If I made this quotation up for a short story, people would say it was over the top.



Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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80 Responses

  1. Avatar Jaybird says:

    For socialism to work and work well, you need a handful of things but, first and foremost, you need a culture in which damn near everybody says something to the effect of “having this social safety net is important enough to me for me to pull more than my fair share of weight to make it happen. I am responsible for this.”

    The second you have a sufficient number of people who think “I only have to pull my own fair share” or, worse, “everyone else is pulling…”, then you will have a socialism system that is going to fail.Report

    • Avatar greginak says:

      I used to say that , compared with talking with conservatives, at least libertarians knew what words like socialism meant. Maybe i was wrong about that.Report

      • Avatar Mad Rocket Scientist says:

        Socialism – a political and economic theory of social organization that advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole.


        I think @greginak is right, you got the wrong word. Perhaps replace Socialism with Welfare State.Report

      • Avatar LeeEsq says:

        I’d argue that a better definition of socialism is, various schools of thought that argue that the economy should be organized around the theory of cooperation rather than competition.Report

      • Avatar Jaybird says:

        Fair enough.

        For a robust welfare state to work and work well, you need a handful of things but, first and foremost, you need a culture in which damn near everybody says something to the effect of “having this social safety net is important enough to me for me to pull more than my fair share of weight to make it happen. I am responsible for this.”

        The second you have a sufficient number of people who think “I only have to pull my own fair share” or, worse, “everyone else is pulling…”, then you will have a welfare state that is going to fail.Report

      • Avatar greginak says:

        Large majorities of people are for some sort of welfare state. People start to get picky and upset when we get down to specifics and pragmatic solutions. Although there are certainly many permutations, social safety nets exist throughout the western world and to some degree in most countries. to find a place without some sort of safety net you usually need to find poor third world countries. It certainly also seems like Capitalism ( in its varied forms) mixed with some degree of government safety nets and regulations is the best solution IMHO. That seems like a possible third( or fourth or fifth etc) option between Capitalism and Socialism.

        If a word like socialism is to have any meaning the definition has to exclude something and have some rigor. If being for a social safety net makes some a socialist then this country in abbot 90+% socialist. The differences are in how to make that net, which is moving far more towards pragmatic solutions with some ideology mixed in.Report

      • Avatar Jim Heffman says:

        “Large majorities of people are for some sort of welfare state.”

        Large majorities of people were for some kind of health care reform. They just didn’t realize just didn’t realize they would be the ones who were going to pay for it personally.Report

      • Avatar Jaybird says:

        Greg, I think that there’s a difference between “some kind of social safety net” (I mean, you’ll find Libertarians who support “some kind of social safety net”) and a “robust welfare state”.

        I’m pretty sure that “some kind of social safety net” can exist even if you’ve got a decent percentage of people who don’t give a crap one way or another.

        For a robust welfare state? You need a particular kind of culture.Report

      • Avatar morat20 says:


        Generally one that realizes bad luck can strike anyone, including themselves. Our problem in America with social nets and welfare boils down to our Puritan roots — our belief that poverty is the result of sin alone.

        We’re all self-made men, here. Islands unto ourselves. We might have bad luck — and when we do, we deserve help! But those others? They’re down because of drugs, or laziness, or some other sin.

        That’s the problem in a nutshell, it’s why you get “Get Government Hands off My Medicare” signs and pro-lifers taking their daughters in for abortions —- it’s not even hypocrisy, really. It’s just an unwillingness to accept that some stranger’s need might be as valid as our own. We just assume their problems are the result of sin.

        It’s why you get programs like Florida drug testing welfare recipients. Spending millions to recoup 100,000. Because of course they must be on drugs and criminals, else they’d be middle class…Report

      • Avatar Jim Heffman says:

        “It’s why you get programs like Florida drug testing welfare recipients. ”

        Was it Republicans or Democrats who tried to ban cups of soda larger than a certain size?Report

      • Avatar greginak says:

        Jay, well yeah my point is that there is almost complete support for some kind of social safety net. Sure we disagree widely on what that means. A good bit of that disagreement falls in pragmatic differences and not in ideology. So discussing Safety Net = socialism in some way is pointless. It isn’t socialism or if it is then almost everybody is some sort of socialist.

        What kind of culture do you need to have a robust safety net? I’m not sure that kind of question doesn’t lead to just so stories that only express peoples own beliefs. Its not a terrible question, but i’m guessing i can predict what kind of culture people think leads to belief in a SS net based on their political label. Culture is an important concept but also vague in actual definition. Plenty of very conservative people, here and in Europe, are totally behind a strong safety net. I would bet 50 years ago many people would have begrudged jews there part in the culture and taking part of the SS net. Certainly in WW2 many fought, and won, to keep blacks from having their part of the benefits. Do people feel the same way now? Not the same as back then. Certainly there is some “strapping blacks eating T bones on my money” stuff but “good” blacks and definitely jews are seen as “us” now.Report

      • Avatar Chris says:

        Was it Republicans or Democrats who tried to ban cups of soda larger than a certain size?

        I’m pretty sure Bloomberg is an independent (who was a Republican before that, and a Democrat before that).Report

      • Avatar greginak says:

        Jim, Bloomers became a Repub and or independent as a remember. He had previously been a D. So how did that ban work out? Compare and contrast to how many actual people had to piss test in Fla, with Scott personally benefiting?Report

      • Avatar Chris says:

        BSDI responses fail even more miserably than usual when you use an example that doesn’t actually involve the other side.Report

      • Avatar Jaybird says:

        It’s why you get programs like Florida drug testing welfare recipients.Spending millions to recoup 100,000.

