Thoughts on Halbig, the ACA, and Suing the President

Had an interesting post bring up some thoughts over at Brad's blog. This is what got my train of thought rolling:

"I think what he [The President] did was react to criticism and complaints, and try to make the implementation less onerous and painful to those complaining, or likely to complain. To give the law a chance to start working, if only partially. Whether he had the authority to postpone implementation of parts of the law is something I don’t know enough to judge." -Brad

Complaints and criticism of a law do not convey authority to the executive branch to delay enforcement of existing law. I hope that's a fairly non-controversial statement. If you disagree with that proposition, then you'll be happy to know that in a Caskey Administration, I may choose to simply delay enforcement of the capital gains tax, or delay enforcement of the minimum wage laws. How does that sound? Not so great, right?

The executive (on multiple occasions) has unilaterally delayed the enforcement of the employer mandate. That's a fact. No part of the ACA allows this.

I think it's fairly obvious that he did it solely for political purposes, but I would certainly concede that to be my opinion. Nevertheless, the motive for delaying enforcement of the law is irrelevant for our purposes here.

Some more history: The Republicans do not like this law. They have never liked this law. Not one Republican voted for this law. In fact, the law had to be pushed through Congress using arcane rules to avoid a conference committee after the election of Scott Brown, on the platform of opposing the ACA.

Congress basically ignored the will of the people and did an end run around the normal procedures of legislation to produce this law. It's now the law, after surviving a constitutional challenge ending at SCOUTS, on a 5-4 decision.

So here we sit. The supporters of this law are now so dedicated to holding onto it, they are willing to chuck principles aside to keep it.

For instance, people are willing to simply let the executive pick and choose what parts of the law he wants to selectively enforce so as to not subject the public to the full force of the law as written - which would arouse the anger of the public, and be politically negative for Democrats. This is short term political gain, for long term bad precedent. It's bad precedent to allow the executive to selectively enforce any law. If you think selective enforcement of the law is OK, then you really haven't thought it through.

Additionally, the Halbig suit: The relevant statutory language says that only state exchanges get the subsidy. It's clear. That's what the text of the law says. However, if you do that, then the law essentially collapses, as a significant number of states didn't set up exchanges.

Obviously, the people who wrote the law never considered that states might simply refuse to set up exchanges. (To quote Rick Perry: "oops") The non-lawyer defenders of the ACA are now reduced to saying "Hey, man, it was a typo" while their lawyers are saying "Ummmm yeah....this text is ambiguous, so we need to rely on Chevron Deference to the IRS in it's rule-making authority here" (What the Fourth Circuit did.) To me, the first argument is laughable, and the second argument is weak to the point of being almost laughable.

Now, Brad may not have heard about this lawsuit, but people have been talking about it for a long time. Pretty much since the law was passed, and as Nancy Pelosi said "We learned what was in it". This isn't new.

Halbig only became a problem now that lots of states have refused to set up exchanges. But normally, issues like Halbig aren't a problem, because the executive just goes back to Congress and they pass a new law to make some changes. However, the executive doesn't want to do that, because that would mean negotiating with the Republicans, and that's apparently not on the table.

Accordingly, rather than openly acknowledge the problem and concede that the law needs additional legislation, you have the executive defending a tenuous legal position and hoping the Courts will hold their nose and bail him out, since he doesn't want to involve the legislative branch in the legislative process and involve the will of the people again.

Keep in mind, Halbig isn't a constitutional question. It's simple statutory construction. The Supreme Court has pretty consistently ruled that statutory construction pretty much starts and ends with WHAT DOES THE FOX TEXT SAY? We write down laws with words, with a commonly understood meaning for a reason, sports-fans.

It's the job of courts to read statutes as written. If they need fixing rather than reading, that's the job of Congress. I really don't think that SCOTUS is going to bail out the administration on this. I can bore you with some law on this, but just take my word for it that this isn't a controversial issue when you boil it down to the statutory construction. If SCOTUS grants cert, my guess is they'll uphold the statute as written and basically tell the government to go fix it on their own - using the legislative process. That's just my guess. Anything's possible. (By the way If you don't believe judges should be originalist/textualist, then I don't see how you can also want them to be life-tenured & unelected, but that's a whole 'nother debate.)

Now....why are the Republicans doing this? They want the law enforced as written to highlight how horrible it is and to highlight the bad precedent being set here. Ulysses S. Grant said: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."

That's basically the premise here. You want the ACA? Then take it. Take it good and hard.

Having said that, I think the Congressional suit against the President is stupid. Congress doesn't need to sue the President. Congress is the most powerful branch of government. They are just refusing to flex the muscle. It's called the power of the purse. (Stuff Madison Said, Vol. II)