One side in the debate over the latest Obamacare lawsuit claims that the word “state” includes the federal government and that a reference to Section 1311 of the law should be read to include Section 1321. And get this: that’s the side sputtering about opponents’ “absurd,” “preposterous” and “dishonest” arguments.
The King v. Burwell case is odd, and the jurisprudence around it is complex. The Obama administration needs to defend the IRS’s decision to extend tax credits to insurance plans bought on the federal exchange, although the law as written provides for tax credits only for plans purchased through “through an Exchange established by the State under 1311” of Obamacare.
Section 1311 describes state establishment of exchanges. Section 1321 explains that the federal government will set up an exchange for the people in states that don’t create their own. At one point in Tuesday’s oral arguments, Justice Alito asked Solicitor General Donald Verrilli, “So you’re saying that by cross-reference to 1311, they really mean ‘1311 and 1321’?” Verilli replied, “Yes.”
Beyond the plain text of the legislation, Justices need to weigh many factors, such as proper deference to executive interpretation, the importance of legislative history. Obscure but crucial doctrines of jurisprudence come into play, such as the Pennhurst doctrine and the principle of “constitutional avoidance.”
It’s a tough case. But if you read the liberal press, you would think the court has the choice between ruling for the government and simply selling its soul to the devil.
One liberal journalist wrote that plaintiffs “are trying to kill” patients who benefit from Obamacare. Read the New Republic, Slate, or other liberal websites, and they call the plaintiff’s arguments “preposterous,” “dishonest,” “ludicrous” and other adjectives unfit for print.
Some write that a ruling for the plaintiffs would undermine “the legitimacy of the court.”
This is standard fare from the Left today. It’s what they did on the last big Supreme Court case, and it’s the way they wage the culture war. Rather than try to persuade, they castigate the other side as lying wretches and try to make people afraid to associate with views they find distasteful.
Much of the liberal commentariat is simply done arguing with the Right. Paul Krugman, the economist-turned liberal blogger, is very upfront about this. In a recent article headlined “The Closed Minds Problem,” Krugman declares (with some unintended irony) that the time for “a genuine intellectual dialogue,” over economic policy is behind us.
“I don’t know of any economics or politics sites on that side that regularly provide analysis or information I need to take seriously,” Krugman has written.
The proper course of action, Krugman advises, is to give up on treating the other side decently, and instead to treat them “with ridicule where appropriate, with snark, and with names attached….”
To his credit, Krugman abides by this rule. He implicates the Tea Party when a congresswoman is shot by a schizophrenic. He calls conservatives “ignorant yahoos.” Many of his followers fill Lefty blogs with ad hominem, tendentiousness and name calling — all in the service of the greater good, of course.
Some liberals are open that honesty in argument isn’t necessary if you’ve concluded the other side isn’t arguing honestly. If you call for civility while arguing with a Krugmanite, you may just get laughed at.
Conservatives ought to be charitable, and assume that the Lefties who play this game are doing so because they honestly believe the other side is fundamentally dishonest. (The alternative is that they play this game simply because they think it helps them win.)
This is a scary place to be, where one side in a debate has decided that it’s war, and thus all is fair. If you value public debate, such tactical closed-mindedness is concerning.
There’s probably no way to convince these liberals to reopen debate. They’ve decided they won’t let themselves be persuaded. If they want to close their minds, that’s their decision.
But for everyone who’s not in that camp — including the majority of the Left that is open-minded, the mainstream media, the centrists, the judges and the justices — should understand that these people aren’t arguing in good faith.
Timothy P. Carney, The Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Sunday and Wednesday on washingtonexaminer.com.