        It’s not about saving money. I think that the argument is something to the effect of “I have to work at my job all day, every day, I don’t get to sit around the house and get stoned AS MUCH AS I WOULD LIKE TO. You don’t get to do that either.”

        Now, of course, you and I both know that it’s no picnic being poor and living on the dole is not a bed of roses. The idea that a poor person wakes up on the first of the month and then does the whole Bone Thugs thing is nowhere close to a reality… but you have the wrong person hear that song and, next thing you know, you’ve got people pissing in cups.Report

      • Avatar Jaybird says:

        The soda ban is relevant insofar as the argument goes that, now that we have the ACA, we have compelling interests in the health of others. Hey, if I’m paying for your health care, I think you should drink less HFCS. And do some exercise every now and again, for god’s sake! AND QUIT POOPING IN THE HALLWAY.Report

      • Avatar morat20 says:

        The lucky ducks who had employer provided insurance (and thus were in big risk pools and could afford insurance that actually covered things) were already invested in the health of others.

        And everyone else was just gambling they wouldn’t get sicker than they could afford, with society on the hook if they couldn’t.

        Honestly, in the end — you pay for it anyways. Increased prices from providers to cover those who couldn’t pay their bills or increased prices from insurance premiums for risk pooling or increased taxes to cover people who couldn’t pay their bills….

        All the same money. This way it’s at least trackable. The ACA was a pretty crappy solution, but it was better than the status quo. Anything would be, really.Report

      • Avatar Jaybird says:

        The lucky ducks who had employer provided insurance (and thus were in big risk pools and could afford insurance that actually covered things) were already invested in the health of others.

        Yes, but they didn’t have that perception.

        They felt like their insurance was a bennie from their job that they worked hard to get.

        Now, of course, you may say “THAT’S NOT TRUE!” and, well, sure… I agree with that but we’re discussing perception.

        I preferred divorcing insurance from employment, myself. But there’s too many people who feel like such is a bennie.Report

      • Avatar Jim Heffman says:

        And the company I work for can’t say “hey, 7-11 Big Gulps are making our employees too fat” and stop 7-11 from selling Big Gulps.Report

    • Avatar Road Scholar says:

      @jaybird, I would add the corollary, “in order for capitalism to work and work well, the first prerequisite is a reasonably robust welfare state”

      The reason being that a modern capitalist economy is predicated on a fairly fine-grained specialization of labor. While this is incredibly efficient it results in a certain… bitterness to one’s personal economic situation. In an economy of specialists your actual opportunities are often greatly constrained. It’s entirely possible to find yourself out of work, open the classified section, and find yourself qualified for absolutely nothing out of hundreds of postings. We’re much more interdependent than in simpler societies and one person’s mistake or misfortune can ripple down through many more lives.

      It’s the classic tradeoff between complexity and robustness.Report

      • Avatar Road Scholar says:

        Eh… that’s supposed to be “brittleness” instead of bitterness. Interesting auto substitution.Report

      • Avatar Jaybird says:

        I don’t know about that, given Britain, the US, etc, in the 1800’s… and let’s look at the states that have the closest to “robust” welfare states.

        Would you say that they are the most capitalistic in their region?

        Off the top of my head, that chart is all over the place.Report

      • Avatar ian351c says:

        @jaybird I guess that would depend on your definition of “working well”. Especially given that they’ve been replaced with what we have today.Report

      • Avatar Jaybird says:

        “Vaguely sustainably.”Report

  2. Avatar greginak says:

    If i said that someone would shout “let em die” during a health care discussion at a prez debate you would say i was over the top. If i said people would accuse the prez of having death panels who would decide whether to cut off individuals care you would say i was over the top. If i said people would accuse the prez of building concentration camps to round up and enslave the people……yadda yadda yadda.Report

    • Avatar Jaybird says:

      What I find surprising is that this quotation came from someone who supported it. Did you read the quotation that came right before it?

      “I was laughing at Boehner — until the mail came today,” Waschura said, referring to House Speaker John Boehner, who is leading the Republican charge to defund Obamacare.

      “I really don’t like the Republican tactics, but at least now I can understand why they are so pissed about this. When you take $10,000 out of my family’s pocket each year, that’s otherwise disposable income or retirement savings that will not be going into our local economy.”

      Greg, I am 100% unsurprised when I hear someone who was opposed to the ACA complain about it. I’m somewhat more interested when I see stuff like this happen and be covered by a Bay Area newspaper. (This is from Wikipedia: In the 1990s Alexander Cockburn and Jeffrey St. Clair, authors of Whiteout, described the paper as being “a middle-of-the-road political cast slightly tilted to the Democratic side” in a manner that other papers owned by Knight Ridder were and that it had “a solid reputation as a good regional paper.”)

      It’s not surprising to me to hear a Republican scream “let him die!”

      It’s somewhat more surprising to me to hear a Democrat say “I have to pay for this myself? Let him die!”Report

      • Avatar ian351c says:

        That’s what they get for not holding out for single payer.

