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Delivering Due Deference

PPACA LogoBack in March, I did a substantial summary of the briefs and issues in today’s case of King v. Burwell, so bear with me while I quote liberally from it in the interests of getting past the setup, and on to the opinion. I suspect that this case will have the most direct impact on the greatest number of Americans of any case on the Supreme Court’s docket this term. (In the long run, the Congressional districting case may have the greatest indirect effect as it potentially changes the wiring of Congress, but that’s something that wouldn’t be seen in practice for another seven years at least. This case directly and immediately affects 13.4 million Americans buying their health insurance through Obamacare, and, if the Federal government’s briefs are to be believed, every American who buys or uses health insurance.)

 

Exchanges and Subsidies

The Patient Protection and Affordable Care Act of 2010 (aka in other contexts “PPACA,” “ACA,” or “Obamacare”) does, among other things, require all Americans to have health insurance. If an individual does not get health insurance as part of a compensation package for employment, Medicare, or Medicaid, they must either purchase insurance out of pocket or pay a special tax.

In order to make health insurance affordable and easy to get, states are encouraged by PPACA to set up “exchanges,” which are state-administered insurance markets where it is easy to find policies. Having this done at the state level was thought to be much more practical than a unified Federal exchange. This is because the nuts and bolts of how the insurance policies work, in particular what they cover and what benefits are provided, are linked strongly to Medicare Medicaid. (Note that Medicare Medicaid is also administered by the several states rather than by the Federal government — in part for the legally arcane reason that health care and insurance regulation are traditionally state functions, and in part for the practical reason that different geographic areas of the country face different health care challenges and different economic conditions.)

Obamacare photo

Anti-PPACA protestor.
Photo by Tim Pierce Delivering Due Deference

Because there was a lot of partisan-aligned opposition to PPACA, many states chose not to create these exchanges at all. The Constitutional principle of federalism is such that Congress did not even attempt to compel the states to create their own markets; Congress believed (probably correctly) that the extent of its power to cause the states to do this was to persuade and incentivize the states to do it. State-created exchanges were classified under section 1311 of PPACA. Still not all the states opted in, for what seem to be political reasons. Knowing in advance that there was no way to be sure that all states would opt in to the system, PPACA authorized the IRS to establish a Federal exchange which would be available to citizens who wished to purchase insurance but whose states had not created exchanges, under section 1321 of PPACA.

Obamacare photo

Pro-PPACA demonstrators.
Photo by LaDawna’s pics Delivering Due Deference

In theory, the premiums for the policies are supposed to be subsidized by the Federal government, such that no one ought to pay more than 7% 8% of one’s annual income on health insurance premiums. The subsidies come in the form of tax credits, and are authorized by section 1311 of the ACA, and codified at 26 U.S.C. § 36B. Also, the penalty for not having insurance comes in the form of a tax penalty. Thus, the IRS is the organ of the Federal government that implements this facet of PPACA to individual citizens.

The precise statutory language at issue in the case, which actually describes the sliding-scale amount of the subsidy, is found in subsection (b)(2) of that statute:

(2) Premium assistance amount
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—
(A) 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, or
(B) the excess (if any) of—
(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over
(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.

Despite this language indicating that subsidies extend to insurance purchased through the various State exchanges, the IRS interpreted PPACA to extend those subsidies to insurance purchased through the Federal exchange as well. As you can see by examining the statute, there is no language that directly authorizes the IRS to do this.

 

The King of Literal Textual Interpretation

One state that declined to create an exchange, and thus opted out of the PPACA system, is the Commonwealth of Virginia. Mr. King and his fellow plaintiffs describe themselves as citizens of Virginia who do not wish to purchase health insurance at all. Their incomes are such that were they to purchase health insurance on an exchange, they would have been eligible for the subsidy described in the quoted statute above; however, because they are Virginians, and Virginia is an “opt-out” state with no exchange of its own, they contended that the IRS had no statutory authority to grant them subsidies. Their argument was that because the subsidy offered to them was illegal, they would ultimately have been liable for the tax penalty:

Critically, the Act only subsidizes coverage through an Exchange established by a state. It provides that a credit “shall be allowed” in a certain “amount,” 26 U.S.C. § 36B(a), based on the number of “coverage months of the taxpayer occurring during the taxable year,” id. § 36B(b)(1). A “coverage month” is a month during which “the taxpayer … is covered by a qualified health plan … enrolled in through an Exchange established by the State under section 1311of the [ACA].” Id.§ 36B(c)(2)(A)(i) (emphasis added). Unless the citizen buys coverage through a state-established Exchange, he has no “coverage months” and so no subsidy. Confirming that, the subsidy for any particular “coverage month” is based on premiums for coverage that was “enrolled in through an Exchange established by the State under [§] 1311 of the [ACA].” Id. § 36B(b)(2)(A).

