Never Say Die: Why We Can’t Have Nice Things

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191 Responses

  1. Avatar Jaybird says:

    Pushing aside the fact that this post is ideologically motivated, I have to wonder if process matters.

    If, for example, we have a Constitution that says “For a law to be passed, you have to do the following things, A, B, C and then D.”

    If A (or B, or C, or D) isn’t done, does a critic of the law have the grounds to say that the law was not passed constitutionally?

    If we agree that a law wasn’t passed constitutionally, do we agree that its treatment should be as if it were not passed?Report

    • Avatar greginak says:

      If a law is written in a way where a bit is ambiguous and one interpretation means the law functions as clearly intended and the other interpretation means the entire law crashes is it reasonable to interpret it the way where the law fails? From what i remember reading about this case, that is the point of people who are pushing the case. That the sentence should be read in a way that means the law will fail. That sort buggers common sense to think the law should be interpreted in a way that makes the not work.Report

      • Avatar Jaybird says:

        At the time of its inception, were its authors arguing that we need to interpret it a particular way?

        One would think that it’d make sense to interpret it the way that its authors said we should interpret it, no?

        I mean, hypothetically.Report

      • Avatar greginak says:

        Yeah i think the authors were, as i remember, pretty clear about their intentions. It was not the way the plaintiffs are suggesting.Report

      • Avatar Jaybird says:

        I’m delighted that the case is getting in front of the Supreme Court, then.

        That’ll solve this problem once and for all.Report

      • Avatar Jaybird says:

        (I mean, we are both talking about Jonathan Gruber, here, right? The whole “speak-o” thing?)Report

      • Avatar Mo says:

        The law won’t come crashing down. Subsidies will end in 34 states. This means that there will either be a) pressure on the legislatures to get an exchange up b) pressure on the Feds to fix it or c) pressure on the Feds to kill it. What will be interesting is to see how those states overlap with the current Democratic Congressional caucus. If the 34 states with it don’t have a disproportionate amount of Dem Senators running in ’16, then (b) is more likely than (c). If there are a lot of Dems in those states, than (c) is more likely than (b).Report

      • Avatar greginak says:

        Yeah Gruber was paid to model different plans. One might think that he would have modeled it the way the plaintiffs suggest. Did he? No at leasst from everything i’ve seen. Did any of the people involved at the time suggest they viewed it the way the plantiffs did? No. Did the people against the ACA say they saw it the plaintiffs way? Again, AFAIK, no. So basically one statement three years after the fact, which he clarified afterwards is the basis for believing the law should be interpreted in a way that makes the law unworkable.Report

      • Avatar greginak says:

        Mo, is correct that if ruled in the plaintiffs favor the main result ONLY be millions of people losing subsidies for their HCI. So no biggie then. I’m sure the republican congress will be willing to deploy their carefully crafter health care reforms we’ve been hearing about that will solve the problems of those people getting screwed.Report

      • Avatar Patrick says:

        Mo is more or less correct.

        Here’s the 34:


        Washington, Oregon, California, Idaho, Nevada, Colorado, New Mexico, Minnesota, Kentucky, Vermont, New York, Massachusetts, Rhode Island, Connecticut, Maryland, Hawaii all keep their insurance.

        Everybody else gets the shaft.


        Montana, Wyoming, Arizona, Texas, Oklahoma, Kansas, Nebraska, South Dakota, North Dakota, Missouri, Louisiana, Arkansas, Tennessee, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, Indiana, Ohio, Wisconsin, Pennsylvania, Maine, New Jersey, Virginia.

        I find a rather high correlation between “these states” and “states whose Representatives campaigned on repealing Obamacare, and who were elected at least partially on those grounds”.

        Granted, it sucks to not be a Republican in those states and need health insurance, but this seems very much to be a case of the elected majority getting what they want.Report

      • Avatar Patrick says:


        and I gotta be honest here…

        If you’re running on something and the courts serve it to you on a platter, you best be prepared to eat that dish.

        Because what you’re looking at in 2016 is a whole lotta pissed off poor folks who passed voting just now in large volumes all pouring into the polls, and lots and lots and lots of “the GOP revoked our subsidy and as a result we couldn’t afford my husband’s meds and he died” stories.

        That ought to play well.Report

      • Avatar LeeEsq says:

        @patrick, I’d like to think so but many GOP dominated states have refused the Medicaid expansion and thats hurting a lot of poor people, hundreds of thousands or even millions of them. Refusing to expand Medicaid as allowed under the ACA hasn’t seemed to harm the GOP politically at all. Same with the refusal to set up state exchanges I can’t see how a politically motivated lawsuit, where the people who brought the suit know that they are playing word games and that this wasn’t what Congress intended, would hurt the GOP either.Report

      • Avatar Patrick says:

        Refusing to expand Medicaid as allowed under the ACA hasn’t seemed to harm the GOP politically at all.

        Lee, I look at the turnout this year and I see the sort of expected turnouts that you expect in the sixth year of a Presidential run when it’s an off-cycle vote.

        I guess “absence of voter turnout sympathetic to the Dems or anti-GOP” can be seen as a sign in and of itself, but given that it matches the norms I don’t know that this is a case of “it not harming the GOP” as it is “the electorate who turns out for this election is pretty GOP friendly and it would have been really, really remarkable to see something other than what we saw”.

        I dunno, maybe you were expecting something really remarkable?

        I wasn’t, I was expecting what I saw. I’m inferring from that:

        The people who thought this election was about the GOP and
        The people who thought this election was about the President

        are both wrong.

        Also, the people who say this election is about the exit polls are also misleading everybody, because I spitballed the numbers and only about 23% of the folks who are capable of voting voted.

        That means you win in a near-landslide with 14.5% of the voting-age population voting for you in this election.

        This election was about the fact that folks who aren’t over 45 and aren’t upper-middle class or better pretty much don’t turn out for these elections. The results on that are pretty predictable… the GOP gets good returns.

        That’s still only 14.5%. If you bank heavily on that 14.5%, you’re gonna have one fugly lookin’ 2016.Report

      • Avatar Burt Likko says:

        I am not sure that it is possible at all to determine the intent of Congress when it passes a law. We might be able to determine the intent of a particular legislator who voted in favor of that long, but by definition there are going to be hundreds of them, and some of them are going to have had different ideas about what the law would do than others. That sort of ambiguity is baked in to the political process.

        All that we can know are the words that they put into the law and passed into the law. Floor debate, testimony given during committee hearings, television commercials,statements from the president, staff summaries of the law, whip sheets … None of these are the actual law. They may provide hints about what many of the legislators were thinking. But they are not the law.

        The way the system is supposed to work, if there has been some sort of an error, oversight, or ambiguity in the law, Congress is supposed to go back and fix that. Or, in some cases, the president may promulgate a regulation not inconsistent with what Congress has passed.or, in some cases, the court may provide an interpretation conforming ambiguous words of the legislation to other laws or legal principles, providing an interim policy until and unless Congress does pass an amendment, or might reconcile a law with a different law.

        In reality, political changes in control of Congress between the time Obamacare was passed and today mean that Congress is unlikely to propose any sort of actual helpful or meaningful amendment to what appears to have been an inadvertent oversight in the way that some things are phrased regarding state exchanges. So if Obamacare comes out of this case crippled, shame on Congress, not the Court.Report

      • Avatar Will Truman says:

        Patrick’s analysis on 2014 here is flawed in multiple respects, though his conclusion about this and 2016 may be right.

        The reason why this could hurt the GOP in a way that Medicaid didn’t is that Medicaid recipients are less likely to be GOP voters while the hurt group here is.

        On the other hand, it’s not 100% sure that the GOP itself would get the blame. It may go back to the law itself, how it was passed, etc.

        I’m going with the former more than the latter, but it’s not entirely either-or.Report

      • Avatar Saul Degraw says:


        The Chait link has links that show the legislative history/congressional intent is the I.R.S interpretation of the statutory language.Report

      • Avatar greginak says:

        Hmm legislative intent. Can anybody with a straight face say the legislative intent was for people NOT to get subsidies. The whole deal with them was to create a support for people who couldn’t afford them. Why would they make a plan that doesn’t provide for subsidies?

        This gets back to interpreting an ambiguous phrase. How can people honestly say the sentence should be interpreted in a way that doesn’t provide subsidies and doesn’t lead to people getting insured. The ACA was designed to give people frickin subsidies if they couldn’t afford them. The plaintiffs are suggesting we read the words in a way that specifically makes the law not work and not provide what the sporking law clearly intended to so. It was meant to provide subsidies to people who couldn’t afford it.Report

      • Avatar Saul Degraw says:


        Of course no reasonable person can say that with a straight face*. It would be pure Kafka to do so. That the plantiff’s are doing so in these cases is what is driving everyone up the wall.

        *There does seem to be an implication in some posts in this thread that we should give the plaintiff’s the benefit of the doubt on sincerity of belief but I am not. I am not even sure what damages the plaintiff’s are suffering because of the fed offering tax credits for the exchanges that they set up. “I am being damages because people are getting subsidized health care!!” Bullshit.Report

      • Avatar Will Truman says:

        For anyone with some time on your hands that is interested in the actual arguments of those who believe that it was the intent you can read the full Adler-Cannon argument here.Report

      • Avatar Damon says:

        Pretty much what Burt said.

        We pay Congress a lot of money. They have dozens of staffers. Bills are reviewed, rewritten, etc. The law written is what the law is. If the law as written doesn’t have the desired effect, the blame is on Congress. The fact that opponents of the law exploit a flaw? Tough cookie. Write better law.Report

      • Avatar zic says:

        @will-truman thank you for that link.

        Essentially, Republicans are proposing this massive tax increase on many of the millions of people who purchased health insurance through the Federal Exchange.

        Any of the millions of people (like me, for instance) who purchased through the federal exchange and got a tax credit for that purchase. I understand that the money in question would not go to the government, it would go to the insurer. But the end result seems very similar, since this was set up to work through the tax code and since the penalty is paid through the tax code.

        Contrast this to the Bush Tax cuts, where allowing them to expire was called a tax increase. Seems might similar to me.Report

      • The Chait link has links that show the legislative history/congressional intent is the I.R.S interpretation of the statutory language.

        So are you suggesting the IRS adopted its interpretation based on an unknowable standard?Report

      • Avatar Will Truman says:

        A distinction, if one exists, would hinge on one of two things:

        1) Does it count as a subsidy or a tax? The line between the two can be blurred. I’ve seen people who called the Mandate a tax and those who deny it is a tax called a liar… by the same group. I don’t know the statutory language on this to know whether it should be called a tax, can only be called a tax, or shouldn’t be called a tax.

        2) Whether or not they should have received the subsidy/taxbreak to begin with. The Bush tax cuts were passed and were therefore the valid status quo. According to the plaintiffs’ arguments, the people to whom they are trying to deny the subsidy were never actually eligible, so this is a corrective to how it legally should have always been, which is a situation that doesn’t apply.

        In any event, the notion/promise that Republicans would not raise taxes has long since been broken anyway, when they let the payroll tax cuts expire. Which I consider to be okay (allowing taxes to rise, more broadly speaking), because never allowing taxes to rise is problematic in any event.Report

      • Avatar zic says:

        So this also brings up another concern. Regulatory uncertainty. For millions of families.

        Say you’re getting a subsidy, and you’ve planned your budget out based on the law as it’s been enacted. Maybe you replaced your clunker with a fuel-efficient new car (or even a better used, a few years old). Now, the budget for that car is gone; but without reliable transportation, you or your wife or husband will have trouble getting to work. Or you, alone, if there’s only one adult in the household. Maybe it’s your mortgage payment that will be a concern; you qualified based on your income with the tax credit, and you’re below that income now. Is it possible we’d see people’s loans called or an increase in defaults, a tightening of credit? This could also be the money someone’s planning to set aside for a minimum down payment on a future home.

