Obamacare, the states, and the “drafting error”
About the current claims that, back when Obamacare was being drafted, that language about the necessity of state exchanges for subsidies just sort of snuck in there by accident and/or error, Megan Mcardle writes:
1. This is not new.
2. This is incomplete.
3. This is not legally relevant, for good reason.
4. If it were legally relevant, it would not be as helpful to the case as liberals think.
This is not the first time a media outlet has talked to folks who were involved in the process, and recorded them saying that they never, no way and no how, intended to deny subsidies to states–or reasoning, like Olympia Snowe in Pear’s article, that they couldn’t have set it up this way, because it would be crazy to choose a structure that threatened subsidies for people in states that didn’t set up exchanges.
These articles, however, often don’t provide important counterarguments. For example: Congress indisputably chose exactly that crazy, insane, totally inconceivable structure for the Medicaid expansion passed in the same law. In fact, it was considerably more coercive…
Or consider the “drafting error” interpretation that many politicians have offered. Here’s a puzzle about that…: At several points during the drafting process, people kept adding the phrase “established by the state” to the middle of “exchange established under Section 1311,”…This language survived the process of merging and reconciling bills, even while other sections were amended to ensure parity of requirements on federal and state exchanges…
Read the whole thing, it you’re interested in the legal niceties.
Betsy Newmark expands on some of the many reasons why “we didn’t really mean it” just doesn’t cut it in explaining why Obamacare was drafted the way it was vis a vis the states setting up their own exchanges:
The government has not made this “drafting error” argument in either its brief or oral argument; instead the defendants argue that “exchange established by the state” is a term of art that includes exchanges not established by the state. There’s good reason for this. The “drafting error” argument requires admitting that at some point “established by the state” was deliberately written into law to mean, well, exchanges established by individual states, something that the government has no interest in saying, because contrary to apparently popular belief, “drafting error” is not a magic word that forces the Supreme Court to give you a mulligan. As Adler points out, Elena Kagan recently wrote in another case that, “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress ‘must have intended’ something broader.”
However, even if this were accurate, and even if the court were inclined to broadly rewrite statutes to what the legislators wanted them to be, none of Pear’s interviews would carry any weight toward that end. The Supreme Court isn’t much interested in post-hoc statements of legislative intent….
Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you’re highly motivated to believe.
We now have two cases of wonks who were closely connected to the drafting process, who said at one point that the King interpretation of the statute is insane to anyone who followed the construction of the law … and can be found on tape at an earlier point (in one case, during the legislative process) advancing exactly the theory that they subsequently declared completely and obviously insane. Do I think that their later argument was a strategic lie? No, despite conservative shouts that I am being naive. Scout’s honor, cross my heart and hope to die, I think that they simply forgot what they’d earlier believed.
I’m not sure why that word “simply” is in there, because Newmark doesn’t appear to think that this “forgetting” is a simple act. After all, the forgetting isn’t random; it only goes in one direction, that which furthers what the party needs it to be at any given time. IMHO it is more akin to the “forgetting” that leads, as Winston Smith’s interlocutor O’Brien says in Nineteen Eighty-Four, to the conviction that 2 + 2 = 5 if the party needs it to.
I have explored this phenomenon before, and I think the following quote from Whittaker Chambers’ Witness describes it better than anything I’ve ever read:
When I first knew him, Harry Freeman [who later become the assistant US chief of Tass, the Soviet news service] was just out of Cornell University, where he had brilliantly majored in history”¦the best mind that I was to meet among the American Communist intellectuals. It was an entirely new type of mind to me. No matter how favorable his opinion had been to an individual or his political role, if that person fell from grace in the Communist Party, Harry Freeman changed his opinion about him instantly. That was not strange, that was a commonplace of Communist behavior. What was strange was that Harry seemed to change without any effort or embarrassment. There seemed to vanish from his mind any recollection that he had ever held any opinion other than the approved one. If you taxed him with his former views, he would show surprise, and that surprise would be authentic. He would then demonstrate to you, in a series of mental acrobatics so flexible that the shifts were all but untraceable, that he had never thought anything else.
In that same post, I go on to write:
Of course, rationalization and denial of facts that don’t fit a person’s previously held beliefs is not just a province of the Left. It’s a general human trait, and that is why a mind is a difficult thing to change. But the Left carefully nurtures, fosters, advocates, and even requires this sort of denial, whereas it is my observation that the Right (and this was something that was formative in my own change experience), while hardly immune, is much less demanding that its adherents dismiss and deny logic and inconvenient facts.
Who are you going to believe? Us or that lying, distorted and mistaken legislation that we wrote?
