TPM’s Halbig/PPACA “BOOM” Goes Boom

Okay, so I am partially ignoring my own advice regarding the Halbig/PPACA debate. Yes, I said that we should not get distracted by side-show arguments like what some guy said on video two years ago. But I also said that if we’re going to get the better of this argument, we actually need to engage with the claims the other side is making.

Enter this morning’s article on Talking Points Memo: “BOOM: The Historic Proof Obamacare Foes Are Dead Wrong on Subsidies.” Perhaps this CBO-based argument is a bit of a side-show, or perhaps not. But either way, it’s a great example of a supposed counterargument that wholly misses the point of the conservatives’ legal claims and is therefore wholly ineffective at actually advancing the liberal case. Continue reading

Does Statutory Interpretation Matter?

In a discussion regarding my previous post on Halbig, Eric Segall tweeted the following:

[W]e have . . . known since the realists of the 30’s that Stat[utory] Inter[pretation] Principles don’t decide cases.

And of course he’s right. Even Justice Scalia concedes that canons of construction or generic neutral principles can’t be applied in a mechanical manner. But that doesn’t mean that principles of statutory interpretation don’t matter at all. Continue reading

Halbig, Statutory Interpretation, and Lessons I Learned in Practice

Reading all the interweb debates in the wake of Halbig and King, I’ve grown increasingly frustrated. People seem to be talking past each other—perhaps for the reasons Will Baude outlines here. Arguments about statutory text are rebutted with arguments about congressional intent, which is often gleaned from press coverage during the ACA’s legislative debates.

But I think it cuts deeper than that. The nature of the post-Halbig debate feeds into the core stereotypes and motive-impugning assumptions that legal conservatives and liberals have about each other. Conservatives willingly play the role of hyper-technical textual literalists with simple-sounding (and superficially appealing!) arguments tailor-made for Twitter: “state” means “state”; it doesn’t mean “federal.”[1] Liberals, on the other hand, ease naturally into the opposite stereotype, countering this plain-language reading of the statute with arguments that could be caricatured as: “I was reading The New York Times daily coverage of the ACA debates and they didn’t mention any of this, so it can’t be what Congress actually meant.”[2]

I’ve come away with two observations, both of them focused on the liberal side of the argument. The first is that we liberals should listen to my former boss Susan Brune. The second is that if we want to preach to anyone other than the converted, we need to focus on the ethos of our rhetoric in the arena of statutory interpretation.[3] Continue reading

Sundry Thoughts on NFIB v. Sebelius, the Day After…

It's a Tax!

Okay. So by this point, you’ve all read the ACA/Obamacare opinion, which will from here on out be known as NFIB v. Sebelius. And if you’re reading this blog post, you’ve probably been reading other analyses around the interwebs. My favorite thus far (and my recommendations) are: Mike Dorf here (and I’m sure he’ll have more to say), the Slate discussion series, which includes Judge Richard Posner, Walter Dellinger, and Dahlia Lithwick (among others), and all of the SCOTUSblog coverage, including this helpful “Plain English” explanation of the decision. (The nice thing about SCOTUSblog, is that even when they write non-technically, they don’t get sloppy with the facts.)

Dewey Defeats Truman!

I am not going to make any effort to mold my thoughts into any sort of cohesive narrative. I read the opinions. I read a lot of the coverage. I am going to make this post a clearinghouse for all of my initial thoughts and observations on the off chance that you might be interested. And because I don’t want to waste you’re time, I’ll try to focus on thoughts/observations that have not already flooded the twitters and interwebs. Also, I’ve numbered them and sorted them by subject, so you can just skip the boring stuff. (Please, no jokes about how it’s all boring stuff.) Continue reading

The Roberts Switch: Revisited! Updated!

After my last post about the potential Roberts switch, I received some comments from readers via, well, the blog comments (imagine that!) and email. A few additional observations based on those comments (and see update below! (6/29 at 10:00am):

  • The joint dissent totally ignores the Chief’s opinion. It’s really quite amazing More than anything else, that is the best evidence I’ve heard that the Chief’s opinion was new/late. Perhaps the joint dissent did not have time to respond?
  • The joint dissent is written, generally, in the style of a “majority” opinion. It is more constructive (it builds up its own affirmative argument/decision) and less destructive (it attacks Justice Ginsburg’s “dissent” as a sort of counter-punch, rather than its main thrust).
  • The severability analysis at the end of the joint dissent reads more like something that was necessary to the outcome of the case, not just an academic exercise that the joint dissenters went through in the service of some sort of desire for completeness. How many dissents go through a severability analysis like that? Perhaps it was written as a majority, but once the majority was lost, there was no need to cut it.