        This is a tremendous amount of regulatory uncertainty to create in people’s lives, and could have a huge dampening effect on the economy. It could stall the growth of individuals starting their own businesses; who are planning on the the availability of affordable insurance.Report

      • Avatar Will Truman says:

        Oh, I think the uncertainty aspect of this is huge. But it will pass in this specific case, whenever the court rules, and this is a case where there are essentially two potential outcomes and the affected parties can plan for each one. But yeah, it’s nerve-racking for sure.Report

      • Avatar Mo says:

        “I understand that the money in question would not go to the government, it would go to the insurer. ”
        @zic Directly, yes, however, in net cash flows, it goes to the government. The reason why it is a subsidy is that the Feds are paying the difference to insurance companies. If the subsidy goes away, the total payment to the insurer stays the exact same before and after.Report

    • Avatar LWA says:

      “…the fact that this POST is ideologically motivated”

      You spelled “lawsuit” wrong.Report

    • Avatar LeeEsq says:

      @jaybird, you know perfectly well that it is nearly impossible to right a clearly unambiguous law whether that law has liberal, libertarian, or conservative aims. There is always going to be at least some poorly phrased sections that couldn’t be cleaned up in the legislative process. Thats why Courts look to legislative intent rather than simply only the letter of law when called to interpret the law.Report

      • Avatar greginak says:

        Come on Lee, be real. The sainted Founders wrote a Constitution and bill of rights that was clear and unambiguous in every way. We have never needed to debate what they meant. Why can’t our modern lawmakers be as good as they were. And if they can’t be as clear as the Founders then they shouldn’t be writing laws.Report

      • Avatar Jaybird says:

        While it may be nearly impossible to write a clear and unambiguous law, surely we should be able to talk to people who can explain the law to us at the time about what the law means, correct? You know, if there are two possible interpretations, listen to the guy who says “It means interpretation A and not interpretation B”, right?

        Or is that not possible either and the only game we’re playing is a game called “The House Wins”?

        Because if that’s the case, I’d say that the only winning move is not to play.Report

      • Avatar LeeEsq says:

        @jaybird, do you think that the people who bringing this lawsuit and saying that Congress only intended to grant subsidies through exchanges set up by the states are doing so in good faith?Report

      • Avatar Jaybird says:

        Do I believe that it’s possible to believe Gruber was telling the truth, as he understood it, way back in 2012?

        Yes, I do.

        Do you? Or do you believe that he made a speak-o?Report

      • Avatar greginak says:

        I’ll give Jay’s argument this. There isn’t zero people making no statements ever. Okay it’s one person making one statement. If was the only person involved in developing the ACA instead of , what…hundreds?, then that one statement would really powerful. And if he had actually modeled that outcome when he was being paid to make models about the ACA that would be a stronger argument. Of course we might want to hear what all the other people thought at the time not just Gruber. And we might want to wonder why we should choose the interpretation that cripples the law instead of making it work.Report

      • Avatar Jaybird says:

        I really don’t know why the “do words really mean anything, really?” argument is seen as a winner, here.

        In the past, when I’ve seen it used, it’s because there isn’t a better one at hand.Report

      • Avatar Michael Drew says:

        You know, if there are two possible interpretations, listen to the guy who says “It means interpretation A and not interpretation B”, right?

        “The” guy? There’s just gonna be one guy saying what it meant, or saying it meant one of the things? And why that guy not the guy saying it means interpretation B and not interpretation A? Am I missing something in you argument?Report

      • Avatar Jaybird says:

        Sure, we can play this game. I can find you a speech of Jonathan Gruber explaining that this law means interpretation A instead of interpretation B from around 2012 or so.

        Can you find me a speech of anybody, anybody at all, (let alone someone of Jonathan Gruber’s stature!) explaining that interpretation B was the correct one from 2012 or earlier?

        If you can’t does that mean anything, anything at all?Report

      • Avatar Michael Drew says:

        Why does it have to be from 2012 or earlier? The people who passed it are available. In fact, they’ve signed letters explaining what the “correct” interpretation is. They knew what they meant to pass – that’s the whole underlying principle behind being faithful to the text. AFAICT, that should be valid evidence about the right interpretation of the text according to the argument you’re making. I don;t see how you’re claiming to achieve your exclusive elevation of the importance of this one guy’s statement on this day. Many more, other, more directly responsible people were even more involved in drafting the law, and they’re telling us what it means.Report

      • Avatar Jaybird says:

        Well, because I’m wondering what they thought at the time of the law being passed, not wondering what they thought when they realized that they hit the unintended consequences of phrasing the law the way they did were coming to light.

        Why should I focus more on after when they realized that they hit the unintended consequences?Report

      • Avatar Michael Drew says:

        Because the point of writing the law is enacting the intended consequences (or, more precisely, the intended operations) that the law drafters had in mind in drafting it.

        …So the questions is, is there really enough reason to discount what the people who actually drafted the law are saying their intent was, almost completely, in favor of what someone who in fact had no real responsibility for drafting the law once guessed that their intent might be, who now says that he was mistaken? I don’t see you offering any reason to do that, much less particularly weighty reason, which is what should be required to apply that steep discount.Report

      • Avatar Jaybird says:

        So when I look at the people talking about the law closest to the time of its drafting, before it hit any roadbumps, I’m more likely to understand what they intended?


        So I’ve got some speeches from Jonathan Gruber, here… what do you have?

        Do you have anything? I mean, anything? I mean, anything anything?Report

      • Avatar greginak says:

        Jay, you have one speech. Where are all the other people who agreed with it when the law was being debated? Where were the people saying that is how it would work? Where are the models Gruber made that showed how it would work.?

        You got one statement from just one of the people involved that came three years after the law. But even more importantly there doesn’t seem to be a way the law works if the plaintiffs assertion is correct. So answer why the sentence in the law should be interpreted in a way that makes the law not work. It defies common sense to read it the way you and the plaintiffs seem to want to read it.Report

      • Avatar greginak says:

        Here is an editorail from 5 of the senators involved in the legislations from the WaPo.

        key grafs:

        “In a series of legal challenges, opponents have inaccurately argued that Congress intended to provide financial help only to Americans living in the 14 states that directly run their own health insurance marketplaces, not in the 36 states that delegated administration of their marketplaces to the federal government.

        This interpretation is wrong. As members of Congress who shaped and debated the legislation, we want to set the record straight….

        None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces. In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government.”Report

      • Avatar Jaybird says:

        Where are all the other people who agreed with it when the law was being debated? Where were the people saying that is how it would work? Where are the models Gruber made that showed how it would work.?

        I don’t have them. I don’t have any of them.

        Do you have anything from before 2012? I have this speech from around the time of the speech being passed that says “It Means This”.

        I don’t have anything from around that time that says “It Means That”.

        I have no shortage of speeches from the time around the time where people realized that we’re talking about half of the states, rather than just Texas…. but I find those speeches less interesting.

        Do you have reason for me to believe either that those speeches should be as interesting, despite being two years later, or reason for me to believes that the speeches from around the time were not representative?

        That’d be awesome. Thanks!

        (For what it’s worth, I understand that I’m effectively arguing against Social Security and that you and yours will win this argument. I’m just arguing because, hey, I have evidence. That doesn’t amount for anything in the real world where nothing matters but outcomes but, hey, right?)Report

      • Avatar Michael Drew says:

        Uh, no, I didn’t say anything about looking at what was said closest to the time of passing. I said find out what the people closest to the passing meant. By talking to them now. (It;s not very ling ago that they passed it.) the whole thing about thinking they’re lying (or whatever) because of roadbumps? That’s your thing, that I’m asking you to argue for, that you’re not, instead just expecting me to agree to it. And you’re asking me to set aside what those most involved say in favor of one thing one guy said once, that he contradicted before and disavowed after, that all the most involved people disagree with. No. There’s not enough reason to do that. What that guy said is one piece of evidence. It gets swallowed up by overwhelming evidence that it didn’t reflect the intent of the lawmakers.Report

      • Avatar Jaybird says:

        Oh, if all you care about is what they’re saying now?

        Greg has an editorial for you.

        I’m sure you’ll find it awesome.Report

      • Avatar Michael Drew says:


        You don’t get to argue that anything not from before 2012 isn’t evidence. You can argue what you have is a bit stronger because it’s from before then, but that’s it. And it’s just one piece of evidence, while there iarge large amounts of evidence pointing the other way, it’s just not from 2012 or before. It doesn’t trump everything else; it certainly doesn’t make it not evidence. Everything else is evidence, too. I.e., what the lawmakers say they mean.Report

      • Avatar Michael Drew says:

        Now all you care about is all I care about?Report

      • Avatar greginak says:

        Okay…so you don’t care what the pols who led the push for the ACA say they meant. And really why should matter. Yeah i know there is actually no other evidence for your/plaintiffs view expect for that one speech. But i already granted you have one more zero bits of evidence about the original intent.

        Explain why an ambiguous sentence should be interpreted in a way that will make the law unworkable as opposed to interpreting in a way that makes it work? Explain why people were saying there would be subsidies for people who couldn’t afford to pay.Report

      • Avatar Michael Drew says:

        FTR, I would care about strong evidence that the lawmakers intended what’s suggested they intended. It might even make me conclude the lawmakers are lying and covering up for an intended operation of the law they no realize was a mistake. One non-lawmaker saying something he contradicted before and has since disavowed saying they might mean that once is not string evidence of that. Yes, you have that and it might be all there is directly on point from before this lawsuit raised this issue of the drafting. You’re just asking it to do way too much work, overturning the testimony of those who passed the law about their intent all by itself, with no more solid evidence to support doing so. It’s not strong enough.Report

      • Avatar Jaybird says:

        Of *COURSE* my take is that way back when that people who were arguing about carrots and sticks were really trying to talk about carrots and sticks and they were thinking that they’d be able to hand out tons of the former and few (but a non-zero amount and a seriously delicious application) of the latter.

        And, of course, your take is that what they say about carrots and sticks today is what they mean and what they’ve always meant.

        And I’m cool with that.

        I’m just hoping you realize that what they said then and what they say today is different enough for some objective observer to say that it’s obvious that the speaker back then made a speak-o.Report

      • Avatar Michael Drew says:

        what they said then and what they say today is different enough

        “[T]hey”? Who?

        for some objective observer to say that it’s [not?] obvious that the speaker back then made a speak-o.

        Is “they” just “he”? He may not have made a speak-o about what he believed (though he says he did), but the problem is he may not have been in a position to know what he said (which he now says was wrong) was correct. In fact, he wasn’t in a position to know that. What he said is just one person’s guess about what hundreds of others meant. And we’re asking for it to outweigh what they say they meant because he said it before we asken them what they meant. It’s not enough.Report

      • Avatar Troublesome Frog says:

        Can you find me a speech of anybody, anybody at all, (let alone someone of Jonathan Gruber’s stature!) explaining that interpretation B was the correct one from 2012 or earlier?

        I’m trying to interpret exactly why the lawmakers involved would change their positions here. If they originally wanted the law to do X and now it’s turning out that the law actually might do X, why would they scramble to change their minds and insist that X not happen? Isn’t it more reasonable to conclude that those people really didn’t intend for the law to do X when they voted for it? I mean, nobody anywhere along the lines saw the implementation of ~X happening and said, “Wait, I thought the whole thing was supposed to do X! WTF?” As far as I’m aware, the first objection to the implementation that we’ve heard of it is this lawsuit.Report

      • Avatar Brandon Berg says:

        @troublesome-frog One possibility is that at the time they intended to use the subsidies as a carrot to get the states to go along with the plan and create the exchanges. It’s not as though there’s not a long history of the feds doing just that (e.g., no highway funding if you don’t raise the drinking age to 21), and it’s usually worked.

        Now that it’s backfired, they change their story.Report

      • Avatar James Hanley says:

        Michael Drew and greginak,

        I’ve previously criticized Jaybird for being obscurantist, but in this case he’s being crystal clear, and both of you seem to be making great efforts to avoid his real point.

        What person says at time T1 may be a more reliable indicator of what they thought at T1 than what they say at T2, because what the say at T1 cannot be influenced by events at T2, while what they say at T2 obviously can be.

        That’s a good point, generally applicable, and you’re not addressing it.Report

      • Avatar Gaelen says:

        Jaybird, a statement of a non-legislator three years after enactment can barely even be counted as evidence when interpreting a statute. Without getting into the weeds, the D.C. circuit opinion was based on the plain text of the sentence. A court can move past the plain text if they find it ambiguous. At that point a court is going to look to the section the clause is in, the statute as a whole, or even other statutes that interact with it or use the same definitions (in that order, and looking to make the statute internally consistent). If that doesn’t supply an answer, we then move to legislative history to try and discern legislative intent. Only last, and usually in specific situations like patent legislation, will a court look to what a non-lawmaker said (and almost never three years after the fact).