This is why I am inclined to agree that The Onion truly is America’s finest news source, because so much that goes on in the public sphere seems to be nothing less (nor more) than a parody of itself.
“. . .’we didn’t really mean it’ just doesn’t cut it . . . ”
And, if my memory serves me accurately, wasn’t it no one less that Justice John Roberts who noted in the Obamacare decision that it was not the Supreme Court’s job to repair legislative mistakes? He was referring to bad legislation, but whether caused by poor vision (prohibition) or poorly written language, bad legislation is bad legislation. I submit that it’s still not the court’s job to fix it.
“I think that they simply forgot what they’d earlier believed.”
Forgot? No. The dysfunction must lie much deeper than simple forgetfulness. The ‘Harry Freemans’ who can sincerely argue that 2+2=5 and then later, when the party needs it, argue that 2+2=7 and then 2+2=9 and back to 2+2=5… demonstrate a level of dysfunction, far beyond mere forgetting.
Once denial of certain aspects of reality is profound enough, what barrier do mere logic, fact, reason and intellectual honesty present?
Such as they, are clearly not insane but neither are they sane, as disconnection from aspects of reality precludes sanity. They exhibit a lack of intellectual integration, i.e. integrity.
I wish one of the justices would direct a comment to Pelosi: You said we would have to pass the bill to find out what was in it. Obviously you didn’t know, but now you expect SCOTUS to read your mind.
Geoffrey Britain:
They do indeed lack integrity.
But they certainly are sane.
T,
Not only is it not the Court’s job to ‘fix’ bad legislation, attempts to do so are an unconstitutional preemption of powers not delegated to that branch. Repeated attempts at preemption are demonstrable evidence of unfitness for office, i.e. “high crimes and misdemeanors”…
Of course that standard applies to Obama and his preemption of legislative powers. And Congress’ failure to impeach is demonstrable evidence of their unfitness for office. Which unavoidably leads to an examination of the public’s fitness in self-governance.
“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams
Our government is, in the aggregate, a reflection of our society’s lack of wisdom. Consequence; reality shall extract its due.
neo,
“But they certainly are sane.”
Are they? Regardless of clinical definition (a convenience in labeling), can someone who dismisses reality to that degree; who serially argues that 2+2= 5, 7, 9 and then back to 5… while sequentially denying that they ever argued otherwise… claim to be sane?
Is sanity binary? You either are sane or insane? Or is the mental condition of sanity itself, much more complex, akin to the physical; perfectly healthy, temporarily sick, chronic disease/ailment/illnesses, partially or fully disabled…
Am I in error when I assert that, all ‘isms’ of the left, to one degree or another, reject critical aspects of the reality within which we all exist?
But if that is an accurate assessment, how can an individual that rejects fundamental aspects* of the reality within which they exist… be defined as fully ‘sane’?
*supply and demand, the reality of evil, the unequal nature of life’s blessings (absolutely necessary and a positive good)
There’s the proverbial elephant-in-the room no one seems to mention when discussing the problem of the state exchanges, rationalized as a “drafting error” or a “term of art” by those trying to salvage the Obamacare monstrosity.
The elephant-in-the room is this: If the law is flawed, why not just send it back to congress and have them fix it? The answer is obvious but unmentioned even though it’s very important: they won’t submit this hideous law back to congress because this congress won’t pass a piece of crap like Obamacare.
Therefore, all the legal efforts to save Obamacare are intended to thwart the will of the people, all those Americans who voted in Republican majorities in the house and senate to express their disgust for the lefty lunacy of the legislature that passed Obamacare.
The people shielding Obamacare from the current legislative process want to hold the entire country hostage to the past and force us all to abide by the result of a freak political situation in 2009-2010 that gave the Dems bulletproof majorities in the house and senate and a Dem president.
According to the postmodernists reality is just a social construction. It’s whatever you believe it to be. If you believe 2+2=5, that’s perfectly fine.
McArdle says the Obama Administration is basing its case on a “term of art” argument; that term is the word “such” and there’s an interesting discussion of it in this article: The One Word That Could Save Obamacare:
I can see Chief Justice Roberts embracing that argument.
But who needs Harry Freeman when you have Obama in the White House? (And the MSM filtering the information it wants you to get?)
Indeed, it’s tTime to reintroduce Jonathan Gruber.
Heeeeeere’s Jonny!!:
http://dailysignal.com/2014/11/18/jonathan-grubers-controversial-comments-single-two-minute-video/
And heeeeere’s the NYT’s rather hilarious (though you might prefer another word) attempt at damage control:
http://www.nytimes.com/2014/11/18/opinion/the-impolitic-jonathan-gruber.html?_r=0
Alas, poor Gruber, we knew him once….
http://pjmedia.com/richardfernandez/2015/02/25/among-all-the-best-people/
The humpty dumpty defense: words mean whatever hd says they mean.