There is no legitimate way to construe the phrase “an Exchange established by the State under section 1311” to include one “established by HHS under section 1321.” Congress expressly contemplated both state-established Exchanges (in the first instance) and HHS-established Exchanges (if states refused to establish their own); because it specifically singled out for subsidies one type, and only one type, courts must give effect to that plain language. (Petitioner’s Opening Brief, pg. 3, 11, empahses in original).

Against this, the Government responded, in essence, that the subsidies were part of an intricate and carefully-structured plan. If the subsidies were taken away, it would set in motion a readily-predictable chain of events leading to health insurance costs rising out of the reach of all but the most very wealthy, resulting in an end state with millions of fewer Americans having health insurance than before PPACA was enacted. The Government’s briefs called this a “death spiral.”

Further, the government points out that in virtually every other section of PPACA, the Federal exchange is not differentiated from the state exchanges. There is a bit of rhetorical chicanery in the brief suggesting that states like Virginia “opted to have HHS [create an exchange] in their place,” which in my mind substantially misrepresents what was really going on politically in the wake of Congress’ passage of PPACA. Still, the point that King’s interpretation of the scope of subsidies would force the entire statutory scheme to collapse is a pretty powerful one. (And, let’s be clear here, causing PPACA to collapse was the real objective of this lawsuit, not some request for clarity about an obscure point of tax law.)

 

Reading Statutes For Text and Context

Back in March when the case went to oral arguments, I noted that a very different case yielded a non-ideological cleavage between the Justice in modes of statutory interpretation that seemed like it would be relevant in today’s case.

Very briefly, Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor signed on to a mode of statutory analysis digging deeply into the legislative history of a law to interpret an ambiguous term in it. Another bloc of Justices, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, and Elena Kagan took a more direct reading of the base definition of the words themselves, less context-driven. The ninth Justice, Samuel Alito, went his own way, finding definition of the ambiguous wording based not on the statutory context but rather in the context of the other words and concepts directly in the statute. Still a more narrow focus on the words themselves, but a smidge broader than interpreting the words in isolation.

Obscure stuff. But interesting because the cleavage in modes of statutory analysis broke away from the traditional “liberal versus conservative” cleavages the media leads people to expect in highly political Supreme Court decisions.

Chief Justice John Roberts photo

Caricature of Chief Justice John Roberts by DonkeyHotey Delivering Due Deference

The voting in King v. Burwell today resulted in what appears to me to be Justices Kennedy and Kagan deviating from the narrow definitional focus they used in Yates earlier this Term, joining their Brethren in a read-the-statute-in-its-overall-context level of analysis. That doesn’t mean that they didn’t have to go through some gyrations. The majority opinion And the majority opinion criticizes Congress for what it politely describes as “more than a few examples of inartful drafting,” resulting in no small part from unorthodox means used to create the law and seeming negligence on the part of certain Members of Congress in enacting it. Slip op. at 14-15. And it concedes that King’s arguments concerning the plain meaning of 26 USC § 36B are strong. Slip op. at 20.

But the majority rejects those arguments because to do so would interpret the statute in a way that thwarts rather than advances Congress’ statutory scheme in passing the law. Id. at 20-21. So the broad focus of the statutory scheme urged by the Government, the argument that if this part of the law is removed the entire rest of the statute (which was unchallenged) would come tumbling down after it, was essentially adopted by the majority in toto:

[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. [¶] Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. Slip op. at 21.

The more particular focus on the words used, with the premise that Congress must be presumed to know what it was doing when it used certain words when others were readily available, was the basis of the dissent. Scalia’s dissent calls the majority’s interpretation of the statute “absurd,” and accuses its twenty-one pages of intellectual gyrations ineffective to explain that absurdity away. Dissent slip op. at 1. The acid pen of the Justice from Queens goes on: the majority

…accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Ante, at 21. [¶]
I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them. Dissent slip op. at 3 (emphases in original).

Pointing out that “No law pursues just one purpose at all costs, and no statutory scheme encompasses just one element,” dissent slip op. at 15, Scalia insists that when the plain meaning of a phrase is readily apparent, the Court should stop trying to second-guess Congress and leave corrections of mistakes made in drafting a law to Congress rather than step in as a super-Legislature.