        If were talking about a common sense understanding of what the legislators meant (rather than a legal one), I find the three years of silence FROM EVERY SINGLE MEMBER OF CONGRESS WHO ENACTED THE LEGISLATION as the federal exchanges were being set up to speak much louder than Gruber’s one off statement.Report

      • Avatar Jaybird says:

        I find the three years of silence FROM EVERY SINGLE MEMBER OF CONGRESS WHO ENACTED THE LEGISLATION as the federal exchanges were being set up to speak much louder than Gruber’s one off statement.

        If we’ve reached the point where silence gives us a better interpretation than a speech explaining that the law means X, then I guess that I don’t have any evidence at all.Report

      • Avatar DavidTC says:

        If we’ve reached the point where silence gives us a better interpretation than a speech explaining that the law means X, then I guess that I don’t have any evidence at all.

        Uh, maybe normally, but you’ve interrupted part of the law as a carrot/stick approach. Which makes it completely absurd that no one trying to get states to make their own exchanges *bothered to mention it*.

        You can’t reasonably argue for a *secret* carrot/stick, Jaybird. You’re trying to argue legislators intended to use something to threaten states with into making their exchange but…uh, then the legislators then completely forgot to do that, and stood silent as everyone else forgot to do that also. And then stood silent as the Federal government informed everyone otherwise, and the CBO scored it otherwise.

        If you claim their intent when passing the law was supposedly to *require* the Federal government and various other people to withhold subsides to make states do something, their lack of not actually informing their states of this supposed threat (And not caring that anyone else did, and ignoring that the Federal government specifically said there was no such threat) actually seems rather important.Report

      • Avatar Jaybird says:

        You can’t reasonably argue for a *secret* carrot/stick, Jaybird.

        I’m not. I’m arguing that there were architects of the law running around at the time saying “this is how the law should be interpreted”. Meanwhile, everyone else was silent.Report

      • Avatar DavidTC says:

        Now you’ve moved from ‘the legislators were silent’ to ‘everyone else was silent’, which is just wrong.

        The CBO, like always, scored the law. They scored the law, *before it passed*, as if it would bring subsidies to everyone, including under the hypotheticals where the Federal government had to create some exchanges.

        None of these legislators that hypothetically wanted the carrot/stick approach seem to have taken issue with this.Report

      • Avatar Jaybird says:

        The CBO, like always, scored the law. They scored the law, *before it passed*, as if it would bring subsidies to everyone, including under the hypotheticals where the Federal government had to create some exchanges.

        Oh, awesome. I’m trying to find this and there are a lot of articles about how the CBO says that they can’t score the Affordable Care Act anymore…

        There’s this one from NPR ( ) but it doesn’t mention the exchange thing… and the CBO page itself talks about “Exchange Subsidies and Related Spending” but it doesn’t specifically talk about a lack of exchanges.

        Maybe you’ve had better luck googling this.Report

      • Avatar Gaelen says:

        I’ll second DavidTC’s comment. I would also add that silence of such a large number of people–especially people who would have had a good reason to speak up–does strike me as more informative than Gruber’s statement. Said another way, this is a great example of the dog that didn’t bark.

        Also, Congress wasn’t exactly silent. They did enact a law that seems to need federal exchanges which get the subsidy to be internally coherent.Report

      • Avatar Jaybird says:

        Personally, I find the interpretation of the law, as Gruber read it way back in 2012 makes sense. I mean, imagine if 49 states all set stuff up… wouldn’t it make sense to use that leverage against the last one? Tell them “set up your exchange!”.

        Those freakin’ Texans.

        But if 29 states set stuff up, there’s no leverage to use. You pretty much *HAVE* to say “oh, yeah, that interpretation of the law is no good.”

        And, personally, I don’t really see silence as an argument for either interpretation… while I do see Gruber’s non-silence as evidence for Gruber’s reading of the statute.

        The CBO scoring these exchanges would sure as heck qualify as evidence for the other position, though. Sadly, I can’t find that. Surely that’s a limitation of mine rather than a limitation of the other position, though.Report

      • Avatar DavidTC says:

        I know I’m probably breaking some taboo, but here’s the DailyKos article that talks about the CBO’s scoring:

        And, because I’m out of links, I will instead say to google ‘Letter to the Honorable Darrell E. Issa Providing Additional Information About CBO’s Cost Estimate for H.R. 4872’ and you will see the CBO’s letter when this issue first appeared in 2012.

        Here’s the relevant part: ‘To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered. Nor was the issue raised during consideration of earlier versions of the legislation in 2009 and 2010, when CBO had anticipated, in its analyses, that the credits would be available in every state.’Report

      • Avatar Troublesome Frog says:


        I’m still not seeing it. Let’s say they originally wanted carrot and stick. Then nobody implemented carrot and stick. They said nothing about that, but that’s apparently unimportant in the face of an analyst’s comments. Unfortunately, that makes it hard to tell when they had their 180 degree changes of heart. Where was the backfire on this timeline? Was this a genuine change in policy preferences, or did they see the “not-carrot-and-stick” being implemented and like it better and decide to pretend they didn’t want it the other way oringially?

        I’m willing to believe that a bunch of legislators aren’t telling us the truth about their motivations, but I don’t get what their incentive was to completely change their apparent position in the face of getting what they ostensibly wanted to begin with.Report

      • Avatar Jaybird says:

        While I am unmoved by the DailyKos post itself, the link to the CBO’s letter does exactly what I would want to see:

        An argument in 2012 by someone that close to it? That’s pretty strong evidence for the other interpretation.Report

      • Avatar Michael Drew says:


        All I’ve been doing is addressing that point of Jaybird’s. I’ve been saying that the timing of that response in a Q & A can’t outweigh a lot more, more direct evidence about the intent of the legislators for the operation of the law. Nor is it uniquely important because of it’s timing, so as to justify Jaybird’s approach of, “Here’s what I have fom 2012 or befire, what have you got?” as if that’s all that matters. I’m not sure what I have from that period, but it’s not all that matters if there’s much stronger evidence from other time periods.

        But I haven’t denied that the timing of the statement may make it a bit stronger as evidence than it otherwise would be. OT(O)OH, though, if you think about it, if Gruber had said the same thing after it became clear there was going to be a lawsuit on the point that could cancel Obamacare in 30 states or so, wouldn’t it have been even stronger then? So compared to what potential timing does the timing of the actual statement make its evidentiary value as to the intended operation of the ACA relatively great?

        It’s not that the timing adds no weight to what he said. It’s just that what @davidtc is saying is correct: there’s just not enough weight in this evidence (Gruber’s disavowed Q & A response) for the fact that it’s made a bit stronger by it’s timing to make it exclusively important in this debate the way Jaybird is presenting it to be. The evidence from later times is just too weighty for the video to outweigh it: the Gruber evidence is not weighty enough in its essence (outside guy making a speculative statement, since and previously contradicted by him), nor the timing effect strong enough, to outweigh many legislators and others attesting their intent, as well as other evidence about the intended operation of the law.Report

      • Avatar Michael Drew says:


        Can you articulate what Gruber said that clearly indicates he thought the intent of the law was to make subsidies not available on the federal exchange in its mature implementation (i.e., now)?

        I think this post considered the video you have in mind, and it contains a transcription with this passage:

        [T]hese 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 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.

        Doesn’t that at least plausibly suggest he’s saying that he thought at the time that 1) the Exchanges are where you get you subsidies, and 2) that if states don’t set up Exchanges to perform that function (giving people subsidies), then the federal government will backstop that function, i.e. perform it, i.e. provide subsidies? Which would meanthat the point he’s making about apply a stick approach to the states is in delaying the federal backstop, since during that time residents of states that elect not to set up Exchanges are paying for it but not getting what they could if their state would set up an exchange? But eventually, the federal government will step in. But they want to apply some temporary pressure to buy in with a stat exchange.

        That’s what it seems like he’s saying to me. Maybe there’s a section not transcribed at the link.Report

      • Avatar Michael Drew says:

        …Actually, it was @gaelen who made the point hat caught my eye about the basic strength of this evidence apart from timing, not @davidtc .Report

      • Avatar Jaybird says:

        I think that you and I are reading 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. completely differently.

        I’m reading it to mean that if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.

        I suppose it’s possible to interpret that differently but, hey, what do words really mean, anyway?Report

      • Avatar Michael Drew says:

        It means that, but when does it mean that? He strongly suggests he was describing the political reality extant during the delay in erecting the backstop, which delay he makes explicit reference to as what he’s talking about. This reading has the advantage of making sense of why, when people today suggest he said something he feels he never meant to say, he feels like he never meant to say that, even though the video sort of suggests he does. It also pretty strongly suggests he doesn’t. At best, in itself it’s not very clear evidence. And he’s not in a particularly privileged place to say what the law meant to begin with, as Gaelen said.

        Meaning that this just isn’t strong evidence at all for your reading regardless of timing. It’s arguable evidence for defenders of the law’s position, as he explicitly says that the feds will backstop the subsidy function in the exchanges if states don’t set them up. The timing effect could make whatever it means to be a bit stronger as evidence, but just as evidence for Adler’s reading in itself it just isn’t very strong compared to many people directly involved (and now this same person) saying the opposite regardless of timing. The timing can’t change that all that much. A bit, but not that much.Report

      • Avatar Michael Drew says:

        I suppose it’s possible to interpret that differently but, hey, what do words really mean, anyway?

        Are you really saying that to look at what he said and not think it means what you think it does is tantamount to depriving words of their meaning – that if words have meaning, Gruber was saying what you say he’s saying, not what I do? It’s that black and white?Report

      • Avatar greginak says:

        Well words do have meanings. I guess one of the questions re: this matter would be do only Gruber’s words have meaning and/or do all the people’s words who were involved in the ACA also have meaning. Do Gruber’s words explaining what he said have meaning? I mean if you want to make the entire issue about Gruber’s words in teh video that does make everything simpler and easier, by ignoring everything that doesn’t fit one particular interpretation.Report

      • Avatar Jaybird says:

        Does his recantation mean that what he said has a somewhat clear interpretation? I mean, if we can interpret what he said back then to mean pretty much what he’s saying today, why bother recanting?

        It’s not even a speak-o.Report

      • Avatar greginak says:

        So take away his “recantation”, there is a still i giant pile of words from all sorts of other people who were involved with the ACA who disagree with Gruber. Do their words matter?Report

      • Avatar Michael Drew says:

        Can we agree thatmy interpretation is really quite clearly there in the words? Because then we can discuss why he didn’t point it out.

        The story broke in a big way; it was allo over conservative & mainstream media. Given that so many people were saying what he said clearly meant what they were saing it mant, I imagine it’s pretty easy to listen to it and think, yeah it sounds like i said that, I wonder why the hell I’d have said that. At that point presumably you’re being hounded for comment by health care and legal reporters from across the political spectrum. It seems like it might under that kind of pressure make sense to just say, “Look, I misspoke.”

        And arguably he did misspeak; it’s not like it’s crystal clear what he meant. I just think it is fairly clear what he said, and it’s not “The federal exchanges aren’t supposed to have subsidies by design.” It’s a fair question why he wouldn’t have pointed this out; even under the kind of pressure I describe, I think it’s clear enough that he should have been able to come up with that. I guess he took the “misspoke” safety route more quickly than necessary. He probably didn’t think a lot rode on how exactly he responded.

        That said, I’m not sure we can say he recanted, because that would imply he’s conceded he meant what people (like you) say he meant and is not changing his mind. He’s said he didn’t mean that but can’t explain why it appears he said it – that it was a speak-o. I would deny it even very strongly appears he said it. Regardless, he denies he ever thought it.Report

      • Avatar Jaybird says:

        Of course they do, Greg.

