News Flash

Published

on June 26, 2015

in Current Events, Law, Policy, Politics and Rants

. 43 Comments

Today, the Supreme Court ruled that the president of the United States can do any damn thing he wants to, regardless of the law. Where were these guys when Nixon needed them?

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43 Responses to “News Flash”

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1 1 Dan Abrams
June 26, 2015 at 7:51 am

Mr. Landsburg,

Im a fan of your books and even if I disagree with your politics from time to time, I usually think it well thought.

But how you or anyone could take this interpretation of The ACA and treat it as authentic is beyond me.

We all knew the laws intent in 2009, the people who wrote it and voted on it are still mostly alive to tell you what they meant. And the interpretation of this section that partisans have manufactured out of thin air is nonsensical. It requires the kind of literalism found in the classic children’s books, The Stupids. Meanwhile, any reasonable person would read the same passage and come to the same conclusion that 6 Supreme Court justices came to, including The Chief Justice, a republican appointee.

The idea that the supreme has said that laws don’t matter, that the president can do whatever he wants is as intellectually dishonest and as willfully ignorant of the history and purpose of the judicial branch in the U.S. System as calling the President a secret Muslim is ridiculous.
2 2 nobody.really
June 26, 2015 at 9:58 am

Oh spare us.

The 2d Amendment reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” But in District of Columbia v. Heller, Scalia tells us that this means exactly the opposite of what it says: The rights of the people to keep and bear arms can be infringed — but only those arm that might be relevant to a militia. If you want a handgun, go crazy.

So for Scalia to now whimper about “plain meaning” is just pathetic.
3 3 khodge
June 26, 2015 at 12:03 pm

Point of clarification: Yesterday the Supreme Court ruled that the President of the United States can do any damn thing he wants (King vs Burwell). Today (gay marriage) the Supreme Court ruled that you need to cherry pick courts and Justices if you want to be ruled by the Judiciary branch rather than by the Legislative branch.
4 4 William
June 26, 2015 at 1:39 pm

@nobody.really:

Which part of Scalia’s opinion in District of Columbia v. Heller are you referring to?
5 5 ben
June 26, 2015 at 1:58 pm

Can you please write a followup post justifying your views from this post? I am not very familiar with the issues here, and would like you to elaborate some more. Thank you.
6 6 nobody.really
June 26, 2015 at 2:38 pm

Which part of Scalia’s opinion in District of Columbia v. Heller are you referring to?

See District of Columbia v. Heller at 55-56, 64:

“It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

* * *

We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table.”

Yeah, like … any infringements. If you embrace plain meaning, you conclude that the right of the people to keep and bear arms shall not be infringed. No infringements at all. None. Zero. Zip. A bazooka in every garage; a shoulder-launched missile in every pot.

The obvious shortcomings of this conclusion has precluded anyone embracing a plain-language argument here for decades. So Scalia will have to forgive us if we can but snort at his sudden argent embrace of plain language interpretations.
7 7 RJ
June 26, 2015 at 2:49 pm

A++ for the elaboration. What exactly is it about the Obergefell v. Hodges case that implies the president can do what he wants? Marry Joe Biden?

Or are you talking about King v. Burwell?
8 8 William
June 27, 2015 at 10:37 am

@nobody.really

Thanks. But since Scalia decided against this particular infringement of second amendment rights, it seems odd to hold the opinion against him in this case. In other words, if he had adopted the “plain meaning” test in DC v. Heller, he would have reached the same conclusion.

I am not taking a position on whether Scalia uses plain meaning when it allows him to reach the conclusion he wants and ignores it otherwise, but the Heller decision doesn’t seem to support your case.
9 9 Steve Landsburg
June 28, 2015 at 1:56 pm

DanAbrams:

the people who wrote it and voted on it are still mostly alive to tell you what they meant.

Yes, but they might have little incentive to tell you truthfully. They said to the states: “Set up these exchanges or we’ll cut off your subsidies.” The states called their bluff and refused to set up exchanges. When you make a threat, and the threat is not taken seriously, you have every incentive to claim you never meant it.

Don’t forget these are the same people who quite deliberately wrote in an analogous threat regarding Medicaid funding. We know they were in that threatening sort of mode.

There is, I think, absolutely nothing to be said for a policy that allows the president to ignore the law that was actually passed and to implement instead some other law that he would have preferred to pass.