Everyone looking forward to the “compassionate conservative” argument that we can’t take people’s subsidies away from them?
Is it the court’s job to entertain the argument….That’s what we should have said but we screwed up, on several layers, and then lied about it.
I don’t mean the Supremes. I mean the Republican party if the decision comes down the way we hope it does.
It was not a “drafting error” – I seem to recall that at the time it was put in there specifically to strong-arm the states into setting up exchanges. It’s the same idea behind such coercive tactics as forcing states to raise the minimum drinking age to 21 or lose federal highway funding.
The problem is that in this case the states called their bluff.
Geoffrey Britain:
Well, “sane” is a funny word. There’s the vernacular, the philosophical, the spiritual, the legal, and the medical/technical. It’s more one of the last two I’m talking about.
ANN: “‘Such’ is an important clue–perhaps the most important clue in the statutory text–about what Congress “MEANT” the backup exchanges to do.”
What Congress meant? It is to laugh. Congress had little or no hand in writing this law. It was written by academic consultants like Jonathan Gruber who assured Pelosi, Reid, and Obama that it was going to fly like an eagle. Indeed, we know that no Congress Critter actually read it because, as Ms. Pelosi said, “We have to pass the bill before we can see what is in it.” I’ll take her at her word. They didn’t know the details. All they knew was that they needed to force it through a majority democrat Congress before people knew the details and could stop it. Remember the Cornhusker Kickback, the Louisiana Purchase, and reconciliation were required to barely get it through the Senate? This was a travesty from the get go.
There is only one Constitutional way to fix the law and that is in Congress. Unfortunately, the Supreme’s may not agree.
Congress has enacted over the years COUNTLESS provisions that require the various states to enact enabling/ paralleling legislation to get full access to the ‘sugar’ from D.C.
Virtually the ENTIRE spew from the Department of Transportation and the Welfare engine take this form.
It was THIS mechanism that caused Montana to conform to the 55 MPH speed limit back in the Seventies. This provision went down their throats — sideways.
So, rather than being a first-time-out-the-door event, this style of Federal ‘matching-reach’ is the NORM across the spendist state.
When Montana finally DID rebel and lifted its highway speed limits – – it was CUT OFF from Department of Transportation funding.
Fortunately, that period did not last long: the Federal statue was repealed — and a ‘nunc pro tunc’ ‘money sack’ was thrown to Montana.
&&&&&&&
If you think it through:
Should the Supremes go with the Barry’st ‘statute dance’ then ALL of the OTHER Federal — ‘got to have a mated – matching state expenditure mechanism’ programs just go up in smoke!!!!!!!
For, every Republican legislature is sure to repeal them ASAP as the ONLY reason they were EVER enacted was to gain access to the Federal sugar.
(!!!!)
Think about it.
The “states go to do it” {mate and match the Feds} angle is the FOUNDATION of the hyper-expansion of our central government.
It’s simply everywhere in the Federal (domestic spending) budget.
Should the USSC walk past this barking dog… the various states need no longer conform to any Federal diktat — to get their sugar!
For most states, such a recourse would mean a MASSIVE curtailment in welfare aid to illegal immigrants. The Feds in DC would no longer be able to run the national ‘system’ — leveraging up state funds while doing so.
&&&&&&&&&&&
My following post will go into how 0-care MUST implode the nation’s money creation engine — and how Barry has set the table for global deflation — epic in scope.
From an evidence point of view, this news story is a joke. These “facts” are not even before SCOTUS.
Complete joke.
About as legally valuable as the social science “evidence” presented in favor of SSM.
Cut & Paste Worthy:
Modern money is created within the commercial banking system when (good) loans are made.
First mortgages are BY FAR the dominant source of loan volume and persistence.
The average weighted maturity of a 360 month mortgage is about 150 months… (a stat that shifts wildly back and forth based upon swings in interest rates, BTW.)
0-care THROTTLES the creation of mortgages consequent to a FIRST TIME home purchase.
The players who would be first time home buyers are EXACTLY those who are most taxed by the cost shifting of 0-care.
1) They are entirely outside the 0-care subsidy zone… No 0-care windfall for this crowd.
2) They are young, family-forming, early marrieds – HEALTHY – yet with huge non-health related outlays consequent to their first home purchase.
3) When you tote up the ‘damages’ / affordability budget I becomes obvious that the income threshold for that first time home purchase has leapt straight north.
In most major markets… states with fulsome income taxes, themselves… the requisite income bump is $ 50,000 to $ 90,000 per family. (!!!)
