“A lot of the liberal commentary about this week’s D.C. Circuit decision on Obamacare is hard to square with the way liberal judges have tended to approach these cases,” notes Ramesh Ponnuru. “I have in mind the commentators who say the decision is ‘corrupt,’ its theory ‘preposterous,’ and the conservatives who support it ‘dishonest.’” Indeed, leading up to last week’s decisions on whether or not the health care law authorizes federal insurance subsidies through exchanges not “established by the state[s],” supporters of the law were on high horses and in higher dudgeon.
Ponnuru goes on to make a number of lucid points about the over-the-top commentary in the wake of last week’s court cases. I commend him for his logic—and his restraint. So I guess it falls to me to say what many critics of Obamacare have been thinking for the last week: Where the hell do these people get off? What about the current lawsuit, passage of Obamacare, or its disastrous implementation could possibly makes Obamacare’s cheerleaders think they are justified in accusing critics of the law of acting in bad faith?
As near as I can tell, Obamacare supporters argued that literal reading of the text of Obamacare was impermissible because, well, they didn’t want it that way. Per Ponnuru’s observation that their arguments “hard to square with the way liberal judges have tended to approach these cases,” they didn’t bother to look too closely at even the supposedly favorable Fourth Circuit rulling. While a nominal victory, it read like a plea for help:
To sum up: When it comes to outlining how Obamacare’s exchange subsidies should work, Obamacare supporters first argued the text of law didn’t matter and subsequently argued text of the legal rulings about what the law says didn’t much matter, either. When the D.C. circuit court ruled against them, Obamacare’s supporters continued to berate those advancing the argument these subsidies were illegal. And when the Fourth Circuit ruled in favor of maintaining the exchange subsidies, they cheered unheeded by the fact the decision offered little legal support for their position.
Then later in the week, videos of MIT economist and “Obamacare architect” Jonathan Gruber supporting the interpretation of those who brought the lawsuit against the subsidies surfaced online. Only then did the hot air begin to be taken out of their sails. It’s pretty hard to dismiss an argument as being in bad faith when the guy who the New York Times credits with writing the law has publicly endorsed it. And adding insult to injury, Gruber’s dismissed his clearly stated explanation of how states were going to lose subsidies if they did not set up their own exchanges as verbal typo or “speak-o,” phrase that’s just a few days old but has already earned a place in the Winston Smith Hall of Fame.
Lawyer and blogger Dan McLaughlin has an excellent round-up and dissection of all the arguments being made in defense of Obamacare’s subsidies. The upshot of McLaughlin’s analysis is that, legally speaking, “No, The Good Faith Of The Lawsuit Doesn’t Matter.” In other words, it’s reasonable to presume that presence of accusations of bad faith is inversely proportional to the strength of the opposition’s legal argument.
But as it is with the attempt to explain away every failure of liberal governance, intentions seem to matter more than plain language or facts. And so liberal Obamacare supporters are pleading that the words of the law don’t matter, but “congressional intent” does. The problem, again, is that even the Fourth Circuit has determined the plaintiffs arguments for Congressional intent are “reasonable” even as “a literal reading of the statute undoubtedly accords more closely with their position.” (If the court admits it can’t determine the intent behind the law, how can they justify not defaulting to interpreting the statute as written? Good question!)
Since that argument doesn’t really hold up, the only argument we’re left with is one of raw politics, typified by Ezra Klein here:
The snide dismissal of the issue as a problem of “congressional grammar” looks pretty silly in the wake of Gruber’s embarassment. It was just a legislat-o! Klein might be right that there are scenarios where the Supreme Court may find itself leaving Obamacare subsidies intact. As we saw in the individual mandate case, the justices are not immune to being influenced by political concerns. But it’s also true that a decision upholding the subsidies could encourage open season on statuatory interpretation, which could create even bigger problems and is a foundational issue for those who care about sound jurisprudence. Michael Cannon, one of the driving forces behind the Halbig lawsuit that won before the D.C. Circuit, notes that even Justice Kagan might be wary of opening this can of worms.
But Klein has accused those opposing Obamacare of being “willing to cause the deaths of hundreds of thousands of people,” so it’s not surprising that he and other liberal reporters are supposedly outraged that invalidating the subsidies will disrupt insurance coverage for millions. The legal argument has quickly and nonsensically elided from disputing the text to the congressional intent behind the text to arguning that the fuzzy, general goals of the law—to expand health insurance coverage—is at odds with enforcing what the law currently says. (It doesn’t matter that having government-provided health insurance might even be worthless. But since Gruber was a co-author on that inconvienent Oregon Medicaid study, liberal journalists can finally feel good about shoving it down the memory hole.)
