One line of attack critics have undertaken in mocking the appellants’ case in Halbig v. Burwell is that – according to the argument – NO ONE up to this point had read the law this way, or noticed that this was in there. Rather, this reading of the law has come about as a bit of hyper-literalism on the part of conservative legal activists trying once again, Captain Ahab-like, to scuttle Obamacare.
Given how disastrous this would prove to be for the overall purposes of Obamacare, there’s no way that Congress could have meant for this to be a provision of the law. You’d think (the argument goes) people opposed to the law would have noticed this Achilles’ Heel and been making this argument from the get-go. You’d also think (again according to the argument) that supporters of the law would have either realized the flub and tried to fix it right then and there when they had the chance (if it wasn’t their intent to include this provision, but rather was accidentally in there, and did in fact [as Halbig asserts] mean something contrary to their purposes), or they would have been extremely vocal in making this provision from the law known as it would have been a slam-dunk case-in-point to strong arm those obstinate Republicans into acquiescence (had they meant it the way Halbig asserts). After all, “the whole point of a doomsday machine is lost if you keep it a secret.”
I find these arguments incredibly disingenuous, for a few reasons.
1) It is immaterial that “no one was talking” about this facet of the law. It took time to realize all the things that were in the bill after it was passed. No one really foresaw or got tetchy about the “like your doctor” bit until after it was proved to be false (before then, it was deemed to be just a handful of crazies making wildly inaccurate claims about the law – SOUND FAMILIAR?), even though that was a REALLY obvious feature of the law from the get-go, when looking in retrospect (i.e., that many people would lose their doctors and plans). The fact that no one caught this “glitch” doesn’t mean it isn’t there (notwithstanding that this narrative is also entirely false – see point 4 below).
2) The media DID fail us, time and again, in accepting as gospel truth the promises and assertions about this law from the administration (cf. point 1). Everyone was asleep at the wheel on a host of issues. The assertion about how “everyone couldn’t have missed this major thing if it was really there” presumes that there exists competency and astuteness in the media, Congress, and elsewhere. That’s a rather bold assertion, denied time and again by empirical evidence to the contrary. It also, once again, presumes that no one was talking about it, which is false (see point 4 below). Having something not get widely noticed is not the same as that something not being talked about, and this line of reasoning papers over a whole bunch of reasons as to why something like this could have been missed/ignored/passed over (e.g., there were more immediate, salient, and popular challenges to and facets of this law being discussed that led to less immediate, salient, and popular challenges to and facets of this law not being discussed. Never mind that it would have been really foolish and contrary to their purposes for all these cheerleaders of the law to admit at that time that they made such a stupid mistake/oversight on account of the godawful and manipulative way they passed the law – better to act like “we meant something else” than say “oops” and risk the political and legal consequences of admitting that mistake), even if we grant the presumption of competence and astuteness in the media and elsewhere.
3) Had things gone differently (i.e., had things fared better for Obamacare), supporters of the law would have almost certainly glommed onto the understanding of the law as asserted by Halbig en masse, as the political pressure would have almost certainly been catastrophic for obstinate Republicans. I mean, that’s exactly what Mr. Gruber envisioned being the meaning of the law and what was in there that provided nigh irresistible incentive/persuasion for state cooperation, as demonstrated in the now infamous videos of him saying as much (an interpretation which he pretended was absurd once it became clear that Halbig could pose a threat to Obamacare, and one which he has rather embarrassingly had to disown in order to “take one for the team” in recent days). Even folks in the media like Chris Hayes who deny this is what the law could possibly have meant agree that this understanding would be great for supporters of the PPACA, as he discusses rather gleefully that if Halbig is successful it will still be all bad for obstinate Republicans (which, I do agree, is probably entirely true), which, in my opinion, is rather suggestive. If working around (and, yes, when a bureaucratic regulation explicitly reads language into a statute that isn’t there, I think it has to be admitted at the least that it’s a workaround, notwithstanding the discussion pertaining to the validity of said workaround and whether or not the rest of the law justifies it) this now contested provision had not proved necessary to make Obamacare viable back in 2011 (hence the IRS rule), the left would have read the law this exact same way in order to bury Republicans for denying their citizens “free” money. It seems that, in the frenzy of the law’s passage, the left overestimated just how much the federal government would be able to do to dragoon states into complicity, and had to come up with alternatives and patches to make the law work. And this seems to be one of them – they would have meant the law as Halbig argues it reads had things been better, but since things went badly, they had to rework it, and are now trying to argue from a combination of silence, strategic maneuvering, and outright denial to convince people that this could never ever have possibly been the meaning and/or intention of the law.*
