Halbig v. Burwell ruling against Obamacare subsides

Great Debates
381

This confuses me, as do your two most recent prior posts. The relevant question is not on the definition of “Exchange” but on the availability of the tax credit, in which “Exchange” is expressly modified by the phrase “established by the State.”

This is half a story. Changing text is trivially easy, and routine - in conference committee. That’s how it is done for the vast majority of legislation. PPACA proponents chose to avoid conference committee and use reconciliation, which limited the options.

I can’t say that I’ve read all of the briefs, or the articles, but I’ve read the Halbig dissent, the en banc petition and the most recent cert opposition. I don’t see the government making a “plain text” argument, nor do I think one available. The government’s positions typically are framed first by policy (an interesting choice, probably owing to the composition of the DC Circuit), then by context, then by Chevron analysis.

382

You’ve got to start the beginning of those posts. Fotheringay-Phipps was challenging one particular premise in the overall argument about why “established by the State” is not meant to distinguish the exchanges created under 18041 from those created under 18031.

An en banc petition and an opposition to cert are very different from merits briefs. Their job is to talk about the importance of the case, which necessarily privileges discussion of policy over discussion of legal merits. That may explain your confusion over the lack of emphasis on the textual arguments. But there is obviously a plain text argument available. It is the one I’ve laid out here, which in broad form is contained both in the Halbig dissent and the merits briefs to both cases.

383

But it’s not just a random “in some sections and not others”.

The idea is that where there’s any sort of ambiguity, this is the definition. But in the Section 18041 where a different type of Exchange is created, the term “Exchange” is not being used to mean “Exchange established under Section 18031” when it’s plainly in the very process of being established right here in Section 18041. That’s why you needed the analogy of “apples means apples and oranges”, because that’s what it amounts to. And my inclination is that while this is technically possible, it’s not the plain meaning of the text.

This doesn’t seem like a problem to me. Do a search & replace on the word “Exchange”.

This seems odd.

You’re saying that these rules only apply to changing the actual text, but do not apply to redefining the meaning of terms in that very text, which accomplish the exact same purpose but in a much more convoluted and confusing manner? Hard to believe.

Well that’s OK with me. I have no idea what judicial practice is in such cases, and don’t subscribe to a particular legal theory in regards to it.

384

So I did correctly characterize your position earlier as essentially being “but, it wasn’t really established pursuant to 18031, because it was established under the authority provided in 18041.” And the problem with that position is as I explained earlier–namely, you simply reject Congress’s ability to define the term “Exchange” throughout the statute uniformly. It is perfectly within Congress’s power to give the Secretary the ability to create something that the statute treats as an 18031 Exchange. The text plainly does that, by empowering the Secretary to create an Exchange, which the statute defines as one established under 18031. There’s nothing logically contradictory there, and you need a better argument than “this is complicated” or “this is weird” to overcome that. You have to argue that the definition is not intended to apply statute wide, and you have no good argument for that.

They aren’t re-defining the terms. That claim only makes sense to you because you reject the government’s position that 18041 was intended to create a replacement exchange that is treated identically to the state-created exchange.

385

The Halbig dissent is expressly contrary:

http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254d91f8bac85257d1d004e6176/$file/14-5018-1503850.pdf

I understand your argument that the statute should be interpreted such that “established by the State” should be read as “established by the State [or by HHS standing in the shoes of the State].” I just don’t think that is “plain text,” nor did Judge Edwards, who relies on statutory ambiguity to argue that the challenged regulations are “consistent with the statute’s text, structure and purpose.”

386

Again, I don’t reject Congress’ ability to define the term Exchange throughout the statute uniformly. I don’t think that’s the most straightforward interpretation of what they were doing. And that’s why “this is complicated” and “this is weird” are relevant.

Makes no difference.

Your claim seems to be that until another section modified the meaning of this section, the words would have had one meaning, but subsequently they were given another meaning, by writers who would not have had authority to revise the actual text itself.