Clearly this ruling was a good thing for the Republicans, and I am (half-heartedly) inclined to think that therefore, in the short run (say the next ten years), it’s a good thing for the country. But in the longer run, I fear we will look back at this ruling as the final nail in the coffin of the rule of law.
10 10 nobody.really
June 29, 2015 at 10:27 am

But since Scalia decided against this particular infringement of second amendment rights, it seems odd to hold the opinion against him in this case.

See District of Columbia v. Heller at 1:

“JUSTICE SCALIA delivered the opinion of the Court.”

That is, all the language I quoted from the Court decision @6 came from Scalia.
11 11 nobody.really
June 29, 2015 at 10:59 am

1. I agree that the interpretation articulated by Landsburg @9 is a plausible one. But just not the most plausible.

I sense people with a keen sense for game theory often develop an exaggerated sense that others have the same qualities, and that all simple oversights are actually parts of grand conspiracies. But as Goethe, observed in The Sorrows of Young Werther, “Misunderstandings and neglect occasion more mischief in the world than even malice and wickedness. At all events, the two latter are of less frequent occurrence.”

Or as Heinlein remarked in Logic of Empire, “You have attributed conditions to villainy that simply result from stupidity.”

As the Court majority found, there’s language in the bill that is hard to reconcile with Landsburg’s interpretation. And there are plenty of quotes from officials and commentors, contemporaneous with the bill’s adoption, interpreting the bill in precisely the way the Court did. So at most the Court would have found the bill ambiguous, and thus the IRS’s rules would have been entitled to deference under the Chevron doctrine.

That outcome would have differed from the Court’s actual decision by granting President Hillary’s IRS Commissioner the opportunity to re-interpret the issue in 2017. Kinda hard to get excited about the importance of fighting for a principle when there’s so little hanging on the outcome.

2. I also agree with Landsburg that the Court’s decision will almost certainly have electoral benefits for Republicans.

Had the decision gone the other way, we’d be subjected to endless human interest stories about people losing their chemotherapy treatments and relapsing into cancer because they lost their subsidies, juxtaposed with quotes from Republican politicians dithering, claiming to have a legislative fix “any day now”, and blaming Obama. And those efforts would be nearly as successful as their efforts to blame Obama for the government shut-down.

Face it: Republicans are already depicted as Scrooges in the media. This would feed that narrative in spades. Landsburg may find Scrooge a laudable figure, but outside this blog that has proven to be a minority view. And just as during the government shut-down, Republicans would eventually buckle and implement a legislative patch to Obamacare.

Instead, we can look forward to years of Republicans crowing about how bad the bill is and what a great bill they’ll pass to replace it “any day now….”
12 12 Ken
June 29, 2015 at 12:02 pm

Dan Abrams,

“But how you or anyone could take this interpretation of The ACA and treat it as authentic is beyond me.”

The law quite clearly stated that subsidies will only be given to people using exchanges established by states. There’s no other way to read it.

“We all knew the laws intent in 2009, the people who wrote it and voted on it are still mostly alive to tell you what they meant.”

Yes. The intent was to force states into establishing exchanges by denying the citizens of states that did not set up exchanges subsidies. Dr. Gruber explicitly said this time and again. Dr. Gruber is the main architect of the ACA, still alive, with many videos explaining the purpose of the subsidies is the exact opposite of what SCOTUS declared.

Additionally, claiming that law should be enforced based on “intent”, rather than the clear meaning of the text of a law, renders written law meaningless, as you can project whatever intent you want onto any text.

“And the interpretation of this section that partisans have manufactured out of thin air is nonsensical.”

The text in question: “the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act” Sec. 1401 (b)(2)(A).

Note the “AND which were enrolled in through an Exchange established by the State under 1311″, meaning one of the conditions to receive the subsidies was to be “enrolled in through an Exchange established by the State under 1311”.

As your comment makes clear, you side with the “nonsensical” “partisan” who disregard the plain English when it suits them.

“Meanwhile, any reasonable person would read the same passage and come to the same conclusion that 6 Supreme Court justices came to, including The Chief Justice, a republican appointee.”

Only a fool would claim this. Literally all reasonable people who read “and which were enrolled in through an Exchange established by the State under 1311” as meaning just that.

