Saturday, July 26, 2014


Statutory Construction Rules Regarding Legislative History

I've written about the Halbig case here and here. Of course the left is up in arms that the court did its job following the rules, because its proper interpretation probably spells a more rapid doom for the ACA than without this decision. The left goes normal nutty and calls the decision everything bad, including criminal. I ran across this article this morning and it's interesting. The gist:

Did the people who designed Obamacare intend to deprive millions of people of health insurance, just because officials in their states decided not to operate their own insurance marketplaces?
A lawsuit making its way through the federal judiciary, and perhaps on its way to the Supreme Court, claims the answer is yes. And while every federal official and member of Congress who worked on crafting the law in 2009 and 2010 disagrees...  (Emphasis added).

But that's not how it works. If in fact the court is at a loss to construe the intent of the legislature through the plain meaning of the statute's words, that is, if the law is truly ambiguous, then the court looks to legislative history, what the authors and legislators said at the time of the law's passage about what they intended. But the court only looks at what they said back then. The judges and justices do not look at what the legislators say now. There's a very good reason for this. Legislators and drafters lie. "I see what the statute says and how you've interpreted it, but we never intended it to mean that." That doesn't cut it. The only thing that matters, if you have to resort to legislative history, is what was said back then, before passage.

Jonathan Gruber, from MIT, is widely held to be the architect of both Romneycare and Obamacare. Check this out if you disbelieve me.

Here is what he's saying now about the intent of the legislation:

Chris, it is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo... It`s just simply a typo, and it`s really criminal that this has even made it as far as it has... But it`s literally insane to think that
because of a typo in the law, which happened simply because Republicans obstinacy would not let the bill go to conference -- that that typo would bring down the law is just a failure of democracy.

Typical douchbaggery from the left--call the rational people crazy criminals while you lie and lie and lie. We on the right are used to this sort of projection.

But here's what Gruber said before the ACA was passed:

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.
Gruber: Yeah, so these health-insurance Exchanges, you can go on and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this. (Emphasis added).

And he said it again here. I'll update as more and more of these are located as Gruber was apparently on some sort of book tour at the time and may have well repeated this a lot of times.

Back to what Jonathan Cohn at the New Republic tries to sell in his unconvincing attempt to defend Gruber's bald face lying.

Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake."

Yeah it was just a mistake, (every time you said it as part of your prepared speech), that you described exactly what the law actually said.

Here's Gruber totally failing to defend himself:

But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-oyou know, like a typo.

A speak-o? Other MIT graduates everywhere are cringing. But it wasn't a subsequent statement, it was a statement contemporary to the law's passage--the kind of statement that is actual legislative history. The lie you're trying to sell now is the subsequent statement, the one the court never should rely on. For a MIT grad, this guy's none too savvy.

Here's legislator Max Baucus, former Democrat Senator from Montana, also saying that the intent of the legislation is exactly what the plain meaning of the statute says it is. And Baucus said this before the ACA was passed. What are the odds the 'architect' of the legislation would say twice that it means exactly what it says and have another supporting legislator say the same thing and their contemporary statements are merely speak-os? Now I'm cringing to use the word.

I'd say 'good try' to the lefties trying to rewrite the legislative history but it wasn't a good try. You have failed completely to convince any rational person that the intent of the law did not match its words. You have failed completely to undo the actual legislative history that counts. You have failed to pretend convincingly that you did not mean what you said twice (at least). And you have been so obnoxious about it, that those who happen to follow this case but who do not share my contempt for many on the left might start to in the very near future.

Keep the charade up. Your helping your opponents. Call us stupid crazy obstinant criminals for getting it right some more. I triple dog dare you.

UPDATE: It just hit me that there won't be much other valid legislative history. Usually the information outside the law itself about the intent of the legislature comes from speeches and debates in committees and on the floor of the House and Senate about the bill and the parts of the bill being examined in committee. I don't think there was any of that for the ACA. More super competence by the Democrats.


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