Oddly, there was not the same anguish from the liberal press when millions of people had their insurance policies cancelled when Obamacare was being implemented late last year. Nor do I recall Obamacare supporters doing much to acknowledge that “if you like it, you can keep it” was a brazen and damnable lie repeated over and over again to build public support for passing a law that the American people didn’t want and still don’t support even four years later. I do, however, recall prominent media outlets repeatedly endorsing the president’s mendacity before being forced to call it the “Lie of the Year” following public outrage and a crow-eating presidential press conference.
There was also the matter of Obamacare proponents insisting they could pay for insurance coverage for millions of additional Americans, and the law would result in big deficit savings. That was largely because of a provision known as the CLASS Act which would help pay for elder care. The program was financially unworkable in the long-term, but was to be implemented by collecting fees for five years before paying out any benefits. Before the law was passed, it was noted by many the program couldn’t pay for itself. It was solely designed to generate phantom revenue so that the Congressional Budget Office would say the law would save money over a ten year time horizon and was never going to be implemented. This single provision, repealed in 2012, was conceived of as an entirely dishonest way of making Obamacare look fiscally responsible and accounted for 40 percent of the law’s supposed “savings.” And whoops, it turns out the CBO’s projections for how much Obamacare is going to cost have more than doubled.
Speaking of Obamacare budgetary gimmicks they were never going to implement, remember the provision requiring all businesses to fill out a 1099 form for every expenditure more than $600? Obamacare supporters are probably hoping you don’t.
What about the fact that 1,200 waivers for key Obamacare provisions were issued to unions, which just happen to be the Democratic party’s biggest financial supporter?
Remember back in April when Obamacare supporters trumpted the fact the disastrous launch of the Obamacare exchanges caused a huge spike in health care spending that saved the economy from contracting in the first quarter? Last month, the government revised those numbers downward and we learned the economy did contract and there was actually a dramatic slowdown in health care spending. Of course, you have to go all the way back to January to find the White House shamelessly saying the law is responsible for slowing down health care spending, too. Whether Obamacare makes health care spending go up or down, it’s good.
How come the administration picked a legal fight by claiming Obamacare gave them statuatory discretion to force employers to pay for abortion drugs before being rebuked by the Supreme Court?
There’s the matter of how he law has been repeatedly and lawlessly amended through executive actions and even liberal legal scholars are sounding the alarm over this.
Are you sensing a trend here? It sure seems like we’ve seen an extraordinary amount of bad faith arguments and actions deployed in defense of Obamacare. In fact, it’s almost as if the some of the law’s biggest supporters advocated a strategy of winning at all costs, even if it possibly meant deceiving people in order to put the whole health care system under the heavy-hand of government control.
So when Obamacare supporters cry that it’s bad faith to ask that the law be implemented as written even as they are histrionically insisting their good intentions trump any legal or political objection being raised, well, their crocodile tears sustain Obamacare opponents. It all goes back to the ur-complaint about Obamacare — nobody read the damn bill. And as a result, there were many warnings there would be lots and lots of unintended consequences for passing a 2,000+ page health care bill that voters didn’t like and legislators didn’t understand.
The law did, however, become something of a full employment plan for dozens of young liberal journalists building careers on the back of their purported mastery of this byzantine legislation. So now we have the smart-set simultaneously baffled and indignant Obamacare is subject to this challenge. Slate’s Jamelle Bouie who, appropo the subsidies legal snafu, tweeted out Friday, “Does anyone know the origins of the right-wing meme that Congress ‘never read’ health care reform before passing it?” He must have gotten an earful, because four hours later he tweeted, “Man, didn’t realize how many folks sincerely believe lawmakers read tens of thousands of pages of statutory language every year.”
If we’re so resigned to the possibility lawmakers can’t be expected to read the laws they make—even when those laws govern and distribute a product liberal writers otherwise trumpet as a matter of life and death—why do we even bother writing down laws? Perhaps this anachronism is strictly for the benefit of the handful of lawyers and lobbyists for elite interests who do read the bills. That’s probably why they own us.
Outside trivial concerns such as rule of law, Obamacare seems to be little more than a dream made real by the collective good intentions of those who support it. In this thinking, there are no problems with Obamacare, just people who don’t believe in the dream. Clap your hands everybody and watch the health insurance fairy work its magic!
As for the rest of us living in Obamacare’s waking nightmare, asking that people be held accountable for the actual text of the law they’re committed to defending isn’t bad politics or bad jurisprudence, let alone bad faith. And if the law’s supporters think Obamacare critics can be bullied into abandoning the idea that laws should say what they mean, they’d better keep dreaming.
