Matthew Holt

What’s wrong with Cannon, Halbig & King in 5 tweets

When the latest post from Michael Cannon–he who seeks to sink the subsidies attached to the Federal exchange–hit my inbox, I wondered, “Why don’t his opponents stop arguing the specifics, and instead explain what the Supreme Court ought to do. I also don’t see why Mark Andreeseen (@pmarca) should have all the fun with long Twitter essays. So in only 5 tweets complete with misspellings and other contortions to get my thoughts into 140 characters, this is what I sent back

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Matthew HoltJohn R. GrahamAllanMatthew Holt@BobbyGvegas Recent comment authors
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Allan
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Allan

Based upon Gruber the intent was to force states into creating exchanges. I just heard that Scalia made some comments that were very similar to mine. Partisans may make the argument you are making, but the fact is that there are many legal problems with the ACA and if one accepts Madison vs Marbury one recognizes that the Supreme Court has the right to be involved in this case. Maybe they will do what they should have done in the first case and said the bill needs to go back to Congress for a legal rewrite. If you are interested… Read more »

@BobbyGvegas
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Gruber was never a member of Congress. His views are irrelevant. The actual words of the law are what matter. The intent is clear.

@BobbyGvegas
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“the fact is that there are many legal problems with the ACA”
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Not relevant to King v Burwell. Sections 1311 and 1321 are the only pertinent clauses regarding this petition.

Allan
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Allan

Not directly relevant, but then one could also argue that the ACA was not relevant to the Constitution. Some might feel that way, but it is still Constitutional unless the Supremes say otherwise. …And what is relevant or not is determined by the Supremes, not you or me.

@BobbyGvegas
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“what is relevant or not is determined by the Supremes, not you or me.”
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We agree on something. Imagine. My Con Law prof (and Thesis Chair) once remarked: “What is Constitutional?’ Whatever SCOTUS says it is.”

And, while I think they will uphold (probably 5-4, with Kennedy giving Roberts cover), neither would I be surprised by a 5-4 vote to strike the federal HIX subsidy authority.

Kennedy’s questions and comments today seem to me that he will vote to uphold the ACA on this count.

Allan
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Allan

I don’t guess based upon the interest or lack of interest of judges. Sometimes a judge will ask questions making it look as if he were favoring one side only because his mind was made up and he was trying to make sure by giving another chance to the side he didn’t intend to favor.

Allan
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Allan

Gruger was the intellect behind the bill something those that voted on it never read. I’m sure over drinks the staff aids discussed how that portion of the bill would force the states to create the exchanges. We may hear a lot of denial on Capital Hill, but the Dems own that provision. They could have gotten rid of it before the law was passed.

@BobbyGvegas
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Doesn’t matter to this peitition what Gruber thought or did.

Allan
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Allan

That is what you think. But what you think doesn’t matter. Only 9 people count.

@BobbyGvegas
Guest

“what you think doesn’t matter. Only 9 people count.”
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Indeed. And, none of them will have the name “Gruber.”

BTW, plaintiff’s Counsel for King appears to have lied to SCOTUS.

http://regionalextensioncenter.blogspot.com/2015/03/obamacare-back-at-scotus-orals.html

Allan
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Allan

Bobby, you spend too much time guessing what the Supreme Court is going to do. Political division has been with us before the nation was born yet we expect that division to be solved by 9 human beings that have human fallibilities.The only reason we accept a majority opinion as law is because the alternative way of making decisions is at the point of a gun. The sum total of many of these decisions revolves around the debate of freedom vs coercion. Choose your poison.

@BobbyGvegas
Guest

Legal analyst Jeffrey Toobin comes to my conclusion in The New Yorker.

http://regionalextensioncenter.blogspot.com/2015/03/obamacare-back-at-scotus-orals.html

Allan
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Allan

I don’t know why people are so horrified or surprised that this case ended up in the Supreme court. The bill was not complete and because of the death of Ted Kennedy was passed under dubious conditions. It would not have passed had the bill been cleaned up as usually done and then voted upon. The Supreme Court has been known to return such bills to Congress for them to finish writing instead of the Supreme Court. We now have a problem. One part of the bill says there is no tax credit while other clauses can be interpreted to… Read more »

@BobbyGvegas
Guest

This is what is known as “motivated reasoning.” King v Burwell turns not on constitutional Branch perimeters but on the clarity of congressional intent as it goes to HIX. Notwithstanding the general Frankenstein cut ‘n paste pastiche nature of the PPACA (or any large piece of federal legislation, for that matter), 1321 (pp 85-86) plainly supplants and trumps 1311(d) (page 72).

@BobbyGvegas
Guest

ACA Section 1321 clearly trumps Section 1311. Feds have HIX authority where states fail to act. Full.Stop.

http://regionalextensioncenter.blogspot.com/2014/11/clincal-workflow-yawl-yall.html#PPACA

civisisus
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civisisus

oh, Jeff, dry up. Courts exist to “decide what you meant” – why even pretend otherwise?

Once Roberts sinks the harpoon in Scalia’s bloated, sclerotic carcass on Burwell, we’ll have seen the last of the Sup Ct taking frivolous cases mounted on the interpretation of 4 words buried in a 906 page statute for – oh, at least a year.

Jeff Goldsmith
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Jeff Goldsmith

I’m just saying . . . if you care about what you’re writing, you leave as little to chance or politics as you can. . .

Saurabh Jha
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Saurabh Jha

I apologize in advance to the Textualists but this is a ridiculous lawsuit. But even more ridiculous is how much of life in general and healthcare in particular is governed by statutory language. This absurd lawsuit is a mirror to even greater absurdities.

I hope common sense – aka rock star John Roberts – prevails.

Jeff Goldsmith
Guest
Jeff Goldsmith

As someone who drafted legislation earlier in his career knows, the job of a good draftsman is to ELIMINATE all doubt about legislative intent to proof your law against precisely challenges of this sort. It isn’t a “cut and paste” exercise; it’s a labor of love. It’s also why OCD types are prized legislative staffers. You should never put Courts in a position to decide what you meant. . . .