WaPo's Greg Sargent Devastates Halbig Case Against Obamacare Federal Subsidies With Bombshell Reporting (JeffB.)

Guest post by JeffB./@esotericCD.

Wait, did I say "devastates?" I meant "vindicates." I get confused about stuff like that sometimes. Then again, in my defense, so does Greg Sargent. Let me explain. This is a lengthy post, so fair warning.

Quick refresher: Halbig case turns upon the question of whether the ACA, as written, permits the government to offer federal subsidies (read: price relief) to people who purchase health insurance on federally-established exchanges, or only on state-established ones. The IRS issued an official administrative ruling last year that subsidies applied to both state and federal exchanges.

The problem? The actual text of the Affordable Care Act says something different: it states that subsidies/tax credits are only available to consumers using "exchanges established by the state." Nowhere are federal exchanges mentioned, even though they pop up several times elsewhere in the statute.

This is obviously a Big Problem, since (contrary to expectations at the time of the ACA's drafting, it must be pointed out) only 14 states plus DC ultimately bothered to establish their own exchanges. The rest -- either out of protest or naked sloth -- farmed the work of establishing ACA exchanges out to the Feds.

So does that mean that, under the statutory language of the ACA as written, the residents of those 36 states are ineligible for federal subsidies and will have to pay extremely elevated prices for plans purchased via federal ACA exchanges?

We now have two answers: in Halbig v. Burwell the DC Circuit Court of Appeals said "Yes." Meanwhile, in King v. Burwell, the 4th Circuit said in so many words, "Erm...no, we guess. But honestly this language is really ambiguous and hey SCOTUS help us out here will ya?"

Chaos, predictably, has ensued. On the Left, the amusingly unified PR response to Halbig has been variations upon the theme of "LOL are you kidding? Of course Obamacare was always supposed to provide subsidies to everyone, only madmen ever thought otherwise, now hush your crazytalk."

Jonathan Gruber, unless he is in fact a madman, put paid to that argument with his deliciously self-undermining speak-oes.

So now, rushing into the breach, here comes Crack Legal Correspondent Greg Sargent of the Washington Post, with his breathlessly reported scoop that will save the day for the Left:

Senate documents and interviews undercut 'bombshell' lawsuit against Obamacare

Let's pause for a moment and savor that headline on its own for the spectacular own-goal carnage that's about to follow.

Sargent's argument, summarized, is that of course Congress meant all along for the ACA to offer subsidies on both the state and Federal exchanges, and intent only got muddled when two separate versions of the ACA legislation (one coming out of the Senate Finance Committee and one coming out of the Health, Education, Labor & Commerce Committee) were awkwardly and imperfectly merged.

There is so much that is wrong with Sargent's legal reasoning here that it's hard to know where to start. We’ll go with the money shot, I guess.

1) The first Senate version of the health law to be passed in 2009 -- by the Health, Education, Labor and Pensions Committee -- explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.

I could stop right here. In fact, I will. And so would the courts, if we were dealing with a less politicized piece of legislation.

Sargent just helpfully informed us that an earlier version of the ACA -- not a draft, mind you, but one that was actually passed out of committee -- included explicit language granting subsidies to people on federal exchanges, language that was later dropped from the final bill.

If Sargent had been an attorney rather than a layman, this is the point where he would have hit "delete" on his draft post and forgotten all about it.

One of most fundamental rules of statutory interpretation used by courts when they are asked to discern legislative intent from ambiguous statutory language is this: if explicit language was in an earlier version of a bill but dropped from the final version, the court will treat that as proof it was removed on purpose.

For example, if the draft copy of the "Jeff B. Memorial RINO-Hunting Act" states that "no more than six mature RINOs" can be bagged by any one hunter during open season, but the final legislation lacks the word "mature," then every court in the land would apply standard canons of construction and say that the legislature therefore intended to allow people to go after RINOs of all ages -- the earlier language was dropped for a reason, and so long as it doesn't render the statute facially nonsensical it's not the place of the court to wade any deeper into the thicket and find out what that reason was, or whether it's a "good idea."

Similarly, the argument advanced by the Left (and Sargent) that "of course the ACA intended all along for subsidies to cover federal exchanges!" is runs squarely onto the rocks of this earlier language. Thanks to Sargent's crack reporting we have now confirmed that earlier iterations of the ACA specifically granted subsidies to federal exchanges...but that, for whatever reason, this language was later stripped from the bill.

The subsequent blathering about "why" this language fell out of the bill ("drafting errors," you see) is immaterial as far as the Court is concerned, and this is apparently what Sargent doesn't seem to realize; in a case where the wording of the statute is otherwise clear, the Court's inquiry will stop cold right here -- or at least it should.

(Again, the fact that the ACA is uniquely controversial and major legislation of course plays sub rosa role here.)

This is not a fringe theory. This is not a novel legal argument. There's a reason that canons of construction are called "canons," after all. And of all the canons of statutory construction, "few are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that has earlier discarded in favor of other language."

(Don't take my word for it: that last quote is from the Supreme Court in INS v. Cardozo-Fonseca (1987).)

And the fact that Greg Sargent could blithely drop, in the midst of an attempt to shore up the Left's "legislative intent" argument, a bombshell that utterly devastates that very argument's legal chances in court without even realizing it is a mighty example of the Dunning-Kruger effect in action.

I, for one, thank him for his efforts in assisting with the legal case against Obamacare.

Bonus Damage [Ace:] Via @drewmtips, the state of Oklahoma has now moved to include Jon Gruber's "Speak-O's" into the record.

Posted by: Ace at 06:42 PM

Comments

(Jump to bottom of comments)

1 sniff sniff ahhh

Posted by: oc joe at July 29, 2014 06:43 PM (hqVUe)

2 I haven't read it. Was the movie good or bad?

Posted by: logprof at July 29, 2014 06:45 PM (GW/jL)

3 LIVs will skip right over this point.

state, federal, legal, illegal....all same-same

Posted by: The People's Liberation Front of Judea at July 29, 2014 06:46 PM (8CdUx)

4 We're not only finding out "what's in it"...we also finding out what's 'not in it'.

Posted by: wheatie at July 29, 2014 06:46 PM (puzrN)

5 I'm pretty sure all those Waivers for Obamacare were illegal too.

Posted by: wheatie at July 29, 2014 06:48 PM (puzrN)

6 "BUT THE TITLE OF THE BILL"

--Libs everywhere.

Serious you guys.

Posted by: tsrblke, PhD(c) And father to be in 5 months! at July 29, 2014 06:49 PM (HDwDg)

7 WaPo-o.

Posted by: Greg Sargent at July 29, 2014 06:49 PM (y8Oh1)

8 I've been subjected to a few "Journalism" majors taking a poli sci glass for the Thrill of It; dumber than goat sh*t and smell about as bad.

At least goats are aware that they're not very bright; J-shool boys and girls don't have that gift

Posted by: The People's Liberation Front of Judea at July 29, 2014 06:50 PM (8CdUx)

9 Good thing I'm not Sargent's editor.

I'd make him run 20 laps around the WaPo building wearing a ruck containing 50 pounds of rocks, pumping a JROTC ceremonial M1903 Springfield up and down over his head, while repeatedly shouting "I'M A DUMS**T!"

