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July 25, 2014

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jimmyk

Repost, meant to put it on the new thread.

The Twitter world is once again having fun at poor Ezra's expense, this time over his attempt at rescuing the Gruber story:

http://twitchy.com/2014/07/25/better-make-that-juicebox-a-double-ezra-kleins-having-a-rodney-dangerfield-moment/

peter

thank goodness there were a few Republican governors with balls ( not you Chris Christie) who said no to this bribe.

jimmyk

OT, but this can't be good news (behind the paywall, but the headline and lead paragraph are enough:

http://online.wsj.com/articles/investors-retreat-from-junk-bonds-1406234660

NK(withnewsoftware)

The IRS lies about emails, the Benghazi Video lies, the F&F coverup, the lies to Courts about Exchange Regs, the VA incompetence, presuring Israel with flight shutdowms while 'reset' Putin mass murders jet passengers, Emperor like amnesty with a 'phone and pen'. When will the LiVs wake up to the tangible danger this crew poses to their freedom and their childrens' prosperity? I understand early 21st century Americans take freedom and prosperity (that Reagan, Volcker, GHWB, the 90s Repub Conress and GWB bestowed upon them), but there's apathy and then there is willful blindness.

Danube on iPad

This stuff is wonderful in the court of public opinion, and it certainly exposes Gruber in a very unflattering way. But I don't know whether there's any way to get Gruber's earlier statements into an appellate record.

NK(withnewsoftware)

Judicial notice in briefs and oral argument quoting Gruber. Plus the IRS record of the proposed Regs is consistent.

peter

going outside the judicial record hasn't stopped the Supreme Court before.

Thomas Collins

http://www.cato.org/sites/cato.org/files/documents/halbig_-_adler_cannon_amicus_2.pdf

In Part III of their amicus brief, Adler and Cannon make the case that the history of legislative meanderings accompanying the passage of the PPACA supports the proposition that residents in states buying off the federal exchange aren't eligible for the tax credits. It seems a persuasive case to me. However, I still think that if this gets to SCOTUS, Roberts and possibly Kennedy would join Sotomayor, Kagan, Breyer and Ginsburg in upholding the IRS rule of tax credits in all states.

Cecil Turner

Lame excuse #1: He's not a member of Congress, so nothing he says matters, really; and, lame excuse #2 . . . wait for it . . . he made a mistake:

I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it ...
Seriously? Did you just say you were a fast cook?

Eric in Boise

When will the LiVs wake up to the tangible danger this crew poses to their freedom and their childrens' prosperity?

I used to ask myself the same question, but since November 2012 I've stopped believing it's ever going to happen.

A country that values free stuff over freedom and the Khardashians over the Constitution ends up with a government that reflects that. I don't see anything changing until arithmetic rears her head and the EBT cards stop working. Even then, these idiots will cast their lot with the first charlatan who promises to fix the problem with even more government.

DOOM.

Some Guy

Insty has a post up saying the Cupcake tweets linked to yesterday may be fraudulent.

FYI

Thomas Collins

http://caselaw.findlaw.com/us-4th-circuit/1673339.html

In the event the Fourth Circuit opinion (upholding the tax credit in all states) hasn't been linked, see above. Note that both the Fourth and DC Circuits acknowledge that the losing side has strong arguments.

henry

Note that both the Fourth and DC Circuits acknowledge that the losing side has strong arguments.

Is that legalese for "bless your heart" ??

Rick B

"I still think that if this gets to SCOTUS, Roberts"

Whoa, you have foreknowledge of the result of Robert's communing with his inner Delphic gerbil? Will he use new and original definitions of common terms in arriving at his foregone conclusion?

Thomas Collins

As far as Gruber goes, in interpreting a statute, it is appropriate for a court to look at the overall background in which a legislative action occurred. If this reaches SCOTUS, the remarks of Gruber and others involved in crafting the PPACA will no doubt be cited in the briefs and considered by SCOTUS. I don't think that will be determinative. Gruber's tap dance may further confirm the intellectual dishonesty of progism, but it won't be viewed by SCOTUS as a smoking gun (perhaps a discharged toy water pistol if we're lucky).

NK(withnewsoftware)

I realy think I'll get a big Roberts 'I told you so' opportunity in June 2015.

ThomasC-- no deference to the agency (even the IRS) in matters of pure statutory construction, particularly regarding newly enacted statutes.

Danube on iPad

"Judicial notice in briefs and oral argument quoting Gruber."

Unless Gruber was quoted to the contrary below by the government, I don't think a court will take judicial notice of his statements before some corporate gathering.

glasater

If this conflict does go before SCOTUS Roberts can then claim he's reading the minds of the people crafting ACA...or something.