 

What About The IRS Interpreting The Law?

Personally, I would have found that the plaintiffs lacked standing to sue. A subsidy is a benefit, not an injury, and refusing to do what is necessary to get the subsidy would result in a tax. Liability for payment of taxes does not an injury under well-established Federal law. United States v. Richardson (1974) 418 U.S. 166, 172. Basically, I’d have told the plaintiffs, “You don’t want to buy health insurance? Fine, the PPACA doesn’t actually say that you have to. Now go away and pay your taxes.”

That probably wasn’t ever realistically going to be the basis for deciding the case, particularly given that the Government didn’t challenge the plaintiffs’ standing to sue, leaving the issue unbriefed. And perhaps that’s prudent on the part of the Court: that might have deferred resolution of the issue but it was certain to come back one day, given the vagaries of politics, and the later in the game a decision that might have aborted PPACA came, the more political capital the Court would have to expend in the event that’s how a merits decision came down.

But I did think that the real basis for resolution of the case would be Chevron deference. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 842–843, the Court articulated a doctrine that when a governmental agency adopts a reasonable interpretation of an ambiguous statute, the Court will defer to the administrative agency’s interpretation. That seemed to me to be precisely what we were looking at here: in context, the law is silent as to whether Federally-purchased policies are eligible for the subsidy, and there are strong clues from the remainder of the statutory scheme that they ought to be, so granting the tax credit seems a pretty reasonable approach.

But not a single member of the Court subscribed to Chevron deference here:

Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. This is not a case for the IRS. Slip op. at 8, citations omitted.

Scalia’s dissent doesn’t even mention Chevron deference at all. Why should he? His reasoning is that the text of the statute is clear and unambiguous, not susceptible to interpretation by anyone. Instead, he winds up by recalling to the Court’s decision in National Federation of Independent Business v. Sebelius, which he also called unprincipled and wrongly-decided, and accuses the majority of “playing favorites” and doing “somersaults” to preserve laws that the majority particularly likes. He stops just short of calling the majority intellectually dishonest (he predicts this decision will be one of many that will cause “confusion of honest jurisprudence,” dissent slip op. at 21).

But I don’t think the majority is being intellectually dishonest. The statute is silent about whether federally-purchased insurance policies can be subsidized. And a fair reading of the statute as a whole, both respecting its broad and predictable effects and with an understanding of its legislative history, demonstrate that this silence was at worst an inadvertent oversight on the part of harried staffers. When a statute is silent, the Court can breathe meaning into it. This isn’t being a super-legislature, it’s pronouncing the law and resolving an ambiguity.

Colorful as it is, Scalia’s sour language is a reflection of an attitude reminiscent of sour grapes: the Court did its job, not to save Congress’ laws or to save the President’s political legacy, but because to have reached a contrary conclusion would have rendered a substantial piece of legislation a nullity. Reasonably interpreting a lacuna in the law is a proper function for a court, and doing so in a way that makes legislation effective is preferable from a judicial modesty perspective to setting in motion a chain of events that unravels that which a Legislature hath wrought, however inexpertly or ill-advisedly. King’s argument was a cynical word game intended to reach a result far broader and more overtly politically aimed than the purported remedy sought, and the Court was right to not play along with it.

So, due deference to Congress required no less than today’s decision, and the narrow focus Scalia would have urged would ultimately have been a higher degree of judicial activism than that of which he accuses his Brethren of indulging. I would have concurred in the Court’s judgment.

 

Feature Image Credit: Office of the Architect of the Capitol. No copyright on U.S. Government works. Top image: compilation of three creative commons images sourced from wikimedia commons (Rod of Asclepius, Federal coat of arms, and United States currency), created by author.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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91 thoughts on “Delivering Due Deference

  1. And the majority opinion criticizes Congress for what it politely describes as “more than a few examples of inartful drafting,” resulting in no small part from unorthodox means used to create the law and seeming negligence on the part of certain Members of Congress in enacting it. Slip op. at 14-15.

    Atsa what I said. The whole-a thing was just a slip-op.

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    • “And the majority opinion criticizes Congress for what it politely describes as “more than a few examples of inartful drafting,” resulting in no small part from unorthodox means used to create the law and seeming negligence on the part of certain Members of Congress in enacting it. Slip op. at 14-15. ”

      It’s an amazing piece of language to be used by a court. The politics of passage were, of course unusual (due the GOP’s 100% obstruction), but not unorthodox, and certainly not legally unorthodox.

