Keep Calm and Carrion

Image via Teepublic.

Scott Lemieux has composed what ought to be the definitive assessment of the significance of Obamacare troublemaker Jonathan Gruber—BREAKING! Person Good At Running Econometric Models Says Silly Things About Politics!—but there was one detail emerging from the comments that I thought should be dealt with by a heedless and ill-informed non-attorney, so I'm stepping up to the plate:

At the time when Gruber incorrectly said
(in video that magically appeared in the Intertubes last summer)
that states that failed to set up their own exchanges
and forced the feds to do it for them instead
would not be able to get the premium subsidies promised in the Affordable Care Act,
thus giving comfort to the idiot rightwingers making the same claim in the Halbig case
on the basis of pretending that an editorial error in section 1401 of the Act
was actually what Congress meant to say
(like George Costanza, as Jonathan Chait noted,
insisting that from a legal standpoint Spain was invaded by Moops in the 8th century),
he was traveling the nation's state capitals offering his expertise in helping them set their exchanges up, apparently at something like $400,000 a pop.

(This may be one of the most complex sentences I've ever written, and I've broken it up as an aid to intelligibility.)

So if you're wondering, as I have been, what might have provoked him to tell such a ridiculous lie, there's one imaginable motive: money. It could have been part of his sales pitch to frighten state governments by saying if they didn't set up exchanges (and hire him to help crunch their numbers) the results would be very very terrible.

Of course it's also the case that setting up the exchanges was the right thing to do because that's how the law was designed, etc., etc., and that Gruber's modeling technique was by all accounts an extremely valuable tool in doing the job. Just saying.

I am still convinced, only partly on Seinfeldian grounds, that the Supreme Court's sudden and apparently unmotivated decision to hear the latest of the Halbig-type cases, King v. Burwell, doesn't mean that they're going to overturn the ACA.

A more important set of reasons comes from what we learned this week from criminal torture advocate and fan of supreme presidential power John Yoo, who offered four reasons in the National Review for believing that they're going to rule against the law, and who is plainly wrong on a number of counts.

1. The plain text of the statute denies subsidies to people who live in states without an exchange.

It does not at all. It fails to explicitly ensure the subsidies to such people, which is not the same thing. It doesn't say "no subsidies for people in federally-run exchanges", it just leaves the language on federally-run exchanges out (in section 1401 and nowhere else in the statute). In much the same way Article IV Section 2 of the Constitution says

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

The missing feminine pronoun does not mean Pennsylvania is constitutionally forbidden to extradite a female felon from New Jersey, and nobody right or left would ever say it did.

This reading is not absurd, because it creates a powerful incentive for states to create an exchange in the first place.

It is certainly absurd, because the governors and state legislatures who refused to create an exchange (that's why the drafters of the law had to provide for a federal one, not at all part of the original plan) were opposed to the ACA and hoped to see it fail. They still do. Why should this have acted as an incentive to them to try to make it succeed?—and for that matter, if it was meant that way why would have been hidden in the statutory language so that nobody including the authors of the bill seemed to know it was there until committed opponents of the legislation (Tom Christina, Michael Cannon, and Jonathan Adler) pointed it out?

2. There was no split in the circuits — the lower courts actually seemed to accept the Obama administration’s misreading of its own law. If the Court agreed with the lower courts, or wasn’t sure about it, they could have just allowed the issue to further percolate...

Question-begging (how often do you get to use that term correctly?!). I don't accept that it's a misreading. And it's not a question of what the Court could or couldn't have done, but the justices who agreed to hear it. We don't know how many of them there were, four or five, and if there were four than what they thought does not necessarily predict what the Court as a whole will do, as the next point implicitly acknowledges.

3. I assume Chief Justice Roberts is with the original four dissenters from Sebelius two years ago in opposing the administration. This gives him the chance to atone for his error in upholding Obamacare as a valid use of the taxing clause in that case. 

That's two more petitiones principii: one openly admitted, the assumption that five justices agreed to hear the case and Roberts is one of them, and one slipped in, the assumption that the Sebelius ruling was an error.  Yoo and the National Review readers may believe with all their hearts that it was an error, but it doesn't follow that Roberts does, and in all honesty do you really think of Roberts as the kind of guy who dwells on his mistakes and looks for opportunities to make up for them? Maybe he is, but I certainly don't think we should be assuming it.

Indeed, Yoo's own phrasing suggested to Linda Greenhouse at the New York Times that Roberts was likely not one of the votes for cert.:

that the four, still steaming over what the right wing regards as the chief justice’s betrayal two years ago, voted to hear King v. Burwell not only for its destructive potential, but precisely to put the heat on John Roberts. I hadn’t really focused on this idea until I read a piece that John Yoo posted on National Review Online the day after the court granted the case.... [Yoo] is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.

That would make Yoo's column (could even have been inspired by a phone call from Thomas) more or less part of the campaign, and I find the hypothesis completely persuasive. But (as Greenhouse doesn't go on to say) if Roberts happens not to be the kind of guy who dwells on his mistakes and looks for opportunities to correct them, but more the kind of guy who is pretty sure he doesn't make mistakes and prefers that people who think he made a mistake should be seen as wrong, such pressure might just piss him off.

4. The Court will be acting in agreement with, rather than against, majority wishes. The last election gives the court political cover to cut back on Obamacare. Given the election results, a majority of Americans support repeal or radical restructuring of Obamacare. 

And if anything really pisses the Justices off, every one of them, it's Mr. Dooley and the axiom that "No matter whether th' Constitution follows th' flag or not, th' Supreme Coort follows th' illiction returns." Being told they need to vote with the majority of the voters isn't really the way to win their hearts. In any event what these election results show is that the very large majority of Americans—two thirds—don't think it's worth having an opinion about.

Who undoubtedly has an opinion, though, is the titans of the insurance and pharmaceuticals industries, who have made huge investments in the new dispensation, reorganizing the way they do business, and backing care providers and startup data analysis and other tech firms as a way of generating profits that aren't capped by the Medical Loss Ratio rule.

And here's where I think not just Yoo but just about everybody making predictions as to what's going to happen with Burwell is making a mistake. There's a widespread tendency to think of conservatism as a coherent ideological stance when it is really a coalition of co-dependent minority views, people who could never win an election on their own but can hope to do it with one another's support under the general banner of selfishness and fear.

One of these groups is the actual traditional ruling class or one percent, which is wholly uninterested in Jesus and abortion and affirmative action and so on but pretends to be so for the sake of the votes these issues attract. There are certain issues, though, where they cannot really go along with the rednecks, such as immigration, or banking (the Tea Party kept hollering for criminal banksters' heads, but the Republican Party wouldn't have any of it). The same goes for insurance.

Alito and Thomas, I believe, are at least very friendly with the Snake Handler caucus, and Scalia believes himself to be the Great Conservative Intellectual unbound by any rules of interest, or logic for that matter, but Roberts, it seems to me, is clearly the old-fashioned kind of conservative, who identifies not with the GOP but with the ruling class directly; this would account for his previous ruling on the ACA, upholding the individual mandate fine/tax in June 2012 but allowing states to opt out of the Medicaid expansion. What he was upholding was the part the insurance companies were invested in; they had no interest in Medicaid, so he let that go.

Is he really going to hang the FIRE economy out to dry now, two years later, to earn a word of praise from John Yoo by emulating George Costanza? Pardon me, but I really don't think so.

Obamacare premiums falling in 48 major cities #UniteBlue #libcrib http://t.co/DoPAWzcBEr #UniteBlue #libcrib pic.twitter.com/hMXam4uZyL
— Robin Simpson (@robin182zz) November 12, 2014