Monday, November 10, 2014


A Legal Conundrum--How Do We Know What Legislators Intended Except Through What They Drafted?

When hack political pundit Paul Krugman writes about foreign work forces, a subject for which he won the Nobel Prize in Economics, I believe him, because all I've ever read about economics was by Karl Marx. However, when he writes about legal subjects, particularly statutory construction by courts, as he did here yesterday, he's on my turf and I have a lot to say in direct contradiction.

I've written a few times about why the rules of statutory construction seem to doom the IRS regulations that allow federal subsidies be paid to people who buy health insurance policies on federal exchanges. That's something the plain language of the ACA (Obamacare) prohibits. Let's take a look at Paul's two cents on the subject, (two cents is way too much to pay for his drivel). Here we go.

He calls interpreting the statute as written a frivolous attack. I'm not sure he knows what frivolous means. He starts off with a story about a county clerk fixing the poorly drafted property description on a deed of his parent's house filed in that county. I have no doubt that county clerks have that power. Judges, on the other hand, looking at statutes don't have the power to amend absent extraordinary circumstances. First and foremost is the problem, how do we know what the legislators meant to say outside of the language they drafted, voted on and passed? The short answer is we don't. Here's Mr. Krugman's non- judgemental posing of the problem.

It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. But the fact that the suit is ridiculous is no guarantee that it won’t succeed — not in an environment in which all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law.

It is not clear in "everything else in the act" that the sections being examined do not say what they say. The only thing that's clear is the language of the sections under review. They say what they say. Paul can't seem to imagine that judges have rules for independent review of statutes and "ask[ing] the people who drafted the law" is not what you do. At least not first. He imagines that judges who follow the rules of statutory construction are doing it for political advantage. He's projecting. The construction rules are the opposite of partisan. Mean spirited Krugman, who senses a loss here, says that by making the decision to come the judges are doing something wrong, (not having a principled disagreement). This is the quintessential Democrat view of the opposition. Oh, and we don't ask the bill's drafters now, because they are unreliable witnesses, given to partisan lying. We look, if necessary, at the contemporary history of the drafting.

The subsidies for poor people forced to buy health insurance are available only for state run exchanges (markets) of which there are about a dozen and a half. That's what the law says. Clearly. Mr. Krugman seems to acknowledge this grudgingly.

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

His idea of "an incredibly hostile" reading is looking at the language of the statute and giving all words there their plain meaning. That's hostile? Only if you are a Democrat, apparently.

But how do we know that the law wasn't meant to say what it says? Again, Krugman says ask any Democrat now what they intended to write (but didn't). Sorry, that's evidence never used by Courts in interpreting laws.

Did the Democrats mean to put political pressure on the states to have a state exchange by limiting the subsidies to purchases only on the state exchanges--unavailable to people in states were the local government did not set up an exchange? I say yes and my source is not the NYT but the man generally considered to be the architect of the ACA, Mr. Gruber, who contemporaneously stated here (at least twice) that the law was indeed designed to put just that pressure on state governments because, exactly as it says, mirable dictu, only state exchanges can get federal subsidies for policies sold to the poor.

I take it as a sign that Krugman knows better and knows he's probably going to lose this that he goes, as Democrats are wont to do, completely ad hominem at the end. You probably don't have the winning argument if your big finish is to call the people deciding this corrupt. More projection.

Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.

Only those who accept, or actually expect, corrupt motives in their allies, routinely accuse their enemies of corruption without evidence of corruption. Krugman's revealing a lot about his thinking here but nothing about what the Court is supposed to do.

Anyway, we'll know by July next year. I am reasonably confident the Court will follow the well established rules of construction and rule the ACA says what it says.

UPDATE: Mr. Frey completely agrees with my analysis. I take that as a good sign.


When my law firm had to "fix" a real property legal description in a deed for a client, the first step was to find and look at the most recent survey. Then to consult with the county assessor's office to determine what their records said. Then to file a corrective deed, which the clerk & recorder shared with the assessor's office so that the correct description was shared with everyone who needed it, and the title chain was clear and clean.

Krugman doesn't share where his parents lived, but I strongly suspect that there was more to the "fix" on their property than a town clerk willy-nilly changing a deed description. For one thing, you'd have a really hard time getting title insurance after such an action.
Oh, yeah. And I meant to add: Krugman's an ass, and is proving himself an even greater ass with each column he writes.

But, like Ezra Klein and others of that ilk, I don't know why anyone with half a brain even reads him anymore.

By reading and disputing his nonsense, they (we all) merely lend some modicum of credence to his work.

Bah humbug.
Thanks for the details about deed correction. Perhaps Krugman was even lying about his opening story. I think we have to correct mistakes as often as we can. It doesn't empower lefty hack writers of columns to criticize them convincingly. I guess the hard part is the convincing. Thanks as always for your reading me and commenting.
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