It’s been some time since ‘Puter’s excoriated E.J. Dionne, America’s Foremost Mentally Retarded ColumnistTM. Frankly, ‘Puter got bored tearing apart Mr. Dionne’s “logic.” It’s not very challenging to do so.
But Mr. Dionne’s column, run in today’s Washington Post,* piqued ‘Puter’s interest. Mr. Dionne chose to write about the United States Court of Appeals for the District of Columbia Circuit’s recent decision in Halbig v. Burwell. Readers can readily discern Mr. Dionne’s storied open-mindedness from his column’s title: “A Conservative Judiciary Run Amok.” Classy.
Mr. Dionne makes the following observations:
- The D.C. Circuit “effectively gutt[ed] the Affordable Care Act on Tuesday.”
- The Court’s majority “showed how far right-leaning jurists have strayed from … impartiality.”
- America “is confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.”
Such good faith restatement of facts ‘Puter has never seen.** And that’s before Mr. Dionne gets to the Halbig decision itself. Mr. Dionne offers us the benefit of his legal wisdom with these gems:
- “Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them. Poof! There goes the health law in most of the country.”
- The majority “invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so.”
- “The extreme judicial activism here is obvious … .”
- “[I]f you accept there is ambiguity in the law, … Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.”
- “We cannot use judicial sophistry as an instrument of anti-democratic sabotage.”
Trenchant observations, Justice Dionne. Too bad reality and basic legal doctrine completely discredit your position.
To comprehend just how wrong Mr. Dionne is, let’s start with the basic facts.
Congress passed the Affordable Care Act. As part of the Act, Congress set up a system of exchanges. States could elect to set up an exchange or not. If states did not set up an exchange, the federal government must set up an exchange for the state. Policies purchased on state exchanges could receive tax credits. Policies purchased on the federal exchanges could not receive tax credits. Upon realizing federal exchange policies could not receive tax credits, the Internal Revenue Service issued a regulation interpreting the Act to allow tax credits for policies purchased on both state and federal exchanges.
That’s it. The IRS wrote a regulation authorizing it to do something (provide tax credits to all exchange purchased policies, state and federal) that the enabling legislation did not permit.
Here’s how the D.C. Circuit reached its decision.
- The Court applied Chevron v. Natural Resources Defense Council, asking “‘whether Congress has directly spoken to the precise question at issue,’ for if it has, we must give effect to its unambiguously expressed intent.”
- The Court acknowledged the provision “is but one piece of a vast, complex statutory scheme, and we must consider it both on its own and in relation to the ACA’s interconnected provisions and overall structure so as to interpret the Act, if possible, ‘as a symmetrical and coherent scheme.’”
- The Court ultimately holds: (1) “a federal Exchange is not an ‘Exchange established by the State’”; (2) the Act “does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges”; (3) the Act “plainly distinguishes Exchanges established by states from those established by the federal government”; (4) the federal government’s argument “that this construction generates absurd results” is wrong as it “does not render other provisions of the ACA unworkable, let alone so unreasonable as to justify disregarding [the ACA’s] plain meaning; and (5) the federal government’s “appeals to the ACA’s broad aims do not demonstrate that Congress manifestly meant something other than what [the ACA] says.
You really ought to read the entire 42 page majority decision to see how thorough and well-reasoned it is. It is a model decision, one which ‘Puter believes the Supreme Court is likely to affirm, if it gets that far.
As to Mr. Dionne’s tin foil hat allegations the D.C. Circuit majority has “run amok” and “strayed from … impartiality,” ‘Puter asks you to consider the following passages from the majority’s decision:
The point is that we don’t know, and in asking us to ignore the best evidence of Congress’s intent – the text of section 36B – in favor of assumptions about the risks that Congress would or would not tolerate – assumptions doubtlessly influenced by hindsight – the government and dissent in effect urge us to substitute our judgment for Congress’s. We refuse. As the Supreme Court explained just this term, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” And neither may we. “The role of th[e] [c]ourt is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’” (citations omitted)
More generally, the ACA’s ultimate aims shed little light on the “precise question at issue,” – namely, whether subsidies are available on federal Exchanges because such Exchanges are “established by the State.” As the Supreme Court has repeatedly warned, “it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law” because “no legislation pursues its purposes at all costs.” Thus, if legislative intent is to be our lodestar, we cannot assume, as the government does, that section 36B single-mindedly pursues the ACA’s lofty goals. (citations omitted)
Clearly, the D.C. Circuit’s majority is a court run amok, wantonly ignoring law to randomly pick and choose winners based on their personal policy preferences.
The D.C. Circuit’s majority did exactly what law requires. It followed the Chevron doctrine, despite Mr. Dionne’s false assertion it did not. The Court applied the clear language of the law Congress wrote, and refused to substitute its own judgment for that of the legislature. To do otherwise would be to legislate from the bench.
But that, friends, is exactly why Mr. Dionne and his liberal fellow travelers are irate. Liberals expect judges to legislate from the bench. See, e.g., Roe v. Wade. Liberals know there’s no way in hell Congress will be able to pass legislation authorizing subsidies for federal exchange policies. Democrats barely managed to cram the piece of dung that is the ACA through Congress when it controlled both houses. If courts won’t rewrite the ACA, then liberals know their Utopian dream of free shit (health care, in this case) for everyone will die, and die quickly.
The D.C. Circuit’s deference to the Constitution’s clear separation of powers has been all too rare during President Obama’s lawless administration. Perhaps that’s why it’s so shocking for liberals like Mr. Dionne to see it.
* ‘Puter used to read the Washington Post daily, but ever since they’ve gone to a 30 article cap per month, ‘Puter sticks with the New York Times and the Wall Street Journal. These access limits to regional daily newspapers drive ‘Puter nuts. It makes good sense if limited to internet users in your hard copy distribution area, but other than that, you’re alienating people.
** This is a good example of the Left’s argument style. First, assume your opponent acts solely from evil motives. Second, demonize the living crap out of your opponent. Third, ignore inconvenient facts. Fourth, rant a bit more about points so far removed from the topic they cannot be seen by the naked eye. Fifth, falsely portray yourself as the defender of average Americans. Last, claim victory while frothing at the mouth.
*** The D.C. Circuit’s decision makes the United States Court of Appeals for the Fourth Circuit’s conflicting same day King v. Burwell decision look like the demented ramblings of, well, E.J. Dionne.
Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.
’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.
The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.
His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.
He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.
Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.
‘Puter suggests the Czar suck it.