      • Avatar ian351c says:

        Arg, my snark tags got ripped out. Consider my reply snarkified.Report

      • Avatar greginak says:

        I wonder how many quotes are already out there where conservatives say they really did their new insurance they got through their state exchange , which only exist as part of the ACA, but they still hate that darn Ocare.Report

      • Avatar Kim says:

        plenty from Kentucky (KyNect’s popular there). Most other red states haven’t done their own exchanges.Report

      • Avatar greginak says:

        I know Kim. But polls seem to be showing R’s who are benefiting from the ACA are plenty happy all around the country.Report

      • Avatar James Hanley says:

        Arg, my snark tags got ripped out

        Rumor has it that problem will be fixed with the 351d model.Report

      • Avatar ian351c says:

        @james-hanley Hopefully not! 🙂 The “c” stands for Cleveland. Not sure if that qualifies my handle as obscure around these parts, but it makes it easy to remember.Report

      • @ian351c

        The “c” stands for Cleveland.

        Well, Denver is a nice place.Report

      • Avatar ian351c says:

        @gabriel-conroy Denver is very nice! I wish we had something like the 16th street mall in my local D (Detroit).Report

      • As gawdy as the 16th Street Mall can be sometimes, I do like it and have fond memories of it, perhaps more because I’m homesick than because I actually want to go there. I will say it’s a lot more exciting now than it was in, say, the 1990s.

        I’ve never been to Cleveland or Detroit, so I don’t know about the sites there.Report

      • Avatar James Hanley says:

        Wait, @ian351c, so there is a “d” (Detroit) model?! 😉

        Do I read you right as saying you live in Detroit (but are from Cleveland)? Not trying to be nosy, just that I’m in Michigan, too, although an hour and a half from the D.Report

      • Avatar ian351c says:

        @james-hanley I think I’m just confusing everyone at this point. 🙂 I live in MI too (8 Mile and Halstead), but I’m from California. The C stands for Cleveland as in the Ford 351 Cleveland. As opposed to the 351 Windsor. Clear as mud, yes?Report

      • Avatar James Hanley says:


        Got it! (Although I confess I had to look up the…well, I thought they’d be cars, not engines, so I guess I earn no respect there).Report

  3. Avatar LWA says:

    I didn’t read the article, and the graph that caught my eye in the sidebar didn’t show it was a post by Jaybird.
    So when I saw the quote about “didn’t know I would have to pay for it” I am thinking it might be by a liberal who wants other people to pay for his stuff.

    Or it could be by a conservative who “of course wants people to have health care” but objects to paying taxes for it personally.

    Funny how the quote is accurate, regardless of who said it or why.Report

    • Avatar Jaybird says:

      I think that it’s best described as being made by a liberal who seems to be considering conservativism.Report

      • Avatar Burt Likko says:

        I’m opting for “someone who was unclear on the concept.” Where they were on the spectrum or where they’re going isn’t as interesting to me as the “never really thought it through until now.”Report

      • Avatar Jaybird says:

        Well, where they were and where they are going could well have an impact on the coming elections. In December, of course, that info will probably go back to being meaningless.

        Assuming they’re representative, of course.

        They might be representative of diddly-squat.Report

      • Avatar notme says:

        Thanks for the post, I’m going to put this on my facebook. I don’t think the liberal in question is reconsidering conservatism so much as reconsidering liberalism. It is always amazing to see what happens when a liberal realizes that they will have to pay for something as opposed to making someone else pay for it. It is easy to be in favor of spending when someone else pays for it.Report

  4. Avatar LeeEsq says:

    The reason we have a social safety net is that stuff happens and there isn’t a single person that can plan for every contingency in life. Thats simply impossible. We pay for the safety net in taxes because as Oliver Wendell Holmes, Jr. wisely said, taxes are the price tag of civilization.Report

  5. Avatar Tod Kelly says:

    This seems like the opposite of news.

    Pick a public policy — any public policy, that either adds or subtracts government — and you can write this exact same article.Report

    • Avatar Jaybird says:

      Makes you wonder why the Mercury News bothered.Report

    • Avatar Mike Schilling says:

      Fairness. Now when side A quotes “Keep the government away from my Medicare”, side B can quote that guy.Report

      • Avatar Jaybird says:

        If it turns out that more courts take Gruber’s speak-o out of context, there may be enough people saying this to change the inevitable 2016 outcome to something else.

        Assuming, of course, Republicans aren’t stupid.Report

      • Avatar Mike Schilling says:

        You mean if they can avoid defining away rape, calling half of the country lazy bums, and explaining how the Civil Rights Act is an offense against property rights? And not talk about how we not only need to go back into Iraq but this time invade Syria and Iran too?

        Yeah, how hard could that be?Report

      • Avatar Jaybird says:

        I’m not saying that the Republicans will be able to pull it off.

        A real party would be able to pull it off, though.Report

      • Avatar Morat20 says:

        If it turns out that more courts take Gruber’s speak-o out of context, there may be enough people saying this to change the inevitable 2016 outcome to something else.
        I’d sorta wonder why one guy — whose modelling work was predicated on all states getting subsidies, even those without state exchanges — would somehow count more than Congress and the Executive branch, none of whom seemed to think there was any ambiguity at all.