Thomas Collins

No foreknowledge, Rick B. Just an opinion based on the way in which SCOTUS typically gives discretion to administrative agencies in interpreting the statutes they administer. I am going to try to find the Chevron case to link to provide the framework in which SCOTUS typically reviews the validity of administrative rules.

I happen to think SCOTUS gives too much deference to administrative agncies. But I can think all I want about the SCOTUS critters; they don't much care what I think. Most of them, even some of the so-called conservatives, are significantly influenced by the progist mantra of deference to the so-called experts of the administrative state.

Thomas Collins

It's newly enacted, NK, but it will be viewed as a close case, so deference may come into play.

Miss Marple

Eric, The problem is that people either think politics and government is boring (because they don't connect their day-to-day problems to the cause, in many cases actions in DC) OR they are like my daughter, who won't watch the news because it gets her frightened, upset, or depressed.

Neither of these types of people will listen to a political speech, even if someone with the talents of Reagan gave it. The other problem is that the media slants things so terribly.

My only idea is to make a soap opera which is aired on YouTube, illustrating the goings-on in government with skilled actors with pseudonyms. One could show the corruption rather like they show the wheeling and dealing on Dallas or Days of Our Lives.

Maybe we could get people to see what's going on if we presented it that way.

Cartoons would work as well, but they are harder to produce quickly.

If it got too close to Nancy pelosi's actual actions, for example, she could sue, but then one would say, "Oh, sorry, character is too much like Nancy. We wll substitute someone else. " Then spend some time portraying Debbie Wasserman-Schultz.

Thomas Collins

But I appreciate what you're saying, NK. SCOTUS could look at this issue de novo. Even if the SCOTUS critters take that approach, however, I'm thinking it will be 5-4 or 6-3 in favor of the IRS rule.

Sorry to be such a cold water thrower. I hope that when the dust clears, I'll be a crow eater!

Thomas Collins
"Turning to the merits, “we review questions of statutory construction de novo.” Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir.2003). Because this case concerns a challenge to an agency's construction of a statute, we apply the familiar two-step analytic framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron's first step, a court looks to the “plain meaning” of the statute to determine if the regulation responds to it. Chevron, 467 U.S. at 842–43. If it does, that is the end of the inquiry and the regulation stands. Id. However, if the statute is susceptible to multiple interpretations, the court then moves to Chevron's second step and defers to the agency's interpretation so long as it is based on a permissible construction of the statute. Id. at 843."

The above quoted language is from the Fourth Circuit opinion. The Fourth Circuit applied the Chevron two step analysis. The Fourth Circuit ended up concluding that the plain meaning was not clear, so deference to the IRS interpretation came into play.

glasater

Without googling I believe the state of OR spent appox 300 million dollars on their state exchange and didn't get one person enrolled.

Thomas Collins

http://www.law.cornell.edu/supremecourt/text/467/837

The above link is to the Chevron decision.

NK(withnewsoftware)

Chevron is applied to the circumstances of each case. The DC Circuit Judges correctly applied Chevron to the ACA. What can I say, the grown up judges get these things right, the hacks wilfully obfuscate. I think there are 5 grown up SCOTUS Justices.

NK(withnewsoftware)

ThomasC-- you do note the circular reasoning of Chevron?

Thomas Collins

I hope you're right, NK. I don't think this case should move to Chevron step two.

But that's the approach the Fourth Circuit took.

Thomas Collins

NK, the only way to avoid circularity would be if in step one, a court concluded that there were multiple plausible interpretations, but the agency ended up taking none of those approaches. But I don't think that what the SCOTUSes had in mind in Chevron, so I agree with you about circularity.

Thomas Collins

Change "that" to "that's".

Apologies to H&R for my violating the no correcting typos rule.

Theo

FWIW (and that is absolutely not much), I think if/when Halbig gets to SCOTUS, Roberts will vote to affirm the panel decision.
Some commentators focus on the fact that Roberts saved ACA once before. But that was a very different context. He made sure that the important constitutional point -- no mandates -- was secured. He found a way (people can argue about how legitimately) to allow a law passed by the elected representatives of the people to upheld. It would have created all sorts of problems for SCOTuS to have voided the law entirely.

This is different. Here, Roberts can simply say and reason "hey, I am not knocking down your law. I am simply enforcing the law as written. You got a problem with that? Change the law." This is much different than requiring a constitutional amendment.

SCOTUS has done this in the past. They clearly thought that McCain Feingold was a steaming pile, but they initially upheld it (and mostly thought better of it later) on the theory of "if you want to pass stupid laws, do not expect us to bail you out of the mess you create."

Again, for whatever it is worth.

NK(withnewsoftware)

TC-- but the 'circularity' of Chevron works in Halbig's favor here, as the DC Cir noted. Even assuming some ambiguity in the word STATE, promulgating a Reg that is plainly at odds with the language of the statute must be voided. I would add, the Roberts court trends in both statutory construction and Federalism, make Halbig an excellent case to further those trends. See you in 11 months.

