# Halbig v. Burwell ruling against Obamacare subsides **URL:** \ **Category:** Great Debates\ **Created:** [July 22, 2014, 2:42pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740 "2014-07-22T14:42:40Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [July 26, 2014, 4:24pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/161 "2014-07-26T16:24:59Z")
Conservatives have become such cargo cultists on this. They think if they all act like this blatant activist conservative judicial hackery is actually principled jurisprudence and sound statutory interpretation, then it will magically become so and Obamacare will be vanquished!!! Nevermind that there’s no evidence that Congress, the states, and government officials believed that the law intended to withhold subsidies from states who declined to form their own exchange, Jonathan Gruber said something wrong in 2012! Abracadabra, poor people in states with wingnut governors won’t get federal subsidies (which red states generally loooooove, but I guess the wrong people are getting them this time). Then I guess freedom reigns? You guys are weird. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 26, 2014, 4:55pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/162 "2014-07-26T16:55:55Z")
> [@2ManyTacos](#): > > C’mon guys, if you’re going to coalesce around Jon Gruber’s remarks here as some sort of smoking gun for your argument, then you’d also have to ignore the cascading amounts of evidence (even from Gruber himself) that obviously points to the opposite direction. That’s called cherrypicking… From the 4th circuit decision in King v. Burwell > [@](#): > > The plaintiffs assert that the plain language of both relevant subsections in § 36B is determinative. > … > The plaintiffs’ primary rationale for their interpretation is that the language says what it says, and that it clearly mentions state-run Exchanges under § 1311. > … > There can be no question that there is a certain sense to the plaintiffs’ position. If Congress did in fact intend to make the tax credits available to consumers on both state and federal Exchanges, it would have been easy to write in broader language, as it did in other places in the statute. > (Citations omitted) > However, when conducting statutory analysis, “a reviewing court should not confine itself to examining a particular statutory provision in isolation. Rather, [t]he meaning – or ambiguity – of certain words or phrases may only become evident when placed in context.” With this in mind, **the defendants’ primary counterargument points** to ACA §§ 1311 and 1321, which, when read in tandem with 26 U.S.C. § 36B, provide an equally plausible understanding of the statute, and one that 19 comports with the IRS’s interpretation that credits are available nationwide. > … > > Having thus explained the parties’ competing primary arguments, the court is of the opinion that the defendants have the stronger position, **although only slightly**. (bolding emphasis mine) And that is from a ruling that upheld the administration’s interpretation. So the significance of the Gruber statements on tape is that it cuts to the heart of the analysis of the 4th circuit. It is one of the very authors of the PPACA right there saying the appellants are exactly right and the administrations “primary counterargument” is wrong. It is a statement made before the IRS Rule was promulgated and before Halbig , King, and others filed suit in Federal Court. Such statements by Gruber are likely to be emphasized by the appellants in future court review. And frankly, when the decision was favoring the administration “but only slightly” then the Gruber statements may be all it takes to tip that balance over to the appellant’s side. It was a recognized weakness in the appellant’s case but now they are better situated to argue their point. And to your point, intent of Congress does not come into play if the language of the statue is clear and the makes sense in context. The analysis stops right there. It never gets as far as deference to the IRS’s rule, which is the grounds the 4th Circuit panel cites in upholding the administration’s position. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 26, 2014, 6:29pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/163 "2014-07-26T18:29:35Z")
> [@Iggy](#): > > From the 4th circuit decision in King v. Burwell > > (bolding emphasis mine) > > And that is from a ruling that upheld the administration’s interpretation. > > So the significance of the Gruber statements on tape is that it cuts to the heart of the analysis of the 4th circuit. It is one of the very authors of the PPACA right there saying the appellants are exactly right and the administrations “primary counterargument” is wrong. > > It is a statement made before the IRS Rule was promulgated and before Halbig , King, and others filed suit in Federal Court. > > Such statements by Gruber are likely to be emphasized by the appellants in future court review. And frankly, when the decision was favoring the administration “but only slightly” then the Gruber statements may be all it takes to tip that balance over to the appellant’s side. It was a recognized weakness in the appellant’s case but now they are better situated to argue their point. Excellent point. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [July 26, 2014, 8:57pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/164 "2014-07-26T20:57:43Z")
Uh, no, no it isn’t. And I never thought I’d say this, but here is a [CONSERVATIVE take on smacking down the Halbig/Gruber stupidity.](http://www.theamericanconservative.com/jonathan-gruber-and-the-smoking-gun-that-wasnt/) If I had more time to expound on this I would, but very quickly: When Gruber’s views are taken in complete CONTEXT - which, not surprisingly, the DC Circuit ignores completely - it doesn’t seem that he misspoke so much as he was making a point about the likely _tardiness_ of the federal exchange. IE, if the federal marketplace were to release LATER than the state exchanges, then the persons living in those federally facilitated marketplace states might be LATE to receive their subsidies. Again, stupid, desperate, ignorant, spiteful lawsuit. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 26, 2014, 10:28pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/165 "2014-07-26T22:28:23Z")