“The idea that the supreme has said that laws don’t matter, that the president can do whatever he wants is as intellectually dishonest”

As your comment makes clear, being called “intellectually dishonest” by someone as clearly intellectually dishonest as you doesn’t really carry that much weight.
13 13 Harold
June 29, 2015 at 12:28 pm

Does it come down to whether the Federal Govt. intended the whitholding of subsidies to be a stick with which to beat the States into submitting – i.e. setting up exchanges, or whether the Govt. always intended to subsidise federal exchanges, and just massively messed up the drafting of the legislation?
14 14 Steve Landsburg
June 29, 2015 at 6:05 pm

Harold: In a better world it might come down to that. In the world we live in, it is impossible to know what the intent was, and therefore we can either a) adopt a rule that says we’ll go with what’s written or b) adopt a rule that says the president gets to do whatever he wants. I prefer a).
15 15 Harold
June 30, 2015 at 5:41 am

From my outside perspective, we do need some room for interpretation – in fact we must always interpret. The default should be with the most obvious interpretation, but this sometimnes throws up contradictions between two obvious interpretations, meaning one of the more obvious interpretations must be wrong, and require re-interpretation.

In this case the apparent contradiction (I think) is that those in a Federal exchange not receiving subsidy goes against the main intent of the bill.

However, there is a plausible reason why the obvious interpretation throws up an apparent contradiction. That is that the Fed presumed all states would set up exchanges if the carrot of subsidy were witheld if they did not. This may not be the case, but it is plausible. There is therefore no absolute requirement to re-interpret the plain english meaning of the bill.

Or, to put it another way, the bill had a double intent: to persuade the States to set up exchanges and therefore to provide subsidies.

This means that the bill itself is badly intended, as one intent (provision of subsidies) is dependent on the other (that the States set up exchanges) – which is not certain.

My very uninformed opinion is not the same as the majority opinion of the court. They may have presumed the “double intent” formulation was so absurd that it is very unlikely to be true.
16 16 Alan Gunn
June 30, 2015 at 7:42 pm

“In a better world it might come down to that. In the world we live in, it is impossible to know what the intent was, and therefore we can either a) adopt a rule that says we’ll go with what’s written or b) adopt a rule that says the president gets to do whatever he wants. I prefer a).”

If those were the only choices, I’d prefer a as well. But they aren’t. We have a long tradition of letting administrative agencies resolve ambiguities like the one in the ACA by adopting regulations, and of allowing an apparent lack of fit between statutory language and the purpose of an act to create an ambiguity. We also have a strong and consistently applied bar to using after-the-fact statements of people who worked on or voted on a law about what they meant to have any weight whatever, so Gruber doesn’t count, legally. So, if the intent isn’t clear (and I don’t think it was, in this case), the agency decides. I detest the ACA as much as anyone, but this is how we’ve done things for seventy or eighty years: Congress throws together sloppily worded legislation and the appropriate agency fixes it up by issuing regulations. It would probably be better if we didn’t do it that way, but there’s really nothing new here.
17 17 Daniel
July 1, 2015 at 4:20 pm

I think the “plain language” argument is a ridiculous bastardazation of congress’s intent even in the language of the law. Why even craft federal exchanges at all if they have exactly no purpose? Kagan’s logical interpretation in oral arguments was the only way the language fit together in any reasonable interpretation of the law. Paraphrasing here but her logic goes, If I tell Bill to write a memo, and I tell Jim to edit Bill’s memo, then I Jane to step in to write the memo if Bill is unable, should Jim still edit the memo even though it is no longer technically Bill’s memo? Any person with any ability to abstract even the teensiest of bits will realize that of course Jim should edit the memo. It would be a dereliction of duty for anyone to behave otherwise. Let’s assume now that we can not go with the only reasonable interpretation of the law. Since Roberts had already said that it was an unconstitional reach to withhold medicaid funding with a threat, how could he then come back and say that it was not an unconstitional threat to death spiral an insurance market if they do not comply?
18 18 Daniel
July 1, 2015 at 4:34 pm

Also, the Suprem court did not issue a ruling allowing interpretation of the law, they specifically issued a ruling concurring with the interpretation of the law. So for example if a president attempted to interpret the law with the meaning that the plantiffs had inferred then it would have been an incorrect interpretation under this ruling, so your interpretation of the decision is wrong on that front as well.

