Drafting error vs. poor draftsmanship

Obamacare by its express and unambiguous terms limits Obamacare subsidies to people using health care exchanges “established by the State.” Thus, subsidies to people in the federal exchange are not permitted, as these exchanges obviously are not established by the State.

However couched, the argument that subsidies should nonetheless accrue to people in the federal exchange boils down to the notion that the limiting language of the statute is the result of “drafting error.” This must be so, leftists argue, because otherwise Congress included in Obamacare the seeds of its own destruction, giving governors who choose not to establish exchanges the power to kill this law. Accordingly, courts should take whatever liberties are necessary to avoid the absurd product of mere drafting error.

But the “error” at issue here (if there was one) is not a simple case of drafting error. A legislature might create special lanes for rush hour traffic to be used only by cars with four or more passengers between the hours of 5:00 p.m. and 6:30 p.m. As a result of drafting error, the final bill might make these lanes available only to cars with forty or more passengers. Or it might make the lanes available between the hours of 5:00 a.m. and 6:30 a.m.

Even in this instance, the best judicial course is to let the legislature correct its error. But if the error is manifest from, say, the legislation’s conference report and/or the floor debate, there is no harm in a court correcting the error.

But suppose there is evidence that the legislators were concerned about traffic jams that occur as early as 4:30 and as late as 7:00. Or suppose the legislation contains a funding provision grossly inadequate to construct the new traffic lanes.

One could call these provisions drafting error, but they are more accurately described as poor draftsmanship. The faulty provisions appear in the legislation not by accident but by intent. A moment’s reflection might well have led to their exclusion or deletion, but if so, that moment never occurred.

In this situation, it is clearly improper for a court to “fix” the legislation. Courts do not serve as editors for lawmakers. They must give effect to what legislators write into law, not what they would have written if they were more careful.

Correcting for typos is one thing. Nullifying provisions intentionally (if mistakenly) written into law is quite another.

I should add that, in the case of Obamacare, it is far from clear that the provision in question here — the one that limits subsidies individuals in state exchanges — actually slipped into the law as a result of negligent drafting. Andy McCarthy makes the case that Congress knew what it was doing here. Ramesh Ponuru does so on here.

But it doesn’t matter whether the provision appears in Obamacare because Congress was half-witted or too clever by a half. The provision exists, and it is illegitimate for a court to nullify it.

HBO, Beyond the Pale

HBO has done some good things, like Rome and Game of Thrones. But this is one of the most appalling things I have seen in a long time. There is an HBO program called “True Blood” that apparently is about vampires–way to be cutting edge, right? In its most recent episode, it featured a Ted Cruz fundraiser at the George W. Bush presidential library. In the clip below, you can see the characters discussing the fact that only “assholes” are going to the Ted Cruz event, while a woman, having dressed for the event, describes herself as a “Republicunt.” The clip concludes with a vampire saying that of all the horrible things he has seen in the last 100 years, the Ted Cruz fundraiser is the worst.

First the video, then some comments:

1) The show’s producers invited Sarah Palin to appear in the episode, apparently for additional “Republicunt” titillation. She declined. These people are beneath beneath contempt.

2) Every time you think the culture can’t possibly sink any lower, it does. But the decline is not uniform: it is inconceivable that any commercial media outlet would describe those who attend a Hillary Clinton fundraiser as “assholes,” or refer to “Democunts,” or whatever the word might be. If, by some chance, such a thing were to happen, it is impossible to imagine the outrage that would follow. That wouldn’t be just a war on (liberal) women, it would be gender genocide.

3) Outrages like this one can’t be attributed to commercial motives. Why would producers of a television program deliberately alienate at least 1/3 of their potential viewers? Well, OK, it is probably less than a third–Republicans aren’t likely to be watching a dumb show about vampires who use bad language in the first place. But still: by any calculation of profit and loss, it is stupid to antagonize members of either major party. This kind of thing is purely ideological.

4) What is it about Ted Cruz? In a very short time, he has achieved a sort of heroic status on the Left. It is greatly to his credit, but I can’t quite figure out how he has done it. Among liberals he seems to be code for something, I am not sure what.

5) There is a serious purpose behind this demonization of Republicans. Many have wondered how the Obama administration keeps its head above water, given its awful record. Likewise, how does a party led by such laughable figures as Harry Reid and Nancy Pelosi remain competitive in Congress? Democrats can’t talk about their records, so they do what they can: they demonize Republicans. While “True Blood” is an extreme instance, a large proportion of “mainstream” news reporting serves the same purpose. The Democrats may be bad, the media want ill-informed voters to say, but at least they aren’t Republicans! Or Republicunts, a term that is perfectly acceptable within a certain degraded demographic–a demographic that votes overwhelmingly Democratic.

