The Disingenuity of the Anti-Halbig Arguments

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.

Damn tea-baggers....

Damn tea-baggers….

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?


  1. In the meantime, Justice Brandeis’ opinion for the Supreme Court in Iselin v. United States is controlling: “What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.” 270 U.S. 245, 251 (1926). We held the same in National Railroad Passenger Corp. v. United States, 431 F.3d 374, 378 (D.C. Cir. 2005), citing not only Iselin but also Lamie v. United States Trustee, 540 U.S. 526, 538 (2004), which reaffirmed Iselin’s “longstanding” interpretative principle.

    -Halbig v. Burwell, 2014 BL 201816, 20 (D.C. Cir. July 22, 2014)

  2. The point is that we don’t know, and in asking us to ignore the best evidence of Congress’s intent — the text of section 36B — in favor of assumptions about the risks that Congress would or would not tolerate — assumptions doubtlessly influenced by hindsight — the government and dissent in effect urge us to substitute our judgment for Congress’s. We refuse. As the Supreme Court explained just this term, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” UARG, 134 S.Ct. at 2446. And neither may we. “The role of th[e] [c]ourt is to apply the statute as it is written — even if we think some other approach might ‘accor[d] with good policy.'” Burrage v. United States, 134 S.Ct. 881, 892 (2014) (quoting Comm’r v. Lundy, 516 U.S. 235, 252 (1996)) (third alteration in original); see also Lewis v. City of Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to assess the consequences of each approach [to interpreting a statute] and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.”); United States v. Locke, 471 U.S. 84, 95 (1985) (“[T]he fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.”).

    – Halbig v. Burwell, 2014 BL 201816, 19 (D.C. Cir. July 22, 2014)

  3. Michael Cannon on how both the legislative history of the PPACA, and other facets of the law itself, render moot the argument that Congress never meant to use subsidies as a carrot-and-stick to entice states to set up their own exchanges.

  4. And, probably my favorite foot-in-mouth moment is Media Matters quoting Gruber in his 2013 Mother Jones interview as calling this interpretation of the law (which, to remind you, was his exact interpretation of the law) “screwy,” and citing his close proximity to the crafting of the law as a good reason why we should take his opinion seriously. Oops. I guess I’m a dolt for agreeing with them that we should take his opinion seriously.


    This is a lot of chutzpah coming from a fellow who suggested that Congress implement a mechanism for state persuasion into health care reform very similar to the one Halbig asserts is in the law.

  6. “The relevant legislative history indicates that Congress did not expect the states to turn down federal funds and fail to create and run their own Exchanges. Instead, Congress assumed that tax credits would be available nationwide because every state would set up its own Exchange.” – United States District Court For The Eastern District of Virginia, in ruling against appellants in Halbig.

    But that’s kind of the point. Congress did not foresee something going awry with the intended scheme of the law. The text of the law is written with the built-in assumption that every state would operate their own exchange. The failure of Congress to delineate specifically how the federal exchange would operate and make provisions for its operation is just that – a failure of Congress and the legislative process. The solution is for Congress to fix it. But instead of admitting a mistake – knowing that to do so would open up themselves and the President to serious criticism about the substance of the law and the nature of its passage – they pretend like the problem isn’t there and try to act like this is all just nonsense.

    The idea that the executive branch can unilaterally change a law to “patch” it, or the idea that a bureaucracy can freely interpret the law wider than, or even contrary to, the text of the law, invites a collapse of the constitutional order we have. Maybe not now, but these sorts of behaviors incite a political cycle of violence, and the next time it happens will be worse than the time before (we’ve already had this de facto with the last two presidents, but imagine a president in the near future who simply refuses to implement part of a law he does not like, say, with respect to immigration reform or national security). I mean, Marbury v. Madison addressed this issue over 200 years ago, and yet here we are reverting back to the controversies we had over first principles due to partisans who don’t respect them. .

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