Posted by: Darth Cobalt Shiva, Sith Lord at July 29, 2014 06:50 PM (OY/SZ)

10 I think John Roberts showed just how far he willing to go to defend this crappy law. Don't expect any different if this case makes it's way to him.

Posted by: oc joe at July 29, 2014 06:50 PM (hqVUe)

11 glass / class, shool, school

I write like I majored in journalism; time for bed

Posted by: The People's Liberation Front of Judea at July 29, 2014 06:51 PM (8CdUx)

12 Obama's gonna hand out the cash to whoever he wants, whenever he wants, no matter what the courts or Congress say about it. Not like anyone's gonna stop him.

Posted by: mugiwara at July 29, 2014 06:51 PM (3a584)

13 It's a bad law.
Written in haste, unread by our legislators, and often lawlessly tweaked and delayed by our president.

Posted by: Barack the Magnificent at July 29, 2014 06:51 PM (D/504)

14 I'm absolutely sure all you guys read the whole post prior to actually posting.

Posted by: maddogg at July 29, 2014 06:51 PM (xWW96)

15 >> WaPo-o

which is where you blame your column on autocorrect, I guess

Posted by: Bigby's Knuckle Sandwich at July 29, 2014 06:51 PM (Cq0oW)

16 Your government atwerk.

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 06:52 PM (0HooB)

17 Posted by: maddogg at July 29, 2014 06:51 PM (xWW96)

I did.

But the TL;DR is "Greg Sargent is an idiot."

What will be really funny is when the guys at Volokh use their new WaPo platform to mock him.

Oh please let that happen.

Posted by: tsrblke, PhD(c) And father to be in 5 months! at July 29, 2014 06:53 PM (HDwDg)

18 JeffB?

Really?

You know he's dressed up like Ziggy Stardust, right?

Posted by: garrett at July 29, 2014 06:53 PM (pmgoG)

19 Since when do Republicans get to guest blog here?

Posted by: toby928(C) at July 29, 2014 06:53 PM (QupBk)

20 I had a couple of hyperlinks in this post that didn't make the transition to the final version (which is my fault - wrote it in Word, sent it to Ace), but for the record here's Sargent's actual post from today:

http://tinyurl.com/pxvx6pj

Posted by: Jeff B., Professor Emeritus of AoSHQ RINO Studies at July 29, 2014 06:53 PM (ewYO6)

21 rhomboid...

left you a link on the last thread.

Posted by: Village Idiot's Apprentice at July 29, 2014 06:53 PM (PcHhy)

22 I'm sorry wingnut extremists, it's the law of the land.

Posted by: JoOhn Boehner at July 29, 2014 06:53 PM (knfPD)

23 Hey, we actually got screwed by this once!

Sold a piece of our land with the understanding that the buyers would plant trees on the new property line. That was in the first draft of the contract but somehow was left out of the final one; I mean, WHERE they had to plant trees was left out.

Yeah, we were dumb peeps with a dumb lawyer.

Posted by: Margarita DeVille at July 29, 2014 06:53 PM (dfYL9)

24 so it flew over my head. so something isn't there that was said to be there, and what does this mean to Obamacare as law to the average joey? we are still obligated and fined(tax'd) if we don't obey?

does this change that we are obligated still to obamacare even if a word is changed?

Posted by: willow at July 29, 2014 06:53 PM (nqBYe)

25 You arrogant ass. You've killed us.

Posted by: akula51 at July 29, 2014 06:54 PM (X6zQy)

26 Shorter Seargent: Well they didn't mean to do that, so let's just ignore it m'kay?

Posted by: Lizzy at July 29, 2014 06:54 PM (D/504)

27 >>>I'm absolutely sure all you guys read the whole post prior to actually posting.

Well *I* did, at least. Although apparently I didn't read it enough times to avoid a few glaring typos. Arrgh.

Posted by: Jeff B., Professor Emeritus of AoSHQ RINO Studies at July 29, 2014 06:54 PM (ewYO6)

28 Canons?

Those are more dangerous than the assault rifles with the thing that goes up!

Posted by: garrett at July 29, 2014 06:55 PM (pmgoG)

29 I hope this is dead on.

No updates; no redactions; no walk-backs.

I want to feel the burning on my skin when this goes up in flames. Please.

Posted by: artisanal 'ette at July 29, 2014 06:55 PM (IXrOn)

30 SO what does state to Federal mean as to the Law in average Joes obligation to Obey the Law?

Posted by: willow at July 29, 2014 06:55 PM (nqBYe)

31 I'm absolutely sure all you guys read the whole post prior to actually posting.

In a rare case of actual commentariatismness, I actually did read the post first.

I promise it'll never happen again. I feel so...funky...

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 06:55 PM (0HooB)

32
Today, if you can't make your point in less than ten words, it's a political loser.

Dumb People only understand dumb. So dumb-it-down or don't bother.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 06:55 PM (0ejlr)

33 will they make States somehow comply in a new law?

Posted by: willow at July 29, 2014 06:56 PM (nqBYe)

34 Those are more dangerous than the assault rifles with the thing that goes up!Posted by: garrett at July 29, 2014 06:55 PM (pmgoG) No, you have them confused with derringers.

Posted by: maddogg at July 29, 2014 06:56 PM (xWW96)

35 Continually laughing at the Pelosi, "we have to pass it to find what's in it" gaff, finally. Now that they've found what's in it, they are not so fond of it. Suck it petit tyrants.

Posted by: flounder at July 29, 2014 06:56 PM (sDapq)

36 Dumb People only understand dumb. So dumb-it-down or don't bother.

It says what it says.

Posted by: toby928(C) at July 29, 2014 06:56 PM (QupBk)

37 My favorite is when the tape surfaced recently of Max Baucus explicating the reason for the deletion of subsidy benefits from the federal exchange participants. He was testifying in a Committee hearing before the law passed the Senate floor. It was a clear and unambiguous statement of legislative intent.

Posted by: MTF at July 29, 2014 06:57 PM (6um35)

38 F cking deadbeat acquaintance of mine can afford a $400 combined cable/satellite bill but the obamacare navigator says they get to go on medicaid.

Posted by: ryukyu at July 29, 2014 06:58 PM (C6XFd)

39 no wapo link?
or am I blind

Posted by: artisanal 'ette at July 29, 2014 06:59 PM (IXrOn)

40 One of my favorite things here is when lawyers spell out legalities in plain-speak without condescending. IOW, I like this and Gabe not so much.

Anyway, the cherry on the cake would be if the SC, in any ruling, happened to imply that Sargent's dipshittery was that made the difference in their ruling. Wouldn't matter a whit if it were true, would just like to see that and laugh. Pipe dream of mine.

Posted by: spongeworthy at July 29, 2014 06:59 PM (uH1Id)

41
Deadbeat Acquaintance would make a great name for a band.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 06:59 PM (0ejlr)

42 Posted by: MTF at July 29, 2014 06:57 PM (6um35)

Yeah.

You're all welcome for that.

Gabe told me it wasn't important, but I distinctly remember it coming up a few years back.