      As for ‘seeming negligence on the part of certain Members of Congress in enacting it’ (meaning that there are problems with the text), please find me a similar law which doesn’t.

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      • Medicare is a purely federal program. The states have never had anything to do with it. In terms of determining what private insurance is inclined to cover, Medicare didn’t cover prescription drugs until a decade ago (Part D), and that addition was done because Medicare was so out of line/date with private insurance (and current medical practice).

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          • is right.

            The sentence reads: “This is because the nuts and bolts of how the insurance policies work, in particular what they cover and what benefits are provided, are linked strongly to Medicare. (Note that Medicare is also administered by the several states rather than by the Federal government — in part for the legally arcane reason that health care and insurance regulation are traditionally state functions, and in part for the practical reason that different geographic areas of the country face different health care challenges and different economic conditions.)”

            The first use of Medicare is valid, but the second is not, unless I’m missing something. Medicare is a federal program, administered through Social Security and intended to cover the elderly and those with certain conditions such as renal disease; there is negligible difference in it from state to state.

            Medicaid, on the other hand, is administered by states and varies considerably from state to state. It’s designed to cover the poor and disabled. Who gets coverage varies considerably from state to state and usually reflects political ideology. PPACA attempted to enforce new mandates on each state’s administration of medicaid, which, for some reason, no one anticipated SCOTUS to shoot down.

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        • I had a chance to pause for breath here at my day job and dug down a bit. is absolutely correct here, and the OP was in error. I have revised the OP to reflect the correct state of affairs, and to clean up two other issues (the “affordability” threshold is 8% of annual income, not 7% as originally posted, and I left a danging clause unedited about halfway through). Regrets for the errors and thank you for pointing them out.

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          • The threshold is somewhat more complicated than that. My wife and I spend more than 8% of our household income on our share of the premium for the company-supplemented retiree health insurance that covers the two of us. But because our share of the premium for me alone is less than 8% of household income, we don’t qualify to shop on the exchange. If the cost for me alone goes over 8%, then we have the option to shop on the exchange and to reduce our total to 8%; in effect, her coverage would become free. We have quite a bit of control over our total income for the time being (withdrawals from a large IRA rather than a fixed pension; long story). It’s all rather bizarre, but I keep a spreadsheet because it’s possible that next year we’ll be able to reduce our gross income slightly but reduce the cost of insurance by a larger amount.

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  2. I’m so relieved. I think the opposite outcome might have been enough of an economic shock to send us back into recession. Not to mention the millions of families that would have lost a small vestige of financial security that didn’t have two years ago.

    I wonder, in the wake of this decision, followed by several other high-profile decisions where leaving the ‘intent’ of legislation (and the discretion to executive rule making), we’re going to see more legislation that doesn’t spell out specifics so that unpalatable stuff can get done. The classic example here would be the contraceptive mandate — a line in the law that instructs implementing agencies to include health-care services for women that have traditionally gone unmet, without actually spelling out ‘birth control.’ I’ve argued vehemently for this as a good thing. But I do understand that it’s a path that opens the door for the ruling party to establish their notion of the content that fills in the vague brushstroke, and some future GOP-led government is as likely to write similar legislation to accomplish things I don’t like without my being aware of it until after the fact.

    I’m not certain here if this is old hat, or I’m just more aware; that Chevron exists suggests its perhaps old and business as usual. Is this so?

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    • Yeah; I mean, allowing the Executive Branch to just make stuff up because they’re sure that it’s totally what Congress meant allows quite a lot, really.

      Like, “sure, we *know* that Congress passed a law saying ‘no collection of domestic communications’. But…surely ‘domestic’ means American citizens contacting each other directly, through methods and equipment entirely operating in American territory, right? I mean, we can collect foreign persons’ communications all day long. And if someone is sending email to their friend in Yemen, we can collect that since it’s out of the country. And…”

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    • That is a very common way to do things (hence Chevron). In Chevron, congress basically told states with bad air to figure out why, and left it at that. The EPA then put together a ton of regulations implementing Congress’ legislative goal. Chevron sued to say there was no authority for those regulations.

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  3. The question I have is whether this will be the last of the challenges to the ACA or will the opponents find a new way to challenge the law.

    This is one of the “too many Veto points” in our government. The opposition to Obamacare is drive by a sincere (and IMO misguided) opposition to the Welfare State (even the smallest bit of one) as being incompatible with liberty and small government. They are probably right on the small government part. I think they are dead wrong on the liberty part.

