It would be great if some boundaries could be set that prevent the president from deciding to “fix” legislation. He’s not the legislature and he shouldn’t get to modify law because it’s not the one he’d prefer. Delaying mandates, interpreting “states” to mean “not necessarily the states,” etc. That’s not his role, and IMO executive discretion does not extend (or shouldn’t) to avoiding political shit-storms of the law’s creation or overruling a specific aspect that he doesn’t like.
If the law is doing exactly what its text indicates, that’s the law. If that was “clearly” not Congress’s intention, as people like Ginsburg assert, then that should be self-evident by Congress’s reaction to a decision that rules against subsidies for non-state programs. Yes, I understand it’s a different Congress now (thank God).
I hope that even if it goes his way (I understand there are those who disagree that the legislation ties the president’s hands), the decision provides some “this far, but no further” guidance. Right now we have a president who actually believes that if Congress doesn’t pass immigration reform, for example, then he is empowered to act on his own to effectively decide what the law is. That’s outrageous. Even if Congress is ineffective, incompetent, combative, [add your own adjective], that’s their role. Doing nothing is their prerogative. They determine the law of the land, so long as they stay within the constitutional lines. Not the executive branch.
But since the facts on the ground are that millions of people are getting the subsidies, and that pulling the plug would be injurious to those people, would you have a problem if the court gave Congress some time to fix the problem before forcing an end to the subsidies?
How is that a straw man? Seems to me to be the central issue here. Can the executive branch reasonable interpret “the states” to mean something other than “the states”, based on the overall thrust of the law?
Well, I disagree. IMO, the president has exercised his executive powers over ACA in a manner that doesn’t show a particular regard to what the law actually says. He’s not the first president to do so on such a thing, and I think this specific debate is more nuanced then, say, the delay of the individual mandate. But he has had no issue ignoring portions of the law (such as the mandate) that were unfolding exactly as they were written, and timing implementation not because of some logistical administrative challenge but because it was politically convenient (i.e., after an election cycle). This debate is a more complicated one, but it still is founded on the notion of whether or not the text supports the executive implementation.
A decision that said the text is supportive–and here’s why–would be welcome if it were logically reasoned and explained. A decision that says it is not, so live with the law that was passed or have it changed would also be encouraging. What would be bad is yet another judicial decision based on some predicted parade of horribles, whether or not the law itself contradicts such a concern.
Yes, this is the “parade of horribles” argument I mentioned. Constitutional laws can have terrible outcomes. It’s not the SC’s role to fix that, and that’s my belief whether or not the legislation is something I might otherwise support. In our system of government, the separation of powers is VERY important–much more important than the outcome of an individual case.
I’m sure you thought this mishmash of generic platitudes was really meaningful, but you appear ignorant of the fact that the established jurisprudence stipulates that if there are other reasonable interpretations of the statute, the challengers lose. If the court decides to ignore that in service of their conservative political project, then they’re nothing more than the judicial wing of the GOP, and the separation of powers you purport to venerate flies right out the window.
It’s a straw man because no one is arguing that the President can unreasonably interpret a statute to his own ends, or even unreasonably interpret it to save it from unworkability. The whole argument is about whether it is even reasonable to interpret it the way the challengers want, and if so, whether that’s the only reasonable way.
No one on either side doubts that the President can choose from various reasonable interpretation, and no one on either side doubts that the President cannot choose an unreasonable interpretation.
It’s also error to reduce the question to whether “the states” can mean something other than “the states”, based on the overall thrust of the law. No one is arguing that, either. Edwards dissent in the DC Circuit panel decision summarizes the actual arguments. The short version is that “such Exchange” is a defined term in the statute, and it is defined as including federal exchanges. Moreover, other statutory text shows that subsidies are to go to federal exchanges. Only after you get past those two arguments do you ever get to “overall thrust of the law” arguments, which are used to resolve either ambiguity or conflicting text. Those arguments are compelling on their own, but the Court need not even reach them.
At the risk of asking you to repeat yourself, can you quote the part of the act you are referring to? My understanding is that the law defines the exchanges as being established by the state and that an IRS regulation (not part of the law itself) is what defines an exchange as instituted by the a state or by the feds.
42 U.S.C. § 18031(b)(1): Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an “Exchange”) for the State.
42 U.S.C. § 18031(d)(1): An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
42 U.S.C. § 18041(c)(1): If a State [does not go through the process to make an exchange] . . . 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.
42 U.S.C. § 300gg-91(d)(21): The term “Exchange” means an American Health Benefit Exchange established under section 18031 of this title.
26 U.S.C. § 36B(b)(2)(A): The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of 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 [18031 of this title] . . .
From the D.C. Circuit panel dissent:
In short, the capital “E” word “Exchange” is defined under the statute as a section 18031 Exchange. And the federal government can expressly create a 18031 Exchange, and the plain text provides subsidies to a 18031 Exchange.
There are a lot of other good arguments. We’ve done them in a few threads.
And I’m sure you decided to ignore my actual posts in the service of creating your own platitudes, since I said, “A decision that said the text is supportive [of the government’s interpretation]–and here’s why–would be welcome if it were logically reasoned and explained.” I have no partisan axe to grind, though that seems to be a go-to straw man. I would simply prefer that the decision be based on why the text itself–and not the outcome of the law–supports their conclusion, particularly if it provides some “this far and no further” guidance for future executive interpretation.
That may not occur if I’m understanding Richard Parker’s explanation, which seems based on the text and a logical summary of the elements. IOW, if “*n short, the capital ‘E’ word ‘Exchange’ is defined under the statute as a section 18031 Exchange…[a]nd the federal government can expressly create a 18031 Exchange, and the plain text provides subsidies to a 18031 Exchange,” then in effect Obama didn’t stretch the limits of executive discretion at all (as I think he did with the delay of the personal mandate), and the decision may provide no limiting guidance.
Look, it’s a big complicated statute trying to take a serious crack at a big complicated problem. And like any such statute, there’s decades of room to poke holes at it. Ask the EPA about the Clean Air Act! When you have a sufficiently motivated room of lawyers, they can and will find ways to take a run at a statute they don’t like.
And that’s not the worst thing in the world. It keeps everyone honest and encourages Congress to be as clear as possible.
But I think it’s just wrong to frame this as a question of whether the Court can save Congress’s bacon. This could have been drafted better, but having one term get dropped in for another without going back and changing all the surrounding text isn’t that unusual (and I’m not even sure we should think that happened). And textual interpretation isn’t supposed to ask what a phrase means in a vacuum. At a bare minimum, it is supposed to look at the surrounding provisions. And there are arguments and counter-arguments about those, but that’s where the real issues are.
A deft ploy, leaving the whole question to people intent on destroying the ACA. Does Congress have a “hot potato” option, tossing it back in the Supreme’s lap and saying “Oh, no you don’t, we’re not taking the blame for killing this, you guys do it!”