Turns out it was in Alder et al's paper specifically (which is probably why it started cropping up in 2012.)

So I dug it out of C-Span and sent it to ace.

Posted by: tsrblke, PhD(c) And father to be in 5 months! at July 29, 2014 06:59 PM (HDwDg)

43 So are we allowed to hunt RINO's with cannons?

Is this sporting?

Sounds dodgy.

Posted by: Bossy Conservative riding the comfy chair at July 29, 2014 06:59 PM (RFeQD)

44 nevermind.

i'll go check out childrens cartoons for a bit.

Posted by: willow at July 29, 2014 06:59 PM (nqBYe)

45 "One of most fundamental rules of statutory interpretation used by courts when they are asked to discern legislative intent from ambiguous statutory language is this"

What courts should do when confronted by ambiguous statutory language is void the statute in its entirety, and remand the matter to the originating legislative body, with a red-inked reminder reading "work more slowly and carefully in future".

Crazy talk, I know.

Posted by: torquewrench at July 29, 2014 07:00 PM (noWW6)

46 30
SO what does state to Federal mean as to the Law in average Joes obligation to Obey the Law?

Posted by: willow at July 29, 2014 06:55 PM (nqBYe)

You still have to obey the law. It just means that if this proves out through the Supreme Court, so will the one (and stop paying subsidies to Federal exchange insureds).

Posted by: flounder at July 29, 2014 07:01 PM (sDapq)

47 Wasn't this written specifically to "nudge" states into participating in the exchanges? Uninteneded consequences suck, eh?

Posted by: Lizzy at July 29, 2014 07:01 PM (D/504)

48 ty flounder.

Posted by: willow at July 29, 2014 07:02 PM (nqBYe)

49 You gotta just luuuuv poorly written, ambiguous laws.

I wonder how many of our tax dollars are going into lawyers pockets to untangle this mess that could've been avoided by people who actually knew what the fuck they were doing?

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:02 PM (0HooB)

50 Isn't it also true that states that do not have the subsidies also do not have the mandate. It seems like I read that.

Posted by: toby928(C) at July 29, 2014 07:02 PM (QupBk)

51 >>SO what does state to Federal mean as to the Law in average Joes obligation to Obey the Law?

No change yet. What this means is that if the courts follow the law they should throw Obamacare into what would probably be fatal chaos.

It will be appealed, probably ultimately to the Supreme Court, so nothing changes for us for some time yet.

Posted by: JackStraw at July 29, 2014 07:02 PM (g1DWB)

52 I also love that Sargent just notes "well the finance bill said the states 'shall' establish an exchange.

He fails to note that such a law is blatantly unconstitutional, so unconstitutional that it would be patently obvious to even a freshman legislator. (State's can't be conscripted like that.)

You can't fall back on that as the source of the confusion.

Posted by: tsrblke, PhD(c) And father to be in 5 months! at July 29, 2014 07:03 PM (HDwDg)

53 stop complaining. Geeze Louise.

What he's saying is that sergeant's proof that the bill ONCE contained the language the left supports, *but then that language was deliberately stripped out,* will be taken by courts to be a strong presumption that the language is not intended to be part of the bill as passed.

And, ergo, that the IRS' "ruling" that the bill 'can be read" to include this language is unconstitutional.

Posted by: Harry Reid at July 29, 2014 07:03 PM (/FnUH)

54 I read the whole post, and comprehended that Greg Sargent defeated his own point by implying that language indicating that Federal Exchanges don't get subsidies was excised from the version of the bill that was actually voted on.

From the Ouji board version of legal interpretation, this means whatever Greg wants it to mean, no more, no less.

Apply this principle to contract law, for example, and this is functionally the end of a legal society and free enterprise capitalism.

Consider the broader implications of something just this stupid.

Posted by: Bossy Conservative riding the comfy chair at July 29, 2014 07:03 PM (RFeQD)

55
It says it's by JeffB.

But Ace posted it.

Have we just been switched rape?

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:03 PM (0ejlr)

56 Deadbeat Acquaintance would make a great name for a band.

So would Naked Sloth.

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:03 PM (0HooB)

57 Regarding the "intent" argument...

If memory serves...the ACA was signed into law early in 2010.
Months later, in November 2010, the Dems lost control of the House...which didn't take effect until January of 2011.

So the Dems had nearly a year to find and correct any mistakes they made in the final draft of the ACA.
Right?

And they didn't.

Posted by: wheatie at July 29, 2014 07:04 PM (puzrN)

58 So the Dems had nearly a year to find and correct any mistakes they made in the final draft of the ACA.
Right?

And they didn't.

Scott Brown's election porked them.

Posted by: toby928(C) at July 29, 2014 07:05 PM (QupBk)

59 What courts should do when confronted by ambiguous
statutory language is void the statute in its entirety, and remand the
matter to the originating legislative body, with a red-inked reminder
reading "work more slowly and carefully in future".

Crazy talk, I know.

Posted by: torquewrench

IOW, show your work. It must sting the silver-haired lions of the House and Senate to be scolded as if they were 2nd graders.

It must sting 2nd graders to be compared in competence to Congress.

Thanks, Jeff B. You're perpetually in bad odor around here, but you're a valuable member. Plus, I like saying "in bad odor".

Posted by: pep at July 29, 2014 07:05 PM (4nR9/)

60 Posted by: wheatie at July 29, 2014 07:04 PM (puzrN

Scott brown.

He ended the dem's filibuster proof majority.

So they opted to pass a draft bill rather than fear that 41 republicans would hold together in the senate.

Posted by: tsrblke, PhD(c) And father to be in 5 months! at July 29, 2014 07:06 PM (HDwDg)

61 I got a great deal on an Assault Derringer at the Pawn Shop...

Posted by: Beto at July 29, 2014 07:06 PM (TfAS/)

62 of course, the final prob here is...who will stop the Regime from just ignoring the law [as they always do] and just keep send out the subsidies?? There is NO will in the House to do anything other than hmmm, haaaww, usw. Gott in Himmel!

Posted by: Geezer der Mensch at July 29, 2014 07:06 PM (6aFlV)

63 At this point, what difference does it make?

Obama will just do it anyway and the House is powerless to do anything about it.

Turns out that the so called "checks and balances" have no teeth.

The Supreme Court can't enforce it's rulings. Neither can the House stop an Executive that refuses to obey the laws passed.

And that goes even for the power of the purse supposedly exerted by the House.

How? They've given Obama the power to raise the debt ceiling whenever he wants, if he says to the various departments "spend the money" they'll spend the money.

Who. Will/Can. Stop. Him.

He doesn't even have to get a resolution passed in the Reichstag ceding him dictatorial powers. He already has them by controlling the Executive.

Posted by: Bitter Clinger and All That at July 29, 2014 07:06 PM (Avd1N)

64
What he's saying is that sergeant's proof that the bill ONCE contained the language the left supports, *but then that language was deliberately stripped out,* will be taken by courts to be a strong presumption that the language is not intended to be part of the bill as passed.

Why didn't he just say so!

Okay, so it's in the hands of the federal courts. obama's courts. Great.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:06 PM (0ejlr)

65 49
You gotta just luuuuv poorly written, ambiguous laws.