    We still have a lot of people who are willing to spend lots of money and time on repealing any and all welfare state provisions including the entire New Deal.

    Political commentators are noting that not bringing up the Chevron Deference means that GOP politicians and Presidential hopefuls can’t campaign on coming up with a different interpretation. Meaning the subsidies are permanent unless we get a GOP Pres and 2/3 majority GOP Congress to defund the entire thing and repeal.

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    • As I’ve noted elsewhere, my own speculation is that the fix was in on this case from the beginning and that Roberts and the liberal wing are the ones who pulled it up from the Appeals Court prematurely (not that we’ll ever know for sure). For the express purpose of nailing things down so that further challenges in the courts get slapped down as quickly as possible.

      I don’t disagree with Brother Burt’s analysis that either standing or Chevron should have been the basis for a decision. I simply think the majority had its own goal and that standing/Chevron were not suitable tools for accomplishing those.

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      • I’m sure that as long as Adler breathes, he will continue to fight the good fight.

        Although honestly, his FIRST tilt was bad enough. This second one was shameful. I’m terrified as to what legal theory will inform his third tilt at the windmill.

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    • “The question I have is whether this will be the last of the challenges to the ACA or will the opponents find a new way to challenge the law.”

      Of course they will. But presumably they have fired their best shots. If there were some argument that was compelling on purely legal grounds, the opponents would have brought it up long ago. The Court has shown its unwillingness to tear down the ACA just because. So all that is left is the shouting, which will last until the day before the right wing claims that ACA was its idea all along.

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      • Their best shot was the Broccoli argument. This one, if you stripped it of partisan context, was much worse. (And, as noted, an own goal. As SCOTUS has no explicitly ruled that the subsidies are integral to the law, and not a matter of IRS discretion.).

        I believe the newest lawsuit concept is pretty hilarious, in that it’s over the White House spending money on something Congress explicitly authorized but never funded, so the White House dug the funds out elsewhere after Congress failed to foot the bill.

        The hilarity is that, even if the President was legally wrong to spend that money — the people who GOT the money would have a slam dunk case against Congress, as they are legally owed that money. (And by “people” I mean “insurance companies” by which I mean “have lawyers on retainer and no problems suing”.

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    • There may be more challenges but the longer the law lasts the stronger it gets. Also, frankly, I’m of the opinion they’ve already thrown the worst they can at it. This case was itself pretty out there. I’m of the opinion that the ACA goes down now only via a new act of Congress.

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      • ‘There may be more challenges but the longer the law lasts the stronger it gets. ”

        Yes, that’s why it was so important to pass it to find out what was in it. After all, it’s easier to ask forgiveness than permission.

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        • An amusing catchphrase but meaningless in content. Perhaps if the GOP had wished to contribute to the debate on the ACA they could have read it and made suggestions rather than voting in lockstep opposition. They tried for all the marbles, they lost, now if they want to undo it they need a similar electoral majority. That’s how the game works.

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      • You are probably right.

        I was just musing about social aspects of American politics and why so many are opposed to any form of welfare state and willing to spend inordinate amounts of time and effort against it. Lee points out that European conservatives made peace with the welfare state in ways that seem impossible in the U.S.

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          • Its because European conservatism has a different origin point than American conservatism. European conservatism comes from the aristocratic tradition. Part of the aristocratic tradition has always been the concept of noblesse oblige. The nobility, at least in theory, was to see to the care of the common people physically. Its easy to come to peace with the welfare state from an aristocratic tradition.

            American conservatism does not come from the aristocratic tradition. It comes more from a sturdy yeoman tradition where the ideal was the individual on his own property earning a living by his own effort. Any sort of collectivism goes against this.

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            • Eh, I don’t know about this. Social legislation started to appear in European countries long before any socialist party could win elections or exercise power. Bismarck’s social legislation in 1880’s Germany was a good example of this. At least a few European conservative parties thought that they needed to co-opt socialism by introducing socialism light since the late 19th century. The conservatives in the democratic or democratic-esque governments outside of Europe made no such attempt at co-option.

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  4. It’s gonna be hella funny watching all the people who insist that “well-regulated militia” has a specific meaning and is meant to be taken literally tell us that “established by the state” is actually referring to government generically, rather than the specific American definition of “state” which is how it’s used everywhere else in the ACA.

