Friday, January 02, 2015

State the state

Hit and Run: "Why the Supreme Court Should Ignore Insurance Subsidy Disruption in the Obamacare Subsidies Case."  Because words mean stuff.


Principle exchanges said...

Here are some other arguments the Supreme Court would need to ignore:

“There can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously."

“The meaning of terms on the statute books ought to be determined...on the basis of which meaning is...most compatible with the surrounding body of law into which the provision must be integrated—a compatibility which, by a benign fiction, we assume Congress always has in mind...” [Disputed phraseology should be interpreted in the manner that] “does least violence to the text.”

“The fundamental canon of statutory construction [is] that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

"No interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”

All of the above words were written in past SCOTUS cases by Justice Antonin Scalia.

Will his words mean stuff?

Eric said...

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.

Gruber: Yeah, so these health-insurance Exchanges, you can go on and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.

Principle exchanges said...

Oh, we're in agreement that Justice Scalia will toss aside his "fundamental canon" like used tissue to punish the political biases of Jonathan Gruber.

Exchanges without principals said...

I agree with Scalia. [Disputed phraseology should be interpreted in the manner that] “does least violence to the text.”

Note that he doesn't say "...should be interpreted in the manner that 'does least violence to the revised strategy of the administration, post-enactment.'"

Eric said...

The main problem with the "we totes meant to do that" interpretation of the law is that - IIRC - nobody can find contemporaneous statements by the Democrats back when they were drafting the legislation saying federal subsidies would be provided if the states didn't set up exchanges. "States" were specifically defined as the 50 + D.C. Nowhere does it say "but, of course, if those states refuse, we'll still provide subsidies." Probably to continue the untenable ruse that Obamacare would be deficit-neutral.

Principle exchanges said...

Whoa, stop the presses, you agree with Scalia?!? That's like Larry's brother Darryl agreeing with Larry's other brother Darryl.

Does John Roberts agree with Scalia, now that's a question worth answering. Because this is, what, the fifth or sixth death knell for Obamacare?

While we're waiting, tell us another bedtime story about big bad judicial activists legislating from the bench, Papa.