D.I.G. King v. Burwell?

GruberThe hubbub over the ACA is getting weirder and weirder. Amidst other revelations, there appears to be an extensive but as-yet undisclosed legislative history bearing on the pending Supreme Court litigation in King v. Burwell. One surprise at a time, though:

Professor Jonathan Gruber has by now well earned the George Washington Cherry Tree Award. Congenitally incapable of telling a lie, he blurts out an inconvenient truth about the act every time he opens his mouth. In today’s Wall Street Journal, Tevi Troy unveils “Another ObamaCare Deception” cheerfully revealed by Professor Gruber, this one having to do with an artfully disguised tax on “Cadillac” health plans that will eventually encompass Chevys.

What of it, though? Contrary to earlier official representations, Professor Gruber neither designed nor carved the ACA’s “three-legged stool” (the professor’s coinage, which has disappeared from the administration’s parlance ). According to President Obama, the guy is “some adviser who never worked on our staff.” (All presidential quotes below at this link.) True: on staff, the good professor wouldn’t have earned the $400,000 the administration paid him for his work. Ex-Speaker Nancy Pelosi, meanwhile, has never met the man. Ok, maybe not never. But not really.

Also, the President “completely disagree[s]” with the adviser’s position “in terms of the voters.” Mr. Obama’s artful phrasing leaves room for the possibility that the voters are in fact stupid (witness the recent election returns); it’s just that contrary to Professor Gruber’s averments, the ACA’s enactment did not exploit that debility. “It’s fair to say,” the President opined in gorgeous Brisbane, “there is not a provision in the health care law that was not extensively debated and was not fully transparent.”

This startling piece of news well-nigh compels urgent legal action in King: a joint motion by plaintiffs and defendants (the government) to DIG (dismiss as improvidently granted) the entire case and to remand it to the district court, with instructions to compel discovery from whosoever has access to this “extensive debate.” The parties agree that the ACA provisions at issue—sections 1311 and 1321—are crucial to the entire ObamaCare architecture. They also agree that apart from a few snippets and circumstantial evidence, there is no legislative history. The government doesn’t have any. It simply insists that the plaintiffs don’t have any, either, and so there—as if there were some legal canon to require history in support of plain language (there isn’t).

The likely truth is that there was no history on this or countless other ACA provisions because (as Tyler Cowen and others have cogently explained) there was no intent except to get the statute passed and then find out what’s in it. The ACA’s masterminds didn’t just bet on the stupidity of American voters; they also bet on the stupidity of Democratic legislators, many of whom have long since joined Professor Gruber in exile because Nancy and Harry sent them there. That said, the existence and sudden appearance of a heretofore undisclosed “extensive debate” on Sections 1311 and 1321 would hardly be the first strange twist in this saga. In fact, it would be wholly consistent with the way in which the statute was passed.

We should find out, for reasons of political hygiene.  DIG, remand, and send the subpoenas.

On second thought, never mind.

Reader Discussion

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on November 17, 2014 at 23:13:23 pm

There is this bit of legislative history: http://pjmedia.com/instapundit/192311/

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Richard S
on November 18, 2014 at 00:38:15 am

I, for one, would love to hear discovery on this topic:

"Well, first, we were naturally going to grab stuff on establishing the exchanges from the Finance bill - s2225(b)(1) - on account of every instance of 'established by the State' was more-or-less copied from there in the first place. You know, 1205 to 1401, 1611 to 2101, and 4401 to 6005. And oh yeah, 2201 - the State's side of the 'no wrong door' stuff . That came section 2239l.

Then someone threw a fit because the State-run exchange was snuggled right up against the HHS fallback - consecutive sentences, for God's sake. And here's the thing: we all knew as a matter of general principle to keep mentions of Federal authority as far as away from the State-run exchanges as we reasonably could - you know, Federal takeover and all that.

Naturally, we looked at the HELP bill, but that was even worse, of course.

So, we knew had to break them apart, and while some were comfortable with keeping them at opposite ends of the same section, others were were insisting on burying the HHS fallback in a randomly named section as far away as possible without actually ending up in a different title - or bill!

Eventually, we started to converge on a compromise of the putting the fallback in the section following the State-run exchange, but only after we got rid of 'electing' in the 1311...a simple "Shall establish" seemed safe - after all, the bill offered a the States a non-harm no-foul alternative...but we still had one hold-out until someone suggested changing "the" to "such" in 1321. I mean, we all figured, "such" is less definite than "the" - sorry - but it was still clear what we meant. I mean, it was, right? Right?"

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Ken Kelly
on November 18, 2014 at 01:44:11 am

That was a swing and a miss by the plaintiffs, I'm afraid.

Everbody accepts (now) that the Baucus bill - S. 1796 - authorized tax credits through all exchanges. The claim that tax credits were only authorized in exchanges in the 'electing' States was made to the DC panel which found for Halbig, and they completely ignored it in their opinion.

Even someone who didn't know what S. 1796 said about tax credits would not naturally read the Baucus-Ensign colloquy the way Instapundit does - at least, not if they knew who Baucus was and what the Senate Finance committee is. A fair paraphrase of the exchange would be:

Ensign: How does this committee have any authority over State insurance laws?
Baucus: We have jurisdiction over federal taxes, and the availability of the federal tax credits authorized by this bill is conditional on States conforming their coverage laws to this bill's provisions.

The inventor of this reading has given up on this line of argument, though he has not actually given up on his reading of the colloquy:
The Halbig Cases: Changing My Mind On The Baucus-Ensign Colloquy

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Ken Kelly
on November 18, 2014 at 02:13:07 am

Serves me right for trying to fancy:

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Ken Kelly
on November 22, 2014 at 11:42:03 am

Depressing, smack the slop down in front of the Democrats and they go for it. Is it more federal power?, great, where do we sign?" This is not constitutional government, a kindergarten perhaps but not government.

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john trainor

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