No, as I've said before, I could stomach the idea of being force to follow the law as poorly written. However, this would only work if that particular line you're talking about, the one that this entire case hinges on, was the only line that had anything to say about the exchanges. But it doesn't. If you read the law in its entirety, there are dozens of instances where the role of the federal government in the exchanges is clearly laid out. And when read in totality, with context, it's unquestionable what the actual legislative intent is supposed to be.
I don't think there are all that many different sections where the role of the federal government in FFEs is laid out. In fact, I'm pretty sure it's just 1321. There's a lot riding on the "such Exchange" language, and most of it can easily be read into that phrase. The identity of who established "such Exchange," however, cannot be.
http://www.latimes.com/business/hiltzik/la-fi-mh-big-obamacare-case-20150217-column.html#page=1
That pretty much says it all.
Lawsuits based on sound arguments where a favorable ruling results in positive outcomes for ........ anyone, are not going to run into the sort of problems King has. As a judge who ruled in the government's favor said to the plaintiff's lawyers "No one wants what you're selling.".
That's just not true. Standing issues come up in all sorts of cases. It has literally nothing to do with the merits of a case.
Good stuff here, I think this my favorite brief on
King, and speaks to what I was saying yesterday. Their entire case hinges on a conclusion reached by reading 7 words in isolation, and then reverse engineering the rest of the title (as well as inventing a fictitious legislative history) to fit that conclusion. No accepted form of statutory construction works like that.
http://premiumtaxcredits.wikispaces.com/file/view/SC%20amicus%20Eskridge%2014-114%20bsac%20William%20Eskridge.pdf/538890688/SC%20amicus%20Eskridge%2014-114%20bsac%20William%20Eskridge.pdf
This isn't the government or any special interest group, this a brief filed by some of the most highly cited legal minds in the country (including Reagan's solicitor general), who are just as offended as I am by this case.
I have a few thoughts on the Eskridge brief. First, I'm surprised you like it so much. After all, the brief includes a strong endorsement of textualism as the proper way to interpret statutes. If you agree with that, then you agree with me on much more than most others in this thread do.
In any event, Eskridge
et al. write:
Eskrdige Brief said:
But when this Court said that statutory interpretation is a “holistic endeavor,” United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988), it did not mean that judges should interpret words of a statute in isolation, and only then, after arriving at an interpretation, ask whether that interpretation would render other provisions absurd. Rather, the directive that the “words of a statute must be read in their context,” Brown & Williamson, 529 U.S. at 133, means just that: A provision must be read, in the first instance, in light of its statutory context.
Professor David Ziff of the University of Washington School of Law offers
this analogy:
David Ziff said:
Forced analogy alert: To the isolationist, statutory interpretation is like a bad action movie, with the isolated “plain text” reading cast as the movie’s hero. After we meet our hero, other statutory provisions play the part of hapless henchmen. Sure, they might outnumber the hero 10-to-1, but they choose to attack him one at a time. And when they do, they are feeble and easily dispatched. They shoot at the hero over and over again, somehow always missing. But unbelievably, our hero has perfect aim whenever he lines up one of the henchmen.
Statutory interpretation is not a bad action movie! Done properly, it’s more like an ensemble hero movie: The Avengers. (Stay with me here.) Why does the isolationist cast fellow statutory provisions as enemies to be defeated? A true textualist does not view seemingly conflicting statutory provisions as enemies; they are allies. And they need to work together to figure out what the statute means and/or to save the world from Loki.
Note that the dispute here is not
really about whether a provision should be read in isolation or in context, but about
when context should be consulted. I think it's inappropriate to label the challengers' approach as "isolationist," since it's clearly not the sort of reading that courts decry as such. But that's merely a complaint about the label. I think Eskridge's point about when context should be considered is an interesting one, but I don't agree with him that it changes the outcome of this case (and I'm not sure it would ever change the outcome of a case).
Consider the case cited by Eskridge to demonstrate the proper time for considering context,
Robinson v. Shell Oil Co.. There, the Court was called upon to determine whether the term "employees" used in section 704(a) of Title VII of the Civil Rights Act included former employees. That section make it illegal, the Court explained, "'for an employer to discriminate against any of his employees or applicants for employment' who have either availed themselves of Title VII's protections or assisted others in so doing." The Court admitted that "[a]t first blush, the term 'employees' in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question," as distinct from those who
had, but
no longer have such a relationship. Nevertheless, after noting the lack of a temporal qualifier in both 704(a) and the statutory definition of "employee," the Court surveyed several other sections of Title VII. Because the term "employees" sometimes clearly included former employees (as in sections authorizing "reinstatement . . . of employees" as a remedy), and sometimes clearly
excluded them (such as a section permitting different standards of compensation for "employees who work in different locations"), the Court held that the term, standing alone, was ambiguous. (The Court then resolved that ambiguity with reference to the sorts of claims an "employee" might be able to bring, and with respect to which he or she would be protected against retaliation.)
It's important to note the differences between the issues in
Robinson and those in
King. That a former employee
was an employee is indisputable, so it is possible to refer to a former employee with the atemporal term, "employee." But it is equally indisputable that HHS
is not one of the fifty states or the District of Columbia (the ACA's definition of "State"). So, while the term in
Robinson appeared to leave open the "former employees" interpretation, the term in
King appears to foreclose the "HHS" interpretation. At the outset, this seems like a good reason to approach the analysis of other sections of an act differently in the two cases. Still, I'm not convinced that which approach is chosen would make a difference.
Consider
Robinson. Imagine if the Court had said, "At first blush, it looks like 'employees' means 'current employees.' But we have to consider whether that interpretation would make another provision of the statute absurd." Eventually, the Court gets to the section talking about "reinstatement" as a remedy for a violation of Title VII. That section
can't make sense if "employees" only means "current employees." So now the Court has to reconsider it's initial conclusion.
Now consider
King, using the
Robinson approach. In
Robinson, the Court noted three aspects of the statute that made them question restricting "employees" to mean "current employees only": first, there was no temporal qualifier in 704(a); second, there was no temporal qualifier in the statutory definition of "employee;" third, other sections used "employees" to mean something more or different than "current employees." In
King, the term "State," standing alone (and without yet referring to the statutory definition), apparently refers to a state, as opposed to HHS. (After all, earlier in 36B, reference is made to health insurance policies offered on the individual market
within a State, which clearly cannot refer to HHS.) Second, the statutory definition of "State" clearly does not cover HHS, since it means one of the fifty states or the District of Columbia. But, do other provisions of the statute require that "State" include HHS to make sense?
No. It's at this point that the Eskridge brief goes to shit, doing little beyond parroting the government's arguments. Because most of these have been ably addressed by the
Halbig decision of the DC Circuit panel--see also my posts
here and
here--I won't further lengthen this post by addressing them again. If you feel like there's an argument that hasn't been adequately addressed, feel free to point it out to me and I'll respond to it.
EDIT:
little disturbing to me how progressives are treating biden's weird sexual harassment as a joke, tbh. dude needs to keep his hands to himself.
What a fitting pseudonym.
2d EDIT:
There's a difference between sexual harassment and inappropriate touching.
=|
3d EDIT:
We're almost on page 100 of this thread. When do we start a 2015 thread?