        That’d be fun listening to the Court explain, given as they’d either have to explain how Congress and the Executive really, really meant no subsidies for anyone but States (but somehow forgot to say anything about it at all, or act like it, or do anything at all to indicate they thought this was the case) — or they’d have to toss what, a 100 years of precedent that basically says when dealing with laws, the Executive has a great deal of leeway to resolve ambiguities and the Courts are supposed to resolve ambiguities, when possible, in a way that preserves the thust of the Law?

        This Court has surprised me quite often, but I’m not sure they’re willing to go that far.

        Anyways, the full DC Court will reverse — there will be an appeal, but at that point there’s no circuit split at all. Every circuit court has ruled the same way, so SCOTUS would likely ignore it. (Offhand, I don’t think there’s five votes. Kennedy won’t vote with the conservatives on this one — there’s nothing to indicate he’s chomping at the bit to tackle the difficult case of ‘what to do when there’s an ambiguity in the law’. And Roberts, I don’t think, wants to be embroiled in health care again. I don’t think they even have 4 votes to hear the case).Report

      • Avatar Jaybird says:

        Morat, look at it this way:

        Imagine if all 49 states excepting Texas set up something.

        How would you interpret the statute?Report

      • Avatar James Hanley says:

        Anyways, the full DC Court will reverse — there will be an appeal, but at that point there’s no circuit split at all. Every circuit court has ruled the same way, so SCOTUS would likely ignore it.

        Maybe. The DC Court of Appeals reportedly does not like to rehear cases. Also, the DC Court of Appeals tends to be more influential than others, so it wouldn’t be shocking if a split were resolved in its favor.

        Having read up on this case a little–but only a little, so far–it seems to me the Court makes a good argument. The ACA clearly distinguishes between state and federal exchanges and when it allows for subsidies it references only state exchanges. There’s a well-established interpretive principle that Congress means what it actually says–that if they reference X somewhere in the law, they’re clearly aware of X, so lack of mention elsewhere is not an oversight, but intentional.

        As to the executive, the precedent you speak of is extremely problematic. It’s part of the growth of executive power that has unbalanced our system, undermining our separation of powers so that the president becomes the lawmaker. I remember liberals being rather angry about this in the Bush administration.

        It’s not a principled position to accept it when it’s our guy or gives us the outcome we want.Report

      • Avatar Michael Cain says:

        And Roberts, I don’t think, wants to be embroiled in health care again.

        This is my take also. Roberts had the opportunity to kill the PPACA outright, and didn’t do so (with my inner Roberts-critic adding “Because the PPACA is good for a lot of big corporations”). It seems a real stretch to think that he would maim it now (with the critic adding, “Particularly in a way that takes a lot of revenue away from those same big corporations”).

        Of interest, in the recent United Air Regulatory Group case on CO2 emissions, it was the conservative bunch that were arguing the loudest that Congress couldn’t possibly have intended what the actual language in the Clean Air Act said. Actually, all nine pretty much said that Congress didn’t intend what the statute actually said; the bickering was over what part Congress intended for the EPA to ignore.Report

      • Avatar James Hanley says:

        I think the thinking on Roberts is likely right.

        But as far as claims that the Court’s decision is nonsensical, that does require lots of hand-waving away of John Gruber’s prior claims that make it clear that he didn’t see tax credits attaching to federal exchanges. Of course his words are not legally dispositive, but given the way the Obama administration elevated him as a spokesman for ACA, calling himust “one guy,” as Morat did, is exceedingly disingenuous.

        And there is evidence that the restriction of credits to state exchanges was intentional, to put pressure on the states to create them. That’s worked to some extent, but not enough. To call the Obama administration’s response to this miscalculation the resolution of an ambiguity is also disingenuous.Report

      • Avatar Michael Drew says:

        Actually, the law envisages the feds setting up “such exchanges,” referring to state=established exchanges. So it’s not clear how clearly the exchanges are differentiated, state-established versus fed-established. The law seems to evision the the federal government simply acting for the state, and establishing a state-established exchange. That’s pretty much conceptually whacked, and doesn;t really pass any federalism muster, but that’s not the argument being made here. the argument is how clear is it that an echange that an exchange which the feds have taken action to establish is not (also) a state-established exchange. Weirder things have happened in the statutory code.) And the language actually isn’t all that clear about that (from what I’ve read).

        Which pretty much means that the Chevron precedent deferring to administrative interpretations applies. You can say what you want about that precedent, but that doesn’t make it not precedent. It’s also not clear to me that the opposition to Bush’s executive power expansion centered around administrative interpretation of law, I suppose except around particular subjects, i.e. torture, and there the arguments tended to be substantive on the particular substance at hand, not against the concept embodied in Chevron itself. The Chevron precedent long pre-dated Bush, so to the extent that anyone opposed Bush’s expansion of executive power, it’s entirely justifiable if their view was that broadly the Chevron precedent was justifiable, but that Bush expanded executive power in ways/areas that were troubling on their substantive merits. (I didn’t myself advance a critique of Bush about a general expansion of executive authority.) Where people argued against the precedent then and are now arguing for it, well, we can listen to their reasons for a distinction, one would think there’d be a presumption of inconsistency. But it’s entirely possible to have opposed Bush’s expansion of executive power without having argued that Chevron was bad precedent. (You an argue people should have argued this, but if that doesn’t make them inconsistent.) We would have to look at what people argued then and now.