What’s next after Obamacare’s defeat in Halbig v. Burwell? [updated]

As Steve has noted, the U.S. Court of Appeals for the District Columbia today invalidated the IRS regulation that provides for insurance subsidies to millions of lower-income Americans using the federal Obamacare exchanges. The ruling means that in 36 states, Obamacare subsidies will not be available, making its insurance coverage unaffordable to many Americans and potentially crashing the system.

The Court’s ruling, by a vote of 2-1, is clearly correct. The statute expressly limits federal subsidies to health insurance exchanges “established by the State.” A federal exchange is manifestly not an exchange established by the State.

It is not the proper role of courts to rewrite statutes to make them better comport with how Congress may have intended them to operate. That’s the self-appointed job of administrative agencies, and it’s not a proper role for them either.

As an old-time Maryland judge once wrote, if the legislature didn’t intend for a statute to mean what it says, it should have said so.

Nancy Pelosi didn’t say so. Instead, she said Congress needs to pass Obamacare to find out what’s in it. Congress passed the law, we found out what’s in it, and the contents do not include subsidies for those using the federal exchange.

Pelosi may get the next laugh, however. There’s a decent chance the decision will be reviewed en banc — i.e. by the full D.C. Circuit. That court was recently “packed” when Harry Reid changed the age-old rules for confirming judges below the Supreme Court level to effectively preclude filibusters.

The result is three new left-wing judges on the D.C. Circuit. They are prepared, presumably, to rubber-stamp almost anything Obama desires, and certainly to ignore the plain language of Obamacare in order to sustain the president’s signature legislation. Their votes could prove decisive in overturning today’s 2-1 ruling.

Will the Supreme Court become involved? Probably not until a Court of Appeals rules definitively as the D.C. Circuit ruled today — in other words, only if today’s ruling avoids or survives en banc review or another appeals court reaches the same result and it avoids or survives such review.

Absent a court of appeals ruling disturbing the status quo, the Supreme Court is not likely to inject itself into this dispute. Indeed, the Supreme Court might act even more cautiously and wait for a split among the Circuits.

What can we expect from the Supreme Court if it reaches the subsidy issue? My guess is that Obamacare is already sufficiently entrenched (and will be even more so when/if the Supreme Court rules) that a Supreme Court majority willing massively to disturb the operation of the Act will be hard to come by.

That, at least, is how things seem to me at first blush.

UPDATE: How does en banc review work in the D.C. Circuit? The standard for obtaining such review requires either a lack of uniformity in panel decisions (which isn’t present here) or a question of exceptional importance. It’s easy to argue that Halbig presents such a question. Thus, although en banc review is rare in this Court (as in most), the standard won’t be a hurdle for judges who desire en banc review.

Only the “active” judges of the D.C. Circuit decide whether to hear a case en banc. And only the active judges, plus any senior judges who were on the original panel, are eligible to hear a case en banc. This is unfortunate because this particular court is full of excellent conservative senior judges.

Among the non-senior judges, though, the majority is now decidedly liberal, thanks to Harry Reid’s court packing. Of the 11, only Judges Henderson, Brown, Griffith, and Kavanaugh were appointed by a Republican president.

Two of the judges on the panel that decided Halbig are senior. Of the two, Ray Randolph was in the majority and Harry Edwards dissented. So in the event of en banc review, they will cancel each other out, leaving the liberal majority of active judges in control of the outcome.

Dueling Appellate Court Opinions on Obamacare: Where Do We Go From Here?

This morning, as Steve noted earlier, a panel of the D.C. Circuit Court of Appeals held, in Halbig v. Burwell, that the Affordable Care Act does not permit the federal government to subsidize persons who enroll in exchanges run by the federal government, as opposed to a state. Just two hours later, a panel of the 4th Circuit Court of Appeals ruled the other way on exactly the same issue in King v. Burwell. A great deal hinges on this: I believe everyone agrees that if the federal government cannot subsidize participants in the federal exchange (which covers 36 states), Obamacare will collapse.

The issue is one of statutory construction: what did Congress intend? Where a statute is unambiguous, there is no further inquiry; Congress intended what it wrote. The D.C. Circuit opinion explains succinctly plaintiffs’ argument that the ACA clearly authorizes subsidies only for the state exchanges:

Section 36B of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act (ACA or the Act), makes tax credits available as a form of subsidy to individuals who purchase health insurance through marketplaces—known as “American Health Benefit Exchanges,” or “Exchanges” for short—that are “established by the State under section 1311” of the Act. 26 U.S.C. § 36B(c)(2)(A)(i). On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d). But the Internal Revenue Service has interpreted section 36B broadly to authorize the subsidy also for insurance purchased on an Exchange established by the federal government under section 1321 of the Act.