NK(withnewsoftware)

@12:56-- for whatever it's worth, that's been my take since June 2012.

Theo

And again, for whatever it is worth, in the case of McCain/Feingold there were clearly many in Congress who voted for it with the implicit or sometimes explicit expectation that SCOTUS would strike it down. This allowed the Congrescritter to have it both ways -- they could say that they were for it to those who wanted it and say that it was not going to matter to those who did not.

I think SCOTUS really wanted to stop that sort of thing and thus pretty much came out and said "if you are going to pass stupid laws, you are going to have to live with them and we will not rescue your sorry asses."

This very notion may well have caused Roberts to uphold ACA last time and I think would very much favor him siding with the DC panel on Halbig.

hit and run

TC:
Apologies to H&R for my violating the no correcting typos rule.

You now owe an apology for breaking the no apologies rule, but of course you can't offer one without breaking that rule all over again.

You're in quite the pickle.

Cecil Turner

I'm heartened that both Circuits found the plaintiffs had standing. And that even in the 4th, they admitted a literal reading of the law favored the plaintiffs.

I wonder if the fact that the IRS rule effectively enacted an entitlement for those receiving the disputed credits will make any difference.

But in any event, I'm going to predict five (and probably only five) justices will come down on the side of a plain reading.

Thomas Collins

I would say Theo and NK have the better argument than I do. Of course, I'm prejudiced, since I agree with their arguments; what I am doing is, as Rick B noted, divining. Perhaps I should leave divining to the Delphic oracle. But I can't help it! I just hope I am using bad tea leaves with regard to my predicting what Kennedy and/or Roberts will do!

James D.

Take a look at these three paragraphs from the tiresome Megan McArdle (Instapundit linked the article this morning). How many instances of stupidity can you point out?

It sounds like the systems that are supposed to check identity, immigration status and income simply aren’t working at all; the system just assumes that you are who you say you are.

This isn’t the only major part of the system that’s still missing; as the Official Blog Spouse reported last week, the system that pays insurers still seems to be MIA. Presumably, the emergency team called in to fix the exchanges prioritized the bits that the public could see, leaving everything else for later. Compared to what was described by the Barack Obama administration (and the law), the system still seems to be half-built.

How much does this matter? Obviously, all the GAO can say is that this is possible; we don’t know whether, or how often, such fraud has actually occurred. Even if you get an insurance card fraudulently, how easy would it be to use without ever being asked for picture ID? How many people would go to the trouble of faking or altering documents? And might the subsidies be taken away after review? We simply don't know.<.i>

And she is a well-credentialled, supposedly libertarian-leaning writer.

Thomas Collins

CT, although the PPACA tax credit functions like an entitlement, I don't think the SCOTUSes, even those inclined to uphold the DC Circuit, will view it that way. They'll look at it as a technical tax interpretation in the context of an administrative rule. My concern is that to the extent they go beyond that, it will be in the direction of not disrupting a statute that will have been on the books for four or five years when the case will have been decided.

James D.

Hope I fixed the mistake I just made with the italics!

Cecil Turner

I don't think the SCOTUSes, even those inclined to uphold the DC Circuit, will view it that way.

I agree, unfortunately.

Thomas Collins

Do I get out of the pickle by linking one of the great Heinz pickle ads, H&R?

http://www.youtube.com/watch?v=OOUolg5oM7M

NK(withnewsoftware)

We paid this Gruber character $400,000 for this shite?: http://hotair.com/archives/2014/07/25/gruber-my-2012-remarks-were-a-speak-o/

Theo

James --

What stupidity do YOU see?

It seems a bit jumbled to me, but not "stupid." It veers between the fact that there is no fraud protection to the issue of the system not being fully built on the back end to raising a question just how easy or practical it would be for people (presumably people not eligible for subsidies) to fake their identifications. None of this is "stupid."

To the extent it appears to question whether people fraudulently claiming to be entitled that are not is really a big problem, it does not answer that question, but simply raises it. Of course, it leaves out what is probably the bigger problem, which is income verification. No fake ID is required to fudge with that.

sbw

Fraud protection is racist and four legs are better than two.

Theo

SBW --

Indeed. In addition, everyone is completely honest, especially those who broke the law to enter into and/or stay in this country.

jimmyk on iPad

"Insty has a post up saying the Cupcake tweets linked to yesterday may be fraudulent."

That seems plausible, given how self-destructive they were, though there was such a long string of insane and offensive tweets that you'd think the CC people would have put a stop to it. They would seem to have a cause of action against whoever did it.

James D.

Theo,

I guess it's just the naive (or at least unbelievably generous) assumptions baked into her comments.

The repeated use of "seems" for things that are facts, for one thing.

The assumption of goodwill; that these are honest errors, rather than deliberate policy choices on the part of the administration for another.

