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More on Halbig v. Burwell and the Pretenses of Those In Power

Megan McArdle summarizes the evidence that Obamacare’s chief academic architect, the economist Jonathan Gruber, more than once explicitly defended the interpretation of the ACA adopted by the majority in Halbig v. Burwell.  (HT Bob Murphy)  A slice:

But though I do not fault his honesty, I also think that in January 2012, Gruber did believe that premium tax credits would only be available on state-created exchanges, and that this would give states a strong incentive to create exchanges.

We can draw two conclusions from this: First, the reading of the law by Halbig’s plaintiffs is clearly not ridiculous or dishonest; if it is a mistake, it is a mistake that one of the law’s chief architects could make. And second, we should be very skeptical of people who are now telling us, four years later, what the legislative intent was. Memory really is extraordinarily unreliable, and as we see here, it’s very easy to forget what you believed even a couple of years ago. This is one reason that courts ignore post-facto statements about intent and concentrate on the legal text and the legislative history.

Note also that Gruber – now expressing opposition to the Halbig ruling – describes both of his earlier statements as “mistakes”; here’s Gruber (emphasis added):

I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.

Apart from whatever implications such reality has, or should have, for the practice of judicial and administrative interpretation of statutory and constitutional texts, consider the implications of this confession of errors for the role of government.  If an MIT economist and members of Congress, along with the President of the United States (who is celebrated by many for being cerebral and who once taught law at the University of Chicago) make such simple mistakes in drafting and signing legislation (and later repeat the mistake when discussing the legislation), why should we trust such error-prone people with the sort of power that government today exercises?

Legislators are supposed to be specialists at drafting legislation; that’s what they do.  (I say “supposed” because, in fact, the real speciality of politicians is winning popularity contests called “elections” – a reality that only further strengthens the case I’m making here.)  Yet when it comes to the relatively simple task of getting the statutory wording correct – the straightforward and relatively easy task of wording the statute to read as its drafters intend it to read – we’re told “Omigosh!  Forgive us!  We goofed up!  The words we wrote down and approved are not the words we meant to write down and approve.  Pretend that didn’t happen.”

If you hire a driving instructor to teach your teenager to drive and then that driving instructor mistakenly presses on the accelerator, rather than on the brake, while driving down the road with your child in the car, you will surely no longer trust that person to teach your child to drive.  And you’ll not be comforted if and when the instructor explains, “Not to worry!  That was just a mistake.”  Also, if you discover that driving instructors generally are prone to such mistakes, you’ll likely undertake yourself to teach your child to drive.  You’ll trust no strangers with such power over your child.

The very claim that such a simple “mistake” infects the ACA calls into question the competence (or the incentives, or both) of elites, both political and intellectual, who seek ever more power for government.


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