Also, it’s not even hard to tbink of an interpretation of 1311 that makes it ambiguous in meaning. Each State still has it’s own exchange (since different plans are offered on the federal exchanges based on States. So the federal exchanges are still technically State exchanhes in a sense, just established by the federal government.
19 19 Jimbino
July 2, 2015 at 11:03 am

SCOTUS consists of 6 Roman Catholics and 3 Jews. None of the current members have undertaken advanced studies in STEM or economics. All were humanities majors.
20 20 Ron G
July 3, 2015 at 2:09 pm

What I’ve learned from Obama’s tenure (not only from the ACA court case) is that, as Steven says, the President can do any damn thing he wants to. This is scary. Look what Obama is doing by giving a pass to illegal immigrants and suspending the enforcement of our immigration laws (in violation of his oath of office), recognizing on his own the Cuban dictatorship (while getting nothing in return for the Cuban people), more than doubling the national debt to $18 trillion ($154,000 per US taxpayer) and even his latest gambit of unilaterally granting the opportunity for overtime pay to 5 million more workers (at the expense of small businesspeople, many of whom will go out of business if they have to absorb this significant new cost at the expense of growing their businesses). From the last Bush to George Washington, we had Presidents who were constrained by history, precedent and shared values but Obama’s only guiding principle is to do whatever he feels like. Obama hasn’t a clue about economics which is why he ignores the implications of the ACA’s 30 hour workweek which cut US employment significantly; today our labor participation rate is around 63% (the same as in 1977) which means that approximately 93,000,000 people here who could work do not participate in the labor force. It surprised me to learn that our system of government contains no effective controls over Executive Branch overreach. OK, you can bring a lawsuit but in the years it takes for a final court decision, the President has a free hand. Congressional checks will be vetoed by the President and his lap dog Democrats in the House and Senate assure a veto cannot be overridden. A free press also used to be an effective check on Presidential power but the liberal media looks the other way when it comes to Obama’s excesses. We are in a place I never thought we’d get to while enablers on the Left rejoice at this breakdown of civil society. The only way to cure this is to elect someone who understands US history and the severe consequences of unlawful executive conduct and who agrees to be bound by the Constitution. That person is certainly not Hillary Clinton.
21 21 iceman
July 6, 2015 at 2:11 pm

#18 – “the federal exchanges are still technically State exchanges in a sense, just established by the federal government”
#12 – “The law quite clearly stated that subsidies will only be given to people using exchanges established by states”
Hmmm

#17 — don’t totally understand your last point, I’ll just note that withholding Medicaid funding is a fact; “death spiraling” a particular insurance market is a theory (and I tend to think a weak one).

WRT all the comparisons to the 2nd amendment, maybe some meanings are plainer than others?
22 22 iceman
July 6, 2015 at 2:13 pm

Oh also on #17, I don’t see why creating an (unsubsidized) federal exchange would serve no purpose — unless you’re warning us that the subsidies will in fact be permanent?
23 23 Harold
July 7, 2015 at 5:38 am

#17 Regarding Bill’s memo, the issue here seems to be whether you tell Jane to write Bill’s memo, or whether you tell Jane to write a memo.
24 24 Daniel
July 7, 2015 at 12:26 pm

Harold (23),

Please! They are clearly referring to bill’s memo:

directly from the decision:
If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same.

They’re clearly talking about the same exchange here.

Iceman,

And we’ve tried guaranteed issue without subsidies before and it ends in always death spiral of the insurance market (see New York’s community rating law and the aftermath (for individuals, obviously those who have insurance through employer’s would be unharmed). Parts of the law explain the three legged stool argument and so without subsidies it was clear that the intention of congress would have been to death spiral the individual insurance market. The kind of threat the supreme court found unconstitutional in the previous case on the ACA. This is also why an unsubsidized federal exchange would serve no purpose, because of the death spiral.