The casual way she raises the question of whether fraud "matters" or not, followed by listing several reasons why it probably doesn't. That's how I read it. Maybe there really will be (or already is) massive fraud, maybe not. Oh, well, it probably isn't a big deal anyway, so let's sing a happy tune and have another juicebox.

And the total forgiveness of responsibility for this entire mess in the first place.

Beasts of England

Every time hit mentions the 'no apologies' rule, I can't help but think of Hedy Lamarr. 'It's Hedley!'

'He's strict...'

Theo

James --

I do not read it that way at all. I think her points are 1) there is no fraud protection in the system and 2) other parts of the system are not built yet and it appears that the Administration rushed to fix the visible parts of the system and has yet to address the back end.

These are valid and pointed criticisms of the way the system has been handled and the way it works.

Yes, she does take a half step backwards by musing that PERHAPS one part of the fraud protection system -- people claiming to be who they are not -- MIGHT not be that big of a deal, but she ends up saying that "we simply don't know [about that yet]."

This may not be full-throated red meat, but I do not think that it is "stupid." It is basically a sharp criticism of the Administration with a "to be sure" paragraph admitting that "we do not know" whethern or not one of the potential problems with the half assed and half built system is a really big deal or not.

If that strikes you as too generous or not militant enough, so be it. I do not see it as "stupid" as mauch as acknowledging a potential counter argument on one of the cricisms that she has made. This is not something one would expect from a fierce advocate or partisan, but from a commentator I think it is fair.

Miss Marple

Israel's cabinet just unanimously rejected Kerry's latest cease fire proposal. Reason is that it failed to address the tunnels at all.

http://www.timesofisrael.com/two-killed-in-fierce-clashes-near-jerusalem-rocket-downed-over-eilat/

Item is down in the timeline. Also being reported on Twitter.

NK(withnewsoftware)

Amazing-- an Atlantic writer comes up with a fair analysis of the 2014 voting pool:
http://www.theatlantic.com/politics/archive/2014/07/the-one-number-that-will-decide-this-years-election/374979/

Ignatz

--Insty has a post up saying the Cupcake tweets linked to yesterday may be fraudulent.

FYI

Posted by: Some Guy | July 25, 2014 at 12:19 PM --

Didn't read the Insty post but they had tweets going back many months and many of them were retweets by the cupcake goofs of other anti semitic fools along with their own stuff. The cupcake clowns also linked more than once to tweets about how great Golden Dawn in Greece is.
And the twitter feed was directly linked at their company website.

Ignatz

--Gruber caught in another "speak-o"--

He should have started out with "splunge" and stuck to it.

NK(withnewsoftware)

Splunge-- excellent Monty Python reference.

Thomas Collins

Just to show I harbor no ill will towards Mr. Gruber, I dedicate a song to him.

http://www.youtube.com/watch?v=OLH32F6Xvkw

(A)Nuther Bub

Didn't read the Insty post but they had tweets going back many months and many of them were retweets by the cupcake goofs of other anti semitic fools

According to the article, the cupcakers went out of business seven months ago. Closed last January.

windansea

“What we know for sure,” Gruber told Ezra Klein in 2009, “is that [Obamacare] will lower the cost of buying non-group health insurance.”

Gruber now:

"The law isn’t designed to save money. It’s designed to improve health, and that’s going to cost money.”

Ignatz

Guess I shoulda read the post. :(

jimmyk

Since insty links aren't that easy to find, here's the piece he links to:

http://www.truthrevolt.org/israel-revolt/anti-semitic-nyc-cupcake-crew-tweets-may-be-fraudulent

NK(withnewsoftware)

windansea-- do you have links to that Gruber stuff? Krugman must have been his thesis advisor.

Danube on iPad

The guy in Forbes (I think) says that if Halbig is upheld, almost every state will create an exchange.

Theo

Danube --

Maybe so. But if the Administration thought that was going to be the reaction, it would have said "bring it on" to the Halbig suit, not argued it was a typo.

My own sense, for what little it is worth, is that it will be a real showdown between those who want to kill ACA and those who want to get their share out of it. Governors and legislatures who believe that if they stick together the whole thing collapses may not go with a state exchange. Those who fear that everyone else will sign up may try to beat the rush.

A smart thing to do for a red state government would be to wait and see. Clearly if they stick to their guns, the center will not hold.

But your guess is as good as mine or the guy from Forbes'.

windansea


Matthew @Matthops82


Obamacare failed because it had a typo. Architect of Obamacare failed because he had a speak-o. America failed because we had a President O

windansea

Gruber's embarrassing speak-os may not matter legally, but what about this?