        In any case, the point is a distraction from the issue at hand. The issue is (was) not whether position shifting on abstract legal questions occurs within ideological amps. We know it does; that doesn’t shine any light on the legal questions. It just shines light on something about political camps that we already knew. The issue is whether the Halbig ruling is correct either under precedent or under whatever legal rule should be in place. And what’s the constitutional argument against judicial deference to reasonable administrative interpretations of statutes, anyway? We’re saying that the constitution obligates judges to gum up administrative function any time it perceives any misreading of a statute? Do we want a court system big enough to undertake that task? This seems like an area where the constitution clearly empowers the judiciary to define their role in the way they think best that preserves separation of powers as they understand it to be best realized. They’ve done that, and the precedent is called Chevron. And thinking that the executive has expanded its power in lamentable ways since the Chevron precedent was given doesn’t obligate anyone to think that it’s a bad precedent, and certainly not to argue that it shouldn’t be applied, given that it is good precedent.Report

      • Avatar Michael Drew says:

        On the Gruber video, see this from Scott Sumner (of all people):


      • Avatar Michael Drew says:

        The most convinving speculation I’ve seen is that Roberts has four furious anti-ACA justices to his right who will grant cert almost regardless (I suppose the lack of split could be something of an impediment, but… I have my doubts how big), and… four is how many you need to grant cert. So I think it’s not going to be up to Rooberts whether he embroiled. So there’s at least reason to speculate about how he’ll respond to being )em) broiled, since it’s quite possible he won’t be able to avoid it.

        And I hones ly don’t know. He’s a pariah in his political coalition for upholding ACA in 2012; will he want to try to redeem himself with them? But it looks a lot like he just wasn’t prepared to take a step as big as invalidating the law then, so why would he want to now, given that doing so would mean further enflaming one side or the other? I think the latter course (staying with a relative don’t-upset-the-apple cart position) seems likely. But I have seen a plausible argument that he could spin invalidating the federal subsidies as a middle-ground course that would render Obamacare essentially optional, and meanwhile he could take the opportunity to shave back the Chevron rule (to what I don’t know), and also, as I saw it put, “punch the IRS,” all in one action. Pretty juicy stuff for a conservative.Report

      • Avatar Morat20 says:


        The same way. The law talks about subsidies for the state exchanges, then goes on to talk about how to set up federal exchanges for states that can’t or won’t, and the language everywhere assumes the subsidies are in place.

        Again, the law conflicts — if only barely. One part of the law implies only state exchanges get the subsidy, then the law continues on to set up federal exchanges that imply the subsidy exists.

        Out of all the people working on the ACA — from conception to implementation — everyone seems to have understood that the federal exchanges got the subsidies. The only example to the contrary is a quote from a non-Congressman (Gruber) who both says he misspoke when he said that, and whose modelling work (ie, where his money and mouth met) all include federal exchanges getting the subsidy.

        So again: You’re left with “Either Congress meant to give them the subsidy” or “Congress meant to punish them” and nobody in Congress seemed to think it was the latter, and the Executive didn’t think it was the latter, and out of every court that has viewed this TWO GUYS think it was the latter — and their legal reasoning works almost entirely by applying textual literalism to one paragraph and ignoring the rest of the law in it’s entirety.

        The subsidies are heavily spelled out in the law and integral to making the whole thing work, and if you’re going to claim in court that the law deliberately punished states that didn’t make exchanges — you need an actual case there, especially given the federal exchanges were added partly to cover states that wouldn’t — but partly to cover small states that really couldn’t.Report

      • Avatar Michael Drew says:

        …FWIW, I don’t link to Sumner there to do the “even the anti-ACA So-And-So thinks it, so if you don’t you must be a fact-impervious blind partisan” thing. I don’t go in for that. There can be disagreement within communities of thought. That’s just genuinely where I first came across that bit of context on the Gruber thing.

        Gruber, incidentally, said this week he couldn’t recall why he uttered the words in the part of the video, but in trying to talk it out, speculated that the reason we see from the other part of the video (i.e. the feds delaying on setting up exchanges in order to establish pressure – because once they did the subsidies would be available under the law) might have been a possibility.Report

      • Avatar James Hanley says:


        From Jonathan Adler:

        The central question in Halbig and its companion cases is what to do with the phrase “exchange established by the State.” Contra Bagley, this was not just “shorthand for an exchange.” Throughout the PPACA Congress made reference to “exchanges” without any mention of whether the exchanges were established by states. In Section 1401, however, Congress added the “established by the State” qualifier — and it did so repeatedly.

        When Congress wanted to use a shorthand for “exchange,” it did just that — and said “exchange.” The “established by the State” modifier was added at the Committee stage, and then again afterwards before final passage in the Senate. Adding it in was unnecessary unless it had some purpose — such as to distinguish exchanges “established by the State” from those “established” by HHS as required by Section 1321. Even if, as some argue, a Section 1321 federal exchange can stand in the place of a section 1311 exchange, the former is still not an exchange “established by the State,” as Judge Griffith explains in his Halbig opinion.

        What Professor Bagley and others have yet to do is offer any plausible explanation for why Congress added the “established by the State” qualifier in Section 1401 if it did not have some meaning. Courts presume all language in a statute has meaning, and yet the interpretations offered by the IRS’s defenders — including Judge Edwards and those on the Fourth Circuit panel in King v. Burwell — reduce this phrase to meaningless surplusage. Indeed, when pushed, noted health law professor Tim Jost acknowledged that, in his view, the phrase “established by the State” is “essentially meaningless.” Yet Congress cannot be presumed to just insert “meaningless” phrases into statutes — and the phrase here is anything but ambiguous.