Those are some good observations. (Thanks comments!) And based on those observations, my needle has definitely moved a bit more toward “it was the majority before a switch!”

But there are still some problems. Let’s assume that things started out after conference with Roberts in a 5-4 majority with Kennedy, Scalia, Alito, and Thomas, as posited by the switch hypothetical. In that scenario, Ginsburg is assigned to pen the dissent. But who got assigned the majority decision? How does that explain the “joint dissent” strangeness? In any event, under this theory, at the last minute, Roberts changes his mind! And his opinion is so late that there’s no time for the joint dissent to change the opinion.

Well, if that happened, then how did Justice Ginsburg have time to adjust her dissent to respond to the Chief Justice’s opinion? If she had time, surely the joint dissenters should have had time as well — at least enough time to make the cosmetic changes that would have been required, or to respond to the Chief’s tax argument. And why would the joint dissenters not join some/all of the Chief’s commerce ruling? Why did the Chief feel the need to draft his own Commerce Clause “essay” instead of just joining the joint dissenters’ opinion on that issue, when the holdings were remarkably similar?

The joint dissent does read like a majority. And the failure to address the Chief’s opinion is indeed extremely strange. But there are other explanations besides a last-minute defection. What about a scenario where the Chief was unwilling to commit to the joint dissenters at the conference, leaving the conference as sort of a free agent or a loner from the outset. The joint dissenters then authored a “draft majority” and circulated it in the hopes of gaining the Chief’s vote. It failed to do so. But from the conference, the Chief knew that he could get the liberals’ vote on the tax issue. So he informed the rest of his colleagues (at some point, perhaps immediately after the conference) that he was going to draft his own opinion for the Court, telling them a general outline of his theory. Justice Ginsburg, who knew that she would not have 5 votes for a Commerce Clause ruling, could go ahead and draft (or keep) much of her “dissent” on the commerce point. And she and the others were free to join the Chief on the tax issue without adding their own discussion. 

Meanwhile, the joint dissenters already had a full opinion on the commerce issue, so there was no need join the Chief in that portion of the opinion. And perhaps they thought the tax issue was not worth spilling too much ink.

But anyway, if Justice Ginsburg had time to digest and respond to the Chief’s opinion, I just can’t believe that the joint dissenters didn’t have the time. I have no doubt there is a great back-story here, but I don’t necessarily think that the story needs to be a “last minute” defection, or some sort of spite-fueled dissent from the conservative wing. I am, however, really looking forward to that law clerk’s tell-all book!

Update (6/29 at 10:00am):

David Frum published an email from a reader that is more along the lines of what I’m thinking:

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

I like that. As far as I’m concerned, any theory of a Roberts changed vote (and the timing of such a change) needs to explain the following:

  1. How did Roberts have time to write such a long opinion? (Not a last-minute change!)
  2. Why would Ginsburg have time (and reason) to respond to Roberts’s opinion, but the joint dissenters would not?
  3. Why would the joint dissent be a joint dissent, instead of a single-authored dissent?
  4. Why would the joint dissenters not have joined Roberts’s discussion of the Commerce Clause holding? (Or why would he not join theirs?)

The “last minute switch!” or “they had him and lost him!” theories don’t really have answers to all of those questions.

The Roberts Last Minute Switch? Not So Fast…

Lawrence Solum (Legal Theory Blog), David Bernstein (Volokh Conspiracy), and Paul Campos (Salon) all speculate that perhaps Chief Justice Roberts “suddenly changed his vote” at the “very last possible moment” (to quote Professor Campos). (Professor Solum merely speculates that the Chief’s vote changed at some point after the initial conference.)

(See my update to this post here)

Of course, I have no idea what happened in the conference, and the four-Justice “joint dissent” from Scalia, Thomas, Kennedy, and Alito is indeed strange. When was the last time we had a collective dissent with no single author like that? But I think folks might be jumping the gun a bit to assume the explanation behind the joint-dissent is a switch by the Chief. Continue reading