Senate Hearing : Tax Credits are available for State Exchanges Only

Senator Baucus explains how The Affordable Care Act sets conditions where Tax Credits are available for State Exchanges Only

http://www.c-span.org/video/?c4504852/senate-hearing-tax-credits-available-state-exchanges


Ignatz

That's what I find a little odd windandsea. Canon and Adler included the legislative history and Baucus's statements in their Halbig brief and yet the DC court acted like there was very little info regarding congress's intent in the record.
Seems to me not only does the plain text of the law pass the first Chevron test, the legislative history does too, so the fourth circuit was doubly wrong to defer to the IRS.

AliceH

I think her points are 1) there is no fraud protection in the system and 2) other parts of the system are not built yet and it appears that the Administration rushed to fix the visible parts of the system and has yet to address the back end.

Well, those are indeed good points. They were so good, they've been made since November of last year. By December, the administration was saying they were probably going to push the backend development (payments/subsidies/reconcilement which is, in fact, the heart of the exchange) to rollout for the 2015 plan year. They've responded to every raised concern re: fraud the same way they as they handled identity theft - silence and change the subject.

In my mind, this column has the correct tone for an article posted 6 months ago. That there has been NO DETECTABLE PROGRESS at all warrants harsher language.

clarice

Leaks have begun to trickle out on what Israeli interogators are learning from captured Hamas fighters. One plot in particular is getting overwhelming attention.
Hamas was apparently a few months away from conducting a mass attack on Israeli civilians during the upcoming Jewish holiday of Rosh Hashana, on September 24. The raid would have been like something out of a movie: hundreds of heavily-armed Hamas fighters would have emerged from over a dozen underground tunnels in the dead of night, jogged 10 minutes to their targets, and then infiltrated a set of lightly-populated and lightly-guarded Israeli communities. Casualties could have reached the thousands, and some of the victims would have been taken back alive as hostages.
The offensive attack tunnels seem to quite literally have been built for this kind of purpose. The IDF recently published a map of how they were dug to spill out on both sides of nearby communities (https://pbs.twimg.com/media/BtYjL4mCAAAI6c6.png). Israeli soldiers have been reporting that just inside some of the tunnels were storage units filled with tranquilizers, handcuffs, ropes, and so on.
The reports on this are mostly in Hebrew right now (the original one is here if you want it: http://www.nrg.co.il/online/1/ART2/600/825.html?hp=1&cat=875&loc=1). There are bits and pieces are getting translated on blogs and in think tank bulletins. The Gatestone Institute's Lawrence Franklin has the best English-language I've seen so far, and I've pasted it below.
If the reports are confirmed, there are some immediate adjustments that analysts, journalists, and diplomats will all but certainly make:
(1) A ceasefire without at least the destruction of Hamas's tunnel network would likely becomes a non-starter. It would be militarily untenable - and probably politically impossible - for Israeli leaders to accept anything less.
(2) The inevitable Israeli investigation into pre-conflict failures - and the Israelis always hold these, no matter how well things go - will have to take into account both how so many tunnels got built and why Israeli intelligence failed to crack the tunnel plot earlier. There's a lot of focus right now on the former, but a lot of the digging and earth moving happened underground. It's the latter debate, about sigint and humint, that has the potential to cost people careers.
(3) Confirmation of the plot would raise the stakes in the growing controversy over how human rights groups and diplomatic bodies pressured the Israelis into liberalizing restrictions on cement imports. Kilometers and kilometers of reinforced tunnels were being built deep into Israeli territory while Gaza-based offiicals railed against cement shortages. Some critics have already begun to name names, and the debate is already become very granular: TIP held a conference call yesterday in which one expert described how Hamas filled emptied UNRWA relief bags with dirt and then drove them away in UN-painted trucks, so that drones overhead saw what looked like a UN-sanctioned aid convoy.
(4) The public debate over the degree to which Operation Protective Edge was a "war of choice" for the Israelis would become constrained. A full-blown war would be seen as in some sense inevitable, with the only difference being whether it came before or after the Jewish High Holidays this fall.
More updates in a bit,
Omri.

Omri Ceren, The ISrael Project

Theo

A couple of points on Grubergate and Halbig in general. I will break them into separate posts so that boredom does not set in too quickly for the reader(s).

The first point is that Gruber is now totally destroyed as a witness for the "typo" argument. But that is a fairly limited victory for the Halbig supporting crowd. Gruber's understanding of how the law was supposed to work, no matter how widely touted as some kind of "author" or "draftsman" is pretty much irrelevant.

The intent of CONGRESS is all that counts. And given the 535 or so people involved it is very difficult to discern Congressional intent except by the final language they put into the bill. Gruber's understanding of that "intent" does not mean very much. Congress as a body is not bound by his understanding of the bill, even if he wrote it (or that section of it).

Windansea makes a good point that Congressional intent can sometimes be illuminated by hearings on the bill, transcripts of floor speeches, etc., but even that is tricky. Ultimately, the Court should enforce the bill as written unless there is a clear and obvious typo or scrivener's error. In cases of doubt, the matter should be sent back to Congress with the literal language controlling unless and until Congress says something different.

