Sad news from Seattle today: Paseo is closed. Both locations. Terrible.
In the wake of the news, some have speculated that the sudden shuttering is linked to a lawsuit filed back in September by former Paseo employees. Continue reading
Bill Lucia has a great article in Crosscut about a little wrinkle in new officer-worn body camera policies being adopted by police departments across the state:
But even though his officers embraced the new technology, and the department has the money set aside in its 2015 budget to roll out a permanent body camera program, Strachan is planning to hold off for now. The reason: At least two other Washington state police departments that use the cameras have received public disclosure requests for all video footage recorded by the devices. The requests threaten to create a crippling workload for agencies with limited staff and technology. Some police officials also worry about the privacy implications for their communities if the footage is made widely available.
Lucia at 1 (emphasis added). Continue reading
Over at the Incidental Economist, Nicholas Bagley has posted an extremely useful walk through his posts on Halbig and King—the current ACA litigation that just reached the Supreme Court. If you’re new to the King-Halbig litigation, or even if you’ve been following it for some time, Bagley’s writings are “must read” material.
And because I’m unoriginal, I thought I’d do the same for my posts, now that this issue is heating up a bit: Continue reading
It depends on what the meaning of the word “such” is. — Bill Clinton (maybe, if he were a lawyer in King v. Burwell)
The word “such” is having its fifteen minutes of fame with the recent PPACA litigation. Much of the government’s narrow textual argument hinges on the word “such”: Yes, section 1401 makes subsidies available on an exchange “established by the State.” But in the absence of a state exchange, section 1321 provides for the federal government to establish “such Exchange.” That “such” (along with numerous other contextual and structural indicators) means that the federal exchange is the functional equivalent of a state exchange when state exchanges are referenced elsewhere in the statute, including in section 1401. Continue reading
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’ll be writing 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. Previous reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), and Part IV (Halbig’s “Two Exchanges” Problem).
Quit hitting yourself Obamacare! Quit hitting yourself!
Almost twenty years ago, Justice Scalia lamented how the common-law attitude had infected other forms of legal analysis, especially statutory interpretation:
But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law.
Scalia, A Matter of Interpretation at 13 (emphasis in original).
Something similar has been happening with the legal challenges to tax subsidies on federal exchanges. Continue reading
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’ll be writing 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. Other reflections 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).
In response to Halbig, many of the government’s defenders turned to arguments based on purpose to criticize the D.C. Circuit’s opinion. If the entire purpose of the ACA is to ensure that people get affordable healthcare, then how could a court possibly interpret the law in a manner that makes so many people ineligible for affordable healthcare?
I have been critical of these sorts of generalized purposivist arguments for a couple of reasons. First, statutory interpretation should start with the text of the statute, not an appeal to general purpose. Sure, perhaps eventually, as a double check or in close cases, one must resort to general purpose to resolve ambiguity. But before we get there we need to wrestle with the text.
Second, the challengers have an answer to the government’s generalized “purpose” argument: Sure, the general goal was to provide everyone with insurance. But Congress doesn’t blindly pursue its goals at all costs. There are compromises, incentives, and other limitations that come into play.
The challengers argue that with the ACA, Congress wanted the states to take the laboring oar in creating exchanges. But because of constitutional limits on commandeering state governments, Congress had to induce (or attempt to induce) states to set up exchanges through an incentive system: set up an exchange or your citizens won’t get any tax subsidies.
On the challengers’ view, this incentive system would work just like Medicaid. Congress bribes (but doesn’t impermissibly compel!) the states to participate in Medicaid; if they refuse, then Congress withholds funds—lots of funds. However, the challengers contend that Congress miscalculated in the ACA. Congress thought every state would jump at the change to get all of that federal subsidy money. And therefore Congress thought their plan would work: every citizen in every state would get tax subsidies and affordable insurance on a state exchange. When that supposed miscalculation came to fruition, the challengers argue that it was not the courts’ job to rewrite the statute to correct Congress’s “mistake.”
But the challengers have a big textual obstacle standing in their way: the statute’s provision for federal exchanges in section 1321.
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’ll be writing 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. Other reflections 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).
Previously, I set out a brief textualist interpretation of the ACA provisions directly applicable to the question of whether subsidies are available on federal exchanges. Though only a few ACA provisions are directly applicable to the question, one must consider the entire statute to determine the best interpretation of those provisions.
Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Sir Edward Coke explained the canon in 1628: “[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for the best expresseth the meaning of the makers.” Coke added: “If any section [of a law] be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of the other.”
Scalia & Garner, Reading Law at 167 (discussing the whole-text canon).
This is Air Bud. Trust me, he’s relevant to statutory interpretation. We’ll get to him later.
The Continued Contextual Inquiry Continue reading
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’ll be writing 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. Other reflections 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).
Though much of the press/commentary surrounding the Halbig decision has focused on abstract legislative intent, the government’s lawyers—the ones actually litigating this case—have done a nice job of arguing based primarily on statutory text. As explained here, textualist arguments properly consider a statute’s intent, purpose, context, structure, etc. But those considerations are anchored in the text of the statute, as opposed to legislators’ floor statements, newspaper editorials, or the generalized purpose to insure everyone.
In this post, I’d like to generally outline the textualist (or at least a textualist) case for the government’s position in Halbig that I advanced during my portion of the Cato Halbig conference. You can, of course, read the government’s briefs yourself! But my goal here is to make things a bit more accessible and perhaps to add a few tweaks to the government’s arguments
These text-based arguments are worth exploring for two reasons: First, I think the government wins on the text and the text alone. No need for Chevron, no need for ambiguity, no need for difficult-to-divine congressional intent—just the text of the statute itself. Second, if the government’s supporters are going to convince people (whether judges or voters) then we need to advance arguments that do more than preach to the choir. Folks who already share the government’s generalized understanding of the ACA’s purpose or intent likely don’t need much convincing that subsidies are available on federal exchanges. But folks who are on the fence or who come to the debate (for whatever reason) hostile to the government’s position do need convincing. And to convince them we need to really engage with arguments that might speak to the unconverted. So here goes:
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’ll be writing 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. Other reflections 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).
Much of the argument surrounding the merits of the Halbig decision has focused on intent: Did Congress intend to limit tax subsidies to state-run exchanges? Or were the subsidies meant to be available on federal exchanges as well, despite the statute’s language limiting subsidies to an “Exchange established by the State under section 1311.” The challengers have focused on the statute’s text, while the government’s supporters have often (not always or exclusively, but often) focused on unexpressed legislative intent. As explained here, I’ve long thought that the pro-government arguments should focus more on the text.
Statutory Provisions Working Together
Textualism and Context
With that in mind, I began my remarks at Cato by setting out some general ground rules for statutory interpretation, based on Justice Scalia’s recent opinion in UARG v. EPA from last Term: Continue reading
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