I wonder how many of our tax dollars are going into lawyers pockets
to untangle this mess that could've been avoided by people who actually
knew what the fuck they were doing?

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:02 PM (0HooB)

It's not ambiguous. It is exactly clear. Subsidies are for state exchange recipients. The legislative history is also exactly clear as well as the contemporary commentary. Words matter. And they can only find ambiguity if they want to.

Posted by: flounder at July 29, 2014 07:06 PM (sDapq)

66 I unsmited JeffB's comments, and then he quit make them.

Posted by: toby928(C) at July 29, 2014 07:06 PM (QupBk)

67 Long post by Jeff B about a Washington Post writer?

Good lord, there isn't a mountain range in Austria large enough to hold all the f*cks I don't give.

Posted by: BurtTC at July 29, 2014 07:06 PM (Dj0WE)

68 Damn fine Job, JeffB.

I read every word of it and I am now salivating.

Posted by: Niedermeyer's Dead Horse at July 29, 2014 07:07 PM (DmNpO)

69 >>>It says it's by JeffB.

But Ace posted it.

Have we just been switched rape?

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days
left until climate chaos) at July 29, 2014 07:03 PM (0ejlr)<<<

Maybe Ace got tired of wearing that Dingy Harry sock? I mean, all day using it and not even one mention of us???

Posted by: The Koch Brothers at July 29, 2014 07:08 PM (y8Oh1)

70 >>So the Dems had nearly a year to find and correct any mistakes they made in the final draft of the ACA.
Right?

That assumes that this was a mistake. I thought they changed that part in attempt to strong-arm states into setting up exchanges. Then some states called their bluff and didn't, leaving the feds to fill in the void w/their federal Obamacare exchange.

Posted by: Lizzy at July 29, 2014 07:08 PM (D/504)

71 12
Obama's gonna hand out the cash to whoever he wants, whenever he wants,
no matter what the courts or Congress say about it. Not like anyone's
gonna stop him.

Posted by: mugiwara at July 29, 2014 06:51 PM (3a584)

"Obama bucks. From his stash."

Posted by: bergerbilder at July 29, 2014 07:08 PM (8MjqI)

72 Have we just been switched rape?---Sooth

I hate long switch rapes late in the day. It doesn't matter what the legislation says. Us serfs are fucked

Posted by: Misanthropic Humanitarian at July 29, 2014 07:08 PM (HVff2)

73 So the Dems had nearly a year to find and correct any mistakes they made in the final draft of the ACA.
Right?

And they didn't.

Posted by: wheatie at July 29, 2014

Yes yes yes...but there were Steaks to be eaten, Booze to be swilled and whores to be schtupped.

Posted by: Beto at July 29, 2014 07:08 PM (TfAS/)

74 "And of all the canons of statutory construction, 'few are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that has earlier discarded in favor of other language.'"

Quoted from an opinion which turns out to have been authored by that darling of the left, retired Justice Stevens.

I sense an impending activation of Fen's Law.

Posted by: torquewrench at July 29, 2014 07:08 PM (noWW6)

75 Alright, now would/could this congress Help rewrite this to assist in keeping the Law as 'intended'? (yeah i know) but is it possible because of the chaos already caused, what would that do to everyone already obligated from govt agencies to private companies already invested?

not that i personally care if they ALl take a bath.

but would congress fix it for them because of the possible financial damage it will now cause?

Posted by: willow at July 29, 2014 07:09 PM (nqBYe)

76 but would congress fix it for them because of the possible financial damage it will now cause?

Is Boner Speaker of the House? Of course they will.

Posted by: toby928(C) at July 29, 2014 07:10 PM (QupBk)

77 33 will they make States somehow comply in a new law?

Posted by: willow at July 29, 2014 06:56 PM (nqBYe)

Only if RINOs accede to the Choomster's demands to 'fix' 404Care.

A new law making the Federal exchanges eligible for subsidies would have to pass the House first. If the Republicans are serious about aborting this abortion of a law, then not allowing the purchase of 404Care plans on Federal exchanges subsidies would be a good start to killing 404 Care most sincerely dead. Because once people don't get that sweet government money to purchase overpriced health insurance, there will be some serious bitching and moaning from all quarters.

Kill 404Care now. Kill 404Care good and most sincerely dead.

Maybe ol' San Fran Nan is going to be pissed that they passed the bill and are now finding out what's in it. Reading is fundamental, Nanzi.

Posted by: RickZ at July 29, 2014 07:10 PM (Gt3jz)

78 shorter bho - Fascism:It's what's for Breakfast!

Posted by: Geezer der Mensch at July 29, 2014 07:10 PM (6aFlV)

79 now cause again*

Posted by: willow at July 29, 2014 07:10 PM (nqBYe)

80 "That assumes that this was a mistake. I thought they
changed that part in attempt to strong-arm states into setting up
exchanges. Then some states called their bluff and didn't, leaving the
feds to fill in the void w/their federal Obamacare exchange."
-Posted by: Lizzy at July 29, 2014 07:08 PM (D/504)

I believe this to be the case. It was a mix of strong-arming and pure arrogance. They thought that "The Pleebz" would rise up and vote out Governors who failed to set up said exchanges.

Posted by: Slapweasel at July 29, 2014 07:11 PM (z3Qlv)

81 Kill 404Care now. Kill 404Care good and most sincerely dead.

How do you feel about mostly dead?

Posted by: Miracle Max at July 29, 2014 07:11 PM (4nR9/)

82 toby, yes, that's my fear.

Posted by: willow at July 29, 2014 07:11 PM (nqBYe)

83 I'm making a beeline for the Vox Research Dept on twitter. BRB

Posted by: LoneStarHeeb (Psalm 109:7- 8) at July 29, 2014 07:12 PM (BZAd3)

84 Ignore the shrill commentary from the right wing blogs. When legislative intent is at issue in litigation, a court will first examine the actual text of the legislation. This is known in the legal profession as a "hip replacement" procedure. The court, if it so chooses, can then receive testimony from ballistics experts in order to balance the five-prong test announced in Brown v. Board of Education. With all but a very few exceptions, Brown v. Board of Education will be reaffirmed by a reviewing court, which makes it highly unlikely that subsidies are restricted only to people whose insurance companies require the payment of what are known as "premiums" in order to maintain coverage.

Posted by: Matt Yglesias, Voxsplainer at July 29, 2014 07:12 PM (UlJ3l)

85 "Own goal carnage" sounds very European don't you think.

Posted by: The Poster Formerly Known as Mr. Barky at July 29, 2014 07:12 PM (lJLML)

86
Well, Kasich is gonna be voted-out.

Oh wait, that's the opposite of what should've happened.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:12 PM (0ejlr)

87 84
Ignore the shrill commentary from the right wing blogs. When
legislative intent is at issue in litigation, a court will first examine
the actual text of the legislation. This is known in the legal
profession as a "hip replacement" procedure. The court, if it so
chooses, can then receive testimony from ballistics experts in order to
balance the five-prong test announced in Brown v. Board of Education.
With all but a very few exceptions, Brown v. Board of Education will be
reaffirmed by a reviewing court, which makes it highly unlikely that
subsidies are restricted only to people whose insurance companies
require the payment of what are known as "premiums" in order to maintain
coverage.