So in this case, it is fun to watch Gruber totally expose himself as a total whore for the administration and utterly lacking in integrity or credibility, but that in and of itself does not mean the Halbig panel is correct. The Senate hearings may not be enough either, but they are far more helpful.

To be continued......

windansea

(1) A ceasefire without at least the destruction of Hamas's tunnel network would likely becomes a non-starter

Good info Clarice, I read a report this morning that Israel rejected Kerry's latest proposal because it did not address the tunnels

Jane

Jonah Goldberg is very fun on Gruber (in his weekly newsletter). It goes on longer so if anyone wants me to post the rest let me know:

In case you're not up to speed, let's recap. It's really a wonderful, feel-good story for the whole family. In the Halbig decision this week, the court ruled that according to a plain reading of the law, only state exchanges are eligible for premium subsidies under Obamacare. As a political and policy matter, this would be the equivalent of throwing a very large mackerel on a house of cards. It wouldn't necessarily destroy Obamacare, but that would be the way to bet.

Anyway, the liberal response to the decision was really quite fun. They shrieked about how this was a mere "typo" or "drafting error" (which is just not true) and tried to make it seem like suggesting otherwise was dishonest madness of the sort reserved for the likes of Dr. Evil's father and his claims to have invented the question mark. But what I really liked was the panic over "judicial activism." E.J. Dionne — who has no problem with liberal judicial activism that simply invents new rights out of thin air — called this decision "anti-democratic sabotage." This is funhouse logic. As NR put it in an editorial, "It's an odd world in which judges are accused of usurping the role of Congress for ruling that the executive branch must follow the text of a law Congress wrote." Seriously, who knows what will happen if the courts start adhering to the law as written? That's like saying the IRS should be politically neutral. Madness!

Moreover, liberals insisted that nobody in their right mind ever believed Congress intended to withhold subsidies on the federal exchange in order to encourage states to create state exchanges.

A couple days ago E.J. Dionne said on the Diane Rehm Show that "There is absolutely not a shred of evidence, not a bit, that this was intended as any sort of incentive." He goes on to say that this rationale was "invented out of whole cloth."

And on MSNBC Jonathan Gruber told Chris Matthews, "Chris, it is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states. And why would they?"

No, really: "It's just simply a typo, and it's really criminal that this has even made it as far as it has."

Criminal!

If this were a Godzilla movie, it would be around this moment that the government scientist said "A giant reptile from the bottom of the ocean? Please. There's no such th . . ." at which point a giant scaly foot squishes him.

Because here's Gruber giving a presentation in 2012:

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

~~

Indeed

Cecil Turner

Gruber's understanding of how the law was supposed to work, no matter how widely touted as some kind of "author" or "draftsman" is pretty much irrelevant.

I think this is wrong. The only defense for those who dispute the plain language of the bill is that it's absurd, and that can't be what was intended because it leads to a ridiculous result, and the whole "incentivize the states to create exchanges" concept is wholly made up by bill opponents who just want to derail Obamacare.

This (along with the legislative history) goes a long way toward debunking that theory. And the fact that Gruber is obviously a bill supporter and influential--and has changed his tune and is obviously lying about it--makes it even more persuasive. I don't know if it gets in the record, but I think it might. And if so . . .

Theo

You were warned that I was going to post again on this topic....

Those of us of a certain age remember the movie "Dr. Strangelove" and those fortunate enough to be younger may have been wise enough to rent it or sleep deprived enough to have caught in on the late show.

In the movie, the "plot" turned on the fact that the Soviet Union had installed a Doomsday device that automatically triggered a world destroying nuclear barrage if a nuclear weapon were used on the Soviets. (This was a movie, not a scientific paper.) The problem arose when a mentally ill US commander on his own initiative sent a fleet of nuclear bombers to attack Russia and one of the planes, due to a mechanical malfunction was unable to be recalled.

Before the bombs fell the top US brass huddled with the Soviet ambassador to discuss what had become a mutual problem. In one scene the US National Security Advisor (played by Peter Sellers as a former Nazi, but supposedly modeled on the then largely unknown Henry Kissinger) asks the Soviet representative what would be the point of having such a Doomsday machine IF NO ONE KNEW OF ITS EXISTENCE. The reply was some sort of a mumble about how it was going to be announced at a party conference the next day or whatever.

As Tom Maguire has intimidated, this is the biggest problem for the Halbig argument. If the plan is to bribe or intimidate the states into building their own exchanges, how can that possibly work UNLESS THE STATES UNDERSTAND THE CONSEQUENCES OF NOT BUILDING AN EXCHANGE. No one would think that the law was intended to be a "gotcha" where states would blithely not build an exchange and be socked with punishment because they were ignorant of the consequences.