    It seems like this whole business could have been handled by Congress passing a law that said “the text in question is hereby amended to read…” and then putting in the proper drafting. Is there a reason why that didn’t happen? (I mean, is there a law or precedent saying that Congress isn’t allowed to rewrite legislation that’s currently being discussed in a Supreme Court case?)

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    • The normal place to clean up drafting errors like this one is conference committee. The PPACA never went through a conference committee because Scott Brown (R) was elected to replace Ted Kennedy and the revised bill would have died by filibuster in the Senate. So would any simple bill to make the statutory change. Some of the Republicans presently in Congress have indicated that they would vote for a bill with the fix, but only if it also eliminates the individual mandate. Such a bill would either die by Democratic filibuster in the Senate, or be vetoed by President Obama.

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    • Basically DD the GOP indicated that the only way they would allow any correction was if said correction also eviscerated the law. So politically it was absolutely not going to pass unless, maybe, if the court decided against the law and then there were hordes of angry voters with torches who had lost their insurance outside of the congresscritters doors (and maybe not even then).

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    • The only connection with these two cases is that people with strong liberal alignments (like me!) come out differently on both than you do.

      Here, there was no serious argument that congress meant to restrict subsidies and conflicting interpretations on whether isolated language did so. This was an obvious outcome.

      On the second amendment, there is no serious debate (that I know of) that the founders were motivated by the fact that the UK disarmed colonists to enforce their rule. That said, there is a question about what “well regulated militia” means and how to apply the whole thing in a world with whole categories of weapons the founders could never have imagined.

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  5. I think there’s an error in the OP:

    In the section “Reading Statutes For Text and Context”, there is the text:

    That doesn’t mean that they didn’t have to go through some gyrations. The majority opinion And the majority opinion criticizes Congress for what it politely describes as “more than a few examples of inartful drafting,”

    The second sentence seems like it’s missing a part.

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  6. I do have to congratulate you on going through the entire post without once mentioning Gruber.

    As for the opinion, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

    But the thing is, if the IRS hadn’t been giving subsidies then we wouldn’t BE HERE today. The plaintiff’s argument was that it had been wrong all along, that Congress did not intended for taxes paid by citizens in Exchange states to go to citizens in non-Exchange states as subsidies.

    The problem with saying “maybe this was wrong but it’s how the agency interpreted it so we’re just gonna go with it” is that the Court explicitly rejected that reasoning by not considering Chevron.

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    • And people can go on and on Gruber without mentioning everybody else involved disagreed with what he said. Nobody, or did anything written, back up what he said. Nor did Gruber have, what i believe they call, a vote.

      But Gruber!!!

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      • I’ve said this before, but I’ve met guys like Gruber a hundred times. They’re brought in purely for their technical skills. They might have some influence outside their specific focus by pointing out inconsistencies or optimizations, but it’s purely on the margins. Afterward, they act as if they were major policy makers, and refer to all the actual movers and shakers (whom they might or might not have been introduced to once) by their first names.

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    • Gruber misspoke once. There’s no relevance to anything.

      The IRS did that because it was told to by congress, and everyone always understood that the law would include that instruction. Had the IRS refused, it would have been sued and would have lost.

      You’re right about Chevron. The court held that the ACA provides the relevant authority, not that the IRS reasonably thought it did.

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    • So we’ve established that what people say about a law at the time it’s written and passed doesn’t matter, and neither does the text itself; the only thing that counts is how the regulatory bureaucracy puts into effect what it believes is the actual intent of the law.

      In other words, we have to pass the bill to find out what’s in it.

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      • (I should know better than this.)

        Actually, we’ve established precisely the opposite. The Court followed a long-established line of cases that hold that courts are to give effect to the overall intent of the statutory scheme. In other words, we have to read the bill — as a whole — to find out what’s in it.

        (If you think this was bad, you should take a look at some of the opinions about major environmental legislation, especially CERCLA.)

        Or, put another way, the Court showed appropriate deference to the role of the legislature in drafting complex litigation.

        (Please note that the Court expressly did not give any weight to the actions of the regulatory bureaucracy; it decided that it, not the IRS, was the appropriate authority to interpret the statute.)

        Very nice post, counselor.

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      • Correction DD, we’ve established what -one- person, cherry picked out of many people said on -one- occasion, cherry picked out of many occasions.
        Why is it that what all the other people say and what was said on all the other occasions and what even that one person says recanting what he previous said doesn’t matter?

        Oh yes, because for conservatives the outcome is all that matters.

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      • I cannot help but think that Obergefell will be announced on Monday.