Posted by: Matt Yglesias, Voxsplainer

Dude, you completely ignored Miranda.

Posted by: Ezra Klein at July 29, 2014 07:13 PM (4nR9/)

88 It's not ambiguous. It is exactly clear. Subsidies are for state exchange recipients.

Not to fuss too much at a fellow Moron, but why is it even being discussed then?

Not that I'm all that concerned that OCare will wind up costing the people that voted for TFG a small king's ransom. In fact, I rather like that outcome.

One of my pet peeves is laws written in Legalise, so that lawyers, like Ephors, must always be consulted to deign the meaning, which should be clear from the beginning. But that's just me.

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:13 PM (0HooB)

89 Eh...

Posted by: LoneStarHeeb (Psalm 109:7- 8) at July 29, 2014 07:14 PM (BZAd3)

90 And you call me a dumb goat f**ker?

Posted by: Achmed at July 29, 2014 07:14 PM (6ahup)

91 I guess if I actually trusted the courts to do the right thing, I'd feel better about this.

But we all know how that goes.

Posted by: DangerGirl and her 1.21 gigawatt Sanity Prod (tm) at July 29, 2014 07:14 PM (GrtrJ)

92 It's almost as if someone was in a really big hurry to get this thing (the ACA) passed. Like if they didn't get it passed right away, the will of the people (who elected all those R's to the House) would prevail.

Posted by: bergerbilder at July 29, 2014 07:15 PM (8MjqI)

93
Read this post in Morgan Freeman's voice...way better.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:15 PM (0ejlr)

94 Maybe the law really is an ass.

Posted by: Mr. Bumble at July 29, 2014 07:15 PM (mcAH9)

95 87
84

Ignore the shrill commentary from the right wing blogs. When

legislative intent is at issue in litigation, a court will first examine

the actual text of the legislation. This is known in the legal

profession as a "hip replacement" procedure. The court, if it so

chooses, can then receive testimony from ballistics experts in order to

balance the five-prong test announced in Brown v. Board of Education.

With all but a very few exceptions, Brown v. Board of Education will be

reaffirmed by a reviewing court, which makes it highly unlikely that

subsidies are restricted only to people whose insurance companies

require the payment of what are known as "premiums" in order to maintain

coverage.

Posted by: Matt Yglesias, Voxsplainer

Dude, you completely ignored Miranda.

Posted by: Ezra Klein

Not at all. It's implied in Plessy v. Ferguson.

Posted by: Matt Yglesias at July 29, 2014 07:15 PM (4nR9/)

96 Not to fuss too much at a fellow Moron, but why is it even being discussed then?

Because Will to Power.

Posted by: toby928(C) at July 29, 2014 07:15 PM (QupBk)

97 Sssssssssssssssss...

Posted by: The Fuse On The Employer Mandate Bomb at July 29, 2014 07:16 PM (mcAH9)

98 It's all been downhill since Marbury v Madison.

Posted by: Bitter Clinger and All That at July 29, 2014 07:16 PM (Avd1N)

99 88 -

In other words, we used to be a nation of laws. Now we're a nation of, by and for the lawyers.

Lawyers hate it when we say stuff like that. Mostly because it's true, and lawyers tend to hate truth.

Posted by: BurtTC at July 29, 2014 07:16 PM (Dj0WE)

100 Don't be messing with my penumbra.

Posted by: Justice Whoppi Goldberg at July 29, 2014 07:17 PM (lJLML)

101 It's about time we can shoot RINO's. Six was it?...the ones in the Serengeti or in DC? PLEASE say DC....oh pleeeease. Season starts when exactly?

Posted by: Guido- 'OUTRAGED!' just sayin' at July 29, 2014 07:18 PM (diB93)

102
There's an episode of FARSCAPE, the best sci-fi serial ever, about a planet of lawyers called Litigaran.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:18 PM (0ejlr)

103 "Lawyers hate it when we say stuff like that. Mostly because it's true, and lawyers tend to hate truth."
-Posted by: BurtTC at July 29, 2014 07:16 PM (Dj0WE)

Somewhere, AmishDude just called this canon.

Posted by: Slapweasel at July 29, 2014 07:18 PM (z3Qlv)

104 And you call me a dumb goat f**ker?
Posted by: Achmed at July 29, 2014 07:14 PM (6ahup)

A man of high standards. Only smart goats.

Posted by: LoneStarHeeb (Psalm 109:7- 8) at July 29, 2014 07:19 PM (BZAd3)

105 >>>One of my pet peeves is laws written in Legalise, so that lawyers, like
Ephors, must always be consulted to deign the meaning, which should be
clear from the beginning. But that's just me.<<<

Too true! I mean, it's not like lawyers, judges, and/or dirtbag pols (BIRM) would ever attempt to even manipulate the meaning of the most basic of language.

That is crazy talk.

Posted by: Billy Jeff C. at July 29, 2014 07:19 PM (y8Oh1)

106 By the Law, I meant the Judiciary.

Posted by: Charles Dickens at July 29, 2014 07:19 PM (lJLML)

107 Ace,

Do you think a little thing like "precidence" or "reality" is going do stop them?

Posted by: The Political Hat at July 29, 2014 07:19 PM (CTCNK)

108 100
Don't be messing with my penumbra.

Posted by: Justice Whoppi Goldberg

Believe me, you're safe.

Posted by: Any man with a Y chromosome at July 29, 2014 07:19 PM (4nR9/)

109 "...you completely ignored Miranda..."

OH MY GOD ...Her hats were epic!!!

Posted by: Flouncy Yglesias at July 29, 2014 07:19 PM (TfAS/)

110 99 88 -

In other words, we used to be a nation of laws. Now we're a nation of, by and for the lawyers.
----------

I think the tonsil-grabbing doctors have their fingers in the pie too.

Posted by: Cicero (@cicero) at July 29, 2014 07:19 PM (mcAH9)

111 How do you feel about mostly dead?

Posted by: Miracle Max at July 29, 2014 07:11 PM (4nR9/)

Not good enough.

Drop a big fucking house on this law.

Posted by: The Munchkins at July 29, 2014 07:19 PM (Gt3jz)

112 Ace, I wish that I were as sure about this as you are. Back in the day, I did some investor fraud cases under the '33 Securities and Exchange Act. Those are also called 10(b)(6) actions. The exact provision escapes me, but there is a portion of the act that is silent as to its application as to suits maintained against broker-dealers. In construing the Act, the Roosevelt Supreme Court not only wrote in a provision that did not exist, they said it meant the exact opposite of what was actually written.

Once I understood the ramifications of what happened in those instances, I truly understood what it meant to be an attorney: Argue, argue, argue until someone buys what you are selling.

Posted by: Objection Sustained at July 29, 2014 07:20 PM (Ga7WE)

113 Not to fuss too much at a fellow Moron, but why is it even being discussed then?

Not that I'm all that concerned that OCare will wind up costing the
people that voted for TFG a small king's ransom. In fact, I rather like
that outcome.

One of my pet peeves is laws written in Legalise, so that lawyers,
like Ephors, must always be consulted to deign the meaning, which should
be clear from the beginning. But that's just me.