And “established by the state” could mean that in deferring they choose to establish the exchange through the federal government. Still ambiguous.
25 25 Ken B
July 7, 2015 at 3:17 pm

This might be the first time I agree with Steve on a post about the supreme court. The majority even admitted they were ignoring the normal meaning of the words.
26 26 Daniel
July 7, 2015 at 3:52 pm

@ Ken B,

So I suppose you skimmed the majorities decision and didn’t read it in full did you? If you read, then you would know that the majority made clear that the most natural meaning of the words makes exactly 0 sense in the context of the law, and therefore unnatural meanings must be considered. With the meaning interpreted by the administration and by the majority in the Supreme court given to that sentence the law reads without contradiction when it comes to who gets subsidies and therefore is the only viable interpretation of that statute.
27 27 Advo
July 8, 2015 at 10:07 am

First of all, shocking as this may be to non-jurists, the courts straightening out idiotic phrasing of laws and in some cases even going against the clear letter is not exactly a new development.
At least not in German jurisprudence, but I suspect that US legislators aren’t any more skilled than German ones, and so I would be surprised if the courts didn’t follow the same practice.
In particular because the US is a common law country, where a lot of law is actually judge-made.

In this particular case, whatever Gruber might have intended with the law, Congress CLEARLY envisioned the subsidies to apply to all exchanges when it passed the law. How do we know that? Because at the time the ACA was passed, there was absolutely ZERO discussion of the federally established exchanges not getting tax credits. And that would have been a very important issue, don’t you think? As the court notes in its judgement, without the tax credits, the system doesn’t work, and it’s not difficult to understand why. If Congress had intended to in effect limit Obamacare to states which established their own exchanges, there would have been public discussion. There wasn’t. Not even a peep.
Legislative intent in this case is absolutely clear. This is a drafting error, and the court is under no obligation to blow up a law just because of an obvious drafting error. Things could be different if a plaintiff relies on the erroneous text in good faith and if he has a legitimate interest in the erroneous version prevailing. This would be the case if a law for example grants tax credits erroneously and a plaintiff makes financial dispositions in reliance on the erroneous text in good faith.
Nothing like this applies in this case. The plaintiff had no legitimate interest in other people not being granted tax credits.
28 28 Advo
July 8, 2015 at 10:11 am

SL:

Yes, but they might have little incentive to tell you truthfully. They said to the states: “Set up these exchanges or we’ll cut off your subsidies.

No, they didn’t. That’s the point. There is absolutely no indication that at the time the ACA was passed anyone thought that the tax credits wouldn’t apply to federally established exchanges. Don’t you think there would have been some public discussion of this issue at the time?
29 29 Ken
July 8, 2015 at 3:53 pm

Daniel (@25),

“If you read, then you would know that the majority made clear that the most natural meaning of the words makes exactly 0 sense in the context of the law”

Except that it makes perfect sense in the context of the law. The entire purpose of it, as clearly explained by the ACA architect Dr. Jonathan Gruber, is to punish the states for not setting up the exchange. In other words, the “unnatural meaning” you speak so kindly of is utterly wrong and contemptuous of Americans who can read and listen.

“therefore is the only viable interpretation of that statute.”

Clearly, you are wrong.
30 30 Ken
July 8, 2015 at 3:59 pm

Advo,

“Congress CLEARLY envisioned the subsidies to apply to all exchanges when it passed the law”

Of course, it’s not clear at all. The federal government has routinely witheld federal funds from states it taxed in order to coerce those states into following the rules the federal government wants it to follow.

“How do we know that? Because at the time the ACA was passed, there was absolutely ZERO discussion of the federally established exchanges not getting tax credits.”

The reason there was “ZERO discussion” is because the language was clear and the intent was clear: deny states tax credits unless they set up exchanges, in order to coerce them into setting up exchanges.

“If Congress had intended to in effect limit Obamacare to states which established their own exchanges, there would have been public discussion.”

This is laughably untrue. You can keep saying it, though, if it makes you feel better.

“This is a drafting error”

This is just an assumption on your part and one that is clearly wrong based on what the architect of the bill was actually saying.

“The plaintiff had no legitimate interest in other people not being granted tax credits.”

This is patently and so naively false that I can only conclude that you are lying through your teeth. The entire purpose of denying states subsidies for not setting up exchanges was to politically damage those states resisting the imposition of Obamacare. This political gamble blew up in their face as a LOT of states flipped the federal government the bird by kowtowing to this obvious coercion, making it obvious the political games that Obama, Reid, and Pelosi played. When the politics went sideways for the democrats, they lied, knowing dishonest partisans like you would flack for them.

“There is absolutely no indication that at the time the ACA was passed anyone thought that the tax credits wouldn’t apply to federally established exchanges.”

