Yale law professor Linda Greenhouse is a former New York Times Supreme Court correspondent and now writes a legal column for the Times. Today, she writes about Halbig v. Burwell. For my latest on Halbig and similar cases, see here. Now Greenhouse, who argues these cases are just about gutting the Patient Protection and Affordable Care Act:
To be clear, I’m not suggesting that there is anything wrong with turning to the courts to achieve what politics won’t deliver; we all know that litigation is politics by other means. (Think school desegregation. Think reproductive rights. Think, perhaps, same-sex marriage.) Nor is the creativity and determination of the Affordable Care Act’s opponents any great revelation — not after they came within a hairsbreadth of getting the law’s individual mandate thrown out on a constitutional theory that would have been laughed out of court not too many years ago.
Boy, are they ever determined.
I accept the compliment, with one proviso. The stakes in the Halbig cases are much bigger than the PPACA. The IRS is subjecting those plaintiffs to taxes from which, as Greenhouse implicitly admits, the operative language of the statute would exempt them. The plaintiffs have a right not to be taxed unless Congress expressly grants the IRS that power. A federal judge whom Greenhouse respects (Thomas Griffith) surveyed the IRS's rationales for subjecting tens of millions of Americans to those taxes, found those rationales to be meritless, and essentially ruled that the IRS is violating the law on a massive scale. If preventing the executive branch from exceeding its lawful powers is just "politics by other means," then so are the habeas corpus cases Greenhouse approvingly cites.
Unfortunately, when Greenhouse takes the government's side in Halbig, it seems to be on the basis that, "Of course there are ambiguities and inconsistencies in a 900-page bill that never went to a conference committee for a final stitching together of its many provisions." That probably is true, but it does not follow that the statute is ambiguous or inconsistent with regard to the question presented in Halbig. The government certainly has asserted such ambiguities and inconsistencies exist. Yet a closer look at the government's arguments shows that the specific provisions it cites are all quite consistent with the language authorizing subsidies only to those who buy coverage "through an Exchange established by the State."
Greenhouse also commits an error as well as her own inconsistency. She claims the phrase "through an Exchange established by the State" appears only once in the subsidy-eligibility rules. In fact, it appears explicity twice: one mention appeared in the first draft of those rules; Senate Democrats added the second just before final Senate passage (which all by itself suggests they knew exactly what they were doing). Moreover, that phrase appears seven more times by cross-reference. And the subsidy-eligibility rules do not use any other language -- at all -- to describe the Exchanges through which the law authorizes subsidies. All of which evince a clear meaning and purpose: to offer subsidies only in states that comply with Congress' desire that they should establish Exchanges.
Greenhouse's inconsistency occurs when she (incorrectly) claims, "the two [Halbig] judges trained a laser focus on a single section, indeed on a single word, in the massive statute...ignor[ing] the broader context, in which Congress clearly intended to make insurance affordable[.]" The habeas corpus cases with which Greenhouse apparently agrees also focused on a single phrase -- one could argue, a single word -- in the Constitution. Would she criticize those cases for failing to uphold the overarching purpose of the Constitution -- which appears right there in the preamble -- to "insure domestic Tranquillity" and "provide for the common defense"?
I wrote Greenhouse to thank her for her column, which was far more respectful and gracious than many Halbig critics have been. I thought it might be fruitful to offer to debate these cases with her. She respectfully declined, but noted there is a movement afoot to bring my coauthor Jonathan Adler to New Haven for that purpose. Watch this space for development.
Update: I neglected to mention, because I failed to notice, another error in Greenhouse's oped. She refers to the "failed Commerce Clause" attack on the PPACA brought under NFIB v. Sebelius. As constitutional-law aficionados and health-policy wonks know, the plaintiffs' claim that the individual mandate exceeded Congress' powers under the Commerce Clause succeeded (even if the overall attack on the individual mandate failed on account of Chief Justice John Roberts redefining the mandate penalty as a tax).