> [@2ManyTacos](#): > > Uh, no, no it isn’t. > > And I never thought I’d say this, but here is a [CONSERVATIVE take on smacking down the Halbig/Gruber stupidity.](http://www.theamericanconservative.com/jonathan-gruber-and-the-smoking-gun-that-wasnt/) > > If I had more time to expound on this I would, but very quickly: When Gruber’s views are taken in complete CONTEXT - which, not surprisingly, the DC Circuit ignores completely - it doesn’t seem that he misspoke so much as he was making a point about the likely _tardiness_ of the federal exchange. > > IE, if the federal marketplace were to release LATER than the state exchanges, then the persons living in those federally facilitated marketplace states might be LATE to receive their subsidies. > > Again, stupid, desperate, ignorant, spiteful lawsuit. So when HE said he misspoke—I’m sorry, made a “speak-o”, twice(!)—you don’t believe him? Of course, he’s lying like the Pro, Obama. But that’s another issue. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2014, 3:15pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/166 "2014-07-27T15:15:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Nope. First, Baucus’ comments came well before the law was rewritten to provide subsidies to federal exchange states (or not, depending on your view). Second, even if Baucus was still of that view his opinion would not be controlling. We interpret constitutional provisions based on the views of one or two people because they were the only ones who wrote down what they were thinking. There is no need to guess at the views of the legislature as a whole based on the views of one person when interpreting modern legislation. But it does mean that the plain text of the statute is not an absurdity but a deliberate attempt to nudge states into forming exchanges. Dare I flip flop yet again on this issue? 🙂 IOW, I believe that both of our positions is that taking the statute as a whole and applying plain language seems to make the statute absurd. Here we have an architect of the law stating, before the litigation, that this seeming absurdity was exactly the intention of enacting the statute. That makes the plain text interpretation not an absurdity, no? ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [July 27, 2014, 3:19pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/167 "2014-07-27T15:19:20Z")
> [@2ManyTacos](#): > > When Gruber’s views are taken in complete CONTEXT - which, not surprisingly, the DC Circuit ignores completely - it doesn’t seem that he misspoke so much as he was making a point about the likely _tardiness_ of the federal exchange. Right - how silly to pay attention to what he actually said, as opposed to what he presumably meant to say. And when he now repudiates his multiple statements, what he really means is that they were correct, but making a more subtle point than they appear to. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [July 27, 2014, 4:01pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/168 "2014-07-27T16:01:27Z")
Right, I’m not contesting that he misspoke - Gruber has admitted as much himself - I’m just saying that the full context of his statements suggests that the point he was trying to make at the time is different than it appears on its face. But again, that doesn’t discount his other work on the subject which always assumed universal subsidies, nor any of the other mounds & mounds of evidence that this possibility was never even remotely considered. I said it a few days ago, but this entire lawsuit is a sham. All that it is - literally, the ONLY thing it boils down to - is ACA opponents trying to seize on a gotcha! part of the law in order to screw over wide swaths of Americans and say “fuck you” to Obama. They’ve gone through the requisite mental gymnastics in order to convince themselves that their retroactive rewrite of history is somehow accurate, even though there isn’t a shred of evidence in the actual record that lawmakers, the CBO, journalists, the administration, and so on ever even considered this as a possibility. It’s a desperate, vile, cynical sham. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [July 27, 2014, 4:11pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/169 "2014-07-27T16:11:02Z")
> [@2ManyTacos](#): > > … there isn’t a shred of evidence in the actual record that lawmakers, the CBO, journalists, the administration, and so on ever even considered this as a possibility. Why do Gruber’s multiple, detailed remarks not constitute evidence? ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [July 27, 2014, 4:19pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/170 "2014-07-27T16:19:52Z")
I’d say Gruber’s comments are a wash, really. Even though he has since characterized them as a “speak-o,” yes, _on their face_ his comments are favorable to the opponents. But again, he has made countless statements in line with the administration’s POV, and his actual _work_ on the subject always assumed universal subsidies. This just isn’t a smoking gun, and you can’t just latch onto the two things he said years ago and ignore everything he did before & after the comments were made in the first place. That’s stupid. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [July 27, 2014, 4:35pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/171 "2014-07-27T16:35:53Z")
> [@2ManyTacos](#): > > That’s stupid. That’s conservative. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [July 27, 2014, 4:42pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/172 "2014-07-27T16:42:14Z")
> [@2ManyTacos](#): > > … you can’t just latch onto the two things he said years ago and ignore everything he did before & after the comments were made in the first place. It’s easy to believe he might change his mind after the fact - in fact, it’s clear he has. But what did he say prior to those comments that indicated he believed subsidies applied to all? Indeed, at the time the ACA was being considered and passed, were any comments made by legislators that clearly indicated subsidies would not be restricted to State-established exchanges? (I haven’t found any, but assume they must exist, given the vehemence with which the Halbig decision is being denounced.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2014, 4:51pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/173 "2014-07-27T16:51:02Z")