Except for, you know, the law as it was written.
31 31 Ken B
July 8, 2015 at 5:33 pm

Daniel
It makes perfect sense in the context of the law. It was meant as part of a carrot and a stick. This is unarguable. And there is no ambiguity either; the law has a section defining what is meant by a State. So the majority’s decision is either foolish or dishonest.
32 32 RPLong
July 8, 2015 at 5:44 pm

Part of what I find disappointing is that whenever one voices an opinion critical of the ACA, one is often met with counter-objections to the tune of, “But Republicans…!” It is almost as though one cannot oppose both the ACA and Republicans. This puts me in an odd position, because it seems to suggest that my own set of opinions does not exist; but I have reason to believe that they do, because I think them. :)

The other part of what I find disappointing is that so much of the rationale in favor of the ACA starts from the desired result and works backwards. As Landsburg rightly points out, this is a threat to the principle of Rule of Law, which has served democracy well for a long time. I’d hate to see it just go *poof*.
33 33 Ken B
July 8, 2015 at 6:04 pm

@RPL
You think negative thoughts about *both* ACA and Republicans?? That s a nasty case of split personality you got there!

;)
34 34 Advo
July 9, 2015 at 2:57 pm

@KenB,

the legislators who voted on the act did definitely NOT mean it to be a carrot-and-stick thing.
If they had, this would appear SOMEWHERE in public discussion. It didn’t. When the law was passed, nobody was aware of this issue.
35 35 Daniel
July 9, 2015 at 3:14 pm

@Ken B,
Agree with Advo. Right, the fact that you think this is quite nonsensical. The sentence of the law that makes that you suppose makes this threat isn’t even addressed to States, and therefore congress would have been hiding a mountain in a molehill. They tend not to do so since this has been found unconstitutional in the past. No, what congress meant by this sentence was that private exchanges would not be given subsidies.

“the law has a section defining what is meant by a State.”

AND? State is used in a lot of different contexts in this law. Unless they defined “Established by the State” then you really don’t have a case on this front. States still take action in establishing an exchange in deciding not to create their own exchange, the federal government is acting as a proxy to establish the exchange on the State’s behalf. Again, not the most natural reading, but still a reading that makes sense given the rest of the laws purpose to is to expand coverage. You’re going to have to tell me what OTHER part of the law makes more sense with your reading instead of the Supreme Court’s for me to take your argument seriously.
36 36 iceman
July 9, 2015 at 3:21 pm

24 & 27 – If we’re ok with inferring that states that didn’t set up exchanges were merely “deferring” to the federal exchange, then we are indeed saying it is whatever the president says it is.

At least in the US, courts are supposed to interpret laws, not what legislators really wanted to pass IF they could have passed it that way. IMO this was even more egregious in the “wink it’s really a tax” case. That’s too much of a gift, and really a slap in the face of the electorate. This has also become a constitutional concern involving regulatory legislation so vague it effectively delegates law writing to unelected regulators (e.g. what is a pollutant at what levels?). The key point is that unchecked, politicians have every incentive to use ambiguity as a pretext under which they can appear to support something while absolving themselves of the consequences (“I didn’t intend for them to do THAT”). For that reason IMO it’s best to send back even just overly sloppy language and make legislators do it right.

24 – I thought the death spiral theory was a reason we needed the ACA in the first place. I’m happy if we’re figuring out community pooling is the real precondition – can’t let anyone opt out or it falls apart.
37 37 RPLong
July 9, 2015 at 4:13 pm

@ Advo (#32)

Does your point hold muster? I mean, we have legislators on record as saying that they have to pass the bill in order to find out what’s in it. So this means that these people couldn’t have meant what is implied by the language of the bill, because they hadn’t read the bill at all when it was being debated! Thus, not only do we not have public record of the debate, it would be impossible for us to have such record because the legislature can’t have intentions about a bill they didn’t read!