        The Sumner comment on Gruber, though, is of interest.Report

      • Avatar Michael Drew says:

        Has Adler made efforts in his advocacy (I haven’t read much of it) to consider other possibilities for why the language was added beyond the one particular one he’s trying to suggest that it has. It’s utterly fails to advance a view that “this language means X” to simply say that it exists and therefore must have a purpose. It could have another purpose (and contra Adler, actually, it could have essentially no purpose, or a really, really, really technical and mundane one). And given that the rest of the law suggests it doesn’t have the purpose he describes, and pretty much everyone involved in drafting say it didn’t have that purpose, there’s good reason to go looking in other places for the real purpose (which, again, could be really realy underwhelming compared to a purpose that would have the effect of throwing the operation of the law into chaos, which, whatever else we’d say about it, is pretty damn interesting stuff)… before expecting a concession that the existence of the language is evidence that its purpose is just what he – wow, fortuitously! – happens to be arguing that it is.Report

      • @mike-schilling

        I recognize the irony of “keep the government off my medicare!” and I suppose the penalty for saying something stupid is to be ridiculed for saying it. So it’s fair to bring it up.

        And yet, too many people on my side of the aisle (i.e., those who support the ACA and have supported it as the best politically feasible option available ever since it was Baucus plan) use that quote way too often and disregard what is probably really meant by it.

        Yes, medicare is a government program, so the government’s hands are on it by definition. But when people say “keep the government off my medicare,” what they probably really mean is, “don’t fish up a good thing,” where “good thing” is defined as “good for me and for others I know.” I think continually mocking that statement trivializes some sincere concerns about the future of that program and lends credence to the view of ACA supporters as out-of-touch with the opposition.Report

      • Avatar Mike Schilling says:

        Courts presume all language in a statute has meaning

        Except “A well regulated Militia, being necessary to the security of a free State”, which is just vamping.Report

      • Avatar James Hanley says:


        Yes, Adler does, and I’ll get to that in a moment. But I think that’s the wrong question–legal advocates do not make their opponents arguments for them, and Adler is deeply involved in the legal challenge to ACA. The proper question is how the law’s advocates defend the language, and so far as I have yet seen they have failed to advance any argument for the wording’s actual meanings–they have just said it was a mistake and doesn’t mean anything.

        But given that Congress intentionally inserted the language into the law–voting on amendments that included that precise language–inserting the word “state,” thus distinguishing them from exchanges generally–that’s a fairly weak argument. At least Adler’s argument takes language and Congress’s deliberative process seriously.

        But as to the potential actual justification of the language, let’s go back to Gruber, who said the following (from Forbes, which has the video, where this exchange begins at the 31:25 mark).

        Questioner: You mentioned the health-information 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 ma.healthconnector.org 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.

        So, two things. First, as an aside, the questioner specifically suggests the federal exchanges will receive subsidies, and Gruber explicitly, and at length, with explanation, rejects that idea. So, his later claim that he had a speak-o gets harder to believe. This wasn’t an off-the-cuff flub of a couple words, but a full explanation of why there’d be no subsidies on federal exchanges.

        Second, and to the point of your question, it suggests–or perhaps clearly explains–that the purpose of the restriction of subsidies to state exchanges is to put pressure on the states to set up their own exchanges. And in fact that’s what Adler argues is the reason for the language, to structure ACA as a cooperative federalism program.

        Importantly, Adler’s suggested meaning is coordinate with Gruber’s explanation. But it’s a meaning that destroys the government’s case for upholding the tax credits for federal exchanges, so the law’s supporters can’t use it. And instead they’ve fallen back on the much less persuasive claim that the words don’t mean anything at all.Report

      • Avatar James Hanley says:


        You can take those words quite seriously, and the structure of the 2nd Amendment still doesn’t limit guns to well-regulated militias.

        Sadly for you, it’s hard to make a good one-liner when you don’t have any understanding of what you’re commenting on.Report

      • I have very mixed feelings about this challenge to Obamacare. On the one hand, if the law is poorly written enough so that this challenge can work, then that’s the fault of the law and those who drafted it. And the challenge would likely happen sooner than later. So there’s not much one can do.

        On the other hand, this challenge seems cruel in a way that, say, the challenge to the insurance mandate or the contraception mandate don’t. Those challenges I could see as raising good faith objections to constitutionally questionable policies. And I can understand the argument that repealing the law or invalidating it could make things better, on the assumption that anything would be better than what Obamacare could do health care in 10 or 20 years’ time. It’s a principled objection.

        This challenge, however, seems likely to strike at the most vulnerable people, at least in the short term, because it would eliminate subsidies. Of course, the subsidy to less affluent people is also a subsidy to the companies from which they must purchase the insurance.

        And yet again, if that’s the problem with the law, then I guess I can’t fault an opponent of the law from focusing on the problems. It just bothers me.Report

      • Avatar James Hanley says:

        Those challenges I could see as raising good faith objections to constitutionally questionable policies.

