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July 30, 2014

Statutory Interpretation for Dummies

Most of the time, if everyone's talking about something you wrote that's a good thing. After all, in the land of opinion writing, traffic is the coin of the realm. But sometimes, too much attention can be a bad thing. In the case of Greg Sergeant's latest attempt to discredit the arguments in Halbig, it turned out to be a Very Bad Thing. Patterico - that big, handsome law dog - explains why (aside from the obvious point that bills and laws aren't the same thing) Mr. Sergeant's mad statutory interpretation skillz need a bit of work:

...when the bills were merged, the HELP Committee bill’s explicit provision that subsidies were available on federal exchanges was dropped. Since Sargent’s post was published, several conservatives have convincingly argued that, applying standard rules of statutory construction, the disappearance of the provision allowing federal subsidies signifies that the drafters intended to drop it.

...If Congress initially put specific language in the bill providing for subsidies on federal exchanges, and later took that language out, it’s assumed to be deliberate. Ouch!

But it gets even worse for Sargent. I’ve not seen anyone make this point yet, but Sargent has actually directly corroborated an argument made by the majority opinion in Halbig. Here is the Halbig opinion, and here is the key passage:

The government and its amici are thus left to urge the court to infer meaning from silence, arguing that “during the debates over the ACA, no one suggested, let alone explicitly stated, that a State’s citizens would lose access to the tax credits if the State failed to establish its own Exchange.”

The historical record, however, belies this claim. The Senate Committee on Health, Education, Labor, and Pensions (HELP) proposed a bill that specifically contemplated penalizing states that refused to participate in establishing “American Health Benefit Gateways,” the equivalent of Exchanges, by denying credits to such states’ residents for four years.

This is not to say that section 36B [the section of PPACA that provides for subsidies] necessarily incorporated this thinking; we agree that inferences from unenacted legislation are too uncertain to be a helpful guide to the intent behind a specific provision.

But the HELP Committee’s bill certainly demonstrates that members of Congress at least considered the notion of using subsidies as an incentive to gain states’ cooperation.

Conservatives discussing Halbig have argued that the “established by the state” language was designed to provide an incentive for states to establish exchanges — by withholding subsidies unless the states established the exchanges. Lefties like Sargent say that theory was cynically concocted after the fact. But the Halbig court said, in essence: no, actually, it is not outlandish to think that Congress might have intended to withhold subsidies as an incentive for states to establish exchanges. After all, the HELP Committee did exactly that, in related legislation. The only thing that keeps this from being a slam dunk argument is, we can’t establish a direct connection between the HELP Committee legislation and the language in the PPACA.

But Greg Sargent just did. [bolding mine]

The Halbig majority couldn’t say that the provision for subsidies “necessarily incorporated” the thinking of the HELP Committee. Now, thanks to the work of Greg Sargent, the Halbig plaintiffs can argue exactly that — because now we know that the language of PPACA was taken directly from the HELP Committee proposal.

Perhaps this little refresher would have helped Mr. Sergeant understand that a bill isn't the same thing as the final law Congress votes on (sometimes without bothering to read it first!):

Just as an aside, we can't help snidely wondering, "If these folks really made that big a mistake on the Obama administration's signature legislative achievement, what does that say about their competence?". Why should we grant these fools even more power over our lives?

Posted by Cassandra at July 30, 2014 06:24 AM

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Actually, Sergeant's principle is totally sound. Laws mean exactly what they say, and not one iota more if Sergeant and his side do not like it (see 2nd Amendment, Religious Freedom Restoration Act, etc). But if Sergeant and his crew want to expand a law to cover things they like, then magically penumbras and intent and hanging chads suddenly appear from pixie dust and the courts should simply respect that. Why is this so hard to understand?

Posted by: MikeD at July 30, 2014 11:01 AM

They were so completely, smugly certain that they'd written the disincentives strongly enough to ensure that no state would stand up to them. And they might have been right, if Justice Roberts hadn't taken away the Medicaid penalty. For that matter, I'm not convinced any states understood or believed that their citizens would be denied subsidies if they declined to set up exchanges. I'd like to think they'd have taken a principled stand like that, but really? If Halbig isn't overturned, I wonder whether a lot of red states won't cave now.

In any case, it's crystal clear to me that the law was deliberately drafted to apply this penalty, though many of the people involved in the legislative process were only dimly aware of it, if at all, and are now completely prepared not only to lie about it but to revise their own memories so as not to have to think about it since it's become an embarrassment.


Posted by: Texan99 at July 30, 2014 11:32 AM

If Halbig isn't overturned, I wonder whether a lot of red states won't cave now.

I've actually seen speculation that if Halbig stands that the next step is to claim that citizens of States who do not participate in the exchanges will be exempt from the "tax penalty" of the ACA altogether (as otherwise it would violate equal protection to tax those States without also granting subsidies). Though I freely admit, I think this may be too hopeful, it would be nice to see the ACA die by a thousand cuts (rather than the swift execution I would have preferred for it).

Posted by: MikeD at July 30, 2014 12:29 PM

That would set up an entertaining argument. Red state citizens would argue that Congress couldn't possibly have intended them to pay taxes to support subsidies they wouldn't be allowed to benefit from. No one could have been that much of a jerk, right? So the Supreme Court should re-interpret the ACA so as to eliminate the tax/penalty/floorwax. ACA enthusiasts would then argue, "We did so intend you to pay taxes and get no benefit! So there!" or else "It doesn't matter what we intended; the language is unambiguous."

Posted by: Texan99 at August 1, 2014 11:12 AM

The Supreme Court has already found a way to bend itself enough to accept the government's argument that the mandate both was and was not a tax, depending on the government's needs. So why shouldn't we use unambiguous language interpretations where that benefits the government, and 'spirit-of-the-law' interpretations where that is to their benefit?

Posted by: Grim at August 1, 2014 11:26 AM