I spent most of the day opining in front of the Supreme Court and in studies on the 6-3 ruling in favor of the Obama Administration in King v. Burwell. I will not subject you to more of that analysis. I have previously indicated that I found the opposing view of the Halbig decision against the Administration to be compelling, though I have always viewed this to be a difficult question upon which people of good-faith could disagree. Yet, in both my prior congressional testimony and my columns, I have never accused the Administration of “jiggery-pokery” — largely because I was not sure what jiggery-pokery is. However, Associate Justice Antonin Scalia has written a stinging dissent to King that contains the memorable accusation that the majority was engaging in “interpretive jiggery-pokery.”
Quite fittingly given his prior decision harkening back to the original intent of the Framers, the term originates in the eighteenth century and means a dishonest manipulation or twisting like what we would call a flim-flam today. It can be traced to the Scottish word jouk, meaning to skillfully twist one’s body to avoid a blow like a boxer or fencer. Joukery became a term for underhanded dealing or trickery which led to the association with the word Pawky (from the word pawk or trick) Thus, by the seventeenth century, the first combination of joukery-pawkery were heard and it came into vogue in the 18th Century . . . and now again in the 21st Century.
Olly, as Don de Drain accurately noted, today’s decision did not rely even partially on the Chevron doctrine. Thus all of the screaming about executive power is misplaced. The dispute was treated as an issue of statutory construction and determined on that basis. Yet, as I earlier predicted, opponents of the ACA have not advanced a single criticism of the opinion based upon the rules of statutory construction or any other legal principles.
You and Pogo complain about the rule of law. Fine. So do I. But complaining about the rule of law without ever proposing a legal argument is pointless,except perhaps for the emotional release.
Roberts, during his confirmation stated his role was equivilent to a baseball umpire. On this law, he has not only called strikes balls, he has actually took two turns at bat pinch-hitting for the Legislative branch.
@Donde
I agree. I hate Obamacare, but if I was on the SCOTUS, I would have probably ruled the same way as Roberts, without some pretty good evidence to the contrary. Law isn’t science. In the law, you don’t get to add X amount of vinegar, to Y amount of soda, and get Z amount of bubbles.
Judges have to struggle over the meanings of words, the impact of policy decisions, and a host of other concerns because human language is a slippery thing sometimes. If it was strictly formulaic, a computer could do it, but it isn’t. So we have to have humans to figure it out. Ask yourself how many different ways this 4 word law could be interpreted:
Thous shalt not kill.
Now, consider that Obamacare is 2,500 pages of largely incomprehensible sh*t with references to other laws and other sections of Obamacare itself out the wazoo, to the point it is practically unreadable. That is why I said it is entirely that Congress, as a whole, had little idea what was in there beyond a few basics. The rest was sloughed off to aides, and wonks, and the representatives of special interest groups..
Cut SCOTUS some slack, OK???
Squeeky Fromm
Girl Reporter
I completely agree that he played an important role in formulating Obamacare. But the idea that congress intended to coerce states into running their own exchanges is absurd.
[…“Petitioners are now telling the justices that Congress deliberately withheld subsidies to force states to establish exchanges,” said Doug Kendall, president of the Constitutional Accountability Center. “The fact that it took nine months from passage of the A.C.A. for even its most vitriolic opponents to discover this ‘feature’ of the act is evidence enough that this is a bald-faced lie.”…] http://www.nytimes.com/2015/03/03/us/politics/in-four-word-phrase-challenger-spied-health-care-laws-vulnerability.html
[…how could it be, as the challengers now argue, that the subsidies are denied in the statute with crystal clarity, if no one, not even the court, read the statute that way until this case was cooked up?
…It is unfathomable that, if this penalty really were written into the statute, no state, politician, blogger or insurer would have objected to it in the two years of the ACA’s intense pre-enactment scrutiny. It simply is too drastic and too controversial to have gone unnoticed if it was in there as clearly as the challengers claim…] http://www.politico.com/magazine/story/2015/03/king-vs-burwell-states-rights-115813.html#ixzz3e8cN1ZpQ%5D
Nick,
You do realize you’re wasting your time, right? These folks think tactically, not strategically. They are applauding the fact we now have one branch of government. We now have a full blown administrative state that is accountable to no one. When a transgender illegal alien has access to a White House LGBT function and feels secure to heckle the President, that’s when you know the rule of law is DEAD.