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:13 PM (0HooB)

NP. It is discussed, because lawyers, being lawyers, have to argue their case, no matter how disingenuous the position may sound, outwardly. I don't recall the specifics of this case, but federal subsidies were challenged and Obama's admin chose this route to cast doubt on the clarity of the language. DC court didn't bite. 4th Circuit did. That is why the clarity is at issue, and why statutory history and interpretation canons matter.I agree with all the rest.

Posted by: pedant flounder at July 29, 2014 07:20 PM (sDapq)

114 Lawyers are in the business of keeping themselves in business.

Posted by: Bitter Clinger and All That at July 29, 2014 07:20 PM (Avd1N)

115 We are governed by idiots. Most of them are dumb as a sack of hammers. Very few of them (mostly R's) have firing synapses. We should be very afraid of what these people are doing TO us.

Posted by: Truck Monkey, as Voiced by Brian Dennehy at July 29, 2014 07:20 PM (jucos)

116 It wasn't "penumbra" penumbra

Posted by: Flouncy Yglesias at July 29, 2014 07:20 PM (TfAS/)

117 Hey, this is what happens when you rush through a 2000+ page bill that no one has read completely.

I so wish a Republican or someone in the media would point that out.

Posted by: Lizzy at July 29, 2014 07:20 PM (D/504)

118 99 88 -

In other words, we used to be a nation of laws. Now we're a nation of, by and for the lawyers.
----------

I think the tonsil-grabbing doctors have their fingers in the pie too.
Posted by: Cicero (@cicero) at July 29, 2014 07:19 PM (mcAH9)

Nah, they just cut off legs for money. Remember, that's why we needed O'care.

Posted by: Jen at July 29, 2014 07:20 PM (vt0x4)

119 There's an episode of FARSCAPE, the best sci-fi serial ever

I only watch it for the hot blue chick.

Posted by: toby928(C) at July 29, 2014 07:20 PM (QupBk)

120
obama is Judge Dreck

"I Am The Law!"

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:21 PM (0ejlr)

121 >>>In other words, we used to be a nation of laws. Now we're a nation of, by and for the lawyers.

----------

I think the tonsil-grabbing doctors have their fingers in the pie too.

Posted by: Cicero (@cicero) at July 29, 2014 07:19 PM (mcAH9)<<<

**Runs out of room**

Posted by: Chamber of (Crony) Commerce at July 29, 2014 07:21 PM (y8Oh1)

122 109
"...you completely ignored Miranda..."

OH MY GOD ...Her hats were epic!!!

Posted by: Flouncy Yglesias

And don't get me started on the fruit flies.

Posted by: Carmen Miranda at July 29, 2014 07:21 PM (4nR9/)

123 We don't have law, we have opinion, and opinion can change from day to day depending on the need of the moment.

Opinions vary not only in time, but by seniority. Those who have authority, or act like they have authority have opinions that are given greater weight.

Ultimately, 'the law' is whatever you can get away with, and he with the better, more dedicated, army, wins.

Posted by: Dizzie's Almost Good Food Service at July 29, 2014 07:22 PM (DvFAC)

124
She's gray.

The blue chick, Zahn, is blue, but the hot chick gray.

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:22 PM (0ejlr)

125 Ezra, the Miranda case was 15-2 decision by the Supreme Court that allowed children with open sores to choose not to look at pictures of the Statute of Liberty before school each day. True, the two dissenting justices, Abe Fortas and Clarence Thomas, argued for a blanket amnesty, but their arguments are not taken seriously by any respected law professors. Given that it was the intent of Congress to send the passed legislation to the President to be signed, there can be little doubt that Halbig cannot withstand strict scrutiny.

Posted by: Matt Yglesias, Voxsplainer at July 29, 2014 07:22 PM (UlJ3l)

126 I want to feel the burning on my skin when this goes up in flames. Please.

Shouldn't this get fast tracked to the SC? Seems to otherwise, Obama is spending funds (on the federal exchange's illegitimate subsidies) without any authorization to do so. Which seems problematioc. I mean will there be clawbacks later if this takes another year to resolve?

I mean, assuming the SC actually does its job this time around.

Oh, and surprisingly goo post, JeffB.

Posted by: Methos at July 29, 2014 07:22 PM (hO9ad)

127 WaPo's Greg Sargent is such a tool.

If there is anybody who reprints the DNC press release more than Greg, I don't know them.

Posted by: Ezra Klein at July 29, 2014 07:22 PM (e8kgV)

128 Ace, you are, for the moment, my hero...

Posted by: Heywood Jablowmee at July 29, 2014 07:22 PM (wuOQ2)

129 Meh, it's blue-grey.

Posted by: toby928(C) at July 29, 2014 07:22 PM (QupBk)

130 110 -

Silly person... still believes in doctors...

Posted by: Advanced Practice Nurses at July 29, 2014 07:22 PM (Dj0WE)

131 Does Sargeant's opinion offer yet another argument that the 'Origination Clause' was violated?

Posted by: gastorgrab at July 29, 2014 07:24 PM (FX38i)

132 Nude animals of doom

Posted by: toby928(C) at July 29, 2014 07:24 PM (QupBk)

133 Amazing how none of this stuff made its way to the 4th circuit.

But, seriously, if this were any other piece of legislation, the courts would say, "The law says this, if it's a mistake, then fix it."

But because (a) this is Obama's signature piece of legislation and (b) the Congress will absolutely refuse to "fix" it without at least a major overhaul anywhere to full repeal, the courts are trying to legislate themselves.

Posted by: AmishDude at July 29, 2014 07:24 PM (1UzRc)

134 Well according to Harry Reid, Clarence Thomas can't read or write...

Posted by: Beto at July 29, 2014 07:25 PM (TfAS/)

135
Alternate post title:

Greg Sargent Haphazardly Attempts To Defend The Big Lie

Posted by: Soothsayer of The Righteous And Harmonious Fists (-428 days left until climate chaos) at July 29, 2014 07:26 PM (0ejlr)

136 Well according to Harry Reid, Clarence Thomas can't read or write...
Posted by: Beto at July 29, 2014 07:25 PM (TfAS/)

Or be black.

Posted by: Jen at July 29, 2014 07:26 PM (vt0x4)

137 In other words, we used to be a nation of laws. Now we're a nation of, by and for the lawyers.

Yep. I saw a tweet asking which of the 4 leading Dem POTUS contenders was most dangerous: Biden, Clinton, Kerry or Warren?

Yep. All lawyers.

Lawyers hate it when we say stuff like that. Mostly because it's true, and lawyers tend to hate truth.

No, they hate it because it makes them feel bad but mostly because they don't see it from where they sit. If you spend most of your time closing mortgages or drafting rules for corporations to avoid sexual harassment lawsuits, you don't see yourself as some powerful plutocrat.

And they're not. The problem is not that lawyers are powerful but that the powerful are lawyers. Moreover, they're increasingly creating a system where their arcane rules and their incestuous networking crowds out everyone else.

What we have is a Lawyer-Government Complex.

Posted by: AmishDude at July 29, 2014 07:26 PM (1UzRc)

138 100 -

Whoopie, trying to connect your penumbra to your adumbrations is like throwing hotdogs down a hallway.