        We’ve already seen a contemporaneous link from the CBO explaining the other position and I’ve already said that it’s a huge piece of evidence.Report

      • Avatar Michael Drew says:

        now changing his mind (not “not changing his mind” – first sentence last paragraph).Report

      • Avatar Jaybird says:

        I would deny it even very strongly appears he said it. Regardless, he denies he ever thought it.

        All I really have as evidence is his speeches. If his quotations are not sufficient, as I said above, I don’t have any evidence at all.Report

      • Avatar Michael Drew says:

        What about what people have said since the lawsuit? It matters too, and it’s more on-point, more clear, and from more significant sources than Gruber (or Elmendorf). The pre-lawsuit premium can exist, but the post-lawsuit discount can’t be 100%. It’s not even 50%. What lawmakers who made the law say it meant in response to the lawsuit matters, at least this close to the passage of the law.Report

      • Avatar Jaybird says:

        Because I, personally, find arguments that happen at Time T to be more interesting when it comes to legislative intent than arguments that happen at Time Tsub1.

        If you want to argue that I should find arguments at Time Tsub1 (or Time Tsub2!) more interesting, I’d enjoy to hear the argument.Report

      • Avatar Michael Drew says:

        How much more interesting? And more intersting than similarly strong evidence, or more interesting than any Tsub2 evidence, no matter how much or how strong it is?

        No one’s said you shouldn’t find Tsub1 evidence a bit more interesting (or I haven’t). More interesting to the extent that the others don’t matter, though? I don’t think you’ve mad a case for that. Nor that if the Tsub2 evidence is much more extensive, stronger, and from more important sources than a single, equivocal piece of the Tsub1 evidence, the timing multiplier should render the single piece of Tsub1 evidence weightier by itself than all the Tsub2 evidence taken together.Report

      • Avatar Jaybird says:

        The benefit of hindsight pretty much poisons Tsub2 evidence. Now, that’s not to say that it’s not good if you want to talk about something other than intent (“lessons learned!”, for example, requires Tsub2 evidence and Time T evidence is downright useless apart from providing the initial naive presumptions).

        If you want to know what people were thinking at the time? It’s best to get stuff at the time. If you rely on what they might be saying later, you don’t know how much of that stuff is tainted by self-esteem, by faulty memory, by 20/20 hindsight, or what have you. And the more and more evidence you get is probably more likely to be evidence of something other than what was actually being thought before whatever major events happened.

        Which, again, is not to say that the late data is useless, it’s just that data that has not been tainted is always better than data that has been.Report

    • Avatar Kim says:

      as a matter of practice, no we do not. There was an instance a few years ago in which language was inserted into a bill after it was passed, and it was allowed to stand as a legal law, despite the obvious procedural irregularities.Report

    • Avatar Donald Ramsey says:

      Can we get past the hypothetical A,B,C, and then D and just say what
      part of the ACA is the problem? Or is it the ACA itself that is the problem?Report

  2. Avatar zic says:

    State or States?

    Federal Government would step in and do so if a state failed to set up their own exchange including with tax credits and subsidies. The anti-Obama fanatics in the latest round of litigation have taken a line that says exchanges “established by the State” to argue subsidies are not available in exchanges set up by the Federal Government.

    The state, here, seems clearly to be The Federal Government, since it’s happening once the states have not done something.

    This seems like Clinton saying it depends on what the meaning of is is.Report

    • Avatar James Hanley says:


      The law explicitly says “In this title, the term ‘State’ means each of the 50 states and the District of Columbia.” (Section 1304(d)).Report

      • Avatar DavidTC says:

        The law also explicitly says ‘An Exchange shall be a governmental agency or nonprofit entity that is established by a State.’, if you want to argue definitions.

        So all Exchanges are ‘exchanges established by a state’, by definition, even if they literally were not established by a state.

        (Of course, you could try to argue that as prescriptive instead of descriptive, that it’s trying to say that an Exchange established by anyone but a state is not actually an Exchange. But that doesn’t work very well, logically…the exchanges created by the Federal government are explicitly ‘such exchanges’, and called ‘Exchanges’.)Report

      • Avatar James Hanley says:


        Of course a weird statement that could mean either one thing or the other doesn’t usually trump an explicit definition, as a matter of legal interpretation. I recognize, however, that I’m not talking to a normal interpreter of law here, but an ideologue, and in case you weren’t aware, I dislike and disrespect ideologues.Report

      • Avatar DavidTC says:

        Of course a weird statement that could mean either one thing or the other doesn’t usually trump an explicit definition, as a matter of legal interpretation.

        Ah, yes, feel free to pretend the explicit definition of ‘Exchange’ in the law has wasn’t an explicit definition. It’s just a ‘weird statement’.

        But wait, let me first quote the decision we’re talking about here that got appealed to the Supreme Court:
        ‘The dissent attempts to supply this missing equivalency by pointing to section 1311(d)(1), which provides: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(d)(1). According to the dissent, (d)(1) means that an Exchange established under section 1311 is, by definition, established by a state. Therefore, the dissent argues, because federal Exchanges are established under section 1311, they too, by definition, are established by a state.’

        Granted, the appeals court then *rejects* that argument, but that’s what the supreme court is for.

        …hey, wait. Aren’t *you* the same guy running around condemning people for calling this lawsuit ‘bonkers’? But I guess you’re allowed to call *the actual law used by the US government in their defense* a ‘weird statement’ and hence completely meaningless.

        James Hanley, everyone. Completely neutral party who is horrible offended that anyone would think the plaintiffs in this lawsuit are silly, but has decided that the argument used by the defense is silly, and anyone saying ti seems reasonable is an ideologue.

        But not him. He *isn’t an ideologue*. Everyone remember that, it’s very important.

        I recognize, however, that I’m not talking to a normal interpreter of law here, but an ideologue, and in case you weren’t aware, I dislike and disrespect ideologues.

        Yes, me, the ideologue, realizing the position of the defense was not explained here, and that people were trying to guess it. So, unable to find the article I read that explained it, I went ahead and spent the time and effort piecing it together out of the legal filings and the law, so people would actually know what they were talking about.

        What a ideological thing for me to do in a discussion about a lawsuit.Report

      • Avatar DavidTC says:

        Sorry, misquote. That wasn’t from the case that got appealed to the Supreme Court, which is King v. Burwell. That quote was from Halbig v. Burwell, the DC Court case.

        But it’s still the US government making the argument, so my point is unchanged.Report

      • Avatar James Hanley says:

        Try reading my post.

      • Avatar James Hanley says:

        Granted, the appeals court then *rejects* that argument,

        This is really quite amusing. You insist that your preferred understanding is “the explicit definition of ‘Exchange’ in the law,” then acknowledge that the appeals court disagreed with you.

        Obviously, then, your interpretation is obviously right. 😉

        Let’s quote some parts of that decision that you skipped over.

        Under section 36B, subsidies are available only for plans “enrolled in through an Exchange established by the State under section 1311 of the [ACA].” 26 U.S.C.§36B(c)(2)(A)(i) (emphasis added) [by the court, not me: JH]; see also id. §36B(b)(2)(A). Of the three elements of that provision—(1) an Exchange (2) established by the State (3) under section 1311—federal Exchanges satisfy only two: they are Exchanges established under section 1311. Nothing in section 1321 deems federally-established Exchanges to be “Exchange[s] established by the State.” This omission is particularly significant since Congress knew how to provide that a non-state entity should be treated as if it were a state when it sets up an Exchange. In a nearby section, the ACA provides that a U.S. territory that “elects . . . to establish an Exchange . . . shall be treated as a State.” 2 42 U.S.C. §18043(a)(1). The absence of similar language in section 1321 suggests that even though the federal government may establish an Exchange “within the State, ”it does not in fact
        stand in the state’s shoes when doing so. See NFIB, 132 S. Ct. at 2583 (“Where Congress uses certain language in one part
        of a statute and different language in another, it is generally
        presumed that Congress acts intentionally.”

        This immediately precedes your quote. The deficiency the dissent is trying to fulfill is the difficulty that Congress demonstrated that it knew how to specify when a non-State would be treated as a state, but did not do so in reference to the federal government.

        And following your quote referencing the dissent, the majority further explains why it thinks the dissent’s definition is wrong. In a nutshell, the majority argues that the phrase “An Exchange shall be a governmental agency or nonprofit entity that is established by a State” is operational, not definitional, and support that position by noting that

        “The other provisions of section 1311(d) are operational requirements,” and “That reading, however, would render (d)(1) the odd man out twice over: both within section 1311(d) and among the ACA’s other definitional provisions, which, unlike (d)(1), employ the (unmistakably definitional) formula of “The term ‘X’ means….”

        Now of course the dissent’s interpretation could win at the Supreme Court. I don’t think anyone’s arguing differently. All I’m arguing is that, contra zic, it’s not at all “clear” that the federal government is a State in this context.

        And what makes you an ideologue, David, and not me, is that you are arguing there is one and only one obviously right way to interpret it–the way that happens to suit your ideological predispositions, whereas I am arguing that there are reasonable arguments on both sides; that reasonable people could come down on either side in this case.Report

      • Avatar DavidTC says:

        You insist that your preferred understanding is “the explicit definition of ‘Exchange’ in the law,” then acknowledge that the appeals court disagreed with you.

        That sentence *is* defining what an ‘exchange’ is. Even if it’s ‘operational’ and hypothetically intending to say ‘exchanges cannot be for-profits’, it’s still defining what an ‘exchange’ is. Because that means a state can’t use a for-profit and call it an ‘exchange’ under this law.

        If a law says ‘X shall be Y’, that is a definition of X. That sentence might be intending to say ‘All Xs are just defined as Y, despite reality or the common meaning of X’, (As the court put it, definitional) or it might be intending to say ‘All Xs will be created as Ys, and nothing else is an X.’ (Aka, operational), depending on context, but *both of those are defining X*.

        You realize that ‘shall be’ is the future tense of ‘is’, right? It’s how we define things that are true as for now, and will continue to be true going into the future, with the addition legal implication that the government should *make* that definition true.

        …I think James Hanley just disputed the meaning of ‘is’. Jesus Christ.

        Now of course the dissent’s interpretation could win at the Supreme Court. I don’t think anyone’s arguing differently. All I’m arguing is that, contra zic, it’s not at all “clear” that the federal government is a State in this context.

        I’m not sure why you claim to be arguing that. You *responded* to zic’s idea about ‘states’ with an entirely correct point under the law, and maybe zic still thinks otherwise, but at no point have I disagreed with that point. You are entirely correct as to how the law defines ‘states’.

        I instead pointed out a *different* part of the code that makes ‘an exchange established by a state’ less clear.

        And if you’re not sure who who is arguing differently…it’s you. This entire thing is about *you* dismissing the dissent’s interpretation.

        Obviously, then, your interpretation is obviously right. 😉


        *You’re the one* dismissing legal arguments made by reasonable lawyers, James. You. You are the one doing that.

        While, *at the exact same time*, you’re running around condemning people who do exactly the same thing in the opposite direction, which is what actually made me point this out.

        You were just running around complaining that people shouldn’t call the plaintiff’s case ‘bonkers’ because at least some judges and lawyers take their argument seriously. And then you immediately dismissed part of the law that the defendants were using as a basis for their defense as not being relevant, ignoring the fact that some judges and lawyers take their argument seriously.

        And what makes you an ideologue, David, and not me, is that you are arguing there is one and only one obviously right way to interpret it–the way that happens to suit your ideological predispositions, whereas I am arguing that there are reasonable arguments on both sides; that reasonable people could come down on either side in this case.

        Perhaps you would like to point out *anywhere* that I’ve said there is only one way to interpret this? Or have dismissed the other side’s arguments as nonsense?

        There is one thing I’m definite about in this discussion. Namely, ‘federal exchanges don’t get subsidies was not the original intent of the law’. *That*, I have a rather strong opinion on, and think the people trying to advance that as an argument are just flatly, provable, wrong, as a matter of history.

        But, when talking about how the courts will end up, I think I know how the courts will rule, and I certainly have a way I want them to rule. But I have not, at any point, dismissed the other side’s legal arguments.

        Unlike you, who did that in this exact thread and is pretending no one can see it.Report

      • Avatar James Hanley says:

        So, David, then if I understand you right, you responded to my “perfectly correct” response to zic, by jumping in and talking about something else entirely?