        Presidents/executive agencies rewriting laws on their own authority is not constitutionally questionable, and one can’t object to that in good faith? 😉Report

      • Avatar Mike Schilling says:

        Sure, it’s possible to conclude that “the Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause” without considering why the Second is the only one with that sort of preface.Report

      • @james-hanley

        You’re right, of course. And I’ll go one step further, not only is it “good faith,” it’s also principled, contra what I wrote in my above comment.Report

      • Avatar Michael Drew says:

        Are you getting to Adler’s consideration of alternatives in another comment?

        It’s not the opponent’s argument to do the POE implied in the “The verbiage must have meaning, therefore it must mean this” argument. If he doesn’t fill in why other possibilities aren’t even plausible, then that argument has no force. You can’t just declare that there is no plausible other reading than your own have have that be an argument for anything. The opponent’s role in responding to that argument would be to say why he’s wrong that the possibilities he (might have) considered aren’t plausible.

        Opponents of this decision would certainly have been in a better position had they been able to articulate plausible reasons why this language would exist, but it doesn’t follow from that that Adler just saying that there aren’t any possibilities other than what he says (which is itself implausible – either to be the case, or even that Adler hasn’t considered them) constitutes an argument that it must mean whatever he suggests it does. The better argument is obviously that, to him, it affirmatively appears tomean what he says it does (i.e., not a process-of-elimination argument, but just a plain-meaning argument).

        But that’s where you run into the problem that the way to interpret any statute of this size is not to myopically focus on one phrase, especially if the interpretation in question raises serious questions about whether the law’s overall intent can stand up. All language is presumed to have meaning, but it won’t all be presumed to potentially undermine the overall aim of the law. And the meaning won’t always be presumed to be perfectly clear.

        It seems plausible to me that the purpose of that very specific language could be to distinguish exactly what kind of exchange credit money could flow through, to prevent claims from imposter exchanges perhaps not even established by any government. The kind of exchange that money flows through is the kind set up by states ni section 1311. 1311 requires states to establish exchanges. Section 1321 says that the federal government will establish “such exchange” (required ones) for any state that won’t have “any required exchange” operational by date certain (whether they’re trying to meet the deadline or refusing to even try). So the exchanges that the feds will establish are the ones that are required. The Section that does the requiring is 1311. And then 1401 allows for the tax credits, applying them to taxpayers enrolled in qualified plans which “were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.” That is so specific (plausibly) because Congress wanted to be very clear about which kinds of exchanges (state-Established ones under 1311, which the Feds can step in to establish under 1321) could receive credits – distinguishing them, say, from others that Congress may set up in the future (absent additional amendment allowing it), or local governments may, or private companies may, etc. They may have thought that for this purpose, the shorthand “Exchange” through the rest of the law was insufficient.

        Obviously, it would have been better had respondents to the lawsuit offered such possibilities themselves. But it seems clear to me there’s a plausible causal chain to be followed from state exchanges to credits given on the state exchanges the feds took actions to bring into existence in the law. And most of the intent expressed and discussed through the process doesn’t point to the interpretation Adler is giving this language.

        The main point, though, is that there has to be a process of elimination that Adler has to go through himself to establish that if the language doesn’t mean what he says, then it must mean nothing. That argument doesn’t simply carry the day just because interlocutors don’t respond to it. It might if he considers other possibilities, but not if he doesn’t.

        On Gruber, I’m not sure what you’re looking at. Look at what you quoted again:

        these health-insurance Exchanges, you can go on ma.healthconnector.org 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.

        The llast thing he’s talking about before referring to something as “this” is the slowness of the feds. “This” means that in states that don’t set up exchanges citizens won’t get subsidies. The delay means that. So that when the delay (on the federally-assited state exchanges) is finally over, then that arm twist will be over. That’s what he thinks he might have meant reflecting on it now, and that, to me, seems the best reading of this passage on its face.Report

      • Avatar Michael Drew says:

        For some reason it’s not letting me highlight text in the blockquote, so I want to stress a few phrases in the Gruber.

        “…health-insurance Exchanges… 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 what’s important to remember politically about ***this***…”

        …And so on.Report

      • Avatar James Hanley says:

        Sure, it’s possible to conclude that “the Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause” without considering why the Second is the only one with that sort of preface.

        We can still consider why the Second is the only one with that sort of preface (although, unfortunately, there’s not much historical guidance), and yet not necessarily be forced to conclude that the clause is limiting. Explanation of purpose is not automatically and inherently limiting of application. Hell, if it was, damn near every law restricting minority rights would stand, because we could just point to the justifying language and say “that’s the purpose” and ending our exploration of the law right there.

        Michael Drew,
        You totally lost me. It looks as though you’re saying Adler bears the burden of proof, that he has to consider and rebut all possible explanations of the law, and you don’t place any burden of justification on the supporters of the administrative rule. But that’s not how legal argumentation works–Adler has a duty to rebut the explanations put forth by the rule’s defenders, not think up possible justifications for them to try out, and the rule’s defenders have a duty to justify why it is in compliance with the language of the law, and just arguing that the language of the law doesn’t really mean what it says, while not a guaranteed loser, is not actually an argument about meaning. If the law’s supporters don’t give an explanation of the words’ meaning, then Adler doesn’t have to rebut the explanations they don’t give.

        As to Gruber, it really depends on what “this” refers to. You say it refers to federal subsidies, but that’s not certain at all; it could be referring just to the federal exchanges, sans subsidies. To be fair to Gruber, he was answering a question, not writing (and editing, and proofing) an essay, so the ambiguity in what is the antecedent of “this” is just one of those things that happen. But it is ambiguous. More important, in my view, is that he said explicitly,

        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.