Posted by: Ted Danson at July 29, 2014 07:27 PM (Dj0WE)

139 @131 Does Sargeant's opinion offer yet another argument that the 'Origination Clause' was violated?
Posted by: gastorgrab
_______________
Nice catch.

Posted by: Furious George at July 29, 2014 07:27 PM (UlJ3l)

140 *sniffs, then breathes deeply*

I love the smell of napalm in the afternoon.

Posted by: CM at July 29, 2014 07:28 PM (0NdlF)

141 I'm glad I never left the "Let It Burn" camp.
What's probably coming in a future near you to Liberals is schadenfreude with .
epicaricacy as an appetizer.

Carry on.

Posted by: jwb7605 at July 29, 2014 07:28 PM (ZALPg)

142 137 -

Sure sure, but you're kinda explaining the joke, so.....

Posted by: BurtTC at July 29, 2014 07:29 PM (Dj0WE)

143 I agree with all the rest.

Posted by: pedant flounder at July 29, 2014 07:20 PM (sDapq)

Kewl. Please to be checking your USB port for beer or adult beverage of your choosing.

I've been disengaging from politics here lately for my own sanity (or what's left of it). The world looks a lot better and I've been getting more music gigs, too.

I cannot, however, quit this place.

Posted by: BackwardsBoy, who did not vote for this shit at July 29, 2014 07:29 PM (0HooB)

144 OWW MY BALLS!!!

Posted by: Greg Sargent at July 29, 2014 07:30 PM (eAJwE)

145 Posted by: Objection Sustained at July 29, 2014 07:20 PM (Ga7WE)

Correcting myself. It was the '34 Act, and Section 10(b)(5). It was 24 years ago. Sue me.

Posted by: Objection Sustained at July 29, 2014 07:30 PM (Ga7WE)

146 Any grandmother knows that the federal government is one of the 57 states. Apparently Republicans are too busy plotting to kill children and impregnate their single mothers [the exact opposite of Democratic Party principles, I might add] to listen to the State of the Union message. STATE. Of. The. Union. Get it.

Posted by: Nancy Pelosi at July 29, 2014 07:32 PM (lJLML)

147 Speaking of "drafting errors," I remember a case out of Kansas regarding the age of consent for marriage.

They changed that law so that a person under the otherwise statutory limit could get married if she was pregnant with her future husband's baby.

The problem is that the bill actually said that she could get married if she was not pregnant.

When they tried to argue that this was just a typo, the courts stated that because what was passes was the flip opposite, there was no ambiguity and thus the legislature had to fix its own mess.

Posted by: The Political Hat at July 29, 2014 07:33 PM (CTCNK)

148 139

@131 Does Sargeant's opinion offer yet another argument that the 'Origination Clause' was violated?

Posted by: gastorgrab

_______________

Nice catch.

Posted by: Furious George at July 29, 2014 07:27 PM (UlJ3l)

I
thought the finally passed version was made by way of a gutted
shell-bill that did originate in the house, by which I mean that they
may have been aware of the origination issue and/or were attempting to
circumvent the problematic house where all the battles for the people
were being won, mostly on party lines.That is to say that that Senate
version was technically not the one that they passed.

Posted by: flounder at July 29, 2014 07:33 PM (sDapq)

149 Of course we have the Dunning-Kruger President, so that makes this very symmetrical.

Posted by: Blake MacBain at July 29, 2014 07:34 PM (gieH4)

150 Not sure if it applies to this particular part of Obamacare, but in their haste to ram this through they were constantly making tweaks to this bill to either please some Democrat legislator who was on the fence, or to generate a more palatable cost estimate. The goal seemed to be: do whatever it takes to pass it (like that separate doc where Obama claimed O-care would not cover abortions) and we'll just put it back in after it passes. One example of this was that illegals were not covered, which a lot of Dems started pushing for as soon as the bill was safely passed, knowing full well that the cost of subsidizing health plans for illegals significantly increases costs.

They try to explain away these inconvenient elements one at a time - "Well our intent was to do X even if it didn't make it into the bill" - but the reality is that all of these changes were intentional; they should not get away with undoing them now.

Posted by: Lizzy at July 29, 2014 07:34 PM (D/504)

151 I just noticed that the ESA is about to launch an Ariane V carrying an ATV cargo vehicle to the ISS. Only about 9 minutes to go.

http://www.arianespace.tv/

Posted by: rickl at July 29, 2014 07:35 PM (sdi6R)

152 We're trapped somewhere between "fuck, I don't know" and "fuck, I don't care".

This can't end well.

Posted by: akula51 at July 29, 2014 07:35 PM (X6zQy)

153 Own Goal Carnage. I saw them open for The Pixies at the Bachanal in San Diego...1989, I think. They rocked.

Posted by: eureka! at July 29, 2014 07:36 PM (EgKCY)

154 What does 'the state' mean?
Well that guy in France said, "I am the state". so that would mean 'the state' is the king. Since Obama is the king that would mean if The King wants to grant you a special favor he can do so.

All the rest is theatrics to entertain and distract the mob.

Are we not entertained?

Posted by: Dizzie's Almost Good Food Service at July 29, 2014 07:38 PM (DvFAC)

155 "One of [the] most fundamental rules of statutory interpretation used by courts when they are asked to discern legislative intent from ambiguous statutory language is this: if explicit language was in an earlier version of a bill but dropped from the final version, the court will treat that as proof that it was removed on purpose."

Don't invest too heavily in that rule - it's pretty malleable. I had a case before an appellate court on that very issue (Legislature removed language from draft of bill specifically because governor said if it stays in, I will veto; in first case to determine the scope of the statute as enacted with draft language removed, the trial court and court of appeal simply re-inserted the removed language), and in our follow-on case, the Court of Appeal said that the prior courts' interpretation of the statute was fine. The Supreme Court rejected the subsequent Petition for Review.

Never forget - the courts are an instrument of the state. They only rarely make decisions that limit state power.

Posted by: Fa Cube Itches at July 29, 2014 07:38 PM (jnG1p)

156 What's probably coming in a future near you to Liberals is schadenfreude with .
epicaricacy as an appetizer.

Carry on.

Posted by: jwb7605

Man, it takes some doing to be more pretentious than schadenfreude, especially when it means the same thing. Let's see you work a boner joke into epicaricacy.

Posted by: pep at July 29, 2014 07:38 PM (4nR9/)

157 When they tried to argue that this was just a typo,
the courts stated that because what was passes was the flip opposite,
there was no ambiguity and thus the legislature had to fix its own mess.

Posted by: The Political Hat at July 29, 2014 07:33 PM (CTCNK)

My first inclination is that where, as here, there is no ambiguity in the statute, there is no need to resort to other forms of interpretation aids such as canons, history, commentary. But I'd add a disclaimer that I am not totally confident in that answer as it may be contract or other law I am confusing with the principles of statutory interpretation. Thus (if the above be the case), that is why the 4th circuit needed to find ambiguity, where, to all other normal rational people, there is no ambiguity.