The majority opinion got things right. While there were legitimate arguments supporting a contrary result, Scalia’s self-righteous rhetoric is the equivalent of legal whining. (I’ve been known to engage in legal whining from time to time, but I’m not a Supreme Court Justice whose whinings are on display to all and set examples for other judges.)
One thing in particular I like is that the majority did not defer to the IRS’s interpretation of the statute under the Chevron case. We need more of that by the judiciary. Congress gets lazy when it drafts statutes, anticipating that the executive agencies will fill in the gaps through regulations. Then judges defer to the executive agencies’ interpretation of the statute as set forth in regulations. The result is an excessive concentration of power in the executive branch. Hopefully this decision starts the pendulum swinging away from having too much power in the executive branch.
As for those of you who express “outrage” that the Court today departed from the “plain language” of the statute, this type of interpretation of statutes by courts has been going on for a long time. Consider that, some years ago, I wrote the merits brief in a case before the Supreme Court. At issue was the meaning of a word in a particular section of the Internal Revenue Code.
Some 8 years before, the Supreme Court had interpreted that same word in a different section of the Internal Revenue Code in a way that would have required the Court to rule in my client’s favor, had the Court in my case applied the definition of that word it adopted in the prior case.
Instead of ruling in my client’s favor and holding that this common word had the same meaning in my case that it had in the prior Supreme Court case, the Court ruled against my client, stating the same word could have a different meaning in different sections of the Internal Revenue Code!
On the surface, this type of logic is a recipe for chaos. But the Court believed that the two contexts in which this common word was used required that the Court interpret the meaning of this common word differently in the two different sections of the Code.
Let me present a possible scenario:
1. Jonathan Gruber helped write the State subsidy issue to accomplish his goal of a stick to the states, to go with the carrot offered the citizen of the state.
2. Congress, itself, didn’t know one way or the other what it was doing, and voted “yes” if they were a Democrat, and “no” if they were Republican—yet none of the actually read the crap or could tell you what was in it much beyond the “mandate” and “free stuff!” And, how much money the lobbyists were pushing their way.
That scenario explains why we have the Gruber statements that conflict with Congress, because as Trump says, the whole damn bunch of them is either stupid, incompetent, or on the take.
Squeeky Fromm
Girl Reporter
Wait, liberals can’t be embarrassed. Never mind.
Rosenman, have you read the recent emails regarding Gruber released this week? He was INTEGRAL in formulating Obamacare. That lie you are spinning has been exposed. Get up to speed before you come on here and spin. You’re embarrassing yourself.
Well David, apparently you didn’t hear them. Turn on the volume. LOL! You must be one of the “stupid voters” about whom he chuckles.
I have seen the Gruber tapes.
From “BRIEF OF HEALTH CARE POLICY HISTORY SCHOLARS
AS AMICI CURIAE SUPPORTING RESPONDENTS”
[…Withholding subsidies for individual coverage purchased on an exchange is such an issue because experience from the States’ health reform efforts taught, and the bills’ drafters understood, that an unsubsidized exchange cannot succeed. Despite many occasions on which withholding of subsidies
would have naturally been mentioned—in the legislation itself, in committee reports, during negotiations,
or in floor statements by Members supporting and opposing the Act—petitioners cannot point to any such
material supporting their understanding… …The legislative record—the evolution of the Act’s
text, what Members of Congress said about proposed legislation, and, equally significant, what was never
said—establishes that Congress intended to give premium tax credits to individuals who purchase coverage
on a federally-facilitated exchange..
…Tellingly, petitioners and their amici rely much more on non-legislators’ statements than on Members’
own words. Their leading reference (e.g., Pet. Br. 4, 42) is to an excerpt of remarks by economist Jonathan Gruber in 2012 that seemingly accords with petitioners’ interpretation of the Act. Petitioners lionize Professor Gruber as a “key architect” of the Act and on that basis would treat his statements as authoritative.
But post-enactment statements by non-legislators are “not a legitimate tool of statutory interpretation.”
