's opponents conceding that separate provisions in the ACA unequivocally equate state-run exchanges with federal ones? I'd like to meet these opponents. But more importantly, I'd like a ticket to see the fracas they would have on their hands with the earlier versions of Jonathan Gruber and Max Baucus.

My moves are no match for Republicans...You woefully underestimate yourself. In fact, I'll take the liberty to suggest something that could serve as your theme song

When You're Good to Obama, Obama's Good to You said...

It's not about a "death knell", it's not about "unconstitutionality", it's not about "deconstructionists", except in your fevered imagination.

It's not? Somebody'd better loosen George Will's bow tie before breaking that news to him. Here's his column from two months ago about the legal challenge #114 to Obamacare, the one that was certain to win - and in devastatingly ironic fashion, because the Supreme Court's 2012 penalty/tax ruling "thereby doomed the ACA."

http://www.washingtonpost.com/opinions/george-f-will-the-next-affordable-care-act-challenge/2014/05/02/c0150da8-d159-11e3-a6b1-45c4dffb85a6_story.html

P.S. The case was unanimously dismissed today.



what do you think about the law's opponents conceding that separate provisions in the ACA unequivocally equate state-run exchanges with federal ones?
I'd like to meet these opponents.

They're the same lawyers who argued and won the case before the D.C. Circuit Court of Appeals. Gosh, it's surprising their concession didn't get more play on the honest websites you've read analyzing the merits of the debate.

But - unlike the Supreme Court in 2015 - you don't really want to hear about details like that. Not when you could be enjoying the GOP's universal healthcare anthem (since you want to share mixtapes):

http://www.youtube.com/watch?v=xHash5takWU

Feet, don't fail me now! said...

Give those puppies a rest, Razz. It's over.

Pro tip: You might want to consider staying away from threads where you'll be forced to defend the indefensible.

Yes we can-can said...

The steps you should worry about are the ones in front of the Supreme Court building. Unlike the dance hall in your mind, over there it takes five to tango.

Good luck convincing John Roberts what's "indefensible."