Probably what happened is that at one point, the carrot or stick was intended to force the states into building an exchange. But this all got buried in the thousands of pages and the Administration, seeing a lot of states not go through with the exchanges, decided to give them a pass and not carry out the penalty for failing to do so. In this context, they pretended that there was no such requirement and any argument to the contrary was a "typo."

There is an old saying that applies here: F*ck around, f*ck around. You start telling lies and you get caught up in them.

Phew.....

Theo

Cecil --

Let me parse a bit here.

I think that you are absolutely right that the "typo" argument takes a real hit if there is a reasonable and rational argument as to why Congress may have intended the literal meaning of the language.

However, I think that it is pretty close to meaningless (one way or the other) what GRUBER thought (then or now) what the Congressional intent was.

Thus, Gruber's comments help in the sense that he articulates a rational basis for a literal interpretation. But he is pretty much one of 300 million people who is entitled to his opinion on what Congress meant. His opinion probably carries virtually no weight with the Court just because it is his opinion.

clarice

Instapundit has a bunch more links showing the IRS and Gruber and Congress all read this as the DC Circuit (and the clear language) indicate it must be read.

clarice

I say put Kerry in the tunnels until this is over. If he's taken hostage, he can give us a first hand account of what it was like.

clarice

DoT, has a point, but there are ways around it. In the Trbovich case we had ex Senator Griffin write a law review article on what the Landrum Griffin Act section in question meant, and then cited that article in a footnote.

It's all in how you play the game.

In any event as Forbes and others pick up the story the Justices cannot miss it.

Threadkiller

Should we start reading the 14th Amendment by the clear language backed up by the congressional record during its drafting?

Cecil Turner

Here's the Forbes guy's link to his earlier argument:

But the bottom line is that if taxpayer-funded subsidies can’t flow through healthcare.gov—the federal exchange—nearly every state will set up its own exchange. And subsidies will flow through the federal exchange until John Roberts says they can’t. No death spiral is imminent. No collapse is forthcoming. Obamacare is going nowhere.
He makes essentially the same argument Gruber did about the political carrot (federal dollars) being too good to resist, and uses a Medicare analogy. But I'm unconvinced.

The impact on the 7 million or so on the current federal exchanges is obvious. But also obvious is that the mandate will not apply to most of those folks and to lots of others (most especially including employers), and it's not at all certain how people will react to it. I would be unsurprised if the political backlash is exactly opposite the "free money" approach, and if resistance stiffens as a result.

Pagar

"What Congress thought"

About a bill that not a single one of them read .

Pagar

Clarice@03:40. Excellent idea!

Ignatz

--Probably what happened is that at one point, the carrot or stick was intended to force the states into building an exchange.--

I don't think there's any 'probably' about it.
As this link I provided earlier and I think you referred to states;

We are told that “amici can attest” that using Exchange subsidies to induce states to act “was never the purpose of the tax-credit provision.” The senator-amici have a dim recollection of their legislative records. Harkin sponsored the bill approved by the HELP Committee, which amici admit withheld premium credits in states that didn’t establish Exchanges or implement the bill’s employer mandate. Baucus, whether he is aware of it or not, has a history of sponsoring bills that offer health-insurance tax credits only in states that enacted specified health insurance regulations. He and other senators sponsored such bills in the debate leading up to the PPACA. Baucus introduced the PPACA’s tax-credit eligibility rules in the Finance Committee, which approved them as part of its health care bill. Reid then retained and strengthened the Finance language conditioning tax credits on states establishing Exchanges while merging the HELP and Finance bills into the PPACA.

Earlier bills explicitly provided no subsidies to federal exchanges as an incentive for states to form their own. Those bills were then merged into Frankencare.
Whether other parts of it were cobbled together having forgotten or ignoring this part of it is unknown but the language is clear and its congress's job not the court's to fix poor drafting. As the DC court demonstrated bad drafting, (this was no typo, it was a whole section repeated or referenced nine different times, at least) even drafting this bad doesn't even come close to meeting the test for absurdity.
The only test it meets is the "oops we effed up maybe we ought to at least read the damn thing next time" test.

Threadkiller

IIRC, Mike Enzi from Wyoming was about the only person who read the bill, Pagar.

Then, during the rollout, all his predictions came true. Megan Kelly marveled at how spot on his speeches from years earlier were.

I wonder if he talked about the state exchange kerfluffle?

Ignatz

--I say put Kerry in the tunnels until this is over. If he's taken hostage, he can give us a first hand account of what it was like.