4) Such a quantum leap in requisite income for mortgage qualification – at this time – is ‘squirrelly’ as one has to juggle local taxes, 0-care rates, and local real estate values.
Consequently 0-care political-emotional partisans will be entirely successful in disputing any specific calculation one might ever pull together. Yet, the actual figure, soft as it is, is still going to be a box-car sized jump.
5) The consequent shrinkage in the market – those able to stump the money – hugely explains why the housing industry is not building single family homes. Indeed, the SFH housing stock is actually going backwards – a reality that the politicians and their statisticians obfuscate.
All of the above has ALREADY kicked into gear:
The money supply has largely stopped growing over the last six months.
As time advances, this non-growth (of foundational first time home purchase first mortgages ) will roll money growth over and down into steady deflation: old mortgages – to stay good – are paid down. With each principal reduction, the circulating money supply shrinks.
This effect totally overwhelms other debt creation mechanisms. Real estate mortgages are that dominant.
A scarcity of US dollars – is instantly felt – if not understood – by the global money circulation system.
At which point, momentum in the various currency pairs begins to take hold.
I give you the Euro vs the US dollar.
&&&&&
Additionally: 0-care is a TAX BILL. It has a slew of excise taxes on health expenditures — that can’t be put off.
The result is that the Federal deficit is actually closing up!
&&&
The ayatollah is shutting down the real estate development engine, the money creation engine, and exporting manufacturing overseas — with a vengeance.
What could go right?
ConceptJunkie wrote:
I have often claimed that The Onion is a news source sent to us from the future. It is astounding to me how what was total parody 5 years ago is standard operating procedure in journalism today.
Senator Hatch on the subsidy
http://www.hatch.senate.gov/public/index.cfm/releases?ID=c4775d23-c814-40e1-b86d-4123b8e2ddd3
The whole thing is a lie; illegally forced through by liars.
“Arguing” the truthful merits of a lie is ridiculous.
They are not stupid. They are amoral. They are opportunistic. They live and govern by ulterior motives. This “oversight” has a positive meaning.
DC is the rotting head of the fish that has plagued the republic for many moons. The choices are article 5 or the violent dissolution of the union.
Paul in Boston: that link is from 2011 when Hatch was pretending to still be a conservative before the 2012 election. Watch the Republicans snatch defeat from the jaws of victory if the Supremes give them the chance.
blert, do you have some links to verify the scenario you are positing or is this your singular reading of the tea leaves? I must say that I believe what you are foreseeing. My belief in your scenario would be much stronger with some charts and statistics.
Which brings us to the next question. What is the safe harbor? In deflation commodities and real estate are toast. How about cash? (Circulated silver coins and ?) Stocks of defensive consumer companies? Short the market? What else? Inquiring minds want to know.
J.J.
You must have skipped economics class.
1) Money creation consequent to debt creation is TEXT BOOK in EVERY classroom.
2) 0-care — on its face — shifts taxation TOWARDS the healthy young – AND OUTSIDE THE SUBSIDY BRACKET.
3) If you are INSIDE the SUBSIDY BRACKET you will NEVER — EVER — EVER — EVER — EVER — qualify for a first mortgage.
(Exception — ish — VA loans… note extreme contraction of THAT applicant pool.)
The problem for those who get 0-care subsidies — while young — is that the numbers MUST implode the personal balance sheet.
Suffice it to say: in the main — FIRST TIME HOME MORTGAGES are WAY OFF DIRECTLY DUE TO 0-care.
BTW, Red China is in a fulsome BUBBLE — that is crashing / imploding as we post.
&&&&&&&&&&
The OBVIOUS shorts: Canada, New Zealand, Australia.
I’d start with Canadian corporations that are linked to Red China:
Direct Trade
Indirect Effects — Real Estate ‘escape assets.’
Not withstanding the extraordinary nature of the Canadian bubble — no Canadian that I know of thinks that they are in a construction bubble.
That’s something that only happens to stupid Americans.
Be advised.
What’s going to happen is that the inside traders responsible for mass crowd boosting the stock market, will cash out, then it will crash. This will happen when the Trigger point is reached and the people at the top get the advance intel. Such as Congress critters with their mutual funds. This will then signal the rest of their allies to do the same.
But only between 1-10% of the people with wealth in the market, will be able to extract it at current market rates. The rest of the 90% will take 10%, even, of the wealth they invested, back out. It’s a wealth transfer and redistribution scheme, except much bigger than Madoff’s con scheme.
The wealth is transferred into real estate and overseas bank accounts. The smarter and wiser independent wealthy gurus have some assets stashed in Zurich, as precious metals. That way they can’t be confiscated by the government, unless the gov is Switzerland.