In order to win, the government has to read the phrase “established by the State” out of the statute. It is noteworthy, however, that the D.C. Circuit did not stop with the plain language of the law. It considered, and rejected, the government’s argument that applying the statute literally leads to absurd results–odd, perhaps, but not absurd. You can read the court’s opinion, both the majority and the dissent, here:


The 4th Circuit opinion says that the statute is ambiguous, despite the seemingly-clear phrase, “established by the State.” It goes on to consider various ways of reconciling the ambiguity, concluding that the government has the better of the argument, albeit not decisively. The decision, then, rests on the principle of deference to an administrative agency (the IRS) if the agency’s interpretation of the statute is a reasonable one. (For thoughts on the baleful results of that principle, see our ongoing series, “Is Administrative Law Unlawful?”) Here is the 4th Circuit’s opinion:

4 Th Circuit Aca

It seems clear that this issue is headed for the Supreme Court. There may be an intermediate stop in the D.C. Circuit, as the entire court may choose to re-hear the case. If that happens, we may see the fruit of Harry Reid’s demolition of the filibuster rule. The Democrats desperately wanted to stack the D.C. Circuit with liberal judges, but were restrained from doing so by the need to marshal 60 votes for confirmation. With the filibuster out of the way, the Democrats needed only 51 votes for confirmation, and the court now has a 7 to 4 Democratic majority.

If the D.C. Circuit does re-hear the case en banc, it may reverse today’s panel decision. If that happens, there will no longer be a split between the circuits, but one would think the Supreme Court will take the case regardless. In that event, we may be back in familiar territory, with Justice Anthony Kennedy deciding what Congress had in mind. If you think that discerning Congress’s intent is, in this case, a fool’s errand, since no one in Congress had read the law before voting on it, you are probably right. Which is one reason why courts look to the words of a statute rather than to the subjective intentions of 535 legislators. Given that Justice Kennedy was willing to deal Obamacare what he thought was a death blow under the Commerce Clause, Democrats cannot view their ultimate prospects with much confidence.

Breaking: Obamacare Takes Torpedo Below the Water Line

Wish I had time to get through the just issued DC Circuit Court of Appeals ruling striking down the IRS twisting of the Obamacare statute’s clear language on state-based exchanges (I’m at the Reagan Library all this week doing a Gipper 101 course for high school teachers—see photo nearby of Sunday night’s opening talk—and I have to be off momentarily for this morning’s classes), but this looks to be HUGE, and making it more likely that the Supreme Court will have to take it up.

Will Chief Justice Roberts want to bail out Obamacare a second time?  I doubt it.  They could simply reject the appeal and swiftly uphold the DC Circuit opinion, and put a quick end to a major prop of Obamacare.  Then libs will have two Federal courts to complain about.  (An en banc rehearing by the DC Circuit is also a distinct possibility.)

Here’s the National Journal story just out:

Obamacare was just dealt a major loss in court.

The U.S. Court of Appeals for the D.C. Circuit ruled Tuesday that more than half the country shouldn’t be receiving tax subsidies under Obamacare—a ruling that could cripple the health care law if it’s ultimately upheld.

The 2-1 decision in Halbig v. Sebelius is the first victory, in any court, for a legal challenge that says the tax subsidies should be available only in states that set up their own insurance exchanges.

The estimable Jonathan Adler has more first reactions here.

And here’s my mug from my opening talk at the Reagan Library Sunday night–I kind of like the look, no:


Suing the President

Liberals are in typical scoffing and mocking mode about the House pursuing a lawsuit against President Obama for failure to execute the laws faithfully, another example of the situational ethics of liberalism as well as their contempt for the separation of powers and the Constitution itself.  Liberals never thought it odd when members of Congress attempted to sue both Presidents Bush (unsuccessfully) for violating the War Powers Act, or President Clinton (successfully) over the line item veto, or President Reagan (successfully) over the first iteration of the Gramm-Rudman Act.

To be sure, most attempts of individual members of Congress to sue the president are unsuccessful for lack of standing, which is what makes the current legal strategy—usually the kind of creative reading of the law that liberals love everywhere else—so plausible.  Mark Tapscott of the Washington Examiner observed the other day that the theory is attracting support from across the spectrum of ideological opinion among the law professoriate.  But the real laurels should go to Elizabeth Price Foley, who explained in a hearing of the House Rules Committee last week just why this lawsuit can go forward and is likely to succeed on the merits (just 7 minutes long):

Exit question for liberals: If you don’t like the House lawsuit, would you prefer impeachment instead?

Hamas presents

The invaluable MEMRI supplies the subtitles for the video of Hamas at work underground; the video was recently broadcast on Al-Jazeera TV in Qatar and Al-Quds TV in Lebanon. In the footage, as Stuart Winer notes in the Times of Israel story on the video, heavily armed masked men in camouflage can be seen making their way through the narrow tunnels. The video’s narrator claims that the are on their way to carry out a “military operation against the occupation forces.” The excitement mounts.

If there was a military operation, it would have been directed against Israeli civilians (the “occupiers”) rather than against the IDF (“occupation forces”). That’s just the way they roll and it is chilling.

It takes some creativity to endow terror tunnels with glamor as Hamas continues its advances in violating the laws of war and civilized norms, all in the name of Allah, of course. Check it out.