        He didn’t say, “until the Feds get their subsidies going.” He didn’t say, “for the time being.” It’s a pretty absolute statement. Of course it could have been poor phrasing–it happens too often to people who speak publicly a lot, and in general I don’t think we (the public) are forgiving enough of public misstatements. But taken altogether, I don’t think we can say your interpretation is necessarily the correct one. And neither is my interpretation. What mine has going for it–which I don’t say is dispositive–is that it fits perfectly with the actual text of the law. What yours has going for it is that it comports with Gruber’s and Obama’s preferences for what the law means.Report

      • Avatar Michael Drew says:

        It’s not so much burden of proof. It’s whether the argument amounts to anything at all without a consideration of possible alternative meanings. You can’t just say, “It means X, because has it has to mean something, and X is the only thing it can mean,” and have that have any force without considering some possibilities for what else it could mean. If your interlocutors don’t suggest anything and you don’t choose any alternatives to examine, it’s just bare assertion that there’s only one possible meaning. That’s an argument that doesn’t go anywhere, because it’s just an assertion of your conclusion. That might be why his interlocutors haven’t offered possible alternative meanings; it’s doing his work for him. He needs to flesh out the alternative possible meanings that aren’t the right one for the argument to have any force. Otherwise he’s just saying that it has to be what he thinks it is because he thinks that’s what it means, and according to him there aren’t any other plausible possibilities for what it is, and it has to mean something. (As I’ve said, I think the first part there is the stronger way for him to argue, which he’s also done – that he just thinks the language means this because the language itself suggests it does, period, regardless of whether other plausible meanings exist. Which is fine, but the “and it has to mean that because it has to mean something and it can’t mean anything else” doesn’t add anything to the “it looks to me like the language says this” argument if you don’t consider some possibilities for what else it could mean. The problem with “it looks to me like the language says this” is that, taking the full statute on board, other plausible readings exist as well.) But surely, whether his interlocutors suggest them or not, there are at least other possibilities for what it could mean. He has to consider some of them to show why they’re not plausible for the argument to amount to anything substantive(not even getting into burden of proof, which we would get into when/if his interlocutors objected that some of the possibilities he considered, or other, in fact are plausible. Otherwise the argument just reduces down to, “Because it has to mean something, it must mean what I think it means.” That’s not true unless demonstrated – it could mean something he doesn’t think it means. That’s why he has to consider other possibilities to give the argument force.

        On Gruber, you’re ignoring in the exact passage you quote where he says the exchanges are where people will get their subsidies, and that if states don’t create them, the feds will backstop that function. That clearly states that he thinks the federally assisted state exchanges will provide subsidies when they’re on line. Then he talks about the slow-walk by the feds, and then says that there’s something that’s important to remember about “this,” which is that it will mean that subsidies don’t flow where there aren’t exchanges. The most recent thing he’s talking about is the federal slow-walk. Plus, he says that exchanges are where people get subsidies, and if the states don’t establish them, the feds will do that for them. Reading “this” as the slow-walk, not as an un-referenced (in fact, directly contradicted) overall exclusion of subsidies from federally-assisted exchanges, is the way to make the two parts of what he says there fit together. Also, “this,” all things being equal (i.e., it won’t always, but it would be more in keeping with the meaning of the word if it were his meaning), should refer to whatever you’re most currently considering, closest to at the moment, etc. “This” as opposed to “that.”

        Compared to this (natch), the fact that he doesn’t explicitly state that states won’t get subsidies during the federal delay, rather than at all if they don’t set up exchanges, is very slight evidence for your interpretation. He was talking about the delay when re called it “this,” and that meaning would contradict what he said earlier, when he said that exchanges are where people will get subsidies, and if the states don’t set them up, the feds will (do it for them).

        As to congruence with the statute, my understanding and Gruber’s understanding of Gruber’s meaning in the statement is consistent with my and Gruber’s understanding of the meaning of the text of the statute, just as yours (or Peter Suderman’s) is with yours. That may just be confirmation bias at work, at least in some of our cases; it doesn’t really say anything that we all have understandings of the statement that mesh with our understanding of the statute. That is, unless there is clear, dispositive meaning in the statutory text one way or the other. But there’s not, as I’ve shown. What isn’t meaningless is that mine and Gruber(2014)’s interpretation of Gruber(2012) is the clearly better way to make sense of the different things that Gruber(2012) is saying there, allowing him to mean each part of what he said, and being most faithful to the meaning of the word “this” (as opposed to, eg., “that”).Report

      • Avatar James Hanley says:


        It’s a constitutional argument. It’s the defenders of the rule who have to find a justification within the law’s language, not the critics. Sorry, but your claim that Adler must think up every poosible meaning so he can rebut it is just wrong on all counts. The defenders have a duty to explain how the rule constitutionally fits in the law’s language, and “the law doesn’t mean what it says, those words have no meaning” is an implicit admission that they have no answer to that question (unless we assume the government’s lawyers really do have an answer but are withholding it).

        And with that I’m done.Report

  6. Avatar Damon says:

    Everyone wants something and doesn’t want to pay for it. What was that phrase, attributed to a founding father, about the future of democracy when the populace realizes they can vote themselves money from the common treasury?Report