But if that’s where we are in the debate, then think about what this must mean for your position. It means that they “clearly” didn’t mean what the bill says because they never read it. My cynicism is at an all-time high!
38 38 Daniel
July 10, 2015 at 12:24 am

@Iceman,

No, no, no, the reason we needed the ACA was so that we wouldn’t have to exclude people with pre-existing conditions from the individual market. For that we do need community rating and at least subsidies. With community rating (which King v Burwell did not dispute) but without the subsidies would death spiral an insurance market, get it?
39 39 iceman
July 13, 2015 at 1:44 pm

Like I said, community rating is prerequisite for a death spiral. Everyone understands that guaranteed issue required an individual mandate – technically you could just force people to participate rather than bribe them. My understanding was the subsidies attempted to make this more palatable during a transition period but were not meant to be permanent?

Writers like Noah Feldman were literally arguing that uninsured / healthy people deprive others of a public good. But insurers can only differentiate to a point at which there will be different risk pools (priced accordingly). Obviously politicians find that a rich target to demagogue about non-existent rights.

The fact is once we’re talking about pre-existing conditions we’re not really talking about insurance. We could probably all agree on having a true public option (responsibly defined) for people who aren’t insurable or otherwise can’t afford health care. Sadly that approach seems to be too honest and transparent (and doesn’t have all that much to do with insurance per se). Or we can scapegoat insurers and pretend community rating isn’t just redistribution.
40 40 Daniel
July 13, 2015 at 3:28 pm

@ iceman,

I agree, community rating is prerequisite for a death spiral, but I think the advantages to community rating (with subsidies) out-way the costs. Also, I never argued that community rating isn’t redistribution, and I have never scapegoated insurers. I think community rating is entirely redistribution from the rich and healthy to the sick and poor, and I have never argued otherwise. I’m also entirely in favor of this redistribution for the following reason:

The problem is, we don’t know exactly when we’re going to be sick, and humans have a poor track record for predicting such things. So at least on that dichotomy, the sick/healthy part, we have a fundamental behavioral problem. It makes much more sense to me, to make people pay what they can afford in all time periods in their life cycle, rather than having an emergency option as you suggest when they default into ill health and poverty (as an inevitable percentage of people will). I think that sums up our fundamental disagreement correct?
41 41 Daniel
July 13, 2015 at 3:32 pm

@iceman,

And the subsidies were always meant to be permanent, I have no idea where you’re getting this idea that they are temporary from. There is a certain middle section that don’t fall into Medicaid, and can’t afford healthcare on their own that will always require subsidies in order to afford health insurance (a lot of people get subsidized through their employer’s tax break on health expenses pre-Obamacare). I need a citation to evaluate your statement further.
42 42 iceman
July 16, 2015 at 5:38 pm

Sorry for delay…we’re straying from the post now…I think it’s also interesting that 4 justices apparently feel the EPA does not need to consider costs of regulation at all? (That was the headline anyway)

On ACA broadly, I know you didn’t say those things, and I’m glad you don’t think them…but they are a big part of the sales pitch.
Here’s what I think: the fact we don’t know when we’ll be sick is why most people buy insurance. Some can’t afford even basic coverage, which is why we created Medicaid.
But the federal programs are (clearly) insolvent, IMO primarily because it’s politically difficult to set responsible parameters on them.
So I think much of the appeal of ACA and community pooling in general is it makes the redistribution less transparent.
Unfortunately that also gets us into the business of telling some people they’re not buying ‘enough’ insurance (e.g. catastrophic plans are more in line with the role of insurance in other applications, and an actual way to reduce healthcare costs).
And of course some people were choosing not to buy insurance because actuarially speaking they are clear subsidy payers.
To me forcing people to buy something is a sad day for the American experiment. Sad in part because we’re not willing to deal with a legitimate moral obligation more openly and honestly (and with fiscal responsibility)

P.S. I did think there was transitional subsidization e.g. for people who were facing a big jump in premiums, but maybe I’m mistaken on that
P.P.S. Technically I would say for health insurance through work it’s the employer who’s subsidized via the tax deductibility. The employee benefits to the extent the overall compensation package is slightly larger due to the tax effect. As I’m sure you know many have proposed an alternative way of ‘leveling the playing field’ by granting a tax deduction for individual policies as well, which was a viable policy option more consistent with freedom of choice.
43 43 Daniel
July 27, 2015 at 9:24 am

Clearly insolvent? I just think you’re living in a different world than I am.

http://krugman.blogs.nytimes.com/2015/07/26/the-disappearing-entitlements-crisis/?module=BlogPost-Title&version=Blog%20Main&contentCollection=Opinion&action=Click&pgtype=Blogs&region=Body

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