4) People were talking about this facet of the law, very near the beginning of this whole mess. People were even talking about it and floating it as a good idea to insert into a health care overhaul before the law even began to take shape. And, once again, the now infamous videos of Mr. Gruber espousing this now-scorned interpretation demonstrate very powerfully that there were really smart people really close to the law who understood the law in the very way Halbig asserts. As a matter of confidence, Mr. Gruber felt that he knew “more about this law than any other economist.” The confidence of his tone, the fact that he offered this little detail up as an “o by the way” add-on to the questions posed to him (suggesting that he wasn’t trying to come up with some off-the-cuff rationalization to an ambiguity in the law but rather was absolutely confident this is what the law meant, so much so that he could assert it clearly and voluntarily), and the fact that his understanding of the law must have come from somewhere (he didn’t make it up on the spot, but clearly got this understanding of the law from someone/something – and don’t forget that he worked as a paid consultant to the administration during the law’s crafting and then worked as a paid consultant to various states to sell them on implementing the law after it was passed, so there can be no doubt that he spent a lot of time making sure he understood the nooks and crannies of the law), all are really damning evidence against the argument that “no one” understood the law in the way Halbig asserts, and that this is just some desperate last ditch effort to try to defeat Obamacare. On the contrary, not only were there people who reported on the law and found this problem within it, but there were also people who worked on the law and helped craft it and sell it who explained to others that this is exactly what the law meant.
None of this gets into the issue of what Congress may have meant by the statute, and whether or not that has any bearing on the interpretation of the law (considering that they chose to pass the bill to find out what was in it….just sayin’….). But it does indict the view of many in the media at this moment who think the appellants’ case in Halbig is all just crazy talk. I am all for having an honest discussion of the merits of the case, whether or not the statute is clear, whether or not the context of the statute can be construed to clearly clarify any possible ambiguities in the statute itself (or whether or not the context itself is ambiguous), whether or not congressional intent should factor into the ruling on the law (and, related, whether or not there should be a truth-in-labeling provision that somehow requires Congress to clearly indicate what is in a law before they can pass it, otherwise it would be rendered void due to a violation of the implied guarantee, so that they could be held accountable just like any marketer/merchandiser), how other recent Court decisions should factor into the decisions SCOTUS should make in arbitrating this case should it get to them, etc. But what I find utterly wrongheaded and dishonest is the effort on the part of many players in the media to play dumb, act like this is a novel innovation rather than something discovered and pointed out at a very early stage in the implementation process, and then handwave the issue away by crying “technicality!!!”, as if, when it comes to legislation and judicial interpretation, technicalities aren’t the heart and soul of the business. But what should we expect from a compliant media that, by and large, has let the white house press office do its job for it, and has learned very well how to recast the facts by reframing the debate? Instead of owning up to their failures, or acknowledging the facts and merits of the case, they choose the path of least resistance, and say that a well-reasoned and coherent challenge is really just all a bunch of crazy made up stuff.
And besides, I mean, when it comes to the language of the law, it’s kind of a big deal if the card did, in fact, say “Moops”….
*The debate about what bearing the meaning and/or intention of the law has on its interpretation is a Pandora’s box, and it raises an assortment of questions about how we can determine meaning and intention in the first place, and whether or not the motivation of drafters and legislators matters at all if the statute says something clearly, even if it is contrary to the motives and intentions of those who voted to enact it, or even if it just was an “oops” that no one caught, and that Congress wants a judicially-approved mulligan on since if it tries to fix it itself it imperils the whole law.
UPDATE: So was Max Baucus just uttering a preemptive “speak-o” when he seems to imply that tax credits would be conditioned upon states setting up their exchanges?