        That leaves Johnson, Arizona Legislature, Utility Air, and Glossip as possible opinions for tomorrow’s add-on session.

        I’m predicting we get Johnson and Utility Air tomorrow. While I’m out on that limb, I’ll go further and predict a bad day for the Government. In Johnson, petitioner prevails against the Government, 7-2, majority opinion by Scalia, dissent by Sotomayor joined by Kagan. In Utility Air, the Chief writes a 5-4 opinion striking down the EPA regulations as unreasonably failing to consider generator costs in violation of Congress’ instructions, and Bryer gets the dissent with Ginsburg, Sotomayor, and Kagan joining him.

        Which would leave Arizona Legislature, Glossip, and Obergefell for Big Monday 2015. I may just have to call in sick.

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        • I could see Roberts going the other way on Utility Air, but only if he thinks the current deal is the best one that the coal-burners are likely to get. This is another of those situations where I accuse him of looking out for corporate America in spite of itself. Admittedly in full cynic mode here, but I think the CJ has decided that overall public sentiment is such that the largely-free-ride on coal emissions and waste is over. So this boils down to whether he thinks the requirements on mercury will be more or less expensive the next time it gets to the Court. There are a lot of big marginal coal ash ponds out there, and a couple of spills in unfortunate places provide a lot of ammunition for even tighter controls.

          Arizona Legislature is the case I’m really interested in, not just because of my own interest in the citizen initiative role, but because the opinion could be almost anything. It’s a dark horse candidate for most-controversial opinion of the term; say if the Court rules that 20% of the US House districts are improperly drawn, an actual possibility.

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        • Everyone who loves Wodehouse is thrilled that there’s case called “Glossop” (or close enough).

          Jeeves,” said. “A rummy communication has arrived. From Mr. Glossop.”
          “Indeed, sir?”

          “I will read it to you. Handed in at Upper Bleaching. Message runs as follows: ‘When you come tomorrow, bring my football boots. Also, if humanly possible, Irish water-spaniel. Urgent. Regards. Tuppy.’ What do you make of that, Jeeves?”

          “As I interpret the document, sir, Mr. Glossop wishes you, when you come tomorrow, to bring his football boots. Also, if humanly possible, an Irish water-spaniel. He hints that the matter is urgent, and sends his regards.”

          “Yes, that’s how I read it, too. But why football boots?”

          “Perhaps Mr. Glossop wishes to play football, sir.”

          I considered this.

          “Yes,” I said. “That may be the solution. But why would a man, staying peacefully at a country-house, suddenly develop a craving to play football?”

          “I could not say, sir.”

          “And why an Irish water-spaniel?”

          “There again I fear I can hazard no conjecture, sir.”

          “What is an Irish water-spaniel?”

          “A water-spaniel of a variety bred in Ireland, sir.”

          “You think so?”

          “Yes, sir.”

          “Well, perhaps you’re right.

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  7. Re: Scalia, I just read this from TPM:

    To defend making the subsidies available to consumers everywhere, Roberts cited a line the dissent to the 2012 decision in favor of Obamacare, in which Scalia said, “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

    Interesting….

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  8. I have very little to say about the verdict, other than — as with the possibility of Mitt Romney winning — it seemed weird how anyone thought it was going to turn out any other way than it did.

    What I do find a little interesting, however, is how just quickly we went from searching for the “original intent” of laws going from the Only Reasonable Standard to ‘judicial activism.’

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  9. The legal controversy in this case results from Congress having written a law that quite clearly did not actually do what they quite clearly intended it to do.

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    • a law that quite clearly arguably did not actually do what they quite clearly intended it to do.

      Fixed that for you. There was one provision that could be interpreted to prevent subsidies. There were other readings (e.g. federal government could establish “such” exchanges) that gave another plausible reading. Which gets you to legislative intent. Which, as you say, quite clearly gave the correct answer.

      On a less politically-charged law this would have been unanimously decided by any group of >=1 federal judges in the country.

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  10. Ah, god forbid the law be read as it was actually written. Can’t have that. It’d ruin the law. Hmm..how we gonna fix this. Oh, we’ll just interpret it the way we want to, like that penalty, it really a tax. We’re good.

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  11. Before this case, I had thought that if the government won, a future Republican president could theoretically just have his/her IRS change the rule and say “no subsidies for federal exchanges.” But since the scotus didn’t decide the case on Chevron grounds, does that mean a future president couldn’t do this?