United States v. Woods, 134 S. Ct. 557, 568 (2013) (citation omitted). And, as Professor Gruber has ex-
plained, when restored to their original context, his remarks were premised on “the possibility that the
federal government * * * might not create a federal exchange”—as appeared possible when he made his comments, and which indeed would have frustrated the delivery of subsidies. Written Testimony of Professor Jonathan Gruber Before the Committee on Oversight and Government Reform, U.S. House of Repre-
sentatives 2 (Dec. 9, 2014). In any event, Professor Gruber was not a legislative draftsman; as every refer-ence to him in the Congressional Record attests, he was an “economist” or an “outside expert” in computer
modeling. ] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_resp_hcp.authcheckdam.pdf
Pogo,
It really does make the idea of a “legal” blog meaningless. The resit of the filler you can find anywhere so where does that leave the “Top 100 Legal Blogs? Next we’re to believe Cara’s weekend work will actually matter.
This decision has been liberal Viagra tonight. It’s amusing. I see some conservatives morose tonight. I see liberals like they’re on crystal meth. Me, I’m a patient man. You can’t be successful as a PI w/o patience.
And, emails just released this week show Gruber to be a major contributor, something the 400k he was paid told anyone w/ a brain. anyway. The WH lied about his involvement. But, they lie daily.
Apparently David Rosenman hasn’t seen the Jonathan Gruber tapes. David could have saved himself a lotta words because we ain’t buying his horse manure, we have seen the Gruber tapes. “The truth shall make you free.”
phillyT
Big pharma spends over 20% of their budget on marketing and less than 18% of their budget on R&D. That is to say they spend 20% of billions of dollars communicating with mindless people, late at night, trying to convince them that they should take one drug or another, as if a glitzy commercial can explain. They talk down to the American people and the consumer pays 20% extra for it. This is the only country in the world that thinks so little of its citizens.
It is a long and tortuous road to a sane health care system and the interpreters of the Constitution will be fighting tooth and nail every inch of the way. Go figure.
I don’t think that enough attention has been paid to the absurd claim that Congress wanted to limit subsidies to state-run exchanges to pressure states into running their own exchanges.
[Not only do the law’s sponsors and the staffers who handled it say that’s flat wrong but there’s no evidence that anyone, the law’s critics or its proponents, held this novel view while the law was being debated and passed. If anything, the record indicates an expectation that the subsidies would apply to every state. Indeed, the Congressional Budget Office and the Joint Committee on Taxation both issued estimates about the law with that assumption – estimates that Republicans cited without qualification. So too the GOP failed to ever decry this impending federal extortion of the states. Further, while a half-dozen state attorneys general filed an amicus brief now claiming that their states opted not to set up exchanges in order to avoid the tax subsidies regime, Georgetown University’s Center on Health Insurance Reforms studied the public reasons for states not setting up exchanges; they “found no evidence that states weighed the possibility that premium tax credits would not be available in federally run exchanges.” Moreover 23 other attorneys general filed a brief on the government’s behalf arguing that no state “had reason to believe that choosing a federally-facilitated Exchange would alter so fundamental a feature of the ACA as the availability of tax credits.” Hell, as Yale Law professor Abbe Gluck noted, even the justices who dissented from the Obamacare-preserving 2012 decision in NFIB v. Sebelius thought the tax supports applied to all states, as did the anti-Obamacare state governments which weighed in.
…We’re supposed to believe that Democrats thought this doomsday clause could compel recalcitrant states … but never told anyone about it? And having abandoned the scheme, the president, members of Congress and their respective sprawling staffs kept it an absolute secret – unmentioned in the myriad articles or books about the law’s contentious enactment – until years later conservatives divined it through deductive inference when they were fishing for a court case?] – http://www.usnews.com/opinion/articles/2015/03/02/the-supreme-courts-ridiculous-and-dangerous-king-v-burwell-obamacare-case
@Pogo
Oh, don’t go! Everybody would miss your highly intelligent and accurate little barbs! You are one of my favorite commenters here. Plus, a lot of stuff here is kind of off the law topic to some degree. And if it isn’t I will sure try to take it there
Squeeky Fromm
Girl Reporter
SS Disability for all, will achieve Medicare for all, now won’t it. Three years on the dole and you get you some Medicare as well. Ain’t Obamaland great. Some people work hard, others feed off the trough. Just like Wu’s pigs in Deadwood.
We now officially live in an Unconstitutional Republic.
And the ‘rule of law’ is dead.
As such, I see no reason to read about or comment on the “Law,” much as it is capricious and follows the trade winds, not unlike following the weather, but less interesting.
So goodbye, and thanks for all the fish, Prof. Turley.
You were a welcome read after the Great Althouse Meltdown of 2013.
But there is no law, not anymore, just power.