Over at The New Yorker the other day, Jeffrey Toobin wrote a short piece on Halbig entitled “Will Textualism Kill Obamacare?” It’s not very good.
I’m not going to do a full critique of the essay, but there are a couple mistakes and misdirections that are worth mentioning. First, if you’ve been following the Halbig litigation, you know that the challengers claim the ACA does not provide for insurance subsidies to folks who get insurance on federally established exchanges. That’s the claim. If the state sets up an exchange, then great, the state’s citizens get tons of subsidies. If the state fails/refuses to set up an exchange, then the feds will provide an insurance exchange in that state, but the people buying insurance on the federally operated exchange will miss out on all those wonderful subsidies. Sure, that makes the federal exchanges almost worthless, but according to the challengers that was the whole point. The states would be “threatened” by missing out on subsidies if they did not set up exchanges, so more states (maybe all of them!) would set up exchanges, or face the wrath of their subsidy-deprived citizens.
You’d never know any of that from reading Toobin’s article. Instead, he says the case is about whether the federal government is authorized to establish exchanges at all. He writes:
According to the D.C. Circuit majority, one line in the text of the A.C.A. makes the federal exchange invalid.
He goes on to write that the Halbig decision is based on the lack of “an explicit authorization of federal exchanges” in the ACA. The problem here is that of course the ACA provides for the creation of federal exchanges.
This may seem like a small distinction, but it is a particularly pernicious one because it makes Toobin’s argument–the one he’s presenting to his readers–monumentally easier. In fact, the change makes Toobin’s argument obviously correct! The plain text of the statute expressly provides for the creation of federal exchanges. As Toobin later writes:
When the Affordable Care Act was being debated, every member of Congress–supporters of the A.C.A. as well as opponents–understood that the federal government would have the right to establish exchanges in states that chose not to create them.
Indeed. But as Lawrence Solum has pointed out, that’s entirely beside the point. The question is whether subsidies are available on those exchanges!
Yes, opinion-piece writers need to simplify complex arguments for their readers–even the sophisticated readers of The New Yorker. But in a piece where the author is arguing for a particular result, that simplification should not result in avoiding or obfuscating the fulcrum of the argument. The entire question is whether subsidies are available on federally established exchanges. Toobin never engages that argument. By twisting the challengers’ argument, he transforms the challenge from “interesting, based in some statutory text, but ultimately unconvincing” to “obviously wrong based on the plain language of the statute.” And his readers are worse off for it.
Second, Toobin uses Halbig as a jumping off point to discuss statutory interpretation more generally, citing to Judge Robert Katzmann’s forthcoming book on the subject. (If you want to get a sneak preview of Katzmann’s book, which has yet to be released, I’d suggest reading his 2012 article Statutes in the N.Y.U. Law Review. I suspect he makes similar arguments in both projects.) Anyway, Toobin says that the Halbig court should have followed Judge Katzmann’s advice and looked to:
the words of members of Congress in debates, the committee reports explaining laws, and all of the source material that reflects how Congress really works.
Okay. Fine. Like Toobin and Judge Katzmann, I agree that legislative history can be a useful source of information to interpret a statute.
So what “words of members of Congress” or “committee reports” would help us in Halbig? Is there a committee report that answers the subsidy question? Toobin does not provide one, and I’ve yet to see one. (If you’re looking for a “how Congress works” argument for why the ACA seems to say “no subsidies” but actually provides for subsidies on federal exchanges, this article by Greg Sargent is really interesting.)
Anyway, the whole thing is disappointing. At the end of the day, Toobin joins other legal commentators whose arguments on Halbig boil down to: “No need to worry about the details of what the statute says. Trust me, I know what the statute means because I know what Congress intended.” And while that sort of argument might go over well at dinner parties, it’s not going to fly in court. And it shouldn’t fly in The New Yorker.
On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ve written a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. My thoughts based on the conference are at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), Part IV (Halbig’s “Two Exchanges” Problem), and Part V (Creeping Constitutionalism).