Posted by: flounder at July 29, 2014 07:39 PM (sDapq)

158 The case was in Arkansas, not Kansad:

http://itre.cis.upenn.edu/~myl/languagelog/archives/005017.html

In searching, it turns out that Kansas has, or at least had, no minimum age in statute for getting married with parental permission, though case law said 13 for boys and 12 for girls. California, IIRC, is similar. Combine that with Gay Marriage and you will have made pederasts very, very happy.

Posted by: The Political Hat at July 29, 2014 07:41 PM (CTCNK)

159 Can we apply this "previous language" trumping actual final language to the Constitution itself.

The phrase in Article I referring to the "General Welfare" was only in the final revision. All earlier versions had completely different phrasing. There was no discussion about the "general welfare" at all - at least according to Madison's notes on the Constitutional Convention.

If Obamacare is upheld, then anything done under the "general welfare" clause can be argued to be unconstitutional.

Posted by: The Political Hat at July 29, 2014 07:46 PM (CTCNK)

160 Nude animals of doom
Posted by: toby928(C) at July 29, 2014 07:24 PM (QupBk)

Link, please.

Posted by: Bill H at July 29, 2014 07:47 PM (3sZO1)

161 >>>Can we apply this "previous language" trumping actual final language to the Constitution itself.

The phrase in Article I referring to the "General Welfare" was only
in the final revision. All earlier versions had completely different
phrasing. There was no discussion about the "general welfare" at all -
at least according to Madison's notes on the Constitutional Convention.

No, that gets it exactly backwards. Previous language doesn't trump final language at all. Final language trumps previous language. The fact that earlier drafts didn't include "General Welfare" means nothing so long as it's in the final draft -- the obvious conclusion here is that the General Welfare Clause was included in later drafts due to subsequent discussions/negotiations.

The only time this sort of legislative history matters is when explicit language included in earlier drafts gets dropped from later ones. When that happens, the Court, using the same principle as in the prior paragraph, assumes that the language was dropped intentionally (maybe due to negotiations between the parties, maybe due to second thoughts by the drafters, who knows) and that therefore the final statute intentionally seeks to negate the interpretation offered by the more specific earlier language.

Posted by: Jeff B., Professor Emeritus of AoSHQ RINO Studies at July 29, 2014 07:52 PM (ewYO6)

162 Good post, JeffB.

Posted by: Tami at July 29, 2014 07:53 PM (v0/PR)

163 Posted by: The Political Hat at July 29, 2014 07:46 PM (CTCNK)

Silly Hat, Tricks are for politicians

Posted by: Misanthropic Humanitarian at July 29, 2014 07:53 PM (HVff2)

164 Posted by: Jeff B., Professor Emeritus of AoSHQ RINO Studies at July 29, 2014 07:52 PM (ewYO6)

So? In for a penny, in for a pound. If we are going to ignore the explicitly passed statutory language, we just might as go whole hog... I mean, it's like over 100 years old, man!

Posted by: The Political Hat at July 29, 2014 07:55 PM (CTCNK)

165 On this point, Gruber's own words would also be of interest to the court, right?

Posted by: Feh at July 29, 2014 07:57 PM (g/zj9)

166 Dear Mr. Washington Post FuckTard,

Which document did President Commie Shit Stain BoyFriend sign???

Oh...That ONe??

Go Fuck yourself with a pineapple...

Posted by: Portnoy at July 29, 2014 07:58 PM (bIi6H)

167 Great post Hefe.

Posted by: CAC at July 29, 2014 08:00 PM (mH/E5)

168 If Obamacare is upheld, then anything done under the "general welfare" clause can be argued to be unconstitutional.

Despite amateur argumentation, I don't think anything in the Constitution actually hangs on the "general welfare" clause, as it could include anything. It's not limiting and, in fact, would undermine the entire Constitution if taken as more than a statement of principles with no specific restrictions.

Posted by: AmishDude at July 29, 2014 08:01 PM (1UzRc)

169 He totally signed my Memo...

I am so hard right now.....

Posted by: Portnoy at July 29, 2014 08:01 PM (bIi6H)

170 What courts should do when confronted by ambiguous statutory language is
void the statute in its entirety, and remand the matter to the
originating legislative body,

Then maybe the next one will be more careful.

Posted by: DaveA at July 29, 2014 08:02 PM (DL2i+)

171 Boom!

This really comes down to whether the SC has the balls to nuke ObamaCare, there's zero question this is an airtight case.

I'll say it again, I thought the original case regarding the mandate on Constitutional grounds was weak. To me it was not much different than any other entitlement I want to opt out of.

This is a much better angle to destroy it.

Posted by: Uniden at July 29, 2014 08:23 PM (13G+x)

172 Sounds like Greg suffered a jihadi work accident.

Posted by: aka.john at July 29, 2014 08:36 PM (zPa3K)

173 Some Democrats argue "But the Title", as if that explains the bill. And Greg has argued that if something was in the first bill, it still is the meaning of the bill even if it is changed later.

So, now we understand -- this isn't about health care at all, right? Because, the original title of the bill was:

"Service Members Home Ownership Tax Act of 2009"

So despite the mess of changes made later, all obviously typos, the real purpose of the bill is to help Service Members buy houses.

Posted by: Charles at July 29, 2014 09:17 PM (K0ZuU)

174 I agree, that the courts should rule in favor, of the specific language that was in the original bill.

And the Original bill was "HR 3590 The Service Members Home Ownership Act", not Obamacare.

Posted by: chunkdog1 at July 29, 2014 09:22 PM (/tXWH)

175 So despite the mess of changes made later, all obviously typos, the real purpose of the bill is to help Service Members buy houses.

But the Democrats have tried to pass legislation establishing a single payer--Nationalized health service for decades. Even before that er, questionable procedural move so, obviously, the real intent of the ACA is to make healthcare free to everyone with a massive tax hike to follow just before currency collapse.
The supremes, should they take this on and I bet they won't, should rule that everything is free, free, free; it's a tax, case closed. Law of the Land!

Posted by: Daybrother at July 29, 2014 09:28 PM (oqwzg)

176 if explicit language was in an earlier version of a bill but dropped
from the final version, the court will treat that as proof it was
removed on purpose.

*****

I bet everyone's hard drive crashed at the same time while they were doing some editing.

Posted by: Lemmiwinks at July 29, 2014 09:33 PM (z+4T3)

177 56 Deadbeat Acquaintance would make a great name for a band.
So would Naked Sloth.

I was going to say that I saw Out of Protest open for Naked Sloth. Totally missed Deadbeat Acquaintance. We need a compilation of AoS 'Names in need of a Band'.

Posted by: dwagyak at July 29, 2014 09:36 PM (wYE6c)

178 Yes yes yes...but there were Steaks to be eaten, Booze to be swilled and whores to be schtupped.

Posted by: Beto at July 29, 2014 07:08 PM (TfAS/)

***********************
Harrumph! Harrumph!

Posted by: Caesar North of the Rubicon at July 30, 2014 01:03 AM (HubSo)

179 Obama Care greatest thing since sliced bread. Punish any Republican governors without exchanges. Oops! Obama care not so popular. No one signing up. Give it awayfor free if need be.

Posted by: burt at July 30, 2014 08:03 AM (yp2Xd)

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