        Dude, that’s just awesome.Report

      • Avatar DavidTC says:

        So, David, then if I understand you right, you responded to my “perfectly correct” response to zic, by jumping in and talking about something else entirely?

        Yes, I responded by talking about ‘something else entirely’, if by ‘entirely’ you mean ‘in the same vein’.

        You pointed out that the law defines ‘states’ in an very unambiguous manner, and zic’s interpretation doesn’t fit. I responded by pointing out that the law also defines ‘exchanges’, and *that* definition leaves a bit more room to argue over. (As, in fact, people did in court.)

        I pointed this out by, uh, explicitly saying what I was doing. There was no confusion over what word I was listing the definition for…it’s right there in the text. If you wanted to complain I was off-topic in the thread (?!), you should have done it back when I started talking about the definition of exchanges.

        And I feel I should make a point here: *I* wasn’t the one running around talking about how the other side shouldn’t dismiss legal arguments. *I’m* not the one talking about how ideology was screwing up legal analysis, and how everyone needs to look objectively at both sides of the court filing, and that this is, legally, no settled.

        It is perfectly reasonable for me to say ‘This legal argument is correct’. I’m not the person cloaked in a flag of non-ideological neutrality. I *didn’t* really say whether I agree with that argument or not (Mainly because I think, in actuality, this case will be decided on political grounds, or possibly on intent grounds, not on the text of the law), but it would have been fine for me to take a firm position.

        But, instead, I took a fairly neutral position on whether or not the courts would agree, and just wandered around explaining the defendant’s arguments to people that seemed unsure of it. (We’ve got people here guessing all sorts of weird-ass theories.)

        And, most importantly, *I’m* not the one asserting ‘don’t dismiss legal filings because of ideological reasons’, but only applying that to the side I agree with.

        Incidentally, a complaint about how a short, entirely factual statement apparently left you confused about my opinion is just *hilarious* coming from you.Report

  3. Almost everyone seems to think that Employer-based healthcare was wrong and a historical accident and bad policy.

    FDR’s insistence on wage freezes was not an historical accident. It was, however, most definitely bad policy. But I suppose this is one of those “building blocks” of modern America that I’m supposed to celebrate as proof of the superiority of single party dominance.

    The ACA would seemingly be a compromise between the two sides

    Which is why it doubles down on employer-based health insurance?Report

    • Avatar Will Truman says:

      The wage freezes weren’t, but the indefinite effect it (combined with an exclusion for benefits) would have on our health care system was.Report

    • Avatar greginak says:

      Well it is a compromise from the position of many liberals who want a canadian or english style single payer. It is also a compromise in finding a way to expand coverage with as little change to those who already have insurance. Is it a good compromise from a purely technocratic view; no. But it is a reasonable one given path dependence and peoples fear of change in general.Report

  4. Avatar Will Truman says:

    It’s not certain to me (either way) that this lawsuit is ridiculous so much as it is the product of a lack of foresight on the drafters and what happens when a law is passed in a scenario where it cannot be corrected (legislatively) later. Even so, I more-or-less hope the plaintiffs lose because if it wins it will create a pretty screwed up situation.

    Charles CW Cooke has a similar take, though he lacks my uncertainty, arguing that the plaintiffs are right but that it will cause problems for Republicans if it wins.Report

    • Avatar Jim Heffman says:

      Well Will, they did have to pass the bill in order to find out what was in it.

      And, well, this is one of the things that was in it.Report

      • Avatar greginak says:

        If only conservatives were able to move past out of context gotcha quotes we might actually start to begin to get somewhere. But where is the fun in that.Report

      • Avatar Jim Heffman says:

        “Gotcha” quotes like binders full of women, 47%, i-can-see-Russia-from-my-house, you can’t get pregnant if you enjoyed it?Report

  5. From what I understand of the challenge, it’s more a disagreement over what the statute says and the proper way to interpret it, and therefore well within the courts’ and the Court’s duty to “interpret the law.” Not some “nuts” legal jurisprudence.

    Not that I like the challenge. Neither do I have much respect for those who use this challenge as the way to combat government overreach, etc. Surely there are better first targets in that battle than subsidies given to poor people to help them pay for health insurance.Report

    • Avatar RichW says:

      The challenge is simple. Who rights the law? The ACA says one thing and the IRS changed it. The challenge is to the reg written by the IRS.

      • I didn’t watch the youtube video, but that’s kind of how I understand it, with the following proviso.

        It’s not unusual for a law to be ambiguous in one respect and for the enforcers of that law to interpret it on one side of that ambiguity rather than on the other. In that sense, the IRS would have interpreted–and in my opinion, not knowing all the facts and not having watched that video, did interpret–on the side favoring the subsidy instead of the side disfavoring it.

        What I mean is, what the IRS did is not necessarily nefarious, unless the text is crystal clear.

        As a side note, one thing I haven’t seen so far (but there are a lot of comments here since last night that I haven’t read yet) is about whether the IRS might change its interpretation when, say, an ACA opponent becomes president.Report

  6. Avatar Burt Likko says:

    As I understand the legal theory behind this lawsuit, if the plaintiffs are successful then in the states which have not adopted exchanges, there will be neither a subsidy nor an individual mandate. Obamacare will simply not apply in those states. Is that incorrect? If so, I’d appreciate a pointer and citation to explain why.Report

    • Avatar zic says:

      if the plaintiffs are successful then in the states which have not adopted exchanges, there will be neither a subsidy nor an individual mandate.

      @burt-likko, a question, if this is the interpretation — wouldn’t that invest a really weird amount of power in governors? That feels awkward in all sorts of ways.Report

      • Avatar Michael Drew says:

        I don’t think it’s an interpretation (more than absolutely minimally). I think the law is pretty explicit that it works like @burt-likko describes. (Though, sorry Burt, I don’t have a cite to confirm that. It’s just what I’ve herd too.) Which means, yes, the law gives a lot of power to governors (and state legislatures and heath departments, and so forth). That’s how it’s set up.Report

      • Avatar Michael Drew says:

        Damn. Sorry, @zic. I see you meant the interpretation being advanced in the lawsuit, not that if there are no subsidies then there would be no IM.

        And yeah, as much power as the law does put in states’ hands, it would be pretty weird, and was clearly not the intent, to put so much that they could essentially cancel the core of the law. I thought you meant it would be weird if it additionally let them cancel the IM by canceling the subsidies, but not if it only let them cancel the subsidies. Which was dumb of me.Report

      • Avatar Brandon Berg says:

        >wouldn’t that invest a really weird amount of power in governors? That feels awkward in all sorts of ways.

        You mean the state governments, or the governors specifically? I’m not sure why the choice would be up to the governors, except insofar as the authority their respective state constitutions vest in them.

        There’s nothing weird about state-level issues being decided at the state level. It’s pretty explicitly how this country was set up, and how it was run, until Roosevelt’s power grab.Report

    • Avatar LeeEsq says:

      If the plaintiff’s are successful, the subsidies would go away but the individual mandate would remain in the states that did not set up exchanges. This would effectively make the people in those states have to pay the full cost of insurance on their own or pay the penalty for not having insurance.Report

    • Avatar Saul Degraw says:


      As far as I know this is only about the subsidies and tax exemptions. I haven’t seen anything about the individual mandate in the press. The Supreme Court already upheld the individual mandate as a tax so I am not sure why it would go away in this insistence.

      Anti ACA fanatics would probably like a world with an individual mandate and no subsidies.

      Like my brother, I’m cynical about the good faith of the plaintiffs. When we studied the original anti-Obama care lawsuits in Advanced Constitutional Law, I was not surprised to see that one of the plaintiffs was a former Goldman Executive. Of course he was. Mr. Multi Millionaire doesn’t need the exchanges to get affordable and good insurance.

      While I generally support liberal standing requirements, it does get frustrating to see bullshit plaintiffs in these cases. I’d buy it more if they did manage to find an actual poor person without insurance to serve as a plaintiff.Report

  7. Avatar James Hanley says:

    It’s really a shame when the losers don’t just accept their losses.

    Of course I’d hate it if my team just rolled over and quit at every setback, but that’s different.Report

    • Avatar Saul Degraw says:

      So never ending warfare then?Report

      • Avatar James Hanley says:

        It’s awfully easy to say the other guys should just give up already. But do you really, honestly and sincerely, want your team to give up when there’s still a long shot chance at victory?

        Look, the D.C. Court was going to rehear the case en banc; SCOTUS has decided to hear the case. And what you’re really worried about, quite obviously, is that the other team might win. That makes it a bit hard to simultaneously argue that the lawsuit is utter nonsense, or that the other side should quit because they don’t have a leg to stand on. If they really were at a point where they should just give up, you wouldn’t be worried.Report

    • Avatar Saul Degraw says:

      More seriously, the Civil Rights Act of 1964 had two serious challenges (that I know of) and they both ended with the Supreme Court upholding the Act. While many complain about it, no one has decided to launch a serious campaign to repeal it. The Voting Rights Act OTOH….

      Entrenched warfare is bad for a public and there is something adult about realizing decisions have and elections have consequences which cannot be changed every time Congress changes hands.Report

      • Avatar James Hanley says:

        Good christ, we’re still just a couple years down the road from ACA. If they lose this challenge, there’s not going to be much else for them to challenge it on legally. And if they can’t win the 2016 presidential election on it, then they’re going to come to accept it.

        As I suggest above, you’re worried they might succeed. The fact that they might succeed is sufficient evidence that they shouldn’t yet give up. What it appears is the real dynamic here is that you want them to accept their fate like adults precisely because it’s not yet obviously their fate.Report

      • Avatar Michael Drew says:

        The fact that they might succeed is sufficient evidence that they shouldn’t yet give up.

        Why’s this? I’m not saying they should, in part because of what you say about whether I’d want people to fight this far on another cause. But all that really tells us is that it probably makes sense to fight to different degrees for different things. So what’s the principle by which they shouldn’t have given up by now on this? Maybe it would have been a good idea to. There’s an argument that if this lawsuit were to succeed, it would hurt people. Maybe that produces a reason for them to give up at some point that they’re ignoring out of an ill-advised singlemindedness in achieving success in a way they really should reevaluate… and maybe it doesn’t, right? They might be pursuing a course they might realize on better reflection that it would be better for them they not pursue, even if there’s a decent chance of it achieving a result they’re assuming they want with it. I mean, it’s possible, right? It all depends.

        Point is, I don’t see where the principle Saul is operating on is, “They lost once, so merely knowing that and the fact that they’re on the other team, they should by my lights give up immediately.” And that just because there is a fight you can pursue and win, doesn’t mean you should pursue it, or pursue it past a particular point. It all depends.Report

      • Avatar Saul Degraw says:


        It isn’t that they lost once. It is that logic behind their case is completely bonkers. The only reason I think they might succeed is because the Courts have become almost ideological as Congress many times.

        “Indeed, even Halbig supporters seem to realize that this principle is insufficient grounds for denying health care coverage to millions of Americans. The Halbig litigation is not just based on the smarmy and callous argument that people should lose their health care coverage because of a drafting error. Instead, many supporters have argued that Congress actually intended for the federally established exchanges not to work, to ensure that states would set up their own.

        As New York’s Jonathan Chait put it, referencing the classic Seinfeld episode, Halbig supporters aren’t merely arguing that people should be stripped of their insurance because the Trivial Pursuit card says “Moops” instead of “Moors” — they are arguing that the Moors were actually called the Moops.

        The problem with this attempt to blame Congress is that it is absolutely absurd. With the exception of one consultant who has repudiated this view before and after the fact, nobody involved in writing or enacting the legislation believed that tax credits would not be available on the federal exchanges. If Congress wanted to coerce the states into establishing their own exchanges, it wouldn’t have kept the withholding of tax credits a secret.”

        I am not seeing any good faith or sincerity in the plaintiff’s. All I see is as everyone else said above is chicanery and that people simply want to get rid of the ACA no matter what because anything even vaguely socialized is a bridge too far.Report

      • Avatar Murali says:


        American courts have always been ideological. Legal positivism never really caught on in America so a lot of American jurists have thought that 1) It is acceptable to reach for moral principles when interpreting the law and 2) Whenever judges do so, they do not go outside the law so long as the moral principle is relatively sound. I cannot remember the last time an American jurist made a legal decision which conflicted with his or her ideological priors.Report

      • Avatar Brandon Berg says:

        @saul-degraw The only reason I think they might succeed is because the Courts have become almost ideological as Congress many times.