> [@2ManyTacos](#): > > I’d say Gruber’s comments are a wash, really. Even though he has since characterized them as a “speak-o,” yes, _on their face_ his comments are favorable to the opponents. But again, he has made countless statements in line with the administration’s POV, and his actual _work_ on the subject always assumed universal subsidies. Always? Or just after it became clear that a good chunk of states weren’t going to establish exchanges? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2014, 4:53pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/174 "2014-07-27T16:53:12Z")
> [@Xema](#): > > It’s easy to believe he might change his mind after the fact - in fact, it’s clear he has. But what did he say prior to those comments that indicated he believed subsidies applied to all? > > Indeed, at the time the ACA was being considered and passed, were any comments made by legislators that clearly indicated subsidies would not be restricted to State-established exchanges? (I haven’t found any, but assume they must exist, given the vehemence with which the Halbig decision is being denounced.) You’re not going to find any, because the plan was not to give subsidies to federal exchange customers, in order to force states to set up their exchanges. The idea that federal exchange customers also got subsidies only came into being after everyone began realizing that the incentive didn’t work. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 27, 2014, 6:31pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/175 "2014-07-27T18:31:39Z")
> [@Bricker](#): > > You’re not going to find any, because the plan was not to give subsidies to federal exchange customers, in order to force states to set up their exchanges. Alas, the evidence for that assertion is nonexistent, and falsified by the evidence that does exist. Too bad, huh? > [@](#): > > The idea that federal exchange customers also got subsidies only came into being after everyone began realizing that the incentive didn’t work. No, friend, the only counterincentive was to fuck Obama. And that very much was effective, in states with your party’s governors. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [July 27, 2014, 6:36pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/176 "2014-07-27T18:36:15Z")
> [@Bricker](#): > > You’re not going to find any, because the plan was not to give subsidies to federal exchange customers, in order to force states to set up their exchanges. The idea that federal exchange customers also got subsidies only came into being after everyone began realizing that the incentive didn’t work. I wonder if you would be as sure if you didn’t loathe the ACA. It is rather fortunate that you have rock solid certitude and it just so happens to comport nicely with a partisan ideological dislike of the law. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [July 27, 2014, 7:22pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/177 "2014-07-27T19:22:47Z")
> [@jayjay](#): > > That’s conservative. Or, perhaps more accurately, the mental gymnastics I referred to earlier. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2014, 7:38pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/178 "2014-07-27T19:38:39Z")
> [@Bricker](#): > > You’re not going to find any, because the plan was not to give subsidies to federal exchange customers, in order to force states to set up their exchanges. The idea that federal exchange customers also got subsidies only came into being after everyone began realizing that the incentive didn’t work. Can the petitioners in this case put forth an argument that shows this backed up with evidence? If this is the case, then I will flip flop (again) :). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2014, 7:47pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/179 "2014-07-27T19:47:44Z")
> [@Lobohan](#): > > I wonder if you would be as sure if you didn’t loathe the ACA. > > It is rather fortunate that you have rock solid certitude and it just so happens to comport nicely with a partisan ideological dislike of the law. Indeed. But how do you explain my reaction here when the Sixth Circuit upheld the individual mandate? > [@6th Circuit Court of Appeals upholds Affordable Care Act](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/2): > > Well, it’s more _stare decisis_ than judicial restraint in general, but I agree that this is the correct result legally. I think the Affordable Care Act is poor public policy, and I think the best construction of the constitution would deny Congress the power to pass it… but I also think that issue was decided against me sixty years ago. Today, the correct answer is the one the Sixth Circuit came up with. In other words, I argue from principle, rather than from partisan position. You’re correct to say that I have always had a dislike of the law, as that post shows. But I also immediately agreed (even before the court challenges) that the individual mandate was Constitutional, even though I could have easily claimed “rock solid certitude” for the opposite position. Indeed, the SCOTUS decision was 5-4. So there’s a time-stamped, dated proof of me taking a constitutional interpretation position than ran counter to my ideological position. Something you never do, by the way. Never. All your positions just happen to run with your political goals. That’s not how I roll. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2014, 7:59pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/180 "2014-07-27T19:59:52Z")
And just to nitpick, **Bricker** , you were technically wrong on that point. You argued that Wickard v. Filburn allowed the commerce clause to validate the ACA, but the Court ruled 5-4 against that interpretation. The individual mandate was upheld on the tax argument (that frankly nobody saw coming). Your larger point still stands. It is unfair to say that you only take positions that support your partisan views. This is a perfect example. Your view in this case was to the left of Thomas, Scalia, Roberts, Kennedy, and Alito. [Previous page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=8) [Next page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=10)