The involvement in Reboot of Reason.com’s editor is both telling and entirely appropriate. For all of Silicon Valley’s self-celebration and pretensions to progressive values, you can find most of the Big Ideas spouted by Silicon Valley’s 21st century geniuses in Reason’s musty, nearly half-century old archives, many of which are only available in print or microfiche via public libraries. Peter Thiel’s floating libertarian islands? The December 1972 “special issue” of Reason magazine proposed abandoning statist America for “new libertarian countries” built on floating ocean platforms. Travis Kalanick’s disrupted, deregulated taxi cab free-for-all? Half a decade before Kalanick was born, Reason’s February 1972 issue published “Taxis and Jitneys: The Case for Deregulation,” a proposal to disrupt taxi cab “monopolies” and licensing laws, published by a DARPA spinoff called General Research Corp (where former Reason editor Robert Poole also worked). Reed Hastings’ school reforms (i.e. privatization)? Reason published “The Case for School Vouchers” in April 1971. Elon Musk’s private space company? Reason devoted its April 1979 “special issue” to privatizing space. In fact, Reason’s Robert Poole and early contributor Mark Frazier are credited with organizing the first major space privatization conference in the mid-1970s.
It would be much simpler if the argument about Obamacare could simply be about what it’s actually about: some people believe the Patient Protection and Affordable Care Act is a good law. Others believe it’s a bad law and they would like to see it repealed.
The problem is that the people who believe it’s a bad law haven’t won the elections necessary to repeal it. So they’ve turned, in desperation, to the courts. But the Supreme Court doesn’t strike laws down for being bad. It strikes them down for being unconstitutional, or incomprehensible. And that’s forced Obamacare’s critics to make some very weird and very weak arguments.
The Halbig challenge has led to one of those arguments. There’s a version of this challenge that makes some sense. The argument is that Democrats, in their haste to pass the bill, worded a key sentence poorly. Congress’s intent is perfectly clear in the law but the Supreme Court’s five Republican appointees should rely on a “plain text” reading of the law as an excuse to gut the bill. (As is often the case in legal fights over politically polarized topics, opinions on the legal question are driven by opinions on the political question: I have yet to find anyone who believes the Supreme Court should rule for Halbig who doesn’t also believe Obamacare should be repealed.)
But Obamacare’s opponents don’t feel very good about making that case. It sounds too much like winning by cheating. And what are conservatives who previously condemned “legislating from the bench” to say if the Supreme Court’s five Republican appointees overrule Congress’s clear intent so they can take health-insurance subsidies away from millions of people?
And so a stronger version of the Halbig claim has emerged: that Congress really did intend to withhold subsidies from states that didn’t set up their own exchanges — they just didn’t tell anybody or ever debate it, no journalists or health wonks found out about it during the legislative process, and no one involved in the writing of the bill thought to mention it while Obamacare was being implemented. This is less a serious theory about Obamacare than an attempt to pull off a Jedi mind trick.
When you return home after leaving in the middle of the night, get some silver spray paint and paint the mug. Give it to the person you made it for and, if the person asks why it’s sticky, bang it repeatedly on the countertop till it shatters and say, “Never mind. It’s my fault for being so stupid that I thought you would like this.”
The Wall Street Reform and Consumer Protection Act (aka Dodd-Frank) turns about four years old this week, and looks likely to enter the history books as one of the most unloved major legislative actions of all time. Congressional Republicans are fanatically opposed to it, seeking every possible opportunity to repeal or undermine it. Wall Street banks despise it, and have massively shifted their campaign finance spending in favor of Republican candidates who promise to repeal or undermine it. Wall Street thinks repeal would let them take on more profitable leverage, and otherwise enhance the bottom line. At the same time, there is zero enthusiasm among liberals about the law, certainly nothing comparable to excitement over Obamacare. It’s become a nearly unquestioned dogma on the left that the Obama White House and the Tim Geithner Treasury Department that shepherded the law into existence are pawns of the big banks. But non-specialists should at least consider the possibility that this isn’t all just shadowboxing. Perhaps America’s largest financial institutions know a thing or two about financial regulation, and are fighting the law because it really is making a difference.
But the A&W anecdote was too good to check, and too good not to pass along. If it’s not true, it should be.
Read the whole thing for the actual story he is talking about.
Vox’s Ezra Klein mounted an argument that it’s very unlikely the Supreme Court will affirm Halbig, citing the pragmatic reality that taking away health insurance from millions of people who already have it could be a political disaster. This makes a ton of sense to me. But as a forecast it would carry more credibility if we were seeing it on Fox News or The Wall Street Journal editorial page. Justice Scalia has gone so far as to say he doesn’t read the New York Times or the Washington Post because they’re too liberal, so it’s not obvious that ideas circulating in the non-conservative press tell us much about the thinking of conservative judges. After all, John Boehner and Republican governors could be spending this week working to avert this potential political fiasco by amending the law or switching off the federal exchange. But they aren’t. So the idea that Halbig would be bad politics does not seem any more persuasive to most conservatives than the idea that it’s bad law or bad policy. All of which is to say that a decision by the Supreme Court to overturn Halbig would entail a substantial act of ideological apostasy by one or more justices. Apostasy isn’t impossible. Justices Roberts committed a major betrayal by voting to uphold the Affordable Care Act’s individual mandate, and Justices Kagan and Breyer committed one in the opposite direction (perhaps as part of a deal) to strike down some of its Medicaid clauses. But acts of apostasy are psychologically, socially, and professionally difficult. It would be a mistake to simply assume Roberts will commit another one. And it would be an even bigger mistake for liberals to draw excessively broad conclusions from their own media diet. On the right, Halbig is broadly considered good law and five of the nine Justices side with the right most of the time.