Drudge Retort: The Other Side of the News
Wednesday, July 23, 2014

Simon Malloy: The D.C. Circuit Court's decision in Halbig v. Burwell came down yesterday, and in an anticipated but no less galling turn of events, a pair of Republican-appointed judges ruled that a single poorly worded snippet of the Affordable Care Act invalidates subsidies for people who purchased health coverage through the federal exchanges. ... I've been trying to figure out how to best characterize and/or mock the legal reasoning at play behind the Halbig decision, and I think it can be boiled down to one word: Moops. I'm referring, of course, to George Costanza's famous game of Trivial Pursuit against the Bubble Boy, in which Costanza tries to cheat his way out of losing by taking advantage of a misprint on the answer card: "Moops" instead of "Moors."

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"Supporters of the Affordable Care Act point out that, the sloppily written language notwithstanding, the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges.

These two judges, however, argued that a narrow reading of one out-of-context sliver of the bill trumps all, and ruled in favor of eviscerating the ACA and causing massive chaos in the insurance market.

It's the sort of thing that conservatives used to denounce as "judicial activism." (A separate ruling yesterday from the Fourth Circuit Court of Appeals upheld the legality of the subsidies.)

I've been trying to figure out how to best characterize and/or mock the legal reasoning at play behind the Halbig decision, and I think it can be boiled down to one word: Moops.

I'm referring, of course, to George Costanza's famous game of Trivial Pursuit against the Bubble Boy, in which Costanza tries to cheat his way out of losing by taking advantage of a misprint on the answer card: "Moops" instead of "Moors."

#1 | Posted by Corky at 2014-07-23 01:23 PM | Reply | Flag:

#1 | POSTED BY CORKY

Nothing was taken out of context. The statute is clear and unambiguous and it's written in multiple times (thus negating the lack of proof-reading argument).

They wrote it that way because they wanted to use availability of the subsidies to bludgeon the states into setting up their own exchanges. They assumed the law would become popular and certainly never predicted that 36 states wouldn't bend to their wishes. In short, a problem arose that they never anticipated. The courts give a lot of discretion to the executive when statutes are ambiguous. The problem for the government is this particular statute is plain.

'Judicial activism' is legislating from the bench, which is precisely what the government is asking the courts to do in order to bail them out. Fortunately for the government, judicial activism is rampant in this country and they probably have at worst a 50/50 chance of getting this overturned.

#2 | Posted by JeffJ at 2014-07-23 01:31 PM | Reply | Flag:

".... the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges."

That's called, "out of context".

Which is what the other two courts agreed is the case.

It's only these two Bush appointees that are playing politics with the law.

#3 | Posted by Corky at 2014-07-23 01:37 PM | Reply | Flag:

That's called, "out of context".

No.

There are multiple references to the state exchanges.

If all or almost all of the states had set up their own exchanges, this lawsuit never would have happened.

The law's architects never anticipated states not creating their own exchanges. In fact, the subsidies were an incentive for the states to do so. That they lacked foresight doesn't, all of a sudden, change the context.

#4 | Posted by JeffJ at 2014-07-23 05:22 PM | Reply | Flag:

Why would anyone try to disassemble something for the common good?

Them boys just ain't right.

#5 | Posted by fresno500 at 2014-07-23 07:38 PM | Reply | Flag:

Them boys just ain't right.

#5 | Posted by fresno500

Yuppers...We all knows the GOTP is touched in the head.

This just proves it.

#6 | Posted by donnerboy at 2014-07-23 08:39 PM | Reply | Flag: | Newsworthy 1

-this lawsuit never would have happened.

...if some rwing libertarian corportists hadn't brought it.

You are down 2 decisions to 1 (1 with 2 Bush appointees) with the 2 decisions agreeing that, "the sloppily written language notwithstanding, the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges", and a Dem majority appointed court coming up.

So don't count your chickens before you... BQ them... or something.

#7 | Posted by Corky at 2014-07-23 09:53 PM | Reply | Flag:

Cork,

I've already said that this has, at best, a 50/50 chance of success.

#8 | Posted by JeffJ at 2014-07-23 09:54 PM | Reply | Flag:

If "at best" means people dying because they lost insurance... how good is that, really?

#9 | Posted by Corky at 2014-07-23 10:01 PM | Reply | Flag: | Newsworthy 1

You are down 2 decisions to 1...

What two cases? There were two yesterday. What is the other one?

#10 | Posted by et_al at 2014-07-23 10:07 PM | Reply | Flag:

Cases about ObamaCare.

www.vox.com

#11 | Posted by Corky at 2014-07-23 10:10 PM | Reply | Flag:

Cases about ObamaCare.

There have been many cases about "ObamaCare." The two cases yesterday were about a specific aspect of the statute. I'm aware of two more on that issue pending in the district courts of OK and IN. What is the other one you are touting?