        Someone who endorses the Butterfly Effect interpretation of the interstate commerce clause doesn’t get to complain about the courts being ideological. You want the courts to disregard the law for ideological reasons—you just don’t like when their ideology clashes with yours.Report

      • Avatar Brandon Berg says:

        @murali There was a recent case where a judge let a guy off the hook for taking upskirt photographs because the law under which he was being charged was written broadly enough that it would also have prohibited other kinds of photographs that are constitutionally protected.

        There was also Gonzalez v. Raich, in which Thomas, Rehnquist, and O’Connor (two conservatives and a moderate) wanted to strike down a federal law prohibiting the use of medical marijuana, while the court’s left wing (and Scalia, disappointingly) voted to uphold it. Thomas et al rightly observed that growing marijuana for your own use is neither commerce nor interstate, and thus not covered by the federal government’s authority to regulate interstate commerce.

        The left wing voted to uphold the law because to do otherwise would be to acknowledge limits on the federal government’s authority under the interstate commerce clause. I guess this is more a matter of sacrificing a lesser ideological goal for a greater one, though, as the interpretation of the interstate commerce clause they upheld is both logically and historically untenable and pretty transparently ideologically motivated.Report

      • Avatar James Hanley says:

        Michael Drew,
        The fact that a person on team blue see a bad outcome when team ref might win says nothing about whether red should give up. That’s just a blue assuming red should see things from blue’s perspective rather than trying to put themselves in red’s shoes. That is, a blue can’t just say “this is objectively a good reason to give up when you have a chance to win,” because their alleged objectivity is colored by their desire for a red loss. And their’s no way blue would accept a red argument of the same form.

        Or put another way, the argument that they should quit when they see a chance for victory us dependent on the perception that their beliefs are wrong. But you can’t sincerely ask someone to stop pursuing their beliefs while they still believe them. Would you stop pursuing what you believe in just because your political opponents insist your beliefs are wrong?Report

      • Avatar James Hanley says:

        Saul DeGraw,

        The legal theory is so bonkers that two justices of the most influential Circuit Court in the country, with vastly more experience than you or I in constitutional jurisprudence, accepted it?

        And you think it’s obviously bonkers, but you’re concerned that a majority of the Supreme Court might accept it?

        You may have a different definition of bonkers than I do. Mine revolves around whether really well educated people with a great deal of legal experience will seriously entertain an idea or not? What’s your definition?

        Here’s a good excercise. Sit down and use your lawyer skills to make the best argument you can for their case. That’s what you’d want to do if you were tasked with arguing against them before SCOTUS, right? Personally, I think I’d take a textualist approach, arguing that Congress means what it actually rights. That may not win, but it’s not self-evidently bonkers.Report

      • Avatar Morat20 says:

        The legal theory is so bonkers that two justices of the most influential Circuit Court in the country, with vastly more experience than you or I in constitutional jurisprudence, accepted it?
        And the rest laughed it out of the courtroom.

        So I dunno who to listen to. Two outliers who everyone was certain would be overturned en banc…or everyone else, including the full en banc court?

        Wait, I do know whom I’d lean towards. That’d be basically “every other judge on that court PLUS pretty much all the judges on equally powerful and influential courts”.Report

      • Avatar James Hanley says:


        I’m not saying the anti-ACA argument is a winner, or the correct argument. Can we make rhat clear? I’m not arguing anti-ACA or pro Halbig. I’m arguing that if a case wins in the D.C. circuit, even if loses on appeal, it was probably stronger than “bonkers.” And if you say an argument is bonkers while simultaneously fretting that it might persuade a majority on SCOTUS, the odds are overwhelming that you’re contradicting yourself. (And if the response is “but those justices are so ideological” how can one be confident that such a statement doesn’t also apply to oneself?)

        I’ll tell you one thing I learned in my study if constitutional law: reading both the majority and dissenting opinions, I’ve very often been struck by the strength of the arguments on each side. There are very few truly bonkers arguments that persuade a majority. We can all name a few, but I’ll bet we all run out before we’ve counted on all the fingers of both hands.Report

    • @james-hanley

      Yes, I think that’s mostly what’s going on here, and being on what is likely, or at least possibly, the losing side isn’t a very good feeling. This is one of those rare policies that I feel very strongly about, even though it is very flawed and one of the flaws is why this particular challenge has the legs it does.

      I’m a bit soured on some of those who are using this particular challenge as a way to strike it to “the rise of statism.” As I said above, surely there are other ways to do it than targeting a policy that helps the more vulnerable people.

      But if the law is ambiguous or arguably worded in a way that suggests the IRS’s interpretation is invalid, then the argument is at least debatable and not “bonkers” or “nuts,” as the OP would have it. And the fact that is ideologically driven doesn’t really mean much. As far as I know, the courts don’t dismiss lawsuits based on whether the principals have some sort of ulterior ideological stake in the outcome.Report

  8. Avatar DavidTC says:

    From what I recall, this lawsuit won’t win based on the clear meaning of the law.

    There is a part of the ACA that actually talk about how the subsides work, and assumes that there are subsidies for states that do not implement their own exchange. And there’s another part that talks about how the Federal government is implementing *state* exchanges. (I.e., there is not a ‘Federal exchange’, there are state exchanges that happen to be run by the Federal government. Which is actually how it works)

    In other words, despite some terminology confusion, parts of the law make no sense if you assume the law is what the plaintiff says. You don’t even have to track down the intent when the bill passed, the law *itself* assumes such subsidies exist.

    However, I can’t actually find the article I read about this, or even remember what blog I read it on. I’ll keep trying to find it.Report

    • Avatar Road Scholar says:

      I vaguely remember the same thing. I think (okay, hope as well) that they’re hearing this for the same reason they agreed to hear one of those birther lawsuits — to make the stupid go away.

      For whatever reason — and there are a couple theories out there — Justice Roberts bent over backwards to interpret the mandate penalty as a tax when he could quite easily not. I have a hard time believing he would turn around now and gut the thing over a technicality when it’s clearly ridiculous to assume Congress intended it to read that way. The Medicaid expansion mandate was struck on Constitutional grounds. No Constitutional argument is even being proffered here.Report

    • Avatar DavidTC says:

      I still haven’t found the article, but here is me piecing together one of the arguments:

      Here’s the part of the law where it only talks about ‘exchanges established by the state’, 26 U.S. Code § 36B:
      ‘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 of the Patient Protection and Affordable Care Act, or’

      Now, the interesting fact is that section 1131 makes no distinction between state and federal exchanges at all. In fact, here is what *that* law says, 42 U.S. Code § 18031(d):

      ‘An Exchange shall be a governmental agency or nonprofit entity that is established by a State.’

      There are only ‘Exchanges’. The place that the stop-gap Federal creation first show up is under 42 U.S. Code § 18041:

      ‘…the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.’

      The Federal government is establishing an exchange, which, let us not let us not forget, is ‘a governmental agency or nonprofit entity that is *established by a State*’. By law.

      In the actual sense, those ‘federal exchanges’ are established by the federal government, but in the *legal* sense, the Federal government is setting up ‘an exchange established by the state’. Because that is what Exchanges *are*, by definition. It says so right there in 42 U.S. Code § 18031(d).

      Yes, the statue completely redefines the common-sense meaning of ‘established by a state’ to include things that are not established by a state. But laws can redefine words and phrases if they feel like it. They do it all the time.Report

    • Avatar DavidTC says:

      I still haven’t figured out the article, but I believe I’ve stumbled across the other argument I’ve read.

      Specifically, 42 U.S. Code § 18031 (d)(4)
      An Exchange shall, at a minimum—
      (G) establish and make available by electronic means a calculator to determine the actual cost of coverage after the application of any premium tax credit under section 36B of title 26 and any cost-sharing reduction under section 18071 of this title;

      All exchanges (even ones established by the federal government) have to provide calculators to determine the eligible tax credits of 36B, the section that says ‘an Exchange established by a state’.

      However, this argument seems a bit more dubious to me. Sure, it would be a bit *stupid* to require federal exchanges to provide a calculator that always returned a ‘0’, but that’s not a very good legal argument.Report

    • Avatar Brandon Berg says:

      Oh, are you endorsing original intent now?

      We’re going to have to throw out the whole law, in that case.Report

      • Avatar DavidTC says:

        Uh, nothing I said had anything to do with ‘original intent’, or intent at all. Perhaps you should direct your comment at one of the people who are actually *making* an argument based on intent.

        I’m making one based on *the text of the law*.Report

  9. Avatar Michael Cain says:

    I’m not thinking about this from the perspective of legal niceties, but only from my own perception of the Court’s “personal” dynamics the last time. My view on that is CJ Roberts did what it took to shepherd the ACA through the last time, and he’s not about to let this particular argument cripple it.Report

  10. Avatar Brandon Berg says:

    People who disagree with you sure are ideological.Report

  11. Avatar Saul Degraw says:

    @jaybird @james-hanley @greginak

    Moving downthread.

    Re: Gruber’s comments.

    The one bit of evidence that Jaybird is clinging to involves a recanted statement, very much like a prosecutor who clings to a coerced confession when all the DNA and other physical evidence exonerates a man serving on death row:

    So in the articles above, there is proof that the legislators said the I.R.S. interpretation was right in the Congressional debates and records. Courts are supposed to look to the Congressional record when doing statutory interpretation. Considering Gruber’s recanting of one statement from 2012, I would say the evidence shows the I.R.S. is correct.Report

    • Avatar Jaybird says:

      Personally, I find the phrasing of the recantation to be interesting.

      I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes.

      And, my favorite:

      But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.

      What I find interesting about that is that there is more than one instance of him saying “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”.

      Given that there’s more than once instance of him saying this, it makes it less likely to me that he was speaking off-the-cuff and making speak-os.

      Now, indeed, he’s saying that he doesn’t know why he said that. What do words mean, anyway? Things? Feh.

      But, at the time? I think it’s neither crazy nor particularly uncharitable to think that, in 2012, the idea was that states without exchanges wouldn’t get tax credits.

      And if it wasn’t crazy nor particularly uncharitable to interpret the law that way in 2012, I don’t think that it’s crazy nor particularly uncharitable to say that it’s a reasonable interpretation in 2014.

      If the argument is “what’s likely to happen?” Sure, we’ll keep Obamacare. We’ll all laugh and point at deniers and ask them “That crazy, recanted interpretation? Why do people keep talking about that?”Report

      • Avatar DavidTC says:

        But, at the time? I think it’s neither crazy nor particularly uncharitable to think that, in 2012, the idea was that states without exchanges wouldn’t get tax credits.

        Really? Then why did *absolutely no one else* involved in trying to get states to set up their exchanges mention it?

        Seriously, how the hell is that supposed to work as a threat if no one (But this one guy, apparently) know it?

        Jaybird, do you want to know what *actually* happened, without any partisan spin? Here it is:

        There were, indeed, various health care mandate bills that would threat subsidies if the states didn’t play along. This bill *wasn’t one of them*, or, at least, wasn’t supposed to be. The bills that were *trying* to restrict subsidies in that way made it very clear what they were doing, they didn’t weirdly exclude subsides in the subsidy *calculation* area.

        This guy gets confused, thinks something like that ended up in the original bill, runs around saying it.

        Years later, due to some poor language, a part of the bill is found that means it actually *can* be interpreted like that, in a way that absolutely no one has every actually interpreted like that. No, not even this guy…it’s not like he read the law, found this part of it, and managed to read it that way. He was just confused about what sort of bill actually passed.

        That is the actual sequence of events. Make of it what you want.Report

      • Avatar Jaybird says:

        Absolutely no one else?

        Here’s an article from 2011:

        Now, I don’t know what happened (I mean, how do we know whether anything ever happens?) but I do think that it’s a reasonable interpretation of the law given the fact that these interpretations of the law are out there contemporaneously.Report

      • Avatar DavidTC says:

        That article is *not* saying there’s a carrot/stick approach to anything. That article is saying *there is a mistake in the law*.

