Brad DeLong buries the Lead in what is left of George Will’s Credibility
(Lifted from Robert’s Stochastic Thoughts)
by Robert Waldmann
Brad DeLong buries the Lead in what is left of George Will’s Credibility
A 16th paragraph (if I counted right) at the Washington Center for Equitable Growth blog is more prominent that a first paragraph here, but Brad has never been a stickler for restrictions on fair use, so I will steal his amazing catch. He notes George Will being sloppy then dishonest.
The paramount injury [from Roberts’s decision] is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies…. Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts cites a doctrine known as “Chevron deference.”… The doctrine is that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. As applied now by Roberts, Chevron deference obligates the court to ignore language that is not at all ambiguous but is inconvenient…
One problem is that George F. Will seems not to have read John Roberts’s opinion before writing. He decided to attack John Roberts for expanding the deference that the Supreme Court offers the President. But Chief Justice John Roberts says expressly that he is not – repeat NOT — deferring to the IRS in the manner of the Chevron case. He is not expanding the deference that the Supreme Court offers the President: he is, in fact, narrowing it:
We often apply the two-step framework announced in Chevron…. “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation” [to an agency.] This is one of those cases…. Whether… credits are available on Federal Exchanges is… central to this statutory scheme…. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy…. This is not a case for [deference to] the IRS. It is instead our task to determine the correct reading of Section 36B…
Because of Roberts, no future President with a different IRS can change the implementation so that tax credits flow only to state exchanges.
The honest thing for Will to have done — after he got around to reading Roberts’s opinion — would have been to pull an Emily-Litella-“never-mind” and pulled his piece.
Instead, he has tried to silently edit it — at least the version appearing in National Review Online:
Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts cites a doctrine known asinvents a corollary to “Chevron deference.”… It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. As applied now by Roberts, Chevron deference obligates the court to **While purporting to not apply Chevron, Roberts expands it to empower all of the executive branch to** ignore or rewrite congressional language that is not at all ambiguous but is inconvenient…
That settles it for me: George Will is a Moop.
Also a Mook. And dare I say a Poop.
All trying to invade. (My poor mental space that is).
“…Roberts cites a doctrine known asinvents a corollary to “Chevron deference.”…”
My ignorance of language is getting the better of me. Someone please interpret that phrase for me, especially the “asinvents a corollary”
While purporting to not apply Chevron, Roberts expands it to empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient? Hmm. Roberts must have gotten the idea to do that from Alito, who last year, in Sebelius v. Hobby Lobby, decided to expand the power of another of the three branches of the federal government—the judicial branch—to ignore or rewrite congressional language: In that case, the language at issue was the part of the Religious Freedom Restoration Act that now says that corporations are people who may have religious beliefs. That wasn’t actually in the Act until Alito, joined by four of his colleagues including Roberts, inserted it.
No, on second thought, I don’t think it was Alito who can be credited with originating the expansion of the power of the judicial branch to ignore or rewrite congressional language. Scalia has been very creative along those lines in rewriting the Federal Arbitration Act in opinions that predate Hobby Lobby—opinions that Alito and Roberts both joined.
And these folks—and earlier, William Rehnquist—have proved to be quite prolific rewrite editors (Get me rewrite!) of a slew of jurisdictional and other procedural statutes. Y’know, once they (dramatically, if casually) expanded their own power to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient to various Conservative Legal Movement goals.
These folks have been rolling up the sleeves of their black robes and been for quite a long time. Very, very busy. Guess George Will didn’t notice.
From Brad Delong’s post, (which your post seems to accept as well)
“A simple matter of black-letter law, no? The plain meaning of the phrase “such Exchange” means that anything legal that is true of a health-insurance exchange established by, say, the state of New York is also true of a health-insurance exchange established by the federal government for, say, the state of Florida if the state of Florida fails to establish its exchange, no?”
No. Neither of you have dealt with what I though was fair criticism by Justice Scalia. “Equating establishment “by the State” with establishment by the Federal Government makes nonsense of other parts of the Act. The Act requires States to ensure (on pain of losing Medicaid funding) that any “Exchange established by the State” uses a “secure electronic interface” to determine an individual’s eligibility for various benefits (including tax credits). 42 U. S. C. §1396w– 3(b)(1)(D). How could a State control the type of electronic interface used by a federal Exchange? The Act allows a State to control contracting decisions made by “an Exchange established by the State.” §18031(f)(3). Why would a State get to control the contracting decisions of a federal Exchange? The Act also provides “Assistance to States to establish American Health Benefit Exchanges” and directs the Secretary to renew this funding “if the State . . . is making progress . . . toward . . . establishing an Exchange.” §18031(a). Does a State that refuses to set up an Exchange still receive this funding, on the premise that Exchanges established by the Federal Government are really established by States? It is presumably in order to avoid these questions that the Court concludes that federal Exchanges count as state Exchanges only “for purposes of the tax credits.” Ante, at 13. (Contrivance, thy name is an opinion on the Affordable Care Act!)”
And neither does the “but Congress would never have intended such a scenario” narrative square with Jonathan Gruber’s now infamous presentation that explicitly references the mechanism now in dispute, stating “what’s important to remember politically about this, is if you’re a state and you don’t set up an exchange that means your citizens don’t get their tax credits.” That was in 2012, back before it was supposed to be some secret that nobody knew about. I don’t get why it is news that the Congress tried to use Medicaid to blackmail recalcitrant states into setting up their own exchanges.
I don’t see how it can even be claimed in good faith that, in DeLong’s language, ” three of the Republican justices were eager to become what the court was in Bush vs. Gore–an openly and unrestrained partisan institution.” Why is open and unrestrained partisanship required to strike down an ideologically polarizing piece of legislation, but wholly absent in the decision-making process of those who would rule to sustain said ideologically polarizing legislation.
You are good at quoting one sentence of a Gruber paragraph which has been bandied about without end. Lets look at the preceding paragraph in the same statement by Gruber:
Republicans are good at presenting half-truths and stories to distract from the whole story. As far as polarization, polarization started from day one of Pres. Obama’s presidency with the meeting of the Republicans and a decision being made to block every attempt by this president to go forward. The bill was not as polarizing as much as the Republican party attempts to block “any” legislation by this administration. Obama was silly enough to believe he could reason with them and wasted far too much time in doing so.
The rest of your statement I will look at later. I am enjoying a quiet Sunday for once.
Oh, dear. Why is open and unrestrained partisanship required to strike down an ideologically polarizing piece of legislation, but wholly absent in the decision-making process of those who would rule to sustain said ideologically polarizing legislation? Gosh, Joshua, might it not be that legislation is, well, legislation, which means it was enacted by the Congress, which is a legislature and therefore a political branch, and signed by the president, who also is an elected official? And that the judicial is, in theory, y’know, different?
I guess they don’t teach that at Federalist Society seminars. Instead, they teach that legitimate grounds for the Supreme Court to strike down ideologically polarizing legislation is that the legislation is ideologically polarizing.
Good to know. When Scalia keels over from excited delirium and President Sanders replaces him with Goodwin Liu or Jeffrey Fisher, liberals should remember to bring a lawsuit challenging the Bush tax cuts on the ground that they were ideologically polarizing.