387

bbonden: Ironically (because this is also the dispute on the merits), I think you’re ignoring the context here. Judge Edwards is arguing that “it is clear that the statute does not unambiguously provide that individuals who purchase insurance from an Exchange created by HHS on behalf of a State are ineligible to receive a tax credit.” That’s because that is all he has to prove to show that his dissent is correct. He does not have to reach the question of whether the challenger’s reading is also reasonable or not. So you wouldn’t look to the dissent’s characterization of its conclusion to assess whether there’s an argument in favor of the government that does not rely on ambiguity.

In short, all the government has to prove is that it’s reading is reasonable. It doesn’t have to prove that it is the only reasonable reading. I’m the one asserting that they have an argument that it is the only reasonable reading.

388

So you’re saying that when the judge wrote “these provisions, read together, defy any claim of plain meaning”, he really meant that they have a plain meaning but just that he doesn’t need to rely on this plain meaning for his legal argument?

I think I’m starting to see a pattern here … :slight_smile:

389

If you don’t reject their ability to do so, then you must make some argument that they did not actually do so. You have not made that argument. All you’ve said is that it would have been weird for them to do so. But they did! If you think they didn’t, then make some textual argument about why 42 U.S.C. § 300gg-91(d)(21) is not a statute-wide definition. If you have no argument about why that text isn’t an unambiguous statute-wide definition, then your musings about it being weird to define the term this way aren’t legally relevant.

I would have been more careful with my words if I realized this topic was important enough to analyze so deeply. My understanding is not that there’s some formal “rule” preventing that kind of re-drafting. Rather, there is a preference for not mucking with committee-approved language when it’s not necessary to do so to accomplish the result of merging the bills. It’s not about the authority to expand the referents of a given term, it’s just institutional caution and the ability to say “we didn’t change any of that, all you have to read is this part…”

I’m basing that entirely on a conversation I had with a hill staffer, so take it as you like. It isn’t legally relevant anyway.

390

There are very frequently things that could technically have all sorts of bizarre meanings if you ignore context and conventions of speech. Generally the “plain meaning” is one which incorporates these aspects.

OK, but that institutional caution would apply even more when the new definition is being applied to some unknown number of unspecified references throughout the law, which would have to be very carefully reread in its entirety with the new definition in mind.

391

I’m hoping you realize how ironic that claim is here.

If I understand it correctly, your claim is that 42 U.S.C. § 300gg-91(d)(21) cannot be a statute-wide definition because that would result in an “Exchange” set up using the authority provided under 18041 to be counted as an “Exchange established under 18031.”

You’re saying we should arbitrarily limit the definitional section because it feels weird to define an Exchange set up under one section as being established under another. I guess that’s logically consistent, but it’s just utterly unpersuasive. It’s not especially weird, and certainly not weird enough to overcome the plain text of the definition.

392

Several days later, and I’m still wrapping my head around the fact that the ACA is going to be in front of this Court for a third fuckin’ time. I posited the same question in my elections thread, but is there any kind of tally for the amount of times that Medicare was litigated in front of SCOTUS? I’m assuming that it was there at least once to determine its constitutionality, but, subsequent to that, how many times (if any) did the Court have to revisit Medicare due to implementation issues?

But beyond that question, the issue here is that this Court - or any court, sadly - is entirely unable to look at the ACA from an objective point of view. We know from the 2012 ruling that four of the Justices already believe that the entire law is unconstitutional, so the automatic assumption is that those four will fall in line with conservative anti-ACA doctrine in order to undo a law that Republicans can’t destroy themselves in Congress. The fact that most of the rulings on this issue have already laughed it out of the courtroom has no merit, nor does obvious Congressional intent, the plain language of the law itself (thanks Richard Parker!), or the ubiquity of the Chevron doctrine. IANAL, but from those things alone, this case is a slam-dunk win for the administration.

And c’mon here, it’s not as if this lawsuit was brought out of a genuine interest to ensure Congressional honesty. In spite of the cult-like Halbig trutherism that has arisen over the past few months, this entire lawsuit is objectively frivolous and facilitated entirely out of a desire to demolish the ACA by any means necessary. There’s no honesty or integrity behind the lawsuit, just rampant cynicism.

What makes it so troubling is that 15-20 years ago, from what I’ve read, this lawsuit would have been seen for what it is and ignored altogether by the Court. In the Roberts era, lawsuits that have long been seen as “illegitimate” have been increasingly granted legitimacy by SCOTUS. Don’t forget that - in the lead up to the 2012 case - most observers felt that it was a long-shot case against ACA opponents, yet it came within a hair’s length of being ruled unconstitutional.

Roberts already committed conservative apostasy once when he upheld the law in 2012; the question is, does he value the Court’s integrity enough to do it again, or, at this point, will he just shrug his shoulders and say “fuck it?”

But make no mistake, a bad ruling in King will kill people. Effectively, it will have turned the Supreme Court itself into the disreputable “death panel” that conservatives have warned were hidden in the ACA for the past five years. In doing so, it will COMPLETELY demolish the integrity & legitimacy of the Court as an institution, and it would henceforth be seen as nothing more than the judicial arm of the Republican Party.

I have my doubts that Roberts, or Hell, Kennedy, would be willing to destroy the Court’s legitimacy over a lesson in Congressional grammar. But who knows, really.

393

Well, it’s a big, complicated law. Keep in mind that different parts of the law are being challenged. I would suggest that you probably know that, but you’re assertion that “We know from the 2012 ruling that four of the Justices already believe that the entire law is unconstitutional” is so wildly incorrect that maybe you didn’t realize that the ruling in favor the individual mandate was just that-- not a ruling about the entire bill.

Also, this is not a constitutional challenge, so that’s a re herring here. This is a matter of how one interprets the law.

394

It’s not impossible to be the statute-wide definition, but that’s not the plain meaning of the words.

Meaning the statute could explicitly say "the term “Exchange” in Section 18041 shall be understood to mean “Exchange established under Section 18031”. But if the statute did not explicitly say this, then it’s not likely that a general statement about the meaning of the term “Exchange” was intended to mean that the exchange established in one section shall be redefined as being established in another section.

That’s all. It could do it. But it’s not the plain reading of the words. We seem to be going back and forth on this, so I think I’m going to drop it.

And FWIW I don’t see any irony at all.

395

We may have mined this as far as it will go, but you seem not to understand how statutory definitions work. In the absence of some limiting text, a general definition is taken to be applied statute-wide. When another section uses that term–especially when it uses the capitalized form of the term!–the “plain meaning” demands that you refer to the definition of the term.

396

OK, that’s fine. I’m not a lawyer and it’s very possible that I don’t understand how statutory definitions work. Meanwhile the SC has taken up the case, and these guys probably understand how statutory definitions work. Let’s see how they rule and on what grounds.

397

This is a lot in your post to disagree with, but I would start by saying that this is exactly backwards. The Supreme Court’s legitimacy rests (in part) specifically on its ability to provide “lesson[s] in Congressional grammar.” That (along with Constitutional interpretation) is the foundation of the judicial power.

398

“Limiting text” = “established by a State.”

399

Indeed statutes get to define their terms. And Section 1304 of the PPACA defines the term STATE as “In this title, the term ‘‘State’’ means each of the 50 States and the District of Columbia.”

That definition seems to exclude the federal government as well as the territories as being a State for any purposes in the law. That makes it hard to square “established by the State under section 1311” as including exchanges established by the federal government under section 1321.

And indeed it is accepted by the federal government that the Puerto Rico, CNMI, Guam, and the US Virgin Islands are definitely not included for subsidies. And it is wreaking havoc on their insurance markets. And Congress was ok letting that happen.

400

Er, no. That text limits 36B. It doesn’t limit the definition of “Exchange.” You’re wandering into an argument that you haven’t followed from the beginning. If you want to address my position, please start with post #351, and read my subsequent posts.

The full argument (or at least, this particular argument among several for the government) rests on both the definition of “Exchange” and 42 U.S.C. § 18031(d)(1).

Well, yeah. The question is whether the statute says that the Exchange created by HHS counts for the purposes of the rest of the statute as one “established by the state.” There are many reasons to think it does. Principally, because the statute says ALL exchanges are to be considered “established by the state” (in (d)(1)), because it defined “Exchange” was one set up under 18031 but allows HHS to create it, and because lots of parts of the statute assume that every exchange is a state exchange, notwithstanding them also expressly providing for the existence of federally-created ones.