        If anything, that article argues *against* carrot/stick being the intent of the law.Report

      • Avatar Jaybird says:

        So we agree that that article talks about how the law, as written, can reasonably be interpreted to do what Gruber says it did?

        If we can just hammer that out, I’ll be good.Report

      • Avatar DavidTC says:

        So we agree that that article talks about how the law, as written, can reasonably be interpreted to do what Gruber says it did?

        Uh, no. Gruber asserted there was a carrot/stick. This article, instead, says that a few people says there is a *technical problem in the law*. (It’s worth mentioning that one of the people who appear to think it’s a mistake is someone at the *Cato Institute*, who would presumably know these things.)

        And a carrot/stick and a drafting error are not the same thing.

        If you want to argue that specific part of the ACA is catastrophically poorly-written and hence the subsidies can’t apply to federal exchanges, feel free to argue that.

        But that is *not* what you are arguing, which is that specific part of the ACA is *intended* to do that, and this article provides no support of that…in fact, it shows that a few people who stumbled across the problem seem to think it’s a horrible mistake that might destroy the entire law. Not only do they think it was not intended, they think *it can’t possibly have been intended*!

        Gruber, as I said elsewhere, appears to have confused the bill that actually passed with some other health care reform ideas floating around at the time. There were, indeed, bills that would do that on purpose, and they did it very clearly. Those alternative bills are not the ACA, although it’s possible that part of those bills referencing that fact were inadvertently copied into the ACA.Report

    • Avatar Saul Degraw says:


      What benefit do you get from having millions of people lose health insurance coverage because they are denied subsidies and tax-exemptions because they live in states without an exchange of their own?

      How does this benefit the libertarian cause? How does this benefit the plaintiffs?

      Is it really worthy having millions of people get screwed because of this?

      And as to the legislators, it is in the Congressional record! There silence is not evidence except in some twisted worldview where the other side needs to be constantly out there all the time proclaiming things instead of doing their jobs as congresspeople? Congress has more to do than pass the ACA and then constantly defend it to placate an ideological libertarian burden of proof.Report

      • Avatar Jaybird says:

        I benefit because I am in a fight to the last against the Lord God on High. He is working to make sure that people live long enough to accept His Son as Savior while I am working to make certain that they die without hearing The Truth. The best way that I’ve found for them to die faster is to make sure that they don’t have the health care coverage promised by Obama.

        Now, what do I get if I win in my fight against the Lord God?

        I get to be left alone.

        And I will kill billions if I need to in order to make that happen.

        Why do you ask?Report

      • Avatar Brandon Berg says:

        @saul-degraw What benefit do you get from having millions of people lose health insurance coverage because they are denied subsidies and tax-exemptions because they live in states without an exchange of their own?

        You do understand, don’t you, that real people actually have to pay for these subsidies, right? They’re not manna from heaven. Furthermore, this is another advance in the left’s War on Incentives, in which, tax by tax, subsidy by subsidy, they chip away at the difference in reward for doing high-marginal-productivity work and low-marginal-productivity work or none at all.

        This is something that was explicitly touted as a feature by supporters of the law such as Kevin Drum, and Erik Kain, who argued on this very site that Obamacare was a good thing because it would make it easier for people to quit their jobs. Moreover, the CBO predicted that a full-time-equivalent of two million people would quit or their jobs or cut back to part time because of Obamacare.

        The purpose of government is to mitigate externalities, not create and augment them.

        Is it really worthy having millions of people get screwed because of this?

        Screwed? By not having other people forced to give them free health care?

        I’d be a bit more receptive to the left’s proposals if you described them honestly—as charity—rather than with this brazenly disingenuous language of entitlement.Report

      • Avatar Jim Heffman says:

        “What benefit do you get from having millions of people lose health insurance coverage ”

        What benefit do you get from letting obviously guilty criminals go free because there’s not enough evidence to convict?

        Oh, protection of the Constitutional right to due process? pffft, clearly you don’t care about victims.Report

  12. Avatar Dand says:

    Is there a good reason that Congress doesn’t bother to proofread laws before voting them?Report

    • Avatar Michael Cain says:

      Speaking from my experience at the state level, staff tries really, really hard but things still sneak past. Many of the tiny errors and inconsistencies are noticed along the way and tidied up during the conference committee. In this case, there was no conference committee because the Dems lost their 60th vote in the Senate, and a modified bill would have been filibustered.Report

      • Avatar Will Truman says:

        Yeah, it seems to me that the inability to modify the bill is at the root of this.Report

      • Avatar greginak says:

        True about not being able to clean up some of the language. However some laws are written without defining words that likely should be specifically designed or without spelling out every single detail. This is actually the state of the laws i end up dealing with where “serious domestic violence” hasn’t been defined. What is “serious”? It isn’t spelled out. Maybe at some point the courts or leg will. Of course no one argues that there should be no domestic violence laws at all because the word “serious” hasn’t been specifically defined.Report

      • Avatar Brandon Berg says:

        As a software developer, I’m pretty sympathetic to the difficulties of writing an elaborate law, which is essentially software to be run on hardware whose behavior can’t even be known ahead of time. On top of that, they have no way to test it without actually putting it in production. If I had to do that with a project of any nontrivial size, it would be a disaster every time, no matter how carefully I proofread it.Report

      • Avatar Jim Heffman says:

        The “software development” analogy seems to be exactly what most ACA supporters had in mind. “oh, there are problems? Well, we’ll just fix them by doing law stuff, I mean, duh, it’s just like rewriting HTML!”Report

  13. Avatar Mad Rocket Scientist says:

    I suppose it would be too much to hope for that people remember “We have to pass this law to find out what is in it.”, along with these lawsuits, the next time they want to do big sweeping changes that involve (IIRC) almost 1000 pages of law?

    Of course, such complexity may be desired by those opposed, as it gives them hooks to sue on later.Report

  14. Avatar j r says:

    This is a pretty obvious case where the intent of the law is fuzzy and the legislature, for political reasons, will not clarify the law, instead punting to a regulatory body to clarify by rule making. There is absolutely nothing wrong with that, but there is also absolutely nothing with citizens who have standing taking those rule making body to court to explain why their rule making runs directly contrary to the law. This is why we have courts.

    All this hand-wringing just comes across as “OMG! My side might lose; therefore this cannot be legitimate.”Report

    • Avatar greginak says:

      The intent of law doesn’t seem fuzzy at all and that is supported by documents and statements from the people at the time and since then.Report

      • I think J-R’s point–and if it isn’t his point, then it’s my point–isn’t that there’s no countervailing argument against the plaintiffs. Your own recent comment below does a good job at proffering an counterargument. And I hope your counterargument prevails because I support the law and want it to succeed.

        Rather, the point, as I see it, is the complete dismissal of any possibility that the plaintiffs might be right, to wit, the OP’s claim that the legal argument is “ideologically motivated” (as if the motivation is a compelling counterargument) and that the legal argument is “nuts.” And those claims seem more to be a reaction to the prospect of losing.

        As far as I can tell, the OP limits its discussion of the issue more to the fact that “the IRS interpreted it the way I like” without addressing whether the IRS’s interpretation was consistent with what the law said or whether it might have plausibly interpreted it otherwise. I can imagine a Republican winning the presidency and instructing the IRS to adopt a different interpretation, and then ACA supporters would be the ones bringing the lawsuit, claiming that their (and my) preferred interpretation is compelled by the law. (At which point, the shoes will switch feet and we’ll hear an outcry from some opponents on the “bonkers” and “nuts” arguments.)Report

      • Avatar greginak says:

        The law suit seems to be based on a finding a sentence they can make a color-able argument about a way of hurting the law. If the one sentence they found was everything in the law they might have an argument but to take the plaintiffs seriously they have to ignore other parts of the law that don’t support their contention.

        As i understand the legislative law aspect, which i got from a post by Doug M on OTB, the IRS is generally allowed by the courts to read ambiguous sentiences in a way that makes the darn thing work. That makes sense. As i noted somewhere else in this thread legislatures often don’t have every single possibly ambiguous or uncertain word or phrase defined. That’s just people.Report

      • Avatar j r says:

        If that is the case, then why did the IRS have to issue a clarifying rule?Report

      • Avatar greginak says:

        JR. As i understand it because people were questioning it so they read the entire law and said “oh this is how it is obviously supposed to work.”

        A more general comment to everybody. People are pointing out ideological reasons for reading disliking the plaintiffs case. I’d suggest there are plenty of ideological reasons why people are even giving the plaintiffs the time of day; generic mistrust of congress, dislike of the process of the ACA and quite obviously dislike of the ACA.Report

      • People are pointing out ideological reasons for reading disliking the plaintiffs case. I’d suggest there are plenty of ideological reasons why people are even giving the plaintiffs the time of day; generic mistrust of congress, dislike of the process of the ACA and quite obviously dislike of the ACA.

        I don’t know if that was directed at me, but I never claimed that support for the challenges wasn’t ideological. Just that pointing the ideological motivation does not by itself address the argument.Report

      • (And for what it’s worth, I have no wish to let judges or justices who interpret a law more harshly than other laws based on which side sponsored it off the hook.)Report

      • Avatar Michael Cain says:

        If that is the case, then why did the IRS have to issue a clarifying rule?

        The IRS writes clarifying rules about everything. Some of them simply add accounting kinds of detail because Congress doesn’t bother with that. Some of them are informational, in the sense of “this is how the IRS is interpreting the statutory language at this time.” Having one of the big accounting firms put forward a different interpretation of statute, so that some transaction is tax-favored in some way, then the IRS writing a rule against it, then the courts settling whether the IRS interpretation or the accounting firm’s interpretation is correct, is all routine stuff.

        At one point in my technical career, because I did some researchy work, a portion of my salary and benefits counted as depreciation of a capital good for tax purposes. My understanding of that was that it took multiple court cases involving the statutory language before things were settled that indeed, Mike was something that could be depreciated.Report

    • Avatar greginak says:

      No GC that wasn’t aimed at you. It was a general comment. It seems to me the people trying to defend or find logic in the plaintiffs are being just as ideological.

      Unless someone can find a better explanation then i’ve ever seen i really don’t think there is much to the plaintiffs side. They are trying to find a way to cripple the ACA, that is there goal. If i remember correctly they have filed other suits against the ACA making completely different and opposite arguments before this case. I’m out to go skiing but i’ll try some quick googling to find links. But they have been trying to kill the ACA before.Report

      • For the record, I hope you’re right and that the challenge fails.Report

      • Avatar Will Truman says:

        It seems to me that suggesting that the plaintiffs have some sort of case is not ideological as much as it is an acknowledgement of reality. Whether they have a winning case or not remains to be seen – I don’t think they do – but assigning ideology to seeing ambiguity in a case that has seen victories for either side and is headed for the Supreme Court takes us straight into “agnosticism is a religion like any other” territory.

        If this case were so bleedingly obvious, it doesn’t seem likely that we would be where we are.Report

      • Avatar Saul Degraw says:


        There is no contradiction between having an ideology and being able to come up with a colorable argument for court. I would say that having an ideological motivation is likely to make someone come up with a colorable opposition.

        The simple truth in many public interest and constitutional law cases is that the lawyers sometimes to often go plaintiff shopping. The architect of this current litigation is a professor at Case Western with known libertarian leanings who does not believe in any form of socialized or government run health-care period. I don’t know much about the named plaintiff in the current litigation. I don’t express doubt at his opposition to the ACA or socialized medicine. I do express doubt that he can prove a real and tangible damages and I am having trouble finding the original complaint.* How is a private citizen hurt by having the I.R.S interpret it in this way?

        There seems to be a “moderate” kind of fiction that we should pretend constitutional law suits like this one and plaintiffs and their lawyers. I call bullshit. One of the named plaintiffs in the original anti-ACA lawsuits was an retired Goldman Executive/Investment Banker worth millions who claimed he was being damaged because of the exchanges and not being able
        to buy health insurance in other ways. As a liberal this sets off my BS meter. The guy would be able to buy health insurance no matter what because of his millions. How he is damaged by people shut out of the insurance market being able to know afford insurance because of the exchanges and subsidies?