#12 | Posted by et_al at 2014-07-23 10:22 PM | Reply | Flag:

So does anyone think the people getting heath care for the first time will just accept if it is taken away? Most of the states that have US Gov exchanges are in red states that did not support the ACA seems that even the strongest supporter on the right will not be happy if they are told the guys with the R are going to take away their health care. It might be just enough for a lot of them to hold their nose and vote for the guy that will see it is not taken from them. The ACA is not the best but it seems all the energy put into having nothing could have been spent to make it work.

#13 | Posted by THomewood at 2014-07-24 02:28 AM | Reply | Flag:

"I've been trying to figure out how to best characterize and/or mock the legal reasoning..."

Because to characterize and mock is all liberals know how to do anymore.
They once were imaginative.

#14 | Posted by Diablo at 2014-07-24 04:18 AM | Reply | Flag:

www.dailykos.com

#15 | Posted by LarryMohr at 2014-07-24 09:25 AM | Reply | Flag:

Nonsense democrats don't care what the letter of the law says when they are in power.

The law clearly says subsidies must be on the state level.
Nothing in the law allows federal exchanges to give subsidies.

And the part 2 you is that employers will only pay a fine if 1 worker gets subsidies

so in states that have opted out no businesses will get fined so they don't have to have insurance.

Very funny democrats are so incompetent they cant even write a law.

#16 | Posted by tmaster at 2014-07-24 09:43 AM | Reply | Flag:

They said they had to pass the law to find out what was in it, and now they can't even understand what they just found out their wrote.

#17 | Posted by HeuristicGratis at 2014-07-24 10:17 AM | Reply | Flag:

The law clearly says.... that judges can consider both context and intent, which in this case is that, "the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges."

Context still being a 4-letter word to rwingers.

#18 | Posted by Corky at 2014-07-24 11:16 AM | Reply | Flag:

"the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges."

All mention of subsidies refer to state-run exchanges. All of them.

#19 | Posted by JeffJ at 2014-07-24 11:22 AM | Reply | Flag:

"In its own ruling upholding the legality of the subsidies, a three-judge panel in the Fourth Circuit said that the language detailing how those tax credits are awarded is "ambiguous and subject to multiple interpretations."

But the panel found that it is "clear that widely available tax credits are essential to fulfilling the Act's primary goals and that Congress was aware of their importance when drafting the bill."

www.cnbc.com

#20 | Posted by Corky at 2014-07-24 11:37 AM | Reply | Flag:

"ambiguous and subject to multiple interpretations."

Seems like that describes the language of the law as a whole. I interpret the ambiguous and subjective law to state I am free from any costs incurred by the legislation and due $1 million dollars in compensation for its drafting.

I await my check.

#21 | Posted by HeuristicGratis at 2014-07-24 11:50 AM | Reply | Flag:

Because to characterize and mock is all liberals know how to do anymore.
They once were imaginative.

Imaginative like turning everything into a 'liberals=bad because abortion' deflection?

#22 | Posted by jpw at 2014-07-24 03:02 PM | Reply | Flag:

All mention of subsidies refer to state-run exchanges. All of them.

Yes they do because each state has it's own unique exchange, some administered by the federal government and others managed by the states themselves. There is no monolithic or collective federal exchange, only 50 state exchanges.

But this isn't the only common sense reason that the jurists and those who continue to invent the fiction that withholding subsidies from federally-run state exchanges was the intent of Congress in the first place: Why haven't the Obama administration and the Democrats actually used the leverage the Court recognized to force states into setting up their own state-run exchanges by taking away subsidies from the non-complying state's citizens?

This notion was never debated and the idea never floated by anyone before the cases currently working through the legal system. ACA opponents should at least have the decency to admit that in order for something to actually be a threat, it has to be used that way and the language in the ACA has NEVER been viewed or theorized in that manner up until now.

#23 | Posted by tonyroma at 2014-07-24 04:38 PM | Reply | Flag: | Newsworthy 1

I thought it was the duty of the Federal courts to interpret the laws and not the duty of the congress, the president or the press. English can be a very precise language. It should be interpreted precisely without trying to figure out what the legislators meant to write but didn't.

#24 | Posted by Donald at 2014-07-24 10:01 PM | Reply | Flag:

#23 It was a leverage mechanism to force the states to create their own exchange, just like the Medicare threat that was levied by the Federal Government.

#25 | Posted by HeuristicGratis at 2014-07-25 07:32 AM | Reply | Flag:

You need new glasses, that card doesn't say "Moops". It says Moors.

Watch Obamacare Architect Jonathan Gruber Admit in 2012 That Subsidies Were Limited to State-Run Exchanges
Here you go:
reason.com

#26 | Posted by HeuristicGratis at 2014-07-25 12:15 PM | Reply | Flag:

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