Posted by: clarice | July 25, 2014 at 03:40 PM--

Hamas was saying they were short on concrete. There's gotta be at least three yards in that giant hopper he calls a head.

clarice

And now for some real legislative history on ACA's state exchange subsidies:http://pjmedia.com/instapundit/192311/

ACA is DEAD

Theo

Ignatz --

I agree. The whole thing was a clusterfark. At one point the intent was to bribe/intimidate the states into building their own exchanges. Then that notion got lost. States started to refuse to start their own exchanges and instead of the Administration saying "okay, but let me remind you of the consequences" they acted like their were no consequences. Why? Probably because they knew the bribe/threat would not work then because the counterthreat was "on that basis, without state exchanges the whole system collapses, which is what we [the states who did not set up exchanges] want. Thus, the only way for ACA to move forward was to pretend like it was no big deal to have few state exchanges.

I assume the thinking was (a) the "typo" argument would work and (b) even if it did not, once subsidies actually start flowing to some states and not others (and the residents of some states STOP getting subsidies as they had in the past), the recalcitrant states would scramble on board in a way they would not when the issue was a future and theoretical benefit to setting up a state exchange.

In any event, I think the Halbig panel got it right, but I am concerned about the Dr. Strangelove argument.

Ignatz

The funniest thing about this Gruber deal is it's just like some clever TV defense lawyer gambit.

First Perry baits Hamilton into sticking his neck out and then neatly slices it off after playing a recording of Hammy's big witness saying just the opposite of what he testified to.

DC says the plain language means what it says. The entire left wing nutroot convention erupts, even Gruber himself, and then Perry plays not one but two of Gruber saying the opposite right in his face.
Of course even Hamilton Burger wouldn't have fallen for this one since the plaintiff's and their pals pointed out in their briefs what Baucus et al had said in committee.

If Gruber's principles were just a little higher he could have padded his wallet even more by the Koch brothers paying for an eff up this epic but, not even having a crook's ethics, he did it for free.

Danube on iPad

In my view the plain language of the Citizenship Clause of the 14th Amendment is so crystal clear that no inquiry into congressional intent would be undertaken.

Danube on iPad

Theo, it is interesting to contemplate what might have been the thinking of the 36 guvs who declined exchanges. It would not surprise me if not a single one of them anticipated this outcome. If the D.C. Circuit is upheld, certainly a few purplish guvs will set up exchanges, and pressure on the others will increase. I concur that Gruber's statements are probably in admissible, but great fun nonetheless.

Theo

Ignatz --

As a recovering trial lawyer, I agree without your 4:04 post. The problem is just how far does it get Mason's client?

Once Gruber was caught having made a prior statement to the contrary, his credibility as a witness was shot. Despite his "speak-o" or "I do not know why I said that" argument, he loses all credibility to the judge/jury. When it was shown that he had said the same contrary things multiple times, including in prepared remarks, he passes from a witness with no credibility to an obvious liar.

But the fact that Gruber is a total shill who will say whatever is in his partisan interest to say at the moment, does not mean that it was NOT a typo. But it certainly means that the people who are arguing that it was a typo are relying on lying witnesses.

The better argument against the typo theory is the Senate hearing record. Once it is established that it might not have been a typo and might have been deliberate, then the only sensible thing to do is uphold the law as written and let Congress change it if they want.

Bori

Theo,

The stick was withholding the Federal Matching for Medicaid for states that did not adopt the expanded Medicaid a big part of Obamacare, until struck down by SCOTUS.

Theo

Danube --

I agree with your 4:11. Gruber is not very meaningful but a great deal of fun.

Maybe the proponents of ACA got confused. More likely, they realized that the carrot/stick they built into the thing to force the states could actually end up killing the thing in its crib, so they just pretended it never was in there. Just my cynical guess.

It is interesting to contemplate what would have happened if the Administration had said to the 36 governors "well you have the power to not set up an exchange, but let me spell out for you what that means." It is very interesting that the Administration did not dare risk it.

Ignatz

On the issue of states just setting up exchanges if Halbig is upheld, it's not clear how that would work.

The DC court described Klemencic's (first plaintiff examined for standing) objection as being that the subsidy forced him into a choice her preferred not to make. He didn't want to buy insurance and without the tax credit would not have incurred the mandate's penalty because insurance would have been over 8% of his income.
How many people are in that boat I don't know but the idea those helped by the tax credits is large enough to change much is by no means obvious.

Theo

Bori --

I am sure that you are right. I do not see the connection between what you say and the issue of whether the word "States" was a typo in the bill.

Bori

That C-Span video at @3:13 sort of vindicates Chief Roberts as well as it makes the case that Tax Credits were for the State Exchanges.

Even back them, though they were publicly saying something else, they were justifying based on the taxing authority of Congress.

Threadkiller

Does the plain language discuss children of Foreign Ambassadors?

Ignatz

--Ignatz --

As a recovering trial lawyer, I agree without your 4:04 post. The problem is just how far does it get Mason's client?--

Yeah, I was only discussing the court of public opinion, where Perry practiced. :)

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