        *There is a devious thing that can happen with standing. Standing is whether someone has a right to bring a suit or not to court. Generally liberals like easy standing requirements and conservatives like stricter standing requirements. One of the requirements of standing is being able to show damage that is “real and concrete” instead of “abstract and hypothetical”. I can see Roberts writing a decision that says citizens like standing to bring a lawsuit like this which would let the regulations stand but also act as a way of limiting the docket to federal court and raising the bar on who can bring a law suit to federal court.Report

      • Avatar Will Truman says:

        I’m not arguing that the plaintiffs are not being ideological. I’m casting suspicion on the belief that considering that their argument may be colorable is just as ideological as believing it has no merit whatsoever.

        It has had enough merit to get further than I would have guessed, and arguments that there is absolutely no merit don’t seem to describe what has unfolded. Which, I should add, is not for the first time regarding this law.Report

      • I’m curious about how the plaintiff in this case claims standing, too. (However, I’m not curious enough to look it up.)

        I do think with the individual mandate, it’s not hard to find someone with standing. Someone doesn’t want to buy health insurance and is penalized for not buying it. Point. Standing. Whether that was the claim behind the NFIB in the mandate case, I don’t know.

        One of the named plaintiffs in the original anti-ACA lawsuits was an retired Goldman Executive/Investment Banker worth millions who claimed he was being damaged because of the exchanges and not being able
        to buy health insurance in other ways.

        You probably know the NFIB v. Sebelius decision better than I, but I had thought it wasn’t about the exchanges but about the individual mandate.Report

      • Avatar DavidTC says:

        With regard to standing, from what I understand, the plaintiff says that, without the tax subsidies, he falls under the exemption of the ACA that allows him not buy insurance if there’s not a plan that is less than 8% of his income. (I think that’s the level.)

        To put it another way, he says he’s choosing not to buy insurance. With the subsidy intact, the insurance is legally affordable and thus he is hit with the mandate and has to pay a fine for not buying it.

        *Without* the subsidy, however, the insurance is too expensive and he falls under the mandate exemption and can pay nothing at all.

        I’m someone generally in favor of liberal standing requirements, and think the ones we have are too strict. But even under our current strict standards, this pretty clearly qualifies for standing…if the subsidies exist, he’s out $95 on his taxes, and that amount will go up each year as the mandate gets stricter.Report

      • Avatar DavidTC says:

        Or, rather, *a* plaintiff claims that. Not sure which one.

        But I’m sure it’s easy to find low-income people who do not want to buy insurance (Or pay a penalty) in the right states if more plaintiffs are needed. (And note that ‘low-income’ and ‘millionaire’ are not technically mutually exclusive. The mandate cares about income, not assets.)Report

      • Avatar James Hanley says:

        I’m not able to find the ruling in the King case quickly, but I have the Halbig ruling up, and here’s the relevant portion of the ruling on standing.

        The district court determined that at least one of the appellants, David Klemencic, has standing. Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year.

        He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.

        The government primarily questions whether Klemencic has suffered an injury in fact. An injury in fact is “a concrete and particularized invasion of a legally protected interest.” Sprint Commc’ns Co., 554 U.S. at 273 (internal quotation marks omitted). The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized.
        But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him… Those consequences may be small, but even an “identifiable trifle” of harm may establish standing. Chevron Natural Gas v. FERC, 1… Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.

        Curiously, taking note of the objections to a wealthy person challenging the law, it is likely that only a lower income person like Klemenci would be affected by the law in this way. And the monetary impact is so small that one might be tempted to say it’s insignificant (that in fact the economic impact might actually be positive, if he in fact has to seek medical care). But if on those grounds the courts denied Klemenci standing, then we might have a situation where nobody who was affected by the law would have standing. In that case, it’s almost incumbent upon the courts to allow standing, so that a law–any law–is not beyond challenge.

        That’s a bit off the top of my head, so don’t make any bar bets based on it.Report

      • James,

        Thanks for looking it up. Again, I probably could’ve looked it up, but didn’t.

        I’m not quite sure I agree that it’s incumbent on the courts to allow standing if there can’t be any demonstrable, particularized, and tangible injury. I’m not sure I disagree, either, and I realize the courts have occasionally used broad definitions of standing (as in challenges from taxpayers against the separation of church and state). I’ll just need to think on it some more.

        However, what you describe does seem to be a case where standing should be granted.Report

    • Avatar Stillwater says:

      All this hand-wringing just comes across as “OMG! My side might lose; therefore this cannot be legitimate.”

      That might be true of the hand-wringers. Or at least partly true, anyway. I think there are also lots of people who want to see their side win because they believe in the policy and want to see the current state of affairs re: state exchanges and subsidies continue and even expand.Report

  15. Avatar j r says:


    When you say things like:

    …Halbig supporters aren’t merely arguing that people should be stripped of their insurance because the Trivial Pursuit card says “Moops” instead of “Moors” — they are arguing that the Moors were actually called the Moops.


    There does seem to be an implication in some posts in this thread that we should give the plaintiff’s the benefit of the doubt on sincerity of belief but I am not.

    it leads me to believe that you haven’t actually bothered to go look at the plaintive’s argument for yourself. Instead, it appears that you’ve started with a default position and outsourced your understanding of the other side to sources like Chait and Vox, which are either obviously partisan or… what’s the best way to describe Vox? Maybe it is to say that when it comes to considering alternative positions to their fuzzy, vaguely left-of-center milquetoast world view, Vox is supremely incurious.

    This is the perfect opportunity for an ideological Turing test. That is to say, I would be curious to see if @saul-degraw, or anyone else who seems to think that this case is obviously nonsense, can actually articulate the plaintive’s position in such a way as to appear as if you actually believe it. Honestly, I’d settle for seeing if anyone can articulate that position in any way that is not an obvious caricature.Report

    • Avatar Stillwater says:

      Can’t be done, at least on your terms. If a person could construct what you take to be the rationale behind the complaint, they’d be implicitly agreeing that it’s not nonsense (since it could be sensically described). On the other hand, a perfectly clear and perhaps accurate description of the plaintiff’s case might be entirely consistent with non-sensicality. But you’d reject it anyway since it attributes to them the thing you fundamentally reject: that it’s a nonsensical argument.

      I’d say that your own ideology is playing a pretty huge role in your criticisms of other people’s ideological reasoning, but I won’t get into it since we’ve butted heads on that point in the past.

      I will say that when I heard about the case a while ago, it didn’t strike me as nonsensical, and James’ quick summary of it in the OP goes a long ways to demonstrating that it isn’t.Report

  16. Avatar greginak says:

    I’ve yet to see the pro-plantiff side answer this question. Why should an ambiguous sentence be interpreted in a manner that makes the law unworkable. Should all the other sentences, in the actual law, that don’t’ support the plaintiffs position matter in terms of figuring out what the law is supposed to do. If all the other sentence support the position the law should work/subsidies are available wouldn’t that suggest the plaintiffs are all Wrongy McWrongypants?

    It is like a bunch of people putting together a new car but find a marking on one of the fuses to be unclear. Put in one way the car doesn’t run, put in the other way it runs. The car was designed to run and all the other information suggests it is supposed to run. But the plaintiffs are saying we should put the fuse in so the car shouldn’t run because…..ummm…..because why again. Why don’t they just call the law unclean and impure.Report

  17. Avatar Troublesome Frog says:

    Since I haven’t said where I stand and you’re all just dying to know:

    If the law is ambiguous, I’d say that it’s best to go with the clear intent of the legislation. I doesn’t look all that ambiguous to me, though–it looks like it was accidentally written opposite the intent. Given that, it’s hard for me to support implementing it the way it was “meant” to be rather than the way it was written. You can’t have a written law and then have contradictory oral tradition passed down in parallel and expect subsequent generations to ignore the text and follow the oral tradition if they’re clearly in conflict.

    I just object to the claim that the law as written was the original intent when it seems pretty clear that it wasn’t. To use Chait’s analogy, I can see granting the win because the card clearly says Moops, but I don’t think that concluding that the authors meant to write Moops is anywhere near the most reasonable reading of the situation.

    In any case, I don’t see this as being a death blow to the law. I’m not a lawyer, but it seems to me that if states relying on the feds for their exchanges want their subsidies, they can likely do a quick and dirty state “wrapper” around federal exchanges and comply with the letter of the law. So then we can be technically correct all around.Report

  18. Avatar zic says:

    So you all know that ACA was soooooo complicated that we don’t know what’s in it. (Except that if you care, of course you can find out.) This is a major failing of the free press, btw. They covered the horse race, and not the policy development.

    One of the things in ACA was billing standardization so that it was easier for health-care providers to get reimbursed; instead of having each insurer have their own billing protocol, there would be a set of standard billing codes developed. This is mandated, and a process in it’s second phase. Since existing state laws about much of health care still hold force, this is an effort that has to be done at the state level.

    So what happens in states like mine, where a lot of people are impacted by ACA, but our governor won’t support an exchange or the medicaid buy-in? Does lack of participating in the exchanges mean the billing reforms built into ACA, reforms that mean less personnel and less payment delays for providers, won’t be put in play?

    There’s a lot of moving parts to this law; they were designed to all move together. It would be good to know just what not participating in the exchanges means for the whole law, not just the parts that are commonly known about.Report

    • Avatar zic says:

      (tag rescue would be really welcomed!)Report

    • Avatar Stillwater says:

      So you all know that ACA was soooooo complicated that we don’t know what’s in it. (Except that if you care, of course you can find out.)

      From WaPo:

      On the Web site, there’s a button that will download the documents to an Excel spreadsheet (CVS/excel). Then you use the sum feature on Excel to add up the pages and presto, you end with 20,202 pages.


      • Avatar Stillwater says:

        Actually, that page total is from the Federal Register site, which is perhaps even worse, since the FR is the executive’s interpretation – in layman’s terms – of statutory law.

        Other site’s I’ve seen list the page total of the passed bill at 2400 plus.Report

  19. Avatar Road Scholar says:

    Contra @saul-degraw in the OP, I’m pretty hopeful about the outcome here. Part of your pessimism is rooted in SCOTUS hearing the case prior to an en banc ruling from the circuit, the assumption being that the full Circuit decision would favor the government and that the SCOTUS wants to rule for the plaintiffs while there exists a circuit split, correct?

    See, I too think the timing is significant but I read it the other way. As @zic points out, millions of individuals and families are making some fairly big financial decisions based on the existence of the subsidies. And they’re doing so about right now, with the open enrollment period. I think the Court wants to definitively decide this sooner rather than later for exactly that reason.

    I have a gut feeling that they’re going to decide in favor of the government for the reasons I outlined above, but even if they don’t, knowing the score is much better for the affected citizens than not knowing.

    Now maybe I’m off base in thinking the Court would act in this manner and for those reasons, or that they could decide this quickly enough to provide that kind of certainty for this open enrollment period, but it seems like a not unreasonable interpretation of events.Report

    • Avatar Jim Heffman says:

      I do look forward to an official Supreme Court ruling that says something to the effect of “don’t bother listening to Democrats when they talk about the bills they want to pass”.Report

      • Avatar zic says:

        As far as I can tell, that’s a generic GOP stance — but it’s not just, “Don’t listen,” it’s “say no, no matter what.” Maybe I’m imagining this, but it’s a message I hear all the time. Like Democrats don’t have any right to the governing process.

        Which is disgusting. It’s distinctly unAmerican and unPatriotic.

        But I’m probably just being an emotional woman or something.Report

      • Avatar Jim Heffman says:

        I’m…not talking about the Republican Party, here? I’m talking about all the people saying “yeah, that guy who said that the subsidies were restricted to exchange states because they were intended to encourage states to operate exchanges, that guy didn’t know what he was talking about”.Report

  20. Avatar Jim Heffman says:

    Incidentally, as far as who said what when and whether it’s relevant, there’s this.

    In a clip unearthed Sunday, Massachusetts Institute of Technology Professor Jonathan Gruber appears on a panel and discusses how the reform earned enough votes to pass.

    He suggested that many lawmakers and voters didn’t know what was in the law or how its financing worked, and that this helped it win approval.

    “Lack of transparency is a huge political advantage,” Gruber said. “And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical for the thing to pass.”