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        • I think Roberts is really, really sick of ACA claims and didn’t want the Court to be nibbled to death by ducks, and he certainly didn’t want to see the opposite version of this back up in 4 or 8 years if the GOP couldn’t repeal it wholesale and had to tinker with IRS subsidies.

          His judicial views might not be in line with mine, but he seems to take the law and the Constitution seriously. I wouldn’t be surprised to find out he’s been getting a bit..offended..by some of the purely partisan legal crap going on.

          You can be partisan as a judge or lawyer without being a hack.

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          • I’m not sure about the first bit (it’s just as plausible that he sincerely believed there was no question about congress’ intent so no reason to defer to the IRS) but I agree with the rest of it completely. He’ll make decisions and votes I hate, but he’s operating on a whole different level from the three hacks.

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            • The thing is, I was pretty certain going in that whatever happened, they wouldn’t gut Chevron. That’d kill the whole court system. Chevron’s there for a reason.

              They also wouldn’t gut the basics of statutory construction — another way to strangle the Courts. Basically put, Robert’s wasn’t going to vote for any changes that would flood the court with nit-picking lawsuits of dubious merit. He’s also not going to allow any situation where Courts are routinely overturning laws because of typos or minor ambiguous that can and should be resolved by the people who turn the law into actual reality.

              Now, that didn’t foreclose Bush v. Gore level shenanigans or finding some weird loophole to gut the law, but after the first ACA case the odds of him doing this seemed low across the board: It was bad politics (it’d screw the GOP and conservatives), bad judicial practice (making close calls or resolving unique issues is one thing, twisting and distorting the law to get a result you want is another. SCOTUS can’t afford to do the latter too often. Between Bush v. Gore and Citizens United, SCOTUS has probably pushed that envelope as far as it can for now. I wonder if Roberts’ is having second thoughts on Citizens United?), and bad for business and the economy.

              Place a Corporatist hat, a GOP hat, or a legal scholar’s hat on Roberts — they all push him towards upholding the ACA here. That doesn’t mean he would — he’s a smart guy and a lawyer, and maybe he could have threaded the needle — but unless he’s got some heavy bias I’m not seeing, none of them would have pushed him to seek that narrow, twisty path.

              Now Scalia, Thomas, and Alito…..Scalia, honestly, seems to be descending into hackdom. He came to the exact opposite conclusion on the key aspect of this case as he did a few years ago — and had that quote thrown in his face, which probably explains the nasty tantrum.

              Thomas just has a plain weird view of the Constitution, the Law, and the way it should be done that half the time I can’t parse. I think he’s somehwat consistent, it’s just he’s really off on his own world that I don’t grok.

              I honestly don’t know what goes on with Alito. I’ve mostly ignored him, so I couldn’t tell you. I think he, Scalia, and Thomas all started with the Birch Society and kind went off from there.

              Sometimes I just think SCOTUS is simply…too old. Maybe it’s just being out of touch that’s doing it. All 9 of them live in a bubble, and some of them have been in the bubble a LONG time and some of them seek out even more restrictive bubbles.

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  12. By the way, while I know the Supreme Court justices are highly principled people who let their profound knowledge of the law and deep reverence for the Constitution guide them, when I saw the headline that the decision was 6-3, I knew immediately who the three were. And so did you.

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  13. Arizona Legislature pushed off again. Based on SCOTUSblog’s frequent remarks that opinions are released when they’re done, that Arizona is the oldest case remaining, plus the now six-month delay on the cert decision for Hickenlooper v. Kerr, I suspect that the Court is going to attempt to do something messy/tricky about citizen initiatives.

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      • So far, Kennedy and Ginsburg have written six opinions each this Term. Roberts, Thomas, Alito, Sotomayor, and Kagan have each written seven. Scalia and Breyer have both written eight. They try to work it out so that the work is spread out pretty close to evenly.

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        • There are a lot of people out there trying to guess who’s doing the writing based on the work load. My perception, reading their comments, is that their opinions are very much flavored by what outcome they’re hoping for. Eg, those who want Arizona’s redistricting commission to stand predict Ginsberg will write it; those who think the commission should be toast think Kennedy will. Same thing for the EPA case — Scalia if the EPA gets skewered, Kennedy if the majority goes easier on the agency.

          Myself, for whatever reason I expect to have a bad day Monday: the drug cocktail approved, the EPA told to start over on mercury, and significant reductions in the power of citizen initiatives. The only encouraging thought I have on the last one is that killing Arizona’s commission does in several other ones, so the Court will have found that 15-20% of all US House districts are improperly drawn. That’s a hell of a political decision.

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