No one is arguing that Congress should not be held to the words it passes. You’re placing that straw man in the mouth of the government instead of grappling with the government’s actual position.
This is the equivalent of wading into an abortion debate and saying, sanctimoniously as you’ve done here: I believe the better approach for government is not to improperly punish women for terminating a non-person. I simply disagree with conservatives who wish to punish women for a medical procedure.
I’m sure you recognize how much that argument misses the point entirely.
It’s one thing to present a straw man. It’s another to present it and in the same breath declare yourself as merely faithfully adhering to principle. I was offering an example of what such a haughty straw man looks like in a way I knew Bricker would find intelligible.
If I only read the Think Progress link and the Volokh link, the Volkh discussion is much more persuasive. Granted one was aimed at non-lawyers and the other is from a legal blog so the context is different. Do you think those arguments by Jonathan Adler have merit?
They definitely have merit. I’m not one who thinks this case is a slam dunk on the merits, and I’ve said that from the very beginning. Adler, to his credit, is grappling with the actual arguments in this case.
The wrong juxtaposition is Adler vs. ThinkProgress. The right juxtaposition is Adler vs. the other authors contributing to the SCOTUSBlog Symposium.
I don’t know if Gluck has replied to Adler, so he has the benefit of having the last word here, but it is worth reading her original post at least before deciding which is more persuasive.
Since this entire case seemingly rests on grammar, & the government’s case is that the words “such” effectively secures their argument insofar as to how they’ve built an equitable exchange, how do the people on the Adler/Canon side grapple with that wording?
It seems to me that the literal reading of the word “such” cannot be construed as anything else than “equal to,” after all.
What they say is that “such” refers to an exchange with generally the same properties as the state-created exchange, unless otherwise indicated, but that the subsidy calculation in 36B is an explicit indication that state-created exchanges are to be treated differently in that respect. In other words, sure the federal exchange is a stand-in for the state exchange, except where the statute explicitly refers to an exchange established by the state.
The response to this is that there are several other provisions that refer to state-established exchanges that are not, seemingly, intended to distinguish federal from state exchanges. And, moreover, that this language can also be read to distinguish PPACA-established exchanges from others.
There are responses to those responses too, of course. What I would want people in this thread to take away is that this is not a battle between text and legislative intent. It is a battle between two different readings of the text, one of which just happens to have legislative intent on its side (though that too is subject to debate).
I had almost forgotten that I already dug into the draft bills to see if they were helpful on this question.
As I noted last year in another thread, the language about the subsidy calculation at issue, “established by the State…,” first appears in the October 19, 2009 Chairman’s Mark (i.e., draft) bill submitted for the consideration of the Senate Finance Committee, S. 1796. That bill does not contain the provision empowering the Secretary to establish an exchange.
That’s pretty important, it seems to me, since it shows that this language was included before there was any federally-created exchange to distinguish.
Perhaps I am not understanding your point, but this statement is untrue.
If the courts are presenting with a justiciable claim, and Congress has spoken unambiguously (and constitutionally) on the issue in controversy, then the court must give effect to the statutory language. The court has no power or discretion to defer to the agency.
This principle is why the Halbig plaintiffs make only textual and contextual arguments, and the government is comfortable arguing that there is statutory ambiguity.
Can you expand on this? What limit are you seeing in “established by the State,” if it is not to distinguish “established by the Secretary”? In your reading, what is the difference between an “Exchange” and an “Exchange established by the State”?
Given that the phrase “established by the State” existed in the draft bill before there even was a concept of a federal exchange, it may not differentiate anything. Maybe a theoretical private exchange that might pop up down the line? Since there was no federal exchange when that phrase was originally put into the bill, what is your theory as to what it differentiates? You can’t say federal exchange because the phrase predated that. So what else is there?
The simplest proof that the distinction is not between federal and state is that this language was inserted into a bill that had no federal exchange. That’s legislative history, not text, but that fact should cause you to look very closely into whether the only reasonable reading of “established by the State” is “not established by the feds.” Other logical possibilities would seem to include distinguishing PPACA exchanges from prior ones, or from private exchanges.
Now, I understand your argument to be that if capital-E “Exchange” denotes a PPACA exchange because of the definition in 42 U.S.C. § 300gg-91(d)(21), then this additional phrase “established by the State” must mean something more than a PPACA exchange. And that’s fair enough. If you grant that § 300gg-91(d)(21) is a statute-wide definition, then you’re right that it renders “established by the State” redundant. But I think if you grant that premise then you have a hard time winning on the strength of that redundancy alone, since then you are accepting that the Secretary is empowered to establish an exchange under 42 U.S.C. § 18031. At that point, it becomes very difficult to argue that 42 U.S.C. § 18031(d)(1) applies to some § 18031 exchanges and not others, and that provision requires every Exchange to be established by a state.
In short, it’s only a redundancy if you accept the government’s premise that § 300gg-91(d)(21) is a statute-wide definition. And if you accept then, then I don’t think the redundancy is sufficient to win under Chevron given (d)(1) (and the rest of the provisions in the statute, like the definition of “qualified individual” and the reporting requirements).
Ok, I read all the posts. My first comment is that you provide a better defense of the government’s position than those in favor at the symposium. Especially Robert Weiner. Not only is the first push he makes an appeal to emotion, but when he quotes parts of the bill it’s done in a misleading way out of context. That’s just poor.
Michael F. Cannon’s 7 myths was informative, even though his myth #6 and #7 are just weird semantic word games poorly disguised as myths but are actually trying to be arguments. The links in this article about some of the history with drafting and IRS interpretations was informative.
This seems to be indicative of the tone of the arguments - the plantiff side seems to attempt to address the arguments of the government and attack them, attempting to demonstrate why their arguments are better. While the government side seems to make less tangible arguments resting on emotion or induction.
Again, I think you, Richard, have done a far superior job in arguing for the side of the government here. I lean interpreting the statute as the plantiffs do. And we only have 7.5 months to wait!
Legal question: As I understand it, the court has the option of ruling in favor of the plantiffs, but then issuing a stay on the ruling and telling congress to redraft the law to clear up the confusion.
Do they have the option of asking for the redraft first, without ruling on the case?
OK, this is basically what I thoughts you argument (or one of your arguments) was. So can we agree that “established by the State” in the tax credit section does not add a limitation in your view, and instead is either an error or surplusage (a drafting artifact, presumably)? And that it is not the plain reading, but rather context, legislative history and policy that support the pro-tax-credit position? I’ll stipulate that statutory context can be unambiguous, and that you are making the argument (among others) that the context unambiguously supports tax-credit availability.
You have a perfectly valid point. But I guess I’m not entirely prepared to concede that recognizing this particular species of redundancy takes us out of the realm of “plain reading.” Do the challengers not offer a “plain reading” because they view the word “qualified” in “qualified individuals” as mere surplusage? Maybe so, but if so, we should apply the same standard to both sides.
I think it’s also important to understand that this is not the only way of arriving at the government’s conclusion. You could get there by “such Exchange” and (d)(1) alone, which doesn’t render “established by the State” redundant because it doesn’t view the definition of “Exchange” as necessarily unchanging throughout the statute. I think that’s a weaker legal argument than the one that renders the phrase redundant in the